Land Use & Property Rights

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

An Ohio Court has stopped the power of eminent domain for a pipeline in Ohio based on this rational:

• The pipeline is benefiting 1 manufacturer, not a common good
• The pipeline benefit is in Canada and not in Ohio

Sandusky Register | Ruling could help farmers battling pipelines

The project that seeks the authority of eminent domain:  A new stadium in El Paso

What a real estate developer says:

• The City of El Paso holds all the cards in the negotiation
• The property isn’t valued for its future value but is valued based on current value without regard to future development

What the city says:

• Doesn’t think eminent domain will be used

ABC 7 KVIA | Real estate broker, property owner shed light into eminent domain process

CBS 4 El Paso | Council passes arena project site, possible use of eminent domain

The research on contracts that led to the Nobel Prize in economics included analysis of private property rights contracts.

The takeaway from the research: “contracts should make clear what needs to be done to deal with future disagreements between parties rather than center on specific requirements.”

VOA NEWS | Nobel Prize Winners Studied Agreements Affecting Everyone

Who is pushing more private property rights in groundwater? Senator Perry

The impetus to strengthen these private proeprty rights? Some bad actors in the water district world

Lubbock Avalanche Journal | Sen. Perry gives overview of upcoming session at HPWD’s meeting

Where: Ohio

Who or what denied eminent domain authority? A state judge

What project was denied eminent domain authority? A pipeline that would move natural gas froma  shale region in Ohio to a facility in Canada

Why wasn’t public use of benefit met? Because the benefit from the poeject was found to be the end point of the pipeline in Canada. The jobs created in Ohio were not persuasive to the court.

The Toledo Blade | Wood County judge nixes pipeline builder’s eminent domain plans

TPPF’s “Legislators Guide to the Issues 2017-2018” offers these property rights recommendations:

• Shift the burden of proof to the condemning entity thereby away from the property owner
• Reduce deference to government decisions in property rights matters
• Restore constitutional right to own and use property
• Texas Real Proeprty Presenrvation Act should be applied to municipalities
• Eliminate a threshold taking amount in the Texas Real Proeprty Presenrvation Act
• Condemining entities should be able to issue waivers that run with the land in lieu of compensation
• Roll back land use restrictions

Where is this happening? Atlantic City, NJ

What is Atlantic City doing with abandoned property? taking over abandonded property using eminent domain

Is the city keeping the property it takes by eminent domain or reselling it? Reselling it to developers

How does this fit with blight laws? It is “spot blight eminent domain” thereby instead of taking multiple parcels of land, it is specific abandonded parcels of land

Press of Atlantic City | Atlantic City to hold meeting on abandoned properties

In a laundry list of pipeline reforms, a newspaper recommends prohibiting eminent domain when the public good is in whole or part exported. 

The targets: Private companies with eminent domain authority like transmission lines & pipelines

The Recorder | Greenfield Massachustees | Lets Fix Pipeline Review Steps

• It doesn’t matter if the condemning entity only wanted the land and not the business
• A legal obligation exists to pay “full and perfect equivalent” of what is taken
• This legal obligation includes when a business is taken

What legal case is involved? South LaFourche Levee District v. Chad M. Jarreau

Tell me what happened? 

• A Levee District found land to be susceptible to storm surges and flooding
• The district imposed easement restrictions 
• The easement restrictions prohibit the existing evacuation business from operating

NFIB | Landowners Should Be Compensated for Loss of Business in Eminent Domain Cases

The case: Murr v. Wisconsin

The Compensation issue: Can compensation under eminent domain be impacted by a regulation. In the case, a regulation leads to the devaluation of contiguous property because it is owned by the same land owner.

9 States have taken the side of the property owner:  Nevada, Alaska, Arizona, Arkansas, Kansas, Oklahoma, South Carolina, West Virginia, and Wyoming

9 Other states have taken the side of Wisconsin: California, Hawaii, Illinois, Massachusettes, Maine, Minnesota, Oregon, Vermont, Washington

Pacific Legal Foundation | Murr v. Wisconsin 

Washington Post | Volokh Conspiracy | Thoughts on the California amicus brief in Murr v. Wisconsin – an important takings case currently before the Supreme Court

• Solar Leases vs. Mineral Rights. A lease could put a landwoner in conflict with mineral rights
• Agricultural Tax Exemption Goes Bye Bye.  Solar farms do not qualify.
• No Agriculture. Solar panels don’t allow for the same agricultural use of land that oil and gas and wind turbines allow.
• No settled solar law. Oil and gas has 90 years of law and case law to settle disputes. Soalr is a new issue.

