While serving as mayor of DISH, many of my citizens had to
deal with natural gas pipeline companies, and the threat of eminent
domain. Maybe I was naïve, but it was
shocking for me to realize that private, for profit companies could acquire land
through eminent domain, especially in a state like Texas that is supposed to support
private property rights. It seemed
un-American to me to see private property transferred from one private entity
to another to merely benefit shareholders, not the public in general. It also answered the question as to why there
were so many pipelines in the area. Each
company put in a pipeline in speculating that it would be needed someday, using
the threat of eminent domain to secure the easement. These lines were not truly a public need, and
most of them are not at capacity, so why would they steal private property from
hardworking, taxpaying Texans? Because
the state of Texas said they could, and there is not much that a common person
can do about it.
There is a case where a Texas farmer is fighting
Trans-Canada and the southern leg of the Keystone XL, and the world has
supported her, check out http://www.standtallwithjulia.com/.
In Texas “common carrier” pipeline companies have the power
of eminent domain as per Chapter 111 of the Texas Natural Resource Code. A common carrier must provide services to the
public for hire. So in laymen’s terms
they must make their services available to the general public, and not just
transport the product (oil, natural gas, etc.) for themselves. However, there is no checks and balances to
ensure that these companies are actually doing that. All they have to do is to check a box on a
T-4 form, which is the application to operate a pipeline in Texas. The only way to challenge the common carrier
status is through the court system, which is way too expensive for the average
Texan. Once the company takes your land
through eminent domain, they do not have to inform you of what is being
transported through your property, and you may be held liable if there is a
leak (read the fine print). So much for
Texas being a private property rights state.
The Texas legislate had an opportunity to correct this problem last
legislative session, but they failed to take any action.
Many of the Texas politicians, such as current Commissioner
of the Texas Railroad Commission and candidate for Texas Attorney General Barry
Smitherman, believes that as long as you are paid a “fair price”, then it is
acceptable for a private company to steal your property. Unfortunately, most Texas politicians agree
with Commissioner Smitherman. Under that
theory, you can own and peacefully enjoy property in Texas, as long as someone
with more money doesn’t want it. It does
not matter if you have made good decisions, paid your property off early, have
a plan to develop the property into something meaningful with the land, it
doesn’t even matter if it has been in your family for generations, if they
want, then they will get it.
Once I began doing research, it seemed like everyone that
could afford a lobbyist, had managed to get the power of eminent domain. If they couldn’t get it outright, then a government
entity would take the land through eminent domain and then just give it the
private entity that wanted it. There are
several examples of this here in Texas and you don’t have to leave the Dallas –
Fort Worth area to find it. Several
years ago Hurst, TX took 127 homes to expand a shopping mall, and Arlington, TX
just used the power a few years ago for Cowboys Stadium. Not that I am not a Cowboy’s fan, but I can’t
condone Jerry Jones stealing a senior citizen’s property to make his profits,
that is un-American and un-constitutional, or is it?
In 2005, there was a monumental ruling by the United States
Supreme Court that stated that economic development was a legitimate public
use; the case was Kelo vs. the City of New London, CT. Ms. Kelo’s property was being taken in
support of a Pfizer research facility.
There is a book called Little Pink House that tells the story of
this monumental case. Unfortunately,
after spending hundreds of millions of tax payer dollars on the project, Pfizer
pulled out and now the land where the little pink house once stood is a vacant
lot, most recently used as a dump for debris from hurricane Sandy. So what our Supreme Court basically said, was
that no matter how good a citizen you are, no matter what good decisions you
have made in your life, you can own peacefully enjoy property in America, as
long as someone with more money doesn’t want it. Hopefully, you are seeing the trend by
now.
There was significant backlash on the Supreme Court Justices
for this decision. One of the justices
had an attempt to take their childhood home through eminent domain, and there
was congressional hearings on the subject.
There was so much backlash, that it is doubtful that the Supreme Court
will ever take on an eminent domain case again.
Although, I am not a constitutional scholar, it is my understanding,
that the constitution was drafted to prevent blatant abuses of our personal
rights such as this, but currently the document is only used when it is
convenient, and certainly does not seem apply to us peasants.
