Thursday, February 17, 2011

Texas SB 11 & eminent domain reform: "They're basically paying lip service to the property rights arguments."

Texas property owners unprotected


Chris Woodward
Copyright 2011

TexasA transportation policy analyst says a measure in Texas that is designed to provide real eminent domain reform may fail to do the job.

S.B. 18, which has already been approved by the Texas State Senate, prohibits a government agency or private entity from taking property through eminent domain "if the taking is not for a public use." The measure also requires that property owners receive a bona fide offer, along with a buy-back option if an intended project is not started within ten years.

But despite what it may say on paper, Marc Scribner, who tracks land-use policy for the Competitive Enterprise Institute (CEI), says the measure does little to protect property owners.

"They're basically paying lip service to the property rights arguments," he contends. "Now, they're saying you can only use this for public use. That's been well-established by the courts. You can't come out and say, 'We're taking this to give this to a private developer.' You've always had to couch in that language that this is in some way in the public purpose."

Scribner adds that the Senate has failed to amend the blight guidelines, including the determination of what classifies as blight.

"As it stands, they were left unamended by this law," he notes. "Governments can still condemn entire areas as blighted, even when you'll have properties within the area that aren't blighted."
The bill has been approved by the Texas Senate and is now headed for the state House.

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"This bill will ensure that it can never be built in the future.”

Legislators file bills to end talk of TTC


The Sealy News
Copyright 2011

References to the Trans-Texas Corridor, the highly debated superhighway that was once planned to cut through Austin County, could soon be completely erased from state law.

State Representative Lois Kolkhorst, R-Brenham, and State Senator Glenn Hegar, R-Katy, have jointly filed legislation that would bring a formal and final close to the Trans-Texas Corridor (TTC), removing all remaining references to it from state law.

Each filed identical bills in the House and Senate, respectively. The lawmakers said the legislation is necessary because although the financial tools to build the TTC have already been removed, the underlying legal code, which enables the building of the superhighway at a later date, has not.

“There are still over a hundred references to the Trans-Texas Corridor still found in our state’s law books,” Kolkhorst said. “The idea of building the Trans-Texas Corridor may be dead today, but removing the code ensures that it stays dead.

Original TTC plans called for construction south of Interstate Highway 10, through Sealy, Frydek and Wallis, which would have gobbled up 146 acres per mile due to the proposed 1,200-foot wide roads.

However, the state agency previously announced that it would only use existing roadways and any impact to Austin County and the surrounding area vanished. The Trans-Texas Corridor name was being dropped, however, the concept and legal authority to build the superhighway were still in law.

At the time, Kolkhorst said she was cautiously optimistic about the change, but stressed Texans needed to be careful on the big issue to ensure TxDOT “isn’t just going to re-package the Trans-Texas Corridor under a different name.”

The lawmakers have been working closely with the Texas Farm Bureau, which has listed the bill as one of their top legislative priorities.

Hegar, who chairs the Sunset Advisory Commission, and his fellow commissioners have dealt extensively with statewide transportation issues through their review of the Texas Department of Transportation.

“It is important to remove all remaining mention of the Trans-Texas Corridor from our state’s transportation and tax codes,” Hegar said. “Although the victory of putting a stop of the TTC has already been accomplished, this bill will ensure that it can never be built in the future.”

© The Sealy News:

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Wednesday, February 16, 2011

Senate Bill 18 is not 'bona fide' eminent domain reform

Too Imminent

Eminent domain reform is on the legislative fast track, but activists aren’t cheering.


Jeff Prince
Fort Worth Weekly
Copyright 2011

The Legislature’s latest attempt at passing an eminent domain reform bill looks like it might actually make it to the finish line and end up on Gov. Rick Perry’s desk for his signature. For six years the topic has been examined, poked, and prodded by lawmakers, property owners, and myriad special-interest groups led by the oil and gas industry. Similar bills have died before being passed into law. Perry vetoed eminent domain legislation in 2007 while he was pushing to establish the privately owned Trans-Texas Corridor tollway.