Texas Observer | A New Solar Rush Creates Legal Minefield for Landowners

• Webster (D) opposes eminent domain for high speed rail
• Webster (D) the eminent process offers “little recourse” to landowners
• Webster (D) says eminent domain should be under more local control

Victoria Advocate | State District 13 candidates weigh in on jobs

• Highlights the eminent domain prohibitions that passed in Georgia and South Carolina
• Focuses on the unusual alliance of property rights advocates & environmentalists
• Ilya Somin stresses that some pipeline use of eminent domain does meet constitutional muster.

Washington Post | Volokh Conspiracy | Federalist Society teleforum on pipeline takings

Which state: Pennsylvania

What did the PA Supreme Court say about eminent domain? That private companies that have eminent domain power that is excercised to support their private business is an unconstitutional of taking private land for a private purpose.

What were the specifics on the companies involved with eminent domain? Natural gas companies that stored natural gas on private land. 

Washington County Observer Reporter | Portions of Act 13 gas drilling law struck down as unconstitutional

Which states are eminent domain battlegrounds? Georgia & South Carolina

Which issues are resonating?  prohibition on eminent domain exercised by or in support of private companies

Are there new, post-Kelo coalitions? Yes, property rights advocates + environmentalists

The primary eminent domain target? Pipelines

The answer for pipelines? Condemning in federal court, under federal laws that do not provide as great protection for landowners and may preempt state law

National Law Review | Georgia And South Carolina Are The Newest Battle Grounds For States’ Eminent Domain Authority

The high speed rail project: Texas Central Rail, Dallas-Houston line

The court: a Harris County Court

The issue the court was considering: precondemnation access to land by the rail

Why landowners claim victory: The request for access to the land was withdrawn

Why high speed rail claims victory:  No meaningful decision was made by the court

Houston Chronicle | High-speed rail land dispute lands in Houston court

The State: Tennessee

The County Resolutions: Urge the State Legislature to prohibit eminent domain to benefit private projects

Is this bigger than banning eminent domain for private entities? yes, it calls for a prohibition on government use of eminent domain to benefit a private entity

Jefferson County TN Standard Bearer | Carmichael re-elected as chairman

I’m confused, what’s happening? Palo Alto California wants to use eminent domain to keep a mobile home park as a mobile home park

What does this do to the property owner? Prevents the owner from selling the land to a developer for other purposes

The public pupose asserted: Maintaining low income housing

Fox News | ‘Flatly unconstitutional’: Mobile park owners fight gov’t bid to block redevelopment

What project using eminent domain is being affected? The Dakota Pipeline

What court is intervening to pause work on the pipeline while the legal issues are resolved? The D.C. Circuit

Why are we dealing with the D.C. Circuit? Tribal lands are sovereign lands.

Triple Pundit | Dakota Access Pipeline Halted as Court Reviews Emergency Appeal — But Protests Continue

The number of arrests at the Dakota pipeline eminent domain protest.

KWQC | 43 people were arrested during Dakota Access Pipeline protest

Where: California

What is this new delectable eminent domain tool? community revitalization and investment authorities (CRIA) that allow local governments to redevelop land with eminent domain

The estimated threat of eminent domain: 78% of private property could be threatened by eminent domain.

Eminent Domain isn’t the only concern of property rights activists: If property is included in a CRIA the local governments can fund new bond incremental financing 

In 2011, CRIAs received 12% of all statewide property tax revenue.

California AB 2492

National Review | The Golden State’s New Eminent-Domain Temptation

Where: Georgia

Why does the sapce port need eminent domain? Because of the frequency of launches, land surrounding the area may need to be condemned for safety purposes.

What state law impediment exists? In 2006, Georgia amended its eminent domain laws to require a public purpose, and it’s believed space travel does not meet that standard.

WABE Atlantat’s NPR | Safety, Legal Issues Could Ground Georgia Spaceport Plans

Get them all! Good for Pokemon players. Not good for property owners whose private proeprty contains pokemons.

Where are Pokemon players gathering in mass? A Florida condo complex

What kind of lawsuit did the condo association file against the makers of Pokemon? Nuisance

The condos lawsuit calls the hoards of Pokemon players “zombies, walking around bumping into things”

Law.com | Fla. Condo Latest to Sue Over Hordes of Pokémon Players

A PAC in the east wants a city to use eminent domain to create a co-op grocer to provide affordable food and necessities.

