Monday, May 11, 2009

Senate eminent domain amendment "allows creative governments plenty of room to declare economic development as a secondary reason to condemn land. "

Senate passes private property amendment


Associated Press
Copyright 2009

AUSTIN, Texas — State and local governments would face new limits to when they can take private property, under a proposed constitutional amendment passed Monday by the Texas Senate.

The amendment would ban taking property and giving it to a private group or developer "for the primary purpose of economic development or enhancement of tax revenues."

Supporters say the amendment would boost private property rights. But it also faces critics who say it could hamstring major public improvements, such as new airport development, and from some private property advocates who say it doesn't go far enough to protect landowners.

The amendment passed the Senate on a unanimous vote and now goes to the House, which is considering a separate amendment. If approved there, it would go before Texas voters in November.

In 2005, the U.S. Supreme Court ruled in Kelo et al v. City of New London that cities can seize homes under eminent domain for use by private developers. Texas lawmakers in 2005 passed a law to protect taking private land for economic development or private purposes, but critics have said it left too many loopholes.

Gov. Rick Perry and U.S. Sen. Kay Bailey Hutchison have both weighed in on eminent domain, signaling the likelihood that it will be a campaign issue in their 2010 Republican primary.

Hutchison has said state government is ignoring private property rights in a quest to cover the state with toll roads. Perry, who vetoed an eminent domain bill in 2007, has said he wants a state constitutional amendment to protect land owners from abuses.

Sen. Robert Duncan, R-Lubbock, sponsor of the amendment, said the Kelo case created a "major uproar in this country over the inappropriate use of eminent domain."

Duncan said his plan would give private property owners protections while still allowing governments to pursue major projects such as sports stadiums and airports.

"The intent here is to very clearly put a check and balance on government entities," Duncan said.

The Institute for Justice, which represented the property owner in the Kelo case before Supreme Court, called the amendment "dangerous" and said it would still allow governments to take land for economic development. The group says eminent domain should only be used for public use projects such as a new courthouse or library, and supports the House version of the amendment which it says has stronger protections for property owners.

The two sides disagree on how to interpret the word "primary" in the amendment.

Property rights groups say it allows creative governments plenty of room to declare economic development as a secondary reason to condemn land.

Sen. Wendy Davis, D-Fort Worth, argued the amendment was too strong and predicted it would hamstring governments pursuing major public projects that may include contracts with private companies.

For example, an airport expansion would need large tracts of land but be prevented from leasing to hotels, restaurants and parking services which would serve the public airport and boost the local tax base, Davis said.

Duncan disagreed, saying the amendment would not likely block such contracts.

Property rights groups also said it wouldn't stop cities from taking property in run-down neighborhoods. Duncan said his bill will place some limits, but cities should still be allowed to use eminent domain to clean up some blighted areas.

© 2009 Associated Press:

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