This session looks different. Senate Bill 18, whose chief sponsor is Sen. Craig Estes of Wichita Falls, has been given the royal blessing by Perry, who dubbed the bill an “emergency issue” and encouraged lawmakers to get ’er done.

The Texas Senate approved the bill unanimously last week. The Texas House is now considering it. Meanwhile, the mainstream news media is characterizing the bill as a boon for property owners. A Fort Worth Star-Telegram headline proclaimed: “Fast-tracked Texas bill would empower homeowners against eminent domain.”

“Texas Senate passes bill to extend property rights,” said a Houston Chronicle headline.

Folks such as local rancher Billy Mitchell ought to be thrilled, right? In recent years, government agencies and private companies have used eminent domain powers to force North Texas property owners like Mitchell to sell their land for what amounts to private development — natural gas pipelines, gas rigs, privately owned toll roads, Trinity River Vision-type projects, or just the expansion of a shopping mall.

Activists have been hoping that legislation would be passed this year to add protections for property owners. The issue draws a broad spectrum of support, and activists thought new legislation might be doable even in a Republican-dominated legislature.

But Mitchell isn’t thrilled. He’s mad.

“The bill is totally useless,” he said. “It’s doing what the creator designed it to do — make the voters think he’s doing something. Estes is just trying to get brownie points.”

Other grassroots organizers are echoing that sentiment.

Texas has been massaging its eminent domain laws ever since 2005. That’s when a U.S. Supreme Court ruling in Kelo vs. City of New London opened the doors for municipalities seeking to use eminent domain to seize property for what are essentially private projects. The court ruled that seizing property for private development could be considered as “public use” if the economic growth and tax boosts from the new development were expected to benefit the community.

Texas lawmakers say the new bill would make it more difficult for a government entity or private company to seize property “if the taking is not for a public use.” But therein lies the rub: In the bill, as in the current law, words like “public use” and “bona fide” are left undefined. The proposed law, just like current law, requires making a “bona fide” financial offer to a property owner during the eminent domain process, without setting criteria for what constitutes such an offer.

Mitchell found out the hard way about the vagueness of the current law’s language — and the expensive nature of interpreting it in court. He spent about $100,000 on legal fees while trying to prevent a pipeline company from using eminent domain to grab his ranch property for natural gas pipelines.

“The oil and gas companies can run up your attorney fees by taking you to court to decipher what words like ‘bona fide’ mean,” he said. “Another one is ‘public use.’ The pipeline companies say they serve the public. But McDonald’s serves the public.”

The proposed legislation would still allow a private, for-profit company to use eminent domain laws to take his ranchland against his will, he said.

“All I wanted was a jury trial and a day in court,” he said. “The lawyers ran up bills with depositions — they kept me all day long knowing I’m paying my attorney $300 an hour. They asked me what elementary school I went to and what the physical address of my elementary school was — I’m 53 years old! The deposition was two inches thick.”

During the long fight, oil and gas employees entered his property on several occasions and left his gate open, allowing his cows to escape, Mitchell said.

Many months later, Mitchell still hadn’t received a court date. “Then my attorney said if I wanted my day in court, I’d probably spend another $100,000,” he said. “I never did get my day in court.”

Fort Worth resident Steve Doeung got his day in a Tarrant County court while fighting against the eminent domain seizure of his Carter Avenue residential property. Chesapeake Energy wanted to bury pipelines across residents’ front yards to transport gas from a nearby drill site. Doeung resisted and represented himself in court, squared off against Chesapeake’s team of lawyers, and did an admirable job of standing up to the experienced attorneys. But he prevailed only after Fort Worth City Council member Kathleen Hicks, State Sen. Wendy Davis, and others helped broker a deal to bury the pipeline alongside I-30 — the first time a gas-gathering pipeline has been allowed in a Texas Department of Transportation right-of-way.

