Land Use & Property Rights

• Property Rights are Sacred
  • ​“As a small business owner and real estate broker in Texas, I know firsthand that property rights are one of the most sacred liberties that Texans enjoy,” Holland said. 
• Fair Market Value Offers will cut court costs
  • “HB 2556, my component of eminent domain reform, will empower property owners and commission condemning authorities to extend fair market value offers to deserving landowners, additionally saving our state from frivolous administrative appeals costs by cutting out the tiresome back-and-forth of the broken process.”
• Burden should not be in the property owners to replace their own property
  • ​a public condemning authority should be required to appraise the replacement costs to landowners of structures lost in the action. 
• Eminent Domain transactions should be priced like private transactions
  • “The result is an undue burden on property owners who often receive an amount that is less than what could be recovered in a private transaction,” Holland said. 

Royce City Herald Banner | Holland files House Bill 2556

What’s happening in South Carolina? The South Carolina Legislature is headed to restrict or limit eminent domain for pipelines.

This is how the Republican Chairman of the Substantive Committee is framing the issue:

• “Regardless of what we do with eminent domain” (a ban or harder regulator standards)
• “the pipeline companies can still negotiate with landowners”
• “to purchase an easement or right of way, or buy the property outright” (pipelines have options)
• “We are talking about private, for-profit, unregulated companies having the power of government to take or force easement on the landowners.”
• “I don’t support keeping pipelines out of the state, but this should create a level playing field,”

The South Carolina balancing test being reflected in other states:  We want pipelines/transmission lines/name your priavet entity eminent domain But we need a level field for private property rights.

Augusta Chronicle | SC lawmakers consider future of eminent domain, pipelines

State: Oklahoma

The Stand Your Ground By Killing Drones Bill Goal:  Liability Immunity for OKlahomans who damage drones that veer onto their property

Oklahoma SB 660  (2017)

Fox News | Oklahoma lawmaker wants to protect people who destroy drones flying on their property

The Missouri 2017 Bills: H.B. 640 and H.B. 795 

What the bills do:

• restrict utility easements
• limit eminent domain
• require new projects to use existing easements
• run any new routes along property boundary lines
• requires agreement of 60% of landowners before using eminent

KTVO | Walker leads capitol rally on “Stop Eminent Domain Day”

• When private property rights are protected, people build equity and ownership
• This is good for the US & free markets
• When property rights are not respected, people are at the mercy of the government

Tyler Morning Telegraph | Editorial: Property rights are they key to improving housing, lives

• In 2006, Georiga passed eminent domain reform by way of House Bill 1313
• The problems with HB 1313 from 2006
  • eminent domain used on blighted properties causes a block on a city re-selling the property for 20 years
  • cities can no loner acquire multiple parcels for redevelopment purposes
• The 2017 legislative fix
  • allow for the creation of an “urban development authority”
  • the urban development authority would be allowed to:
    • eradicate blight and spur economic development
    •  provide low-interest loans for home repair; and 
    • providing financial backing for a grocery store in “food deserts

Savannah Morning News |Savannah struggles to sell blighted homes

Georgia’s Senate Bill 191  sets up this 2 step process for a pipeline to obtain eminent domain:

• receive a “certificate of need” from the Georgia Environmental Finance Authority; AND
• approval by Georgia’s environmental agency 

A late amendment prohbited pipelines in coastal areas, the Georgia Coastal Zone Management Program, to “protect the drinking water.”

Atlanta Journal Constitution | Georgia Senate approves new pipeline limits

• demand responsible routing of utilities along property lines, boundary lines or section lines
• require minimized land damage
• Limits the amount of PSI exerted on soil

What supporters say: “protects our property rights from those who would steal our land for their own profit.”

How does the bill apply? It applies to all condeming entities BUT only to agricultural land.

Missouri HB 640 (2017)

Southeast Missourian | Mo. Agricultural bills

The Case:  Murr v. Wisconsin

The oral arguments: March 20, 2017

The eminent domain issue: Property owners wanted to sell some land. The city and state  said No, the property doesn’t meet requirements for stand alone sale because of waterway regulations.

How’s the case is shaping up?  CALIFORNIA, HAWAII, ILLINOIS, MAINE, MASSACHUSETTS, MINNESOTA, OREGON, VERMONT, AND WASHINGTON are siding with Wisconsin. While NEVADA, ALASKA, ARIZONA, ARKANSAS, KANSAS, OKLAHOMA, SOUTH CAROLINA, WEST VIRGINIA, AND WYOMING  are siding with the property owners.

SCOTUSBlog | Murr v. Wisconsin

Reason | Supreme Court Will Examine Whether a Wisconsin Family Needs Government Permission to Sell Their Land

Where: West Virginia

The eminent domain project: A gas pipeline

The religion owned land: Hare Krishna community

The 1st amendment argument: “infringement on its freedom of religion rights and “seeks to take a non-metaphorical bulldozer through the Vrindaban Parties’ property, and in turn, through their most sincerely held holy sites.”

The property to be taken:  50-foot-wide right of way about 3,000 feet long

The Offer: $7,000

Stay Tuned.

Power Source | Gas pipeline raises freedom of religion issue in W.Va.

State: Oregon

The Advocates want:

• Crack down on “bootleg” construction. (Do images of lumber jack beards and moonshone pop into your head too?)
• Protection for non-sited tiny homes
  • House Bill 2165
  • fall under the standards for recreational vehicles
• Construction Codes 
  • House Bill 2737
  • special construction codes for homes that are smaller than 250 sq.ft.
  • allow narrow ladders or stairways for lofts
  • allow narrow ladders or stairways for lofts
  • exemptions from required electrical service and water supply

The policy issues that cities want to solve with tiny houses:

• ease tight rental markets
• address growing problems with homelessness

Salem Statesman Journal | Advocates want Legislature  to pave way for tiny houses

State:  California

The current way attorney fees are awarded in eminent domain: Since 1975, attorney fees can be awarded in California for eminent domain if:

• final offer of compensation was unreasonable
• the final demand of the property owner was reasonable

Assembly Bill 408 wants to change the standard for attorney fees in eminent domain to: 

• Attorney fees must be awarded if condemnor’s offer is lower than 90% than the court’s value determination
• Attorney fees may be awarded if condemnor’s offer is between 90-100% of the court’s value determination

What opponents to AB 408 are saying: this will disincetivize landowners from settling, encourage more litigation and thereby drive up costs for public projects

Nossaman LLP | California to Consider Significant Change to Eminent Domain Law Regarding a Condemnee’s Right to Recover Litigation Expenses

Which city is subject to an Institute for Justice lawsuit for fining its way to eminent domain? Charlestown, Indiana

What’s the alleged nouveau eminent domain use? Fining property owners out of their homes for minor infractions, like a torn screen. Its a bludgeoning by the housing code.

