Tuesday, June 09, 2009

Texas Legislature's eminent domain reform: "A half hearted effort "

Eminent Domain: State's efforts to improve private property rights are half-hearted at best



The Lufkin Daily News
Copyright 2009

Both Gov. Rick Perry and U.S. Sen. Kay Bailey Hutchison, Perry's anticipated rival in the 2010 Republican primary, have indicated that private property rights will likely be an issue during that campaign.

One of a most serious concerns facing property owners will be decided in November by voters — the right of government to use the power of eminent domain to take private property exclusively for the purpose of economic development.

The action stems from a ruling by the Supreme Court in 2005 that upheld the right of New Haven, Conn. to take private property from an individual for retail development by a private company.

Even if voters were to approve the constitutional amendment, which will prohibit government from taking private property exclusively for economic development, the group that represented the property owner in the Connecticut case, the Institute for Justice, said in an Associated Press story Monday that it would still allow government to take land for economic development.

While we certainly aren't an authority on law, constitutional or otherwise, we can see how inclusion of the word "exclusively" could allow private property to be used for economic development.

We're thinking now of Perry's plans for the Trans Texas Corridor, which would have appropriated a quarter-mile swath of right-of-way using the law of eminent domain. While some of the right-of-way would have been used for the "public good," plans were to use some of it for private enterprise — motels, restaurants and retail outlets.

Language that prohibited the taking of private property "exclusively" for the purpose of economic development wouldn't prohibit the state of Texas, or another entity, from taking enough private property necessary to build a school, a courthouse or a 16-lane toll road. It also wouldn't prohibit taking additional acreage so that there would be enough land "left over" for retail development. Say, for example, a day care center next to a school, or a restaurant next to the courthouse, or any number of retail establishments along the toll road.

Although farm and ranch groups are heartened by the fact that lawmakers have made some effort to improve the state's laws on eminent domain, they realize that it was, at most, a half-hearted effort, or as the spokesman for the Texas Farm Bureau characterized it in an AP story Monday, "less than half a loaf."

The farm bureau and other cattle industry groups are hoping that Perry will call a special session and revisit the issue. Perry hasn't said whether he'll call a special session, much less whether he'd be willing to bring up the issues Texas cattle raisers are most concerned about — offers that represent fair market value, compensation for diminished access to property and the right to repurchase land if after 10 years the land has remained unused. If Perry is still harboring hope for a revival of the TTC, which many opponents believe is the case, we'd think it unlikely.

HRJ18 just puts the subject of eminent domain for economic development on the table. It doesn't take it off.

© 2009 Lufkin Daily News: www.lufkindailynews.com

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