It has been almost six years since the U.S. Supreme Court’s Kelo opinion awoke the nation to the sad state of the country’s eminent domain laws. According to a narrow majority of the Court, the mere possibility that private property might make more money for a developer and a city when put to another use is reason enough for the government to take it away.
Kelo set off a chain reaction of states enacting comprehensive reform to protect property owners who could no longer depend on the U.S. Constitution’s Taking Clause. Florida, South Dakota, New Mexico, and Arizona-among many others-dramatically improved their states’ property rights protections. However, here in Texas, we are still waiting for comprehensive reform.
Governor Perry’s declaration of eminent domain as an emergency issue, however, gives hope that improvements can be made during the current legislative session.
In Kelo, the Supreme Court upheld the taking of private property from Susette Kelo and her neighbors for a re-development plan that offered higher tax revenue for the city. This plan included a hotel and offices for Pfizer’s new corporate facility.
Today, Pfizer has closed its facilities and vacant lots are all that is left of Kelo’s middle class neighborhood. New London is worse off, and Kelo and her neighbors are without their property-even though it was never used for the reason it was taken.
Texas has the same problem today-government can use property for whatever it wants once it is taken-or not use it at all.
Four years ago, the Texas Legislature almost fixed this problem. It passed a strong “buyback” provision that would have given property owners the right to re-purchase their land if the government had not used the land for its intended purpose within 10 years.
That bill did not become law, so the current eminent domain legislation under consideration-SB 18-also has a buy-back provision. But the version that recently passed the Texas Senate has a loophole that allows governments keep condemned property simply by passing a resolution and filling out some paperwork. Few-if any-property owners will get their property back under SB 18.
Texas has yet to fully address Kelo’s blurring of the distinction between public use and public purpose, which has rendered the taking of property to increase tax revenue-a public purpose-as legitimate as a public use condemnation to build a school.
Though the Legislature has previously banned takings for economic development purposes, it is still important to clearly restate the constitutional protection that property can be taken only if necessary for a public use. SB 18 gets part of the way, but does not include “necessary,” which may lead to a weakening of the current standard contained elsewhere in law. Nor does it replace all instances of public purpose in statute with public use.
One more problem that the current legislation does not address is the court-created presumption that takings are necessary for a public use simply if the condemnor says so. In practice, this means a property owner must bear the burden of proof when protecting their property from unlawful seizure. Property owners shouldn’t have to bear this burden-nor the burden of attorney’s fees- to defend their own property.
While these problems could be easily addressed in SB 18, it has morphed over time into an “agreed upon” bill that some are reluctant to change lest opposition to the changes from local government entities jeopardize its passage.
Yet property rights are the most fundamental of all of our rights. Texans have waited a long time to see them restored. As the Texas House of Representatives debates SB 18, it is worth taking the time-and the risk-to get it right.
Ryan Brannan is the economic freedom policy analyst at the Texas Public Policy Foundation, a non-profit, free-market research institute based in Austin. Bill Peacock is the Foundation’s vice president of research and planning and director of the Center for Economic Freedom.