What happened after 1000s in fines accrued? The city made offers to land owners that the fines would be waived if the property owner sold their property to a developer for $10,000.

Institute for Justice | Lawsuit Challenges Mayor’s Mission to Bulldoze Low-income Neighborhood for Private Development

The State: Pennsylvania

The eminent domain prohibition: no eminent domain for private enterprise, even if there is a public use

The pipeline project: An interstate liquid natural gas pipeline is subject to federal law that allows for eminent domain even when state law prohibits it

Penn Live | Second Sunoco pipeline possible in Cumberland County, landowner continues fight

North Dakota Legislature proposed a pilot program that would allow land owners to post whether and when their land is available for hunting.

North Dakota Senate Bill 2225 (2017)

AG Week | North Dakota Senate defeats property rights bill

Tyler Morning Telegraph editorial opposing Texas Centrail Rail raises these 3 points:

• This isn’t a rural-urban issue. This is a property rights issue.
• You can’t say this is a private enterprise, promoting free market when you use eminent domain, because eminent domain is the opposite of free market.
• This is crony capitalism with the government  “thumb on the scale”

Tyler Morning Telegraph | Editorial: Texas bullet train an example of crony capitalism

A legislator coalition joined forces to limit eminent domain for high speed rail. Who is involved?

• Senators Birdwell, Creighton,  Kolkhorst, Perry, & Schwertner
• Representatives Ashby, Bell, Cook, Schubert, and Wray 

Which eminent domain issues are being addressed?

• Pre-condementation Access to Property. SB 973 by Creighton/HB 2168 by Bell (Railroad Determination Before Surveys) – prohibits a high-speed rail entity from entering private property to conduct a survey unless the Texas Department of Transportation (TxDOT) first determines that the surveying entity is, in fact, a railroad.

• Property Restoration. The Campground Rule. SB 978 by Schwertner/HB 2104 Bell (Property Restoration Bond) – requires a private high-speed rail entity to file a bond with the Texas Department of Transportation (TxDOT) sufficient to restore property used for the rail service to the property’s original conditions if the service ceases operation.

• Repurchase. SB 979 by Schwertner/HB 2179 by Cook (Right of Repurchase for Non-HSR Use) – prohibits an entity that operates or plans to operate a high-speed rail from using property acquired for purposes other than high-speed rail. If the high-speed rail authority doesn’t use the property for that specific purpose, the original landowner must be given opportunity to repurchase the land.

• No state right of way purchasing. SB 980 by Schwertner/HB 2167 by Schubert (Put Texas First) – prohibits any state money from being used for any purpose related to a privately owned high-speed rail, unless the state acquires and maintains a lien in order to secure the repayment of state funds. Requires that the state’s lien be superior to all other liens, effectively making Texas a priority creditor.

​

• Public Use. SB 982 by Perry/HB 2173 by Ashby (High-Speed Rail Feasibility Study) – upon request of a legislator, the Texas Department of Transportation (TxDOT) must generate a feasibility study of a proposed high-speed rail project. The study must indicate whether the project is for a public use, whether it will be financially viable, and what impact of the project will have on local communities.

Press Release | Lawmakers Take Action to Derail Bullet Train between Dallas and Houston

Houston Chronicle | Texas lawmakers move to stymie high-speed rail project
 

KHOU | Texas lawmakers lobby to derail proposed high-speed train

Oklahoma’s House Bill 2194 ups the ante on attorney fees and just compensation. The facts:

• HB 2194 allows for an award of attorney fees if the jury award is higher than than the special commissioners.
  • Yes, you read that right, any amount higher than the special commissioners and attorney fees and costs are retreivable by the property owner.
• HB 2194 also requires actual sales prices & actual awards to be used in just compensation calculation. 

SB 742 by Kolhorst.  Relating to requirements for a bona fide offer for the acquisition of property by an entity with eminent domain authority.

• Requires easements to include more details on right of way, usage, size scope
• Allows for damages related to the easement
• Establishes 5 covenants:
  • securing the property owner’s land (locking gates etc)
  • maintaining the right of way
  • repair and restore land to the original condition or better than original condition
  • the owner shall be indemnified and be held harmless
  • the condemnor must maintain liability insurance

SB 741 by Kolkhorst. Relating to compensation to a property owner for property acquired by an entity with eminent domain authority.

• Adds royalties and profit sharing to what maybe considered compensation to a property owner
• Allows negotiations concerning compensation to be admitted into evidence during eminent domain proceedings.

SB 740 Relating to the acquisition of property by an entity with eminent domain authority.

• Requires disclosure of new appraisals within 10 days or 3 days before a special commissioners hearing
• Allows a property owner to be awarded attorney fees if the amount awarded is 20% higher than the final offer
• Defines a list of new requirements for the bona fide good faith offer such as:
  • easement details
  • right to damages from construction
• Requiring that a condeming entity pay an award before an appeal can be filed by eithe rpaying the property owner, posting a bond, or depositing an amount with the court

The City: Chicago

The proposed revisions to home sharing ordinances will:

• Require homeowners to retain the names of guests but only require disclosure with a warrant or subpoena
• 4% surcharge on each rental
  • Revenue estimated is $2 million/year
  • revenue will be earmarked for homeless
• Allows areas of the city that are zoned as single-family homes the ability to pass petitions to restrict the home rentals

Chicago Tribune | Mayor Emanuel wants changes to home-sharing rules

3 Reasons why Texans for Property Rights support Senator Kolkhorst’s eminent domain bills:

• Expand upon progress made in landmark 2011 eminent domain legislation
• Senator Kokhorst worked with the group and says the bills “…give[s] all landowners the new tools and safeguards they need to protect their land from eminent domain abuse”
• The Cattle Raisers say “Property owners continue to be at a huge disadvantage when navigating the condemnation process and these proposed reforms are a great step toward preserving our heritage of land ownership in Texas”

What does the Property Rights Group say the bill package does?

