Wednesday, October 07, 2009

"The eminent-domain project that has ignited statewide protest like no other is Gov. Rick Perry’s Trans-Texas Corridor."

Texans can restrain use of eminent domain

Related article: No Guarantees November Ballot Measure Will Prevent Kelo-style Takings



Fort Worth Star-Telegram
Copyright 2009

Few issues have roused Texans’ ire in recent years so much as government’s use of — or threat to use — eminent domain to take property for public or not-so-public use.

Tarrant County residents have been somewhat ahead of the rest of the state. Beginning in 1995, Hurst drew public scorn for forcing longtime residents to leave their homes near North East Mall so that the mall could expand.

Arlington has taken private property to build Rangers Ballpark and more recently wiped out neighborhoods for Cowboys Stadium. Fort Worth took private land to build Texas Motor Speedway.

But the eminent-domain project that has ignited statewide protest like no other is Gov. Rick Perry’s 2002 proposal to build the Trans-Texas Corridor. In fact, public revolt against the idea of the state taking hundreds of thousands of acres of farm and ranch land and replacing it with a huge foreign-owned tollway has now killed the Trans-Texas Corridor altogether.

No matter that any public entity that wants to take property by eminent domain must prove that it has the right to do so and that it has offered fair compensation to the property’s owner. No matter even if there is a compelling public interest in whatever it is that is to go on that property, a park or a street or anything else that will be owned and used by the public.

Texans have grown to hate eminent domain.

Small wonder, then, if Proposition 11 on the Nov. 3 ballot passes overwhelmingly. Proposition 11 would add wording to the Texas Constitution to severely restrict use of eminent domain.

Chiefly, public entities such as cities, counties and the state could no longer use their power of eminent domain to take private property for someone else’s private use, as Hurst did with the land near North East Mall. Eminent domain could no longer be used as a tool for economic development.

That change was spurred by a 2005 U.S. Supreme Court case, Kelo v. City of New London (Connecticut), in which the court said eminent domain for economic development was OK. As was true in many other states, Texas lawmakers immediately passed a new law to say, "Not in our case, it’s not."

In part, Proposition 11 enshrines the provisions of that 2005 law in the state constitution. And in fact, the Texas Constitution could use some help in this area.

The constitution currently says simply that private property can’t be "taken, damaged or destroyed for or applied to public use without adequate compensation being made." It doesn’t define public use, and that’s a problem.

In Hurst’s case, tax revenue from the expanded mall appears to have qualified as a public use, as did the economic spinoff from Rangers Ballpark and Cowboys Stadium and Texas Motor Speedway in their respective cities.

Proposition 11 would require that any condemned property be held and used by a public entity for a legitimate public purpose.

It also would restrict cities’ ability to take and improve blighted property. Cities now can declare entire neighborhoods to be areas of blight; Proposition 11 would require that blight be proven on each individual property.

Finally, Proposition 11 would restrict the Legislature’s ability to award the power of eminent domain to any new entities. Doing so would require a two-thirds vote of each house, which is hard to accomplish.

There is no denying that Texans of late have been in a mood to restrict the use of eminent domain. With Proposition 11, that’s exactly what they would get.

The Star-Telegram Editorial Board recommends voting for Proposition 11.

© 2009 Fort Worth Star-Telegram:

Related article: No Guarantees November Ballot Measure Will Prevent Kelo-style Takings

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