"More bad news for those of us seeking real eminent domain reform...these protections are largely meaningless."
Here’s some more bad news for those of us seeking real eminent domain reform, rather than style-over-substance feel-good legislation. Here’s the Dallas Morning News uncritically reporting on the eminent domain “reform” bill’s passage by the Texas Senate:
Legislation aimed at strengthening the rights of property owners in eminent domain cases in Texas won unanimous approval in the Senate on Wednesday.
The measure, which goes to the House, passed the Senate in similar form two years ago, but fell victim to an impasse in the House that killed scores of bills in the final days of the last legislative session.
Sen. Craig Estes, R-Wichita Falls, author of the proposal, said his aim is to “restore balance” in the eminent domain process where a government agency or other entity takes private property for a public purpose and compensates the landowner.
Despite previous changes in the law, Estes said the “deck of cards is still stacked against private property owners” because the eminent domain process “does not always properly recognize the true value of a private landowner’s interest.”
Among the various provisions in the bill is language that would allow the original landowner to repurchase his property if no progress toward public use of the land occurs within 10 years of when it is acquired by the governmental entity.
That’s some nice rhetoric. Unfortunately, these protections are largely meaningless. The bill allows takings for recreational facilities as defined under Section 49.462 of the Texas Water Code, for instance. So if the government is attempting to condemn your property to make way for a bike trail, good luck getting a court to grant you injunctive relief.
The bill also fails to reign in blight condemnations. Declaring a property or area blighted has been an urban renewal trick common throughout the country since the Supreme Court’s 1954 Berman v. Parker decision. In most states, including Texas, governments or their agents can declare entire areas blighted, even if your property is in phenomenal condition. Furthermore, government entities in Texas can condemn property under Chapter 374 of the Local Government Code if officials believe knocking down your house is somehow a means to “preventing an area susceptible to blight from becoming blighted.” A real reform bill would have addressed abuse of blight standards and prohibited area blight condemnations.
The bill also includes a provision that requires that the government offer to sell the condemned property back to the property owner at the price the owner was compensated at the time of condemnation if the property is not put to public use within 10 years. However, property owners often must spend a considerable amount on legal fees when fighting eminent domain condemnation.
This means that a significant portion of the compensation settlement often has to be used to repay attorneys and other expenses, and that many owners can’t simply repurchase their property at the settlement price. This provision could have more teeth in terms of offering property owners protection if government entities in Texas were forced compensate owners at no less than 125 percent of market value (as Michigan requires under Article 10, Section 2 of the state Constitution), and then allowed property owners to repurchase their condemned properties at straight (100 percent) market value as assessed at the time of condemnation.
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