• Provides “for the reimbursement of landowner expenses if they are sued by a condemnor and are ultimately awarded significantly more than the final offer.”
• “Spell out the use and restriction details required within a condemnor’s “bona fide offer” to ensure the entity will properly use and maintain the property.”

Texas property rights advocates applaud eminent domain legislation | SB 740, 741 and 742 to help landowners

How long does a person have to wait to purchase property taken by eminent domain in Georgia? The proeprty  must have been put to public use for 20 years

What repurchase proposal is being considered? Immediate purchase of property tken by eminent domain for blight

What group will be most impacted by this change? minority communities

What alternative city action could mitigate this state law change?  Stronger locla code enforcement

FOX 28 | Eminent domain amendment proposal to tackle abandoned Savannah properties

Should a County take land belonging to a former Y? 69% NO. 31% YES

Where: Maine

WABI TV | Do you think Penobscot County should use Eminent Domain to take possession of the former Bangor Y?

The Company: Texas Central Rail

The lawsuits: 12+ lawsuits concerning eminent domain, and specifically pre-condemnation access to the privately held land

The strategic advantage of withdrawing the laawsuits: amicable negotiations

The trend being emulated: Private companies promoting negotiations without eminent domain

Dallas Morning News | Bullet Train Developer Drops Lawsuits against Landowners (References the Schwertner bills, SB 626-629)

Construction Dive | TX bullet train developer drops lawsuits against landowners along proposed route

KBTX | High speed rail developer drops lawsuits against landowners

Ft. Worth Star Telegram | High-speed rail developer drops lawsuits against landowners

Making the film festival circuit this spring- the Suzette Kelo story starring Oscar nominee Catherine Keener.

The all American elements of the plot:

• Lady owns a little pink house
• Big Pharma wants to expand
• Eminent Domain is used to take the pink house
• Lady fights her way to the Supreme Court & loses but changes eminent domain laws throughout the country.

A film about outsiders fighting the system… Raging against the machine.

Hollywood Reporter | ‘Little Pink House’: Film Review | Santa Barbara 2017

A Wharton School of Business, President Trump’s Alma Matter, features an interview with Wharton’s Kevin Wherbach offering these tips and examples to foster nascent industry:

• Look to the FCC and its treatment of Skype. Skype didn’t fit neatly in industry categoried and regulations. FCC VOIP regulations were written such that the door was left open and Skype flourished by working with regulators.
• Don’t rush to impose traditional rules on ride share companies like Uber.
• Anti-trust case against Microsoft allowed other tech companies to innovate
• Data sharing can give regulators more information to achieve their goals and provide more industry friendly regulations
• Consider self-regulation with accountability standards built in

Knowledge@Wharton | How to Regulate Innovation — Without Killing It

The group: 80 Feet is Enough

The group’s message:  No Eminent Domain for Private Gain for Oil Pipelines (picture at link)

How are they getting the word out? Billboards

WSAU | “80 Feet Is Enough!” Reveals Billboard

WXPR | Group Wants To Stop Enbridge Emiment Domain Efforts

SB 629

• The author list: Schwertner | Buckingham | Burton | Campbell | Creighton | Hall | Hinojosa | Hughes | Rodríguez | Seliger | Perry
• What it does: Eliminates the addition of interest when agricultural land is converted to a non-agricultural purpose
• What’s the hook? Landowners should be able to choose without penalty (interest) how to use their land

SB 627

• The author list: Schwertner | Birdwell | Burton | Creighton | Hall | Huffines | Kolkhorst | Nichols | Seliger | Zaffirini
• What it does: Sets up rules for precondemnation access such as:
  • An owner can refuse entry
  • A condeming entity has to pay for damanges done during precondemnation access and inspection
  • If a condemning entity uses a permission form, the form has to meet 4 standards
• What’s the hook?  Currently pre-condemantion access has very few rules

Legal experts at Stanford say which easement would offer property owners protections from fracking:a conservation easement which they’ve named a mineral estate conservation easement (MECE) 

What’s not needed for a conservation easement: government regulation

The property value impact of a MECE: the property value is diminished but offset by a tax write-off

Are MECEs permitted in Texas? Yes

Standford News | New analysis suggests ways for landowners to limit fracking and mineral extraction without regulations

Indiana joins the list of states where private property activists say  that railroad eminent domain statutes haven’t been updated since the 19th Century.

K99.3 | Pressel-Sponsored Eminent Domain Bill Passes House

SB 626

• The author list: Schwertner | Birdwell | Burton | Creighton | Hall | Huffines | Huffman | Kolkhorst | Nichols | Seliger | Zaffirini
• What it does: Requires a separate offer for any property “not reasonably necessary to complete the public use” 
• What’s the hook? The land in this additional offer wouldn’t otherwise trigger eminent domain 

North Carolina Legislature is considering HB 10 which would extend the authority of eminent domain by allowing it to connect customers. The bill’s language:

“Connection of Customers. – For the public use, private condemnors, local public condemnors, and other public condemnors in subsections (a), (b), (b1), and (c) of this section shall possess the power of eminent domain and may acquire by purchase, gift, or condemnation any property for the connection of any customer or customers.”

At the same time HB 10 would limit eminent domain, and the connection of consumers, by requiring a public use for eminent domain.

North Carolina HB 10 (2017)

Carolina Journal | Eminent domain amendment back in play

A bill to allow for private sale of electricity in Nebraska also includes a laundry list of eminent domain prohibitions for all electric generators and distributors.

Nebraksa’s LB 660 would prohibit eminent domain for:

• generation
•  transmission
• distribution

If that isn’t enough, a stand alone bill calling for no eminent domain for the electric industry also exists in LB 547

Omaha World Herald | Nebraska lawmakers introduce bills that would end public power companies’ monopoly, use of eminent domain

Nebraska LB 660 & Nebraska LB 547

Columbus Telegram | Proposed bills challenge public power

HB 1050 by Valoree Swanson would:

• “protect the financial sustainability of property owners”
• “will repeal property taxes”
• 5 years & 2 legislative sessions would be the window to replace the property tax

Rep. Valoree Swanson | Representative Swanson Files HB 1050: The Texas Property Freedom

The president of the Texas and Southwestern Cattle Raisers Association says the following is necessary to level the playing field for eminent domain:

• There will be a decrease in eminent domain litigation
• A better initial offer makes it less likely that eminent domain will result in a lawsuit
• private property rights are of paramount importance
• property owners are at  “a huge disadvantage” in eminent domain actions
• To get a better initial offer, they suport adding more “details up-front for the property owner about how their land will be used and maintained through the life of the easement.”