Where in the world is this waldo? Charleston, SC

What did this PAC name itself? Lowcountry Up Is Good

What does the PAC say its goal is? to “establish a community cooperative grocery to provide affordable food and necessities to the surrounding community and accessible transit riders.”

What should this PAC name itself? Robinhood. No cash. Just food and Goods.

The Post & Courier | Eminently sound tip: Buy low, sell high

These high profile Texans signed an ad that ran in the Dallas Morning News opposing the Trans Pecos Pipeline:

• Peter Coyote
• Tommy Lee Jones
• musicians:  Ray Wylie Hubbard, Randy Jackson, Sara Hickman and Gurf Morlix

Who organized the ad? Big Bend Conservation Alliance

Other celebs involved in anti-pipeline/anti-eminent domain issues: Leonardo DiCaprio, Tommy Lee Jones, Jason Mamoa, Exra Miller, Ray Fisher, Pharrell Williams, Susan Sarandon, and Shailene Woodley

Indian Country Today Media Network | Energy Transfer Opposed in Texas, Too, As Celebs and Landowners Fight Local Pipeline

Where is this happening? Far North Texas, also known as, Colorado. Weld, County, CO

What issue is this editorial confronting? Pipelines that traverse farm land.

What recommendations do they have for pipelines?

• eminent domain is a privilege, not a threat
• eminent domain is not a bargaining tool
• fields should be left in good condition, no cheating on what soil is used for backfill
• avoid careless mistakes like using sandy soil

The Tribune of Greeley & Weld County, CO | Tribune opinion: Regulations regarding pipelines provide right balance

A watershed coaltition in Southern Georgia and Northern Florida touts solar energy because it doesn’t require eminent domain. 

Atlanta Progressive News | PROPOSED SABAL GAS PIPELINE RUNS THROUGH AQUIFER, WETLANDS, SINKHOLE TERRITORY

Which Court of Appeals? 3rd Court of Appeals in Austin

What did the Court do with the Texas Highway Beautification Act? Struck down key portions of the Act, specifically Subchapters B and C

For those who love statutes: Subchapter B REGULATION OF OUTDOOR ADVERTISING GENERALLY & Subchapter C LICENSE AND PERMIT FOR OUTDOOR ADVERTISING

Why were these subchapters struck? unconstitutional content based restrictions on free speech

Houston Chronicle | Core of Texas highway sign ban tossed by appeals court

Auspro Enterprises, LP v. Texas Department of Transportation 03-14-00375-CV

How does a landowner whose land is in the path of a proposed water pipeline cause a legal quagmire? Create a special district- a Conservation District.

How do 2 special districts resolve eminent domain over another’s land? The courts are deciding whether the land can be taken.

What have the courts said about dueling eminent domain authority of special districts?The TX Supreme Court ruled in favor of the Conservation District lands on a procedural issue, and now the issue of eminent domain taking is back before the trial court.

Who is the new eminent domain champion? Monty Bennett

D Magazine | A Gentleman Rancher’s Guide to Fighting Tarrant Regional Water District

The city: Santa Monica, CA

The short term rental regulations: 

• No advertising
• Requires internet providers to provide information about those posting short term rentals for rent
• Home owners must be home during the rent
• Home owners must have a business license to operate as a short term rental

the lawsuit: HomeAway & AirBnB sued in federal court asserting 1st Amendment free speech violations, violations of the Communications Decency Act & the 4th Amendment 

Law360 | HomeAway, Airbnb Sue Santa Monica Over Ad Ban

Engadget | Airbnb claims Santa Monica ban violates the Constitution

Access the database here: Comptroller’s Online Eminent Domain Database COEDD

Search by: 

• Entity Name
• Entity Location
• Entity Type:
  • City 
  • County
  • EDC
  • ISD
  • Municipal Water, MUD, Irrigation District…
  • Other special district- emergency services, hospital district….
  • Pipelines and related
  • Telecommunications and telephone
  • Railroads

By the numbers:

• 408 results in pipelines
• 54 results in communications
• 98 results in other special districts
• 1488 results in water districts
• 195 EDCs with eminent domain authority

KOSA CBS 7 | Eminent domain database now available for public use

Orange Leader | Texas Comptroller Glenn Hegar Announces Eminent Domain Database Ready for Public Use

San Marcos Daily Record | Eminent domain database launched

Kingsville Record | Eminent domain database launched

Presidential candidate Gary Johnson, the Libertarian, says on FoxNews that  the litmus test for Supreme Court justices should be eminent domain. 