Neither the US Constitution nor the Texas Constitution gives
the power of eminent domain to specific entities, but rather infer that this
power can be used only for public use.
However, the definition of public use has been perverted by the state
legislature and the courts, to mean whatever their donors say is a public use. Most people do not like the idea of having
the land that they worked hard for taken for any purpose, but most people are
understanding when it is for a true public use, and there is not better options
available. However, when their land is
taken for a shopping mall, pipeline, or football stadium that benefits private
entities, most do not agree that this is a public use.
Since the Kelo vs. New London, CT decision, most states have
taken some sort of action, however; only a few states did anything meaningful. Texas had a dog and pony show that resulted
in a constitutional amendment. This
amendment, did inhibit the ability of government to take property and transfer
to private entities in most cases, but did nothing to deter the many private
entities that have the power of eminent domain in Texas from abusing it.
Texas has done away with some provisions for using eminent
domain, and it is in the Texas Constitution that this power is not to be used,
except to remove “urban blight”.
Unfortunately, that one statement undoes everything else in the
document. Susette Kelo’s house was taken
under the premise that it was “blighted”.
So you may think that “blighted” is some horrible eyesore, which
everyone would agree needs to be demolished.
However, the definition of blighted is: “something
that impairs growth, withers hopes and ambitions, or impedes progress and
prosperity”.
So I hate to break it to you, but everyone’s property is “blighted” to
someone. And if you think a good eminent
domain lawyer couldn’t make an argument that your property is “blighted”, then
frankly you are a fool.
The Castle Coalition www.castlecoalition.org,
was the group that helped defend Sussette Kelo, and they have ranked each state
by property rights, and Texas is a disappointing 27th. It is amazing that a state that touts itself
as a “private property rights” state ranks in the lower half of all
states. Florida ranks number one in this
ranking. Florida requires the condemning authority to pay the legal fees of the
person having their land condemned. They
also do not allow property to be taken for being “blighted”.
So why not follow the lead of the states that protect
private property rights? That real
solution is that we need to demand that there be meaningful eminent domain
reform in Texas. I have put together a
list of ordinances and resolutions that a municipality can adopt at the local
level. These range from resolutions that
simply declare that a municipal government does not agree with the taking of
private property for economic development, to an ordinance that prevents the
municipal government from taking property and turning it over to a private
entity for economic development. If you
have municipal government that truly supports the protection of private
property, this language could be put into the city charter, to let everyone
know that they can move to this community and know that their property rights
will be protected. Links to these
documents are below:
At the state level, there needs to be real, meaningful
eminent domain reform. Not the eyewash
and dog and pony show that we see every legislative session. If you ask any Texas politician if they support
private property rights, they will tell you “yes”. Every one of them will point to some
meaningless legislation that they supported to protect private property
rights. Unfortunately, most of them are
either too dumb to know what real private property protections are, or they
think that you are. Every legislative
session the Texas Legislature makes a public statement that protecting private
property rights is their highest priority, then they pass legislation that
erodes private property. Again, they are
either too dumb to know what property rights protections are, or they think you
are.
The solution at the state level is to follow the lead of
states that truly support private property rights. There is no reason why Texans should accept being
in the bottom half of property rights protection in the US. We need to demand reform, and there should be
no state that has stronger property rights protections than Texas. We need adopt the Florida statute at a
minimum, and require condemning authorities to pay legal fees. I know people who spent so much money on attorneys
that they did not get any meaningful benefit of trying to fight eminent domain. Therefore we need to give some balance of
power to the property owners. If we are going
to ignore the constitution, at least give someone the opportunity to have a
fair fight. Also, if the condemning
authority had to pay legal fees, they would not want a protracted court battle. Therefore, they would no longer treat
property owners like criminals on their own land, but rather would be forced to
truly negotiate. They are currently supposed
to participate in fair negotiations, but there is no such thing when an entity
has the power of eminent domain to hold over your head. However, this change would certainly motivate
the condemning authority to negotiate.
Below is a link to the Florida Statute that deals with
eminent domain:
You can contact me anytime for more information.
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