Texas and Southwestern Cattle Raisers Association | TSCRA Cattlemen’s Column: Leveling the eminent domain playing field

Farmers in Australia are experiemnting with a new version of Airbnb for rural landowners– farm sharing.

The business entity: Youcamp

The sharing economy: Rural land owners offering temporary camping

How is camp-sharing being regulated? By local governmental councils. There are no statewide public camping regulations as of yet.

ABC Rural | Landholders open up farms to sharing economy as campers look for new experiences

The location: Prince George’s County, MD

The HOA requirement: identical $500 monogrammed mailboxes in a community of $1 million homes

The court found: the mailbox rule was a no-no and a slipper slope (against property rights)

The legal fees home owners to win: $33,000 and 7 years

Are mailbox mandates the new political signs, flag poles et.al?

Washington Post | In a community of million-dollar homes, a fight over a $500 mailbox ends in court

The State: Michigan

The asset forfeiture bond requirement that Michigan repealed: A bond of 10% of the value, up to $5000, was required to appeal an asset forfeiture

Michigan’s HB 4629

Goals of asset forfeiture transparency laws:

• lay out how forfeiture is being used
• hold law enforcement accountable

Institute for Justice criteria for reviewing asset forfeiture transparency laws:

• Tracking Seized Property
• Accounting for Forfeiture Fund Spending
• Aggregate Forfeiture Reports
• Accessibility of Forfeiture Records
• Penalties for Failure to File a Report
• Financial Audits of Forfeiture Accounts

Institute of Justice | State and Federal Governments Must Improve Forfeiture Transparency

The state: Indiana

The new eminent domain threshold proposed for railroads: Require railroads in Indiana to meet the same public use standard of local governmental entities as opposed to public use being met because land is condemned by a railroad.

Indiana House Bill 1260 (2017)

Nothwest Indiana | Lawmakers eye higher standards for railroad use of eminent domain

The State: Kansas

The tax deal between Kansas and AirBnB: Airbnb will automatically collect & remit the same state & local taxes as a hotel/motel

Will fees to property owners increase? No.

How many statewide deals has Airbnb entered into? 15

• Alabama
• Arizona
• Connecticut
• Florida
•  Illinois
• Kansas
• Louisiana
• North Carolina
•  Oregon
• Pennsylvania
• Rhode Island
• South Carolina
• Utah
• Vermont
• Washington

Airbnb agreements with large cities:

• San Francisco
• Portland, Ore
•  Philadelphia
• Phoenix
• San Diego
• San Jose, Calif.
• Washington, D.C.

Governing | Airbnb’s Tax Deal With Kansas May Be Model for Midwest

In December, informed:intel subscribers will recall a Texas Conservative Coalition report supporting existing eminent domain statutes & high speed rail from Houston to Dallas. 

The New Year brings, new conservative voices making 3 arguments against the report via Texas Tribune :

• They should have been told. They’re members of your group. You hid this. 
• The use of eminent domain by a private business (a haute conservative mantra)
• Your document is unsigned and yet you imply that your document stands for the coalition. Rescind it. Now. 

The ISD: Dallas ISD

The eminent domain threat:  In Novmeber 8 businesses received letters from DISD chief operations officer with the subject line: eminent domain. The letter explained that the district is in the early stages of building a new school and may acquire their properties.

The apology: A trustee and the DISD COO both apologized to the businesses and local community in person at a public forum. 

Dallas Morning News | Dallas ISD backs away from possible school site, apologizing to business owners for threat of eminent domain

• Is the amount of evidence required to be a common carrier reduced by this ruling?
• Is the test set up by this ruling apply to more than just CO2 pipelines?
  • The test: a reasonable probability must exist that the pipeline will at some point after construction serve the public by transporting gas for one or more customers who will either retain ownership of their gas or sell it to parties other than the carrier

Texas Agriculture Law Blog | Texas A&M Agrilife | Texas Supreme Court Issues Ruling in Denbury Green

 HB 528  & HJR 40  by Schofield swing the pendulum for repurchasing unused, condemned property by the original property owner. 

SB 243  by  Burton Sets up a veto for eminent domain authority by requiring that a majority of the county commissioners must support the use of eminent domain. 

SB 379  by Perry
 As loyal informedintel subscribers know, the Comptroller maintains a data base of what entities have eminent domain authority. There are 1000s of them. They should all report to the Comptroller. Perry reworks the penalties for not reporting, saying the fine can be up to $1000, not a flat $1000.

Is checking the box enough for the courts to say yes, pipeline, you have eminent domain? NO.

What do pipelines have to show in court? That there is a public use by meeting this standard:

• “reasonable probability” that the pipeline would be used to transport gas
• for “one or more customers who will either retain ownership of their gas or sell it to parties other than the carrier.”

Did Denbury meet the new standard? Yes, by showing its existing contract with another entity to transport CO2

What do private property rights groups say is still missing? Some meat to “public use”

Dallas Morning News | Latest ruling on eminent domain eases fears of Texas pipeline builders

The municipal managment district: Montrose Municipal Management District

The amount of assessments that triggered a property owner suit? $6.6 Million in assessments

What have the courts said? The Montrose MMD assessments were unlawful

What did the Court say the MMD did wrong? State law requires commercial property owners to sign off on the MMD and assessments. The list of signatures by the Montrose MMD included residential property owners who are not assessed by the Montrose MMD

Houston Chronicle | Montrose Management District faces new lawsuit

House Committee on Special Purpose District 2016 interim committee report makes the following recommendations:

• Follows Senate IGR to recommend committee policy changes requiring local notices for annexation & MMDs before legislation is considered 
• Use of standard MMD language
• A committee check list:
  • Enforce existing and additional notice requirements outlined in Recommendation No. 1 (Notice requirements);
  • Enforce the use of the MMD Standard Language described in Recommendation No. 2a (Standard MMD language);
  • Clearly differentiate between the various types of special district legislation heard by the Committee and focus on the relevant questions and issues by type
  • Document local support for the creation of an MMD; and
  • Confirm that a bill proposing to create an MMD does not contain provisions that the Committee or the Legislature generally consider unacceptable. 
• Committee Red Flags for MMD legislation:
  • The power of eminent domain;
  • Elections to be held on non-uniform election dates;
  • Levy of sales tax in excess of the maximum rate allowed by general law;
  • Issuance of water, sewer, and drainage bonds without TCEQ approval (as required by Section 375.208, Local Government Code);
  • Issuance of bonds secured by property taxes without an election; and
  • Levy of a property tax without an election. 
• Chapter 375, Local Government Code should be reformed like in 2015’s HB 3097 to include:
  • A majority-in-value of landowners requirement for petitions to create new MMDs through the TCEQ;
  • The ability of the owners of a majority of the assessed value of property subject to assessment by the MMD to recommend the appointment of persons to the MMD board of directors; and
  • A lowering of the threshold of landowner petitions required for dissolution of an MMD from “75% or more” to “at least two-thirds.” 