The eminent domain trigger of choice: Kelo. Should eminent domain be used for economic development?

Gary Johnson Views Eminent Domain as Supreme Court Litmus Test | Libertarian Republic

The Number of Arrests: 38+

The Native American arguments against using eminent domain for the pipeline:

• harm to a Native American cutural site
• harm to the tribe’s water supply

The number of courts involved:

• The tribes sued in D.C. federal court for an injunction to stop the pipeline
  • the court is epxected to rule Sept. 9th
• The pipeline sued in federal court in Iowa to stop the protestors
  • the court denied this request

Wall Street Journal | Pipeline Protests Bring Dozens of Arrests in Iowa, North Dakota

Previously on InformedIntel, August 25, 2016:

The Nakota, Lakota and Dakota Nations are mobilizing to halt a pipeline. It is a peaceful protest that prohibits weapons.

Captured on video, its the tribes the largest mobilization in 140 years. The Native Americans are protesting a pipeline across their sacred lands.

NY Times Video | American Indians v. Dakota Pipeline 

How are drones used? Drones fly over private property to collect 3D property mapping models to use in eminent domain litigation

How does this fit with juries? Juries can take virtual reality tours of the property to be condemned

Wisconsin Law Journal | Firm brings modeling into eminent-domain litigation

The local governmental entity: South San Joaquin Irrigation District

The private utility: PG&E facilities in  Ripon, Escalon, and Manteca

The purpose for condemning the private entity: Saving the residents of the irrigation district at least 15%

Current status: In July the irrigation district filed eminent domain proceedings

The potential attorney fees: Looking for a guide to the Missoula, MT eminent domain acquisition of a water utility, attorney fees could be more than $14,000,000.

Lexology | Nossaman LLP | Municipal Condemnation of Privately Held Utilities Continues to be a Hot Issue, but at what Cost?

North Dakota in 2015 passed a bill prohibiting quick take of property for eminent domain. it was vetoed. An interim study was convened. Where are they now?

• North Dakota has been experiencing abuse of quick take eminent domain by special districts building flood control projects and drainage projects
• Recent court cases have said that water districts aren’t following proper eminent domain process
• The Committee is set to recommend 3 solutions.

Bismark Tribune | The battle between private property and public benefit

The State: Utah

The Legislation:  Senate Bill 151 from 2016 General Session

What Senate Bill 151 requires in a development and tax incentive deal:

• If a taxing entity involved in an incentive deal wants to make a finding of blight, it must:
• Form a committee with the other taxing entities
• All the taxing entities must agree to verify the blight finding & agree to eminent domain.

Salt Lake Tribune | Op-ed: Data center is a sound investment in Utah’s future

Yes, it was. State Representative Hitchens in a pipeline supporter & author of the 1 year ban on eminent domain.

Why? What pushed him over the edge? A private property rights supporter, a veteran, a retired law enforcement officer, a wildife supporter, and it had been 23 years since Georgia grnated private companies the power of eminent domain.

The 23 year time span since authorization was the tipping point? Partly, Yes. Technologies have changed on pipeline safety. 

What landowner stories impacted the legislator? A land owner whose family had owned the same land since its original grant in 1753 from the King of England.

Does this Republican have an opinion on taking private property for a private enterprise, like a pipeline? Yes, he is against it, but he understands the need for government use of eminent domain. 

Southeast Energy News | Q&A: Eminent domain and the Georgia pipeline debate

The Nakota, Lakota and Dakota Nations are mobilizing to halt a pipeline. It is a peaceful protest that prohibits weapons.

Captured on video, its the tribes the largest mobilization in 140 years. The Native Americans are protesting a pipeline across their sacred lands.

NY Times Video | American Indians v. Dakota Pipeline 

All recent Olympics have involved eminent domain, but the largest use of eminent domain was Beijing which took property from 1.5 million.

Lexology | The Olympics’ Secret Use of Eminent Domain

A lawfirm points out that negotiations with a land owner can generate statements from a landowner that can be used against them at trial. 

“Nothing could be more detrimental to the owner.”