Doeung became a lay expert on eminent domain during his fight, and he characterizes the
new bill as weak and mostly just political posturing.

“When I read it, I didn’t really see why they are doing this,” he said. “It doesn’t benefit us, it only reinforces the takings by private corporations. The bill starts out sounding good, but then it gives all these exceptions that take the meat out of it.”

For instance, an exception is made when a property is deemed as “blighted.” Determining whether a property is blighted can open a mass of legal loopholes.

“The list of exceptions goes on and on,” said Terri Hall, founder of the San Antonio-based grassroots Texans Uniting for Reform and Freedom (TURF). “The language is so broad you can drive a Mack truck through it.”

Exceptions usually mean one thing: See you in court. “Whoever has the most high-priced lawyers will prevail, and you can bet it’s not the landowners,” Hall said.

The fact that the oil and gas industry lauds the bill speaks volumes, critics say.

“No wonder the pipeline association is so happy — [the bill] puts an exclamation point on the rights they already have,” Doeung said, referring to the Texas Pipeline Association, which supports the bill.

Pipeline companies have fought protracted legal battles with ruthless fervor when seeking property. So why would they support legislation allegedly designed to strengthen property rights?

“It’s an important bill for the landowner,” said the association’s director of governmental affairs, Thury Cannon. “There are really not any benefits for pipelines in that bill.”

He said the legislation gives landowners more protection and lengthens the process of eminent domain seizures. The association supports the bill because “it’s good business for every business to be a good neighbor,” he said.

Doeung, Mitchell, and others who have battled pipeline companies scoff heartily at the idea of pipeline operators appreciating a more level playing field for landowners.

Texas House members could amend the bill, but the pipeline association doesn’t want to see that.

“We hope the bill can go unamended through the process,” Cannon said. “The bill is a very delicate compromise between all interested parties, and it’s been so for a long time. We hope that all interested parties can stick to the agreement that is currently in Senate Bill 18.”

Melissa Cubria is an interested party, but she’s seeking amendments. Cubria, an advocate with the Texas Public Interest Research Group, said the bill doesn’t protect landowners.

“It’s a special-interest giveaway they cloaked in the guise of eminent domain reform,” she said. “They are actually representing the interests of oil and gas entities, private toll road investors, and developers. I’ve spoken to landowners, and they are furious.”

The current proposal is a watered-down version of the 2007 bill that Perry vetoed, which is the only reason he is trying to push it through so quickly now, Hall said.

“It won’t stop anything that’s he got on his agenda, such as privatizing a bunch of Texas highways,” she said. “They can still take your land in the name of public use and hand it over to a private entity for private gain. That’s why he’s willing to sign it.”

Other supporters include the Texas Farm Bureau, which opposed Perry in early legislative discussions on eminent domain. But that organization got what it wanted — compensation for diminished access after eminent domain is used to take property.

Activists such as Hall want more.

“What we’re about is protecting private property rights, not how do we get compensated fairly once a government entity has targeted your land for condemnation,” she said. “We’re trying to prevent wrongful taking in the first place.”

Bill Peacock, vice president of research at the nonprofit, nonpartisan Texas Public Policy Foundation, isn’t quite so dire in his description of the bill. But he too says the legislation needs amending to provide more protection for landowners and predicts that even with changes it will fall short of an ideal bill.

“I think it will pass the House as a better bill than what came out of the Senate,” he said. “If it passes with some improvements, I think we’d be about 60 to 70 percent of where we need to be in property rights protection.”

Estes, the Senate bill’s chief sponsor, is pleased that stakeholder groups as diverse as farmers, developers, ranchers, and oil and gas drillers are supporting the bill. He wants it to pass the House without changes.

“This is a giant step forward,” he said. “People from all sides of this issue have said, let’s get this passed and under our belt, and we’ll see where it goes from there.”