From November 2016, informed:intel:

The Senate IGR Interim Committee Report has a laundry list of municipal management district (MMD) reforms. Here’s what you need to know:

• Notices to create a MMD must be before legislation is considered
  • This is a change in committee policy
• New MMDs that overlap also require notice to TCEQ
  • This is a change in committee policy
• If property owners are annexed into an existing MMD, notice needs to be the same as when the MMD is created
• New MMDs should ahve a 2nd notice when the new MMD bill is filed with the bill number 

Land and Resource Management Interim Committee Report for 2016 makes these recommendations:

• Excessive and abuse local regulations should be addressed by targeted local bills. (pg. 66)
• ” A public notice to unincorporated areas of its boundary lines changing due to annexation or ETJ expanding. ” (pg. 71)
• ” Reconsider annexation reform which will balance the powers between private property owners and municipalities. ” (pg. 71)
• “Reconsider eminent domain reform to ensure fair compensation for private property owners. ” (pg. 71)

• HOAs and religious displays.
  • Schofield seeks to remove restrictions related to materials & location that Hoas relied on to remove religious displays
  • Schofield may seek to address the timeline of removal as it relates to an incident in Katy
• Eminent Domain. Schofield’s House Bill 528 
  • Property Owners can buy back unused property that was taken by eminent domain for the original price
  • Schofield’s bill narrows what constitutes actual progress that triggers a buy back provision

Community Impact |  5 bills Texas Rep. Mike Schofield wants to file this legislative session

What’s the Trans Pecos Pipeline?  A West Texas pipeline that will deliver natural gas to Mexico & the pipeline cost will be paid by Mexico so it can power electricty plants

What characteristics of the Trans Pecos pipeline that draw parallels with the Dakota Pipeline protest?

• Landowners talk about court awards in the millions that they won but that are unpaid.
  • The pipeline is appealing the awards.
• Native Americans are getting involved to protest in Texas
• The Texas land includes some of the last legacy ranch land in the US
• The Trans Pecos goes through Big Bend Park

Fronteras | Dakota Pipeline Standoff Echoes In Texas: Mexico Still Counting On US Natural Gas

Ft Worth Star Telegram | Protesters opening camps to protest West Texas drilling and pipeline

The competing timelines: 

• Will the Texas Legislature prohibit eminent domain for high speed rail before the May 29th Sine Die?
• Will the July 3rd Harris County trial on the issue have the final word?

The brewing issues:

• Does the high speed rail project have eminent domain authority under Texas statutes?
• If so, how should land owners and pre-condemantion access to the land work?
  • Sound familiar? It should, its the same issue that land owners in West Texas raised with the Trans-Pecos pipeline?

Houston Chronicle | Bullet train land dispute on track for July trial

What entity lists eminent domain as a legislative priority? Empower Texas

What 3 points do they point to as requiring eminent domain reform:

• Private gain from eminent domain– whether it be private entities using eminent domain authority or local officials benefitting developers
• Public Use should be roads, water lines or electricity, & not high speed rail developlment
• Amoritization is just as bad as eminent domain.
  • ​What is amoritization? Changing zoning rules to deprive property owners of the right to use their land

Empower Texas | LEGISLATIVE PRIORITY: REFORM EMINENT DOMAIN

Where: Nashville, TN

The Business Rethinking Land Use, Parking Requirements & Transportation: Tri Star Sports & Entertainment Group

What did Tri Star Sports & Entertainment Group Leverage to be granted a variance from parking space requirements for its building epxansion?  The unanimous variance was granted for TriStar to partner with ride share to “pay monthly rates for the commutes for 23 employees, equal to the number of parking spaces” lost to the building expansion

Nashville Business Journal | Celebrity company adding 60 jobs creatively solves urban parking woes

• NYC is footing the bill. Securing the 58 story building is estimated at $35 million from now until 1/20/2017
• Donald Trump loves eminent domain. 
• NY has expansive eminent domain laws.
• There are safety reasons to use eminent domain.  The security at Trump Tower for hinder traffic, impeding commerce & draining tax payer dollars.

Washington Post | New York should seize Trump Tower

The city: Amsterdam

The initial home share concept launching in early 2017: Free access to some 15 underused city meeting rooms

The ultimate goal of the city sharing economy: to make available unused city rooms and unusued city fleet vehciles

How does it offset the economic boon of hte sharing economy? The City project is limited to non-profits

Sharing Economy welcome the collaborative economy

Huffington Post | Amsterdam has created a free Airbnb for city-owned buildings

The 17th state to reform civil asset forfeiture laws: Ohio

What does Ohio’s bill do?

• Limits the crimes for which civil asset forfeiture is permissible
• Switches the burden of proof to the state and away from the Defendant
• Prevents civil asset forefeiture for amounts below $15,000

The opposition:

• law enforcement organizations
• Ohio Prosecuting Attorneys Association

Reason.com | Ohio Legislature Passes Civil Asset Forfeiture Reform

The City: Claremont, California

The eminent domain acquisition: The local water utility which the city thinks is charging residents too much

The legal drama: 21 day trial. The Court, in a tentative decision the City didn’t offer facts to back up its right to eminent domain.  Final decision anyday.

Lexology | O’Melveny & Meyers | City of Claremont’s Water System Acquisition Attempt Rejected

The city: Hastings, Nebraksa

The target property to acquire: Utility poles owned by Windstream

The public purpose: Acquiring a secure the means of distributing electricity to the citizens of Hastings without relying on a 3rd party for repair

Hastings Tribune | Council approves eminent domain for utility pole ownership

The project denied eminent domain: An oil pipeline through rural Ohio

What were the judge’s objections?