Nationaleminentdomain.com | WHY KITCHEN TABLE MEETINGS DO NOT WORK

Background: Georgia legislatively haled eminent domain by private companies while it assessed how pervasive private eminent domain use is.
 

The official name of the commission:  Joint State Commission on Petroleum Pipelines

What types of individuals were appointed by the Georgia Governor to the Eminent Domain Commission?

• Savannah-based local petroleum provider 
• An environmental nonprofit executive
• President of Stuckey Timberland, Inc.
• Mayor of Odum
• President of Nipper Construction Company, Inc.
• vice president of the land department for Georgia Power
• 3 State Representatives
• 3 State Senators
• State Environmental Protection division director
• State commissioner of Community Affairs

Savannah Now | Gov. Deal finalizes pipeline study commission

What is the activist event? Hands Across Our Land, a national activist day

The specific property rights threat? Pipelines

the goal of the property rights activists: ” to bring attention to the plight landowners and communities face as energy corporations push for the construction of pipelines” 

The Valdosta Daily Times | Activists hold hands across the land

Where is this happening: Ogden, UT

What is the new private property rights group:  Ogden Alliance Against Eminent Domain Abuse working with the Institute of Justice

The city action that sparked the group’s formation: The city seeks to declare a 9 block residential area as blighted

Institute for Justice | Ogden Residents Unite to Fight City’s Bogus Blight Designation

California is building a state funded high speed rail system.

Is the project behind schedule? Yes. The 1st segment moved its completion date from March 31, 2018, to August 2019. 

What is causing the delay? Acquiring land which means Eminent Domain Delays.

How many land parcels are required for the Valley portion of the high speed rail first leg?1,590 parcels of property. 841 parcels were secured as of last week.

For 1 segment, the Fresno-Madera segment, what are the current cost overrages? $50 million

Fresno Bee | Time is money – $50 million – for high-speed rail delays in Fresno area

What type of complaints are homeowners alleging against Pokemon Go? Nuisance

What caused a nuisance? A Pokemon Gym that increased traffic and safety concerns

The Recorder | Pokemon Go Causing a ‘Nightmare’ for Homeowners, Suit Says

Where are activists calling on a mayor to use eminent domain? New York City

What property do they want taken by eminent domain? A storage business

What purpose do they want the land taken? A park

News 1 New York | Activists Urge City Hall to Use Eminent Domain to Build Long-Delayed Bushwick Inlet Park

Activists opposed to Texas Central Rail proposed high speed rail between Dallas and Houston make the following points:

• Obsolete technology in high speed rail
• No public benefit from high speed rail
• Private Property rights are held in high regard in Texas

Houston Chronicle | Protester of proposed Houston-Dallas high-speed rail line shouts “remember Pearl Harbor”

• Folks representing high speed rail are entering land without permission
• Strong arm tactics by folks representing high speed rail
• The use of eminent domain by private companies like Texas Central Rail

KTRH | Is Eminent Domain Becoming the Norm in Texas?

Your Tomball News | Grimes County Commissioners vote to require high-speed rail officials to provide proof of eminent domain authority

Which County wants to require county permits before construction on high speed rail may begin? Grimes County, Texas

Is the proposal supported by state lawmakers? Yes. Support has been indicated by Sen. Schwertner, Rep. Schubert, Sen. Birdwell, Rep. Ashby & Sen. Kolkhorst

What would trigger a permit? Any construction crossing a county right of way

What would the application include? A requirement that the entity has state or federal authority to use eminent domain

Are other counties going to follow suit? Yes 

WTAW News Talk 1620 | State Lawmakers Support New Grimes County Requirements For Bullet Trains

How civil asset forfeiture can impact law enforcement:

• Patrols may be altered to focus on routes that move cash, and not on routes that move illegal goods.
• Citizens won’t challenge the seizure of small amounts of cash or old cars creating a revenue source of $4.5 billion in 2014, nationwide

Governing | Civil Forfeiture Laws Pit Police Versus Everybody Else

The new regulatory framework for deer breeders includes:

• Newly created Interim Breeder Rules
• Clarifies that Chronic Wasting Disease (CWD) management zones function “on their own terms”
• Moving deer requires a designation for a facility as Movement Qualified (MQ)
• Only vets can collect samples for ante-mortem testing
• Provides for ante-mortem testing of all deer, eliminating the 16 month residency rule
• Provides for year-round submission of ante-mortem test results
• Post mortem testing samples can be obtained by a vet, a TAHC-certified CWD sample collector, or someone approved by the TPWD
• Establishes a 3:1 ratio for ante-mortem test results that may be substituted for post-mortem test results
• Creates 3 levels of breeder facilities TC 1 (lowest risk), TC 2, and TC3 (highest risk)

