"These eminent domain laws and reforms actually do very little to protect landowners."
by David Daniel
Below are some quotes, views, and insights from various articles concerning Perry’s declaration of SB 18 as an emergency item, thus putting the bill on the fast track that places it on the forefront(first 30 days) of the 140 day 82nd legislative session.
First, from the “Aransas Pass Progress.”
“One bill to watch is Senate Bill (SB) 18 which seeks to confront the issue of eminent domain. SB 18 would expand upon the protections the State of Texas has put into place for private property owners since the United States Supreme Court ruled in a 5-4 decision that “public use” included economic revitalization projects.
In 2005 the Texas Legislature defined “public use” to exclude any use in which confers a private benefit on behalf of a private party. SB 18 would seek to take the defense of private property a step further and establish that an entity with eminent domain authority must state with specificity the public use in which the entity intends to acquire the property, amongst various other new provisions.”
Second, from the “Post Register.”
The proposed legislation, in addition to accomplishing other tasks, will require the following:
- A public and record vote to initiate eminent domain proceedings;
- All entities with eminent domain authority to register with the State Comptroller by December 2012;
- Condemning entities to make a bona fide offer in writing and if not, to pay the property owner’s expenses and attorney’s fees;
- Impairment of access to the remaining property to be identified and taken into consideration when determining compensation; and
- Land to be sold back at the price it was condemned if it is not used with in 10 years.
Third, from Terri Hall and the Examiner.com.
“Ever since the Ft. Worth Star-Telegram Mike Norman expose’ of Rule 37 abuses by oil and gas companies hit the fan a week ago, is it any wonder that the Perry-inspired eminent domain bill, SB 18, being carried by senators Craig Estes and Robert Duncan is a handout to oil and gas firms and declared an “emergency”?”
“They know the tidal wave of opposition is coming and they had better change the eminent domain laws so that the oil and gas industry can continue its land-grabbing abuses of property rights.”
“SB 18 expands the number of entities who can take your land by changing much of the language to include any “entity,” not just governmental entities with eminent domain authority. In fact, it removes the word “governmental” in many sections of the code, thus making it possible for Cintra or any other private toll operator or private developer to take your land for commercial purposes.”
Now, here is my perspective, one from a landowner who had been threatened with eminent domain. These eminent domain laws and reforms actually do very little to protect landowners. Granted, they are better than nothing, but do not reflect the majority of landowners impacted by a project.
Below is an example of a statistic given by Terry Cunha, a spokesman for TransCanada, the foreign company who sent me a letter from their attorney dated 11-13-08 stating that their legal right to conduct surveys on my property, after they had already trespassed, arises from its power of eminent domain under Texas law and that they have not “YET” instituted eminent domain proceedings with respect to my property. It is important to note that this occurred months before they started negotiations and before they gave me the Texas Landowners Bill of Rights.
Cunha says “TransCanada has concluded successful agreements with 98 percent of the landowners along the proposed Keystone XL route through Montana, South Dakota, Nebraska, Kansas, Oklahoma and Texas.”
“That clearly demonstrates that we are working diligently and co-operatively with landowners across our pipeline route,” Cunha says.
“Our commitment is to treat all of these landowners with respect and come to the best possible solution when working with them … An eminent domain process is used at very last resort, and it’s never used in any discussion or used as a threat in any way.”
In addition to the letter from TransCanada‘s attorney, I had eventually received a final offer and with that final offer I had been told that if I do not take this offer I would be taken to court where my property would be condemned, I would start at zero, receive no additional clauses for erosion management and water testing, and that I would have court and attorney fees. These two examples contradict Cunha’s claim that eminent domain is “never used in any discussion or used as a threat in any way.” In addition, TransCanada still does not have the required Presidential Permit and the E.P.A. rejected the Environmental Impact Statement declaring it inadequate.
If I use TransCanada’s number of 98% successful agreements without the actual use of eminent domain then only 2% of landowners could possibly benefit from the eminent domain reform. The other 98% will be made up of landowners who can not afford the eminent domain process, felt threatened and intimidated, do not understand the process, or just could use a little extra money in exchange for an indefinite easement.
As Terri Hall pointed out “SB 18 expands the number of entities who can take your land by changing much of the language to include any “entity,” not just governmental entities with eminent domain authority. In fact, it removes the word “governmental” in many sections of the code, thus making it possible for Cintra or any other private toll operator or private developer to take your land for commercial purposes.” Therefore, by not limiting the description of entities, the abuse and intimidation will be compounded exponentially for the majority who have no recourse or protection since the majority make agreements prior to their land being condemned.
Also, according to the “Post Register” comments above, “Land to be sold back at the price it was condemned if it is not used with in 10 years.” However, the revised and proposed SB 18 actually states; “the owner or the owner’s heirs, successors, or assigns may be entitled to repurchase the property.” The old version stated; “are” entitled to repurchase the property. The above information is required to be disclosed. What is not required to be disclosed is the complicated process that depends on the entity notifying the landowner after ten years that the public use was cancelled and that the landowner is entitled to repurchase the property. Or, if a landowner has not heard from the entity after 10 years, the landowner can request information regarding the condemnation. No later than 180 days after a response from the entity, the landowner must notify the entity of intent to repurchase the property. Then, as soon as practicable, the entity shall offer to sell the property. The person’s right to repurchase the property expires on the 90th day after the date on which the entity makes the offer.
If the 2% has such a great deal going for them, as mentioned above, then what does the remaining 98% have going for them when the eminent domain laws/protection do not apply? If, as in my case, a landowner does not want to sell but feels that there is no other viable option due to an entities ultimate power of eminent domain and an overt imbalance of funds and legal representation, then, is it not a forced sale? This forced sale then gets categorized in the 98% as a successful agreement. Do these forced sales or otherwise successful agreements have the same recourse and entitlement to repurchase, etc? Even criminals have the right and option of a court appointed attorney to help them in the interest of fairness. Landowners, whose land is being taken(stolen) from them and whose lives are being put in harms way, do not have any viable option if they do not have the money and resources to fight it, protect themselves, or even make an informed decision.
I presented a petition to a representatives office that asked for the creation of a public policy that, at all relevant levels of the state government, would require any corporation to fully establish all permitting approvals from all relevant agencies, prior to claiming and exercising condemnation / eminent domain rights against landowners. I felt that this was not an unreasonable request but was told that a public policy like this would not pass.
In conclusion, it appears obvious that Perry’s reform would only slightly benefit a very small percentage of landowners and that the emergency SB 18 would open the flood gates for any entity to abuse the majority of landowners. I say Perry’s eminent domain bill would be a victory for “entities” and as Terri Hall said “a disaster for landowners.”
The proposed bill can be viewed at the link below:
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