• The company pointed to a $237.3 Million economic boon and the court said economic development is not a reason for eminent domain
• The pipeline provides no direct benefit or service to Ohioans.
• The common carrier statute that applies to pipelines like this is an unconstitutional infringement on the property rights of Ohioans

Legal Trends in the Rust Belt meet Legislative Trends in the Southeast and Beyond.

Sentinel Trribune | Court rules Kinder Morgan can’t use eminent domain for pipeline

The train route:   The Great Lakes Basin Railroad

The homestate for legislators wanting to stop eminent domain for the train: Wisconsin

The method to stop the train: End eminent domain for all private entities

Northern Public Radio | Beloit-Area State Lawmakers Try To Stop A Train By Changing State Law

Home sharing platform Airbnb has agreed to:

• property owner licenses
• enforcing how many days a property owner can annually home share their property

These limitations were agreed to with regulators in London and Amsterdam.

The Hill | Airbnb backs down on rental limits in Amsterdam, London

The town of DeWitt, NY is facing zombies in the shape of  zombie properties. Here’s the town’s strategy to erradicate zombies:

• Acquire abndonded property via eminent domain
• Transfer the property to the Greater Syracuse Lank Bank
• the Greater Syracuse Lank Bank restores the homes
• The homes are then resold to new homeowners

Eagle News Online | DeWitt Town Board makes strides to combat ‘zombie properties’

The land taken by eminent domain: A developer in Connecticut had land taken for a baseball stadium.

The courts compensation award: 

• Adds $3 Million in Value
• The Court said the value of the stadium to the land taken should be considered

WNPR | Hartford Loses Eminent Domain Fight, Ordered to Pay Nearly $3 Million More

The city:  Bowling Green, Ohio

The city council vote:  7 to 0 to deny right of way access for a pipeline in the city

The takeaways:

• Offering to follow existing easements isn’t enough to get around a growing sentiment of no eminent domain for private gain
• The pipeline may now exercise eminent domain against the city

The Toledo Blade | Bowling Green council votes down pipeline plan

According to the 14th Court of Appeals, No court costs and fees are not tantmount to eminent domain.

Texas Lawyer | Joe Lee Bowden v. The State of Texas, 14-14-00955-CR (TexApp Dist 10/18/2016)

How was Florida land effecively taken by regulation? By first limiting development to 1 house per acre, then 1 house per 10 acres, and finally by designating the land a bird rookery. 

What’s happening with the land now?

• Heirs to the original land owners continue the legal battle
• The Florida Supreme Court could rule next
• Legal foundation attorneys representing the landwoners vow to fight to the U.S. Supreme Court

Florida Watchdog | Family asks Florida high court to lift bird ban on their private property

The Senate IGR Interim Committee Report has a laundry list of municipal management district (MMD) reforms. Here’s what you need to know:

• Notices to create a MMD must be before legislation is considered
  • This is a change in committee policy
• New MMDs that overlap also require notice to TCEQ
  • This is a change in committee policy
• If property owners are annexed into an existing MMD, notice needs to be the same as when the MMD is created
• New MMDs should ahve a 2nd notice when the new MMD bill is filed with the bill number 

IGR Interim Committee Report skips specific recommendations and offers 15 broad recommendations for handling local governments:

Senate State Affairs Committee Interim Report offers the following recommendations for eminent domain reform:

• Property Owner must be fairly compensated. Offers are often unfair, below market.
• Property owners must be able to recover all or a portion of the costs that they incur
• Amend the landowner bill of rights to:
  • clarify that some property may be included that the condemnor has no legal authority to condemn
  • offers should separate property that the condmenor wants to purchase and an offer for property that may be condemned
• There should be penalties for condemnors that do not disclose all appraisals

Senator Zaffarini penned a letter that says she doesn’t support allowing for an award of attorney fees in eminent domain actions because it would increase the state’s infrastructure costs. 

Senate State Affairs Interim Report November 2016

the City: Savannah Georgia

What legislative change does Savannah want?

• To Charge a blight tax

What do local community leaders want to help blight?

• To be allowed to use eminent domain to enourage property owners to clean up properties as a way to help the property owners who live near the eyesores.

WTOC 11 | Savannah leaders looking at eminent domain to address chronically blighted property

This week saw hundreds protest in Austin, Houston and San Antonion about an eminent domain issue in North Dakota.

News Channel 10 | Hundreds protest in Texas against Dakota Access pipeline

The City: Chicago

The Current Ordinance Status: Enacted. Full effect December 2016. 2 pending lawsuits involvling the Liberty Justice Center and Goldwater Center. 

The private property rights challenges raised against the ordinances:

• extra tax on home sharing
• limit on number of units in a building that can be rented through home sharing platform at a given time
• property hosts must maintain records on guests

Chicago Tribune | Chicago’s Airbnb home-sharing rules are ‘draconian,’ lawsuit says

+26 House: 