Texas Parks and Wildlife Department Chapter 65 Proposed Rules Effective August 15, 2016

Let’s look at how NBC News portrayed the local fracking ban in Denton:

Words used to describe those opposed to fracking: 

• NBC’s words: 
  • not a lot of experience
  • committed
  • driven
  • “inspiring victory for grassroots organizing and local democracy”
• The supporters description of the opposition:
  • “were in Vladimir Putin’s pocket and were trying to protect Russia’s share of the global natural gas market”
  • People in Denton ” lacked the sophistication to address technical matters like fracking”

Words used to describe those supporting fracking:

• NBC’s words:
  • “the views of ordinary people don’t count for much”
  • ruthless conservative power grab
  • “runs roughshod over the authority of local governments to determine the direction of their own communities”
• The fracking opponents description of the supporters:
  • . “I was worried about fracking to start with. But now I’m worried about democracy.”

The trigger that started the opposition to fracking: Drilling wells in “quick succession across the street from a playground, a hospital, and a row of homes”

NBC News | What Happened in Denton. The War on Local Democracy

What’s happening with short term rental regulation in California? The Legislature is pursuing statewide regulation

What do home sharing comapnies like Home Away and AirBnB support? A tax collection bill, SB 1102

Why do cities and labor groups oppose in SB 1102? It shields the names and addresses of their hosts

The Recorder | Five Bills to Watch in the California Legislature

The Court: New Jersey Supreme Court

The eminent domain: Taking a personal residence by the  Casino Reinvestment Development Authority

The Court Ruling: There is no public use, and no legislative authorization, because the special district didn’t have a clear plan

Washington Post | Court strikes down taking that is “a manifest abuse of the eminent domain power”

Hyperloop travel time from Austin to San Antonio: 15 minutes

Hyperloop financing structure: Private

Hyperloop use of eminent domain: No eminent domain will be used.

Texas Monthly | Will Texas Soon Be Home To The Fastest Train In The World?

Previously on InformedIntel, 14 July 2016:

Texas Transportation Project Saying No to Eminent Domain. Yes to Profit Sharing with Landowners.

The start up:    Transonic Transportation LLC

The rail project:   A hyperloop connecting Austin & San Antonio

The use of royalties instead of eminent domain: Instead of acquiring land, the model involves giving dividends and profit sharing to landowners

The pro-private proeprty rights angle: Since hyperloop track would be build on pylons, there is no barrier to access to land, unlike when tracks are laid on the ground.

San Antonio Business Journal | Exclusive: Making way for bullet trains, SA startup’s strategy to use royalties not eminent domain

Which city sought to aquire by eminent domain a water utility? Missoula, Montana

Who does the city allege acted in bad faith? The Carlyle Group

Where did the Courts fall on eminent domain? Montana Courts sided with Missoula to allow eminent domain against the water utility

What bad faith actions does the city allege against the Water Utility & its holding company?

• fraud
• negligent misrepresentation
• deceit
• breach of fiduciary duty
• deceptive and unfair acts and practices
• civil conspiracy
•  bad faith
• breach of contract
• actual fraud and malice

The Missoulian | City will pursue ‘bad faith’ claim against The Carlyle Group

Why is Airbnb is suing the CIty of Anaheim? A local ordinance makes Airbnb liable for short term rental proeprty owners who violate city ordinances.

What violations of local laws are we talking about? the ordinance requires Airbnb to remove unlicensed listings within 10 days of $500 for the first offense, $1,000 for the second offense and $2,000 for a third or subsequent offense.

Is this local law trending? yes, Airbnb also sued San Francisco for fines the city is imposing on the hosting site for property owners that are not licensed

Los Angeles Times | Airbnb sues Anaheim over law that makes the rental site liable for hosts who violate city law

The key issue: Business owners, who do not own the business’s property, may be forced into move 

The eminent domain issue: Texas does not recognize a comepnsable value for a tenant business

Do other states compensate a tenant? Yes, look at California

The property in dispute & the project: A new dental school facility at Texas A&M may require that the university acquire the property occuppied by the Elbow Room

Does this sound familiar, a popular establishment near a university facing eminent domain? In 2005 Players, at the University of Texas at Austin, was protected from eminent domain in the Texas Legislature’s ban on eminent domain for economic development.

