On Tuesday March 31st, the Wizard traveled with some of his friends to the magical fantasy land of Oz the State Capital to pay a visit to see some of our esteemed State legislators. But the Wizard did not take the time out to make such a journey to make a mere house call. No gentle readers, the Wizard had some bidness (as we say in Texas) to attend to. In my limited spare time, the Wizard has been working to help try to get some eminent domain legislation passed in the 2009 / 81st Texas State Legislature.
To recap, the SCOTUS ruled in favor of the City of New London in the Kelo vs. New London case in 2005. In reaction, the Texas Legislature did pass some minor reform in 2005, but Governor Perry vetoed some very good eminent domain legislation in the 2007 session. Ergo, here we are in 2009 trying again to get some meaningful reforms passed.
The Wizard ended up seeing 6-7 legislative staff members over a period of 5 hours, while others whom I was with spoke to dozens of others. We also participated in a news conference. The vibe I got was that there is clearly a mood to address eminent domain, but as always the devil is in the details when it comes to how effective a piece, or several pieces, of legislation turn out to be.
Currently, there are at least 7 different bills in play. The best eminent domain bills that people need to get behind are:
1) H.J.R. 14. This is a House Joint Resolution which strongly defines eminent domain such that it would put an end to the practice for private gain. This bill has a provision to amend the Texas Constitution, and sends the matter to the voters come November 3, 2009 should 2/3rd's of the House and Senate vote in favor of it. This would bypass Governor Perry's veto pen.
2) HB 1483 and SB 18. These two bills complement H.J.R 14.
3) H.B. 417, which has strong language to address the issue of municipal abuse of what is blight, and using "blight" as a pretext for using eminent domain for private gain.
4) HB 4, which has some good buyback provisions in the event that the government doesn't actually put your land to use within a certain time frame after taking it from you.
As of this writing, the weak bills are SB 533, H.J.R. 31, and S.J.R 42. We cannot afford to have these bills pass, then have the legislature (and the Governor) turn and tell the people that - you see, we have done something about eminent domain. Don't support them!
This afternoon, KHOU-TV reminded us once again why Texans need eminent domain reform when the station carried the story of Irene Robles and her sons Ron and Mike. The Wizard knows the Robles family, indeed Ron and Mike were with me in Austin talking to legislators last Tuesday. I know that they have been fighting Harris County Metro and its plans to build Metro Rail in the North Corridor. I watched as the Robles brothers collected some 3,500 signatures of North Corridor residents who opposed Metro Rail that they turned in to Sheila Jackson Lee's office, but to no avail.
Metro wanted 178 square feet of the Robles' property, which is directly on one of the streets where Metro wants to build at - grade light rail. That doesn't sound like much, but the strip they want is going to put the street right of way directly up against the Robles' front door, and trust me, this isn't the only instance where this is happening. There is an argument that could be made that doing this would render the property undesirable or not useful for the purpose for which it is being put to now, which if Metro were to have any morals (as opposed to having any ethics), then it would be incumbent on Metro to simply offer Mrs. Robles and her sons a fair price for the entire property rather than simply taking a sliver of it.
Moreover, the KHOU story noted that Metro initially offered the Robles family $2,000 for their 178 square feet, an amount that adds up to offering a petty $11.24 per square foot for property that is within one and a half miles of downtown Houston. The parties went to a hearing, where Metro bumped up the offer to $12,000 (or some $67.50 per square foot), but it remains to be seen if the Robles's will take this or go to court for something else.
The problems faced by the Robles family are commonplace in eminent domain issues; that governments or agencies' swiping a portion of a property ends up rendering it unfit for its current use (and thereby kneecapping its current property owners via devaluing the property), the matter of low balling land owners and forcing them to spend money going to court, and so forth. Moreover, there is a question of whether Metro will in fact actually build the rail lines. The expectation is that they will, but what if the FTA doesn't grant Metro the money? Then the agency would find itself sitting on a bunch of parcels of land which it would otherwise have no use for. Or would they?
The group of good pending legislation (HB 4, HB 417, SB 18 / HB 1483, and HJR 14) would address all of these issues. The State would be forced to offer a fair deal up front. Blight would be much harder to use as a rationale for condemning land, and if governments take land but don't put it to use within a certain time frame then previous private owners could get it back at the price they were offered previously.
Eminent domain is one of those slippery slope issues that Americans have learned they constantly have to keep fighting with over time. The courts, whose job would otherwise presumably be to protect citizens from an ever overreaching Leviathan, have effectively abrogated enforcing the 5th Amendment over the past 100 years, leaving citizens to struggle with sub level governments over legislative remedies for rights that they otherwise should not have to be fighting for.
The war continues. Here are some links:
KFDA covers the news conference.
The Fort Worth Star Telegram's coverage.
Wizard