• Valoree Swanson
  • Baylor. Concerned Women of America. Real Estate Broker.
• Shawn Thierry
  • Attorney. Howard Univ. & South TX College of Law. Big Borther Big Sisters.
• Mary Ann Perez
  • U of H. Insurance. Former HCC Trustee.
• Jarvis D. Johnson
  • Former Houston Council Member. Restraunteur & Consultant African Trade. Texas Southern.
• Tom Oliverson
  • Anesthesiologist. Home Schools. Baylor College of Medicine.
• Briscoe Cain
  • U of H. South Texas College of Law. Raised working class. 
• Kevin Roberts
  • Texas Tech. Riased by Grandparents in Amarillo. COO Lanier Lawfirm.
• Barbara Gervin-Hawkins
  • Univeristy of Eastern Michigan. Sister of NBA Player George Gervin. Together founded community center and charter school.
• Tomas Uresti
  • Former School Board member. Legal Assistant. Uresti Law Firm.
• Philip Cortez
  • UT Austin. Working on PhD in Educational Administration. Fraternal Order of the Eagles.
• Diana Arevalo
  • Executive Director for an after school affordable music program. Former DNC staff. BBA from UTSA.
• Victoria Neave
  • Attorney. Texas Southern University. Community Service focused on the elderly.
• Lina Ortega
  • UT Austin. Attorney. Helped Created El Paso Co. Code of Ethics. 
• Kyle Biedermann
  • Univ. of South Florida. Small Business Owner. Primary Win touted by Empower Texas.
• Stan Lambert
  • Abilene Christian Univ. SMU. Former Banking Exec. Athletic Director at Abilene Christian. Former School Board Trustee.
• Lynn Stucky (Mr.)
  • Veterinarian.  Kansas State. Former School Board Trustee.
• Mike Lang
  • Grew up on a farm in Illinois. TCU. Retired law enforcmeent officer.
•  Hugh Shine
  • Held the seat 30 years ago. Sam Houston State. Army retired after 30 years of service. Colonel Shine.  MBA Baylor.
• Scott Cosper
  • Former Mayor of Killeen. Former City Council member. Cosper Custom Homes and Construction. Member of the Texas Department of Transportation Policy Board for 16 years
• Gina Hinojosa
  • UT-Austin. George Washington Univ. Attorney. School Board Trustee. 
• Justin Holland
  • City Council Member. Mayor Pro Tem. Realtor.Texas Tech.
• Terry Wilson
  • Combat veteran. Retired from Army after 30 years. Touted by Empower Texas/
• Ernest Bailes
  • Texas A&M. Whitetail deer genetics company founder. Served on an Appraisal Board.
• Jay Dean
  • Former Mayor of Longview. The mayor who paid to stop Ted Nugent from performing a 4th of July concert. LSU.
• Cole Hefner
  • Former Upshur Co. Commissioner. Independent Insurance Agent. Pilot.
• Lance Gooden
  • Will be his 3rd session. UT Austin. Business Development Consultant.

+3 Senate: 

• Dawn Buckingham
  • Volunteer firefighter. UT-Austin. Lake Travis ISD trustee.
• Borris Miles
  • Sam Houston State. Former law enforcement officer. 
• Bryan Hughes
  • UT-Tyler. Baylor School of law. Supported by the Lt. Gov. during the 2016 primary.

Requiring that land owners allow precondemnation access to their land for pipelines is going out of fashion.

The latest court to side against pipelines in eminent domain: The West Virigina State Supreme Court

What did the West Virigina Supreme Court have to say? 

• unconvinced the pipeline serves a public benefit
• if there is no public benefit, there is no eminent domain and there is no access to land without land owner consent.

Why did the court decide there was no public benefit in the pipeline? 

• The court determined that the primary purpose of the pipeline was to move product from Northern West Virginia to markets in the Mid-Atlantic and Southeast regions of the U.S. 
• “no “definitive evidence” that any non-MVP affiliated gas producers would benefit from the pipeline.”

Charleston Gazette Mail | Landowners win case to block unauthorized pipeline surveys 

A trial court in San Francisco ruled against AirBnB, and other home sharing rental companies by upholding an ordinance that prohibits comapnies from doing business with unlicensed property owners. 

Home sharing companies will appeal the licensing ordinance.

The Economist | Business this week

• Eminent Domain was used to erect current border divisions.
• Nearly all the land on the Texas border is privately owned
• Its not going to be a fast process, the last litigation process was long and costly for the government. 

Houston Chronicle | Border residents wonder what it will be like to live in shadow of President-elect Trump’s wall

The film footage: Footage from President Kenedy’s fateful day in Dallas

Did the government compensate the film’s owner? In 1999 the family was compensated $16 million

San Francisco Chronicle | ‘Twenty-Six Seconds,’ by Alexandra Zapruder

What city wants to sue banks? Miami

Why is Miami suing? Big banks created discriminatory lending practices that led to foreclosures, less tax revenue & blight

Is this a new kind of lawsuit? No the federal government has been settling suits like this against big banks.

Washington Post | Supreme Court seems to favor Miami suing banks whose lending practices led to neighborhood blight

Who: A Virigina landowner, whose land could be impacted by a pipeline

Is doing what? Defending the pipeline. The landowner says that federal agencies, and not landowners, should determine whether a pipeline is a public benefit.

What elese does this landowner say about eminent domain? “without eminent domain, there is no civilization”

What do opponents say? “We are fighting against taking our property for profit.”

NBC 29 WVIR | Property Owner Defends Pipeline, Says He’s in ‘Silent Majority’

The majority of state Supreme Courts havve said that property cannot be forfeited before a trial by jury takes place.

Governing | Police-Seizure Ruling Puts Montana in Line With Most States

Missoulian | High court rules for jury trials in civil forfeiture cases

informed intel has seen private property rights v. religious freedom rights, in which the 1st amendment right to freedom of religion won.

Informed intel is seeing private property rights prevail in these latest rounds:

• From the Great State of Utah:
  • ​ An Agricultural Gag Law, or “Ag Gag Law” is seeing the private property rights of agrarians be pitted against the first amendment freedom of expression rights of animal activists. 
• From the Great State of Idaho: There’s no ruling in this Utah case. A previous case in Idaho got tossed, leaving the Ag Gag firmly in place.

KSL | Judge consideres whether Utah’s ‘ag gag’ law violates rights

Background:  In September the Pennsylvania Supreme Court denied eminent domain authoeity for underground gas storage as unconstitutional under both the state and federal constitution.

What did private property activists learn from the Supreme Court ruling?

• Economic gain by the condemnor can be a trigger for courts

State Impact Pennsylvania | A new front emerges in the battle against eminent domain

In supporting the newly formed texas Property Rights Initiative, the Texas and Southwestern Cattle Raisers Association representative mentioned 3 issues about eminent domain compensation:

• eminent domain does not involve a willing buyer and a willing seller
• Eminent domain compensation increased in court
  • the TSCRA representative’s family property in 2 eminent domain disputes was awarded 600 times & 10 times more after fighting the taking in court.
• Current law favors for-profit companies using eminent domain power

San Angelo Standard Times | Eminent domain big concern for landowners

WHO: Texans for Property Rights Initiative includes:

• Texas and Southwestern Cattle Raisers Association
• Texas Farm Bureau
• Texas Wildlife Association
• Texas Forestry Association
• South Texans’ Property Rights Association
• Texas Poultry Association
• Texas Sheep and Goat Raisers Association
• Independent Cattlemen’s Association
• Texas Grain Sorghum Association
• Plains Cotton Growers, Inc.
• Corn Producers Association of Texas
• Riverside & Landowners Protection Coalition
• Texas Land & Mineral Owners Association
• Texas Association of Dairymen
• Texas Cattle Feeders Association

WHAT is their goal: Meaningful eminent domain reform

WHERE: In Texas 95% of the land is privately owned which  “puts the needs of the public in direct conflict with the rights of Texas property owners”

Mineral Wells Index | Organizations launch Texans for Property Rights initiative

The city imposing a short term rental ordinance: Nashville, TN

The highlights from the Nashville ordinance:

• Capped rentals at 3 percent of all homes within each neighborhood
• Requires would-be renters to obtain a permit

What was unconstitutional?  The ordinance was too vague, but the 3% cap completely A-OK

Model Legislation from ALEC is moving in TN after having passed in AZ.