KFAA | Texas may use eminent domain to elbow out the Elbow Room

CW 33 | Dallas Dive Bar Being Elbowed out by Texas A&M

NBCDFW | A&M College of Dentistry on Eminent Domain Takeover of Deep Ellum Bar

National Geographic’s website has a feature piece entitled, Palmetto Pipeline: An Eminent Problem. Here’s what you need to know:

• Southerners aren’t opposing pipelines for environmental reasons, but for private property reasons.
• What didn’t sit well with landowners is that the pipeline can take an easement via eminent domain, leaving the property owner to pay taxes on land that it can’t use because the pipeline is on it.
• In 2016, government officials denied eminent domain because there was not enough public benefit.
• Much of the land was near the  Savannah River, and may property owners are set on keeping the integrity of the waterway.

National Geographic | Palmetto Pipeline: An Eminent Problem

The State: California

The win: Landowners who sought compensation for extensive geological and environmental testing that included:

• multiple days of precondemantion access to land
• over a two-year period
• with the removal of soil borings to 150 and 300 feet

The public works project: A water tunnel under the Bay Delta as part of a new water delivery system

Matteoni, O’Laughlin & Hechtman | California Supreme Court Issues Major Ruling Regarding Landowner Compensation For Those Affected By Governor’s Proposed Water Plan To Tunnel Under Bay Delta

Which governmental entity vetoed an eminent domain project? Outagamie County Executive 

What governmental purpose was the project fulfilling? A new Sheriff’s department facility

What was the reason for the veto? It came to light a private company would operate the facility and create 100 jobs

WeareGreenBay.com | Outagamie County Executive to veto eminent domain plan

Which governmental entities are involved in this eminent domain case? York City Redevelopment Authority

What was the final offer price for the property? $65,000

What was the jury award?  $1.25 Million

How long did it take for the jury to award 19 times the offer? 30 minutes

Fox Rothschild LLP | David Snyder Wins $1.25 Million Verdict in Eminent Domain Suit Against York City RDA

• Economic principles do not apply to eminent domain because there is no willing buyer and no willing seller involved in eminent domain
• Behavorial economics loss aversion shows that people would pay less for other people’s property than they would accept as a purchase price for their property

Bangor Daily News | Eminent Domain, Just Compensation, and a Raw Deal for Homeowners

Which eminent domain case is resulting in landowners attorneys fees being paid by the condemning entity? TransCanada Pipeline vs. Nebraska land owners

York News Times | Nebraska Judge Orders TransCanada to Pay Legal Costs of Keystone XL Landowners

Why are normal eminent domain laws being bypassed? Because eminent domain will be too costly and will take too long

What is the eminent domain project? A dam

Which legislature created this eminent domain loophole? North Carolina

What 5 things do we need to know about this work around to normal North Carolina eminent domain laws?

• Quick take eminent domain was passed for this project
• Quick take eminent domain allows the dam builder to take possesion of the land immediately
• Quick take eminent domain allows the price of the land to be degermined later, after the project has started
• The quick take eminent domain is limited to this damn project
• The quick take eminent domain law is limited to 3 years in total

Fayetteville, NC Observer | NC House OK’s bill to help Hope Mills get land for lake; landowner feels wronged

The Federal Avaiation Administration finalized the first round of drone rules. 

6 Key Points:

• Drones must maintain a maximum flight speed of 100 miles per hour and a maximum height/elevation of 400 feet.

• The drone must remain in the operator’s visual line of sight (using a drone’s camera does not satisfy this requirement).

• While flight is limited to daytime use, operators will be allowed to fly their drones 30 minutes before official sunrise to 30 minutes after official sunset, provided they have appropriate anti-collision lighting.

• Flights over people are still not allowed unless the people are directly participating in the drone’s operation.

• Flights in covered structures or covered stationary vehicles are not allowed.

• While an FAA airworthiness certification is not required, the drone operator must conduct a preflight visual and operational check to ensure the drone’s safe operation.

National Law Review | New Drone Operational Rules Finalized by the FAA

The start up:    Transonic Transportation LLC

The rail project:   A hyperloop connecting Austin & San Antonio

The use of royalties instead of eminent domain: Instead of acquiring land, the model involves giving dividends and profit sharing to landowners

The pro-private proeprty rights angle: Since hyperloop track would be build on pylons, there is no barrier to access to land, unlike when tracks are laid on the ground.