Critics say that “giant step forward” would actually be a step backward, passing weaker legislation than Perry vetoed four years ago.

“Make Perry sign that one,” Hall said.

© Fort Worth Weekly:

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"Republicans who want results instead of rhetoric realize they could do a lot better than Rick Perry. "

Gov. Rick Perry's actions don't always match his rhetoric


By Linda Campbell
Fort Worth Star-telegram
Copyright 2011

Texas Gov. Rick Perry might run for president.

What a terrifying thought.

He says no, no, no, but his actions -- such as trekking to both coasts for national face time -- speak louder than words.

I have my own reasons for dreading the image of Perry trading his fancy $10,000-a-month-at-taxpayers'-expense digs in Austin for a move into the taxpayer-funded White House.

But I'd expect Republicans to worry, too, and for a whole different set of reasons.

Even though Perry apparently played fabulously at the Conservative Political Action Conference over the weekend, real conservatives shouldn't be fooled by the aw-shucks sidling up to his good buddies Jimmy Don Madison and the founding boys.

Americans, Perry is fond of saying, are fed up and want government to be "leaner, more efficient, less intrusive into their personal lives." That's not a bad message at all. Lots of folks feel that way about state and local government, not just the feds he usually is referring to.

But, again, actions speak louder than words.

For instance, during Perry's decade as governor, with Republicans controlling both chambers of the Legislature the last eight years, Texas' budget has grown from $114.1 billion for the 2002-03 biennium to $182 billion for 2010-11.

He has championed some mighty expensive projects, most prominently the Texas Enterprise Fund, which since 2003 has allocated $426 million to companies that include the likes of Raytheon, Tyson Foods, JPMorganChase, Lockheed Martin, Facebook and Nationwide Insurance. His Emerging Technology Fund has made more than $340 million in grants.

And, oh yes, The Dallas Morning News reported in October that more than $16 million from the Emerging Technology Fund went to companies with officers or investors who gave Perry thousands in campaign funds.

There's a debate to be had over whether those funds are needed to attract business to Texas. But you can't with a straight face call it small government or a traditionally essential government function.

But how about that business of getting government out of private lives?

In 2007, Perry decreed that all sixth-grade girls had to get vaccinated with an expensive new Merck & Co. drug designed to prevent cervical cancer. Besides the fact that Perry intruded into people's intimate concerns, usurped parental authority and bypassed the Legislature, some folks found mighty suspicious the timing of his decision and a campaign contribution from Merck. He backed down when the lawmakers overturned his order.

Perry also talks big on getting government off your property. But it was his pet Trans-Texas Corridor that stirred some of the most vehement protests ever against overbearing government.

The $184 billion system of toll roads and rail lines, intended to provide better, faster ways of traversing the state, would have gobbled up vast acres of farms and ranches through eminent domain. It didn't help popularity that a foreign-owned company was involved in developing the first planned tollway -- before the whole thing died, that is.

Now Perry's favorite shtick is blaming Washington, D.C., for all life's woes.

He told the CPAC crowd it was "awesome" that voters threw out the bums who supported the "so-called stimulus programs."

As though he didn't quietly pocket about $14 billion from the "so-called stimulus" so Texas could close a big budget gap in 2009 and keep intact the precious rainy-day fund, which is expected to contain $9.4 billion in 2013. Trouble with that was it diverted about $3.8 billion in federal tax dollars intended for schools to other uses.

That sleight of hand so irked U.S. Rep. Lloyd Doggett of Austin that he got Congress to put special strings on Texas' $830 million share of funds dedicated to teachers' jobs. Doggett wants Perry to guarantee the funds will "supplement not supplant" state education spending. Texas has responded by suing.

Must not be one of those frivolous suits Perry wants to abolish.

Surely Republicans who want results instead of rhetoric realize they could do a lot better than Rick Perry.

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