Reason | Nashville’s Airbnb Regulations Ruled Unconstitutional

Add Montgomery County to the list of counties that oppose eminent domain for proposed high speed rail from Houston to Dallas. 

The vote: unanimous

The common theme among commissioners: An opposition to a private company seizing private property.

The resolution:

RESOLUTION AND ORDER

WHEREAS, Montgomery County finds that any high-speed rail lines and facilities crossing county roads is not desirable; and

WHEREAS, Montgomery County values the protection of real property rights in Texas; and

WHEREAS, Montgomery County supports all state legislative actions prohibiting the use of eminent domain for high speed rail activities; and

WHEREAS, Montgomery County and the City of Magnolia established a Sub-Regional Planning Commission to provide for the special planning needs of the area; and

WHEREAS, high speed rail crossings on county roads are a public safety concern and are an unwarranted risk to the traveling public; and

WHEREAS, several other counties, including Brazos, Waller, Burleson, Grimes, Leon, Madison, Robertson and Washington have opposed high speed railways, specifically the use of eminent domain to facilitate the activity; and

WHEREAS, Montgomery County finds that high speed rail lines crossing county roads would increase the maintenance costs for those roads;

On this the 25th day of October 2016, at a Regular Session meeting of the Commissioners Court, a motion was made to consider and approve the resolution and order opposing high speed rail in Montgomery County, Texas, the use of private property and/or eminent domain for high speed rail activities in Montgomery County.

NOW, THEREFORE IT IS HEREBY APPROVED AND ORDERED, that the

Commissioner’s Court of Montgomery County, Texas, opposes high speed rail in Montgomery County, Texas, the use of private property and/or eminent domain for high speed rail activities in Montgomery County, and the crossing or use of county roads to facilitate high speed rail activities in Montgomery County, Texas.

ADOPTED THIS 25TH DAY OF OCTOBER, 2016

MONTGOMERY COUNTY, TEXAS

& ::::::. >>>

Montogomery County Police Reporter | Court adopts resolution opposing use of eminent domain for high-speed railway

Eminent Domain by the numbers:

• 5, 042   total entities with eminent domain authority
• 211 the number of times eminent domain authority was exercised in 2015
• 1227 the highest number of entities within a county that have eminent domain authority
  • the #1 county: Harris
• 239 the 2nd highest number of entities within a county that have eminent domain authority
  • the #2 county: Dallas
• 30% of entities with eminent domain power are Municipal Utility or Water Districts
  • 2/3 of the 30% are within Harris county 

Eminent Domain powers interactive map:

INSERT MAP http://www.houstonchronicle.com/business/texanomics/article/A-window-into-the-exploding-power-of-eminent-9984424.php

Houston Chronicle | A window into the exploding power of eminent domain

Gearing up for an intra-industry fight: Texas Mineral Owners vs. oil and gas industry

What’s triggering the beef between these 2 groups? Whether companies can drill horizontal wells that reach across different lease lines

From the Texas Mineral Owners’ side: Mineral Leases often prohibit pooling. Pooling is seen as:

• tramples property rights
• upends negotiated contracts

From the oil and gas side:  companies have histroically pooled adjoining leases

San Antonio Express News | Fight brewing between Texas mineral owners, oil and gas industry

If an entity wants to acquire land, and may or may not have the power of eminent domain, how does the entity acquire land?

By offering above market value for land. At least, that’s what Texas Central Rail is offering to avoid eminent domain.

Community Impact | Rural residents, high-speed rail proponents clash at community forum

What land near UFOs is there a pre-eminent domain negotiation for value? The Groom Mining Land near Area 51

What value does the property owner appraisers give the land?  $44 million and $116 million

What’s the offer from the federal government? $333,300 with a final offer of $5.2 million

What factors do the property owners say factor into the land’s value?

• The land is the only privately held land with a view of Area 51
• An appraiser found the federal government will gain $444 million (and) $2 billion per year by acquiring the land
• The land has been in the family, and mined by the family since 1889

Las Vegas Review Journal | Family accuses Air Force of lowball price estimate on land it seized near Area 51

Where is this happening? New York City

What’s happening? Short term rental company, AirBnB, agreed to track property owners who have are renting out multiple locations

Why does this matter?  2 reasons:

1.  It typifies local ordinance quagmires over short term rental ordinances.

• Property owners like the free market principles of short term rentals to use their property as they see fit.
• Local governments, like NYC, want to address issues like exacerbating a lack of affordable housing

2.  NY Legislature making short term rentals illegal by requiring all rentals to be for 30 days or more. The bill awaits the Governor’s signature.

New York Times | Airbnb Proposes Cracking Down on New York City Hosts

The Wall Street Journal looks at the tie between land use regulations and 

• land use regulations drive up the cost of construction
• higher construction costs limits new construction to luxury construction
• the result: urban economic segregation

What protections do local governments say land use regulations provide:

• preserve the historic charm of neighborhoods
• ensure sunlight and fresh air can reach the streets
• limit congestion on sidewalks, streets and public transportation

Wall Street Journal | As Land-Use Rules Rise, Economic Mobility Slows, Research Says

Which 2 swing states are propping up property rights? PA in Robinson Township v. Commonwealth & OH in Kinder Morgan utopia v. PDB Farms 

How are these states at the forefront of property rights trend? Courts in each of the state’s have denied private businesses from using eminent domain when no public benefit exists

What’s the kicker on public benefit? Both of the projects denied eminent domain authority were moving goods over a common carrier to Canada with no facilities in the state in which eminent domain was sought

What to watch: 

• Do these lead to overturning Kelo as we’re dealing with economic interests in each case?
• Do these cases give rise to more suits against private companies utilizing eminent domain as a pretext for profit making?

Washington Post | Volokh Conspiracy | Victories for property rights in Pennsylvania and Ohio state courts