San Antonio Business Journal | Exclusive: Making way for bullet trains, SA startup’s strategy to use royalties not eminent domain

What trade partcices allegations are being made against short term rentals?

• discrimination
• inconsistent tax collections
• violations of local health and safety regulations

What’s the solution proposed to curb this? Increased data collection of short term rentals with FTC monitoring

What would this look like as city ordinances or state laws? 

• Data collection requirement by the oversight agency to record ethnicity of renter,
• Tax collection data linked to the short term rental property
• Tracking of health and safety code violations.

The Recorder | Three U.S. Senators Urge FTC Investigation of Airbnb

What local government fines are home share platforms facing?

• In San Francisco, AirBnB and other home sharing services face $1000 per day fine for every unregisered host
• In New York, fine anyone who rents a whole apartment for fewer than 30 days, which has been illegal in New York since 2010

What’s the basis for the San Francisco lawsuit? 

• Feeral law prohibits holding websites legally accountable for the acts of their users

New York Times | Airbnb in Disputes With New York and San Francisco

Which eminent domain legal fight turned constitutional? The Trans Pecos Pipeline

Why do landowners believe Texas eminent domain laws are unconstitutional under the federal constitution? Because property is deprived before due process in that land is taken before the legal issues are resolved

The potential impact of this litigation? A ruling for the landowner impacts all eminent domain processes in Texas. Potentially stopping the ability for comdemning entities to build while litigation unfolds.

KWES News West 9 | Landowner suing Trans-Pecos Pipeline, challenging constitutionality of state law

Pending Litigation. 

See RQ-0113-KP submitted b Byron Cook & Closed Annotation in AG Opinion Request index

New York is imposing a $500 fine per day for banks that do not maintain homes that are foreclosed.

Time Warner Cable News | Gov. Cuomo Signs New Law Tackling Zombie Property Blight in NY

The Expert: Stanford University economics professor Alain Enthoven

The Subsidy angle: Eminent Domain is a subsidy.

A conservative writer points to Enthoven and 2 other “experts” to support the argument that subsidies will be involved in Texas High Speed Rail.

Ft Worth Star Telegram | Crystal Wright | Is rail company lying about building Texas bullet train without subsidies?

Where: North Carolina

The constitutional changes for Eminent Domain in North Carolina:

• Strike public benefit. Limit eminent domain only for direct public use
• Requires Compensation to be required by a jury, if the land woner so chooses

WRAL | Senate proposes three constitutional amendments

Where:  Denver

The home share ordinances in Denver:

• Only primary residences can qualify
• Only for less than 30 days
• Licensing required
• Property Owner collects the lodging tax

Denver Post | Denver nears finish line for rules on short-term rentals, but proposal faces grumbles

Are zoning laws usually the enemy of tiny houses? Yes. Zoning laws often prevent tiny houses.

• tiny houses can violate zoning by location
• tiny houses can be too small to comply with single family residence codes
• tiny houses can violate codes that require residences be connected to local utilities

What is the argument against allowing tiny houses in zoning ordinances? That property values will diminish by permiting tiny houses

Are tiny houses running amock with building codes? Somestimes yes, Some builders follow building codes, other times any staircase in a tiny house can violate uniform building codes or lofts are not tall enough.

Governing | Tiny Houses: Affordable, Energy-Efficient and Often Illegal

Which city passed new short term rental rules? Chicago

What was said the councilmembers? 

• This is about a new economy.
• Chicago is racing to keep up with new economic drivers.
• “This is the ‘Jetsons.’ We’re not going back to the ‘Flintstones,'”- Alderman Moreno

How are the new regulations described? “Dizzyingly complex”

What are 5 regulatory highlights?

• Different types of residences are regulated differently
  • a building with 5 residences, only 1 can be used for short term rental at a time
  • larger buildings are capped at 6 or 25% of the units, whichever is smaller
• Precinct by precinct initiative and referendum permited to allow an alderman to amend the local code for the precinct
  • local areas can choose to either:
    • outlaw new listings
    • allow new listings only in the “primary residences” 
• 4% tax to fund homeless services
• $60 ad fee for each online posting of a short term rental
• $10,000 local license for the short term rental hosting service

Chicago Tribune | Airbnb rules easily pass Chicago City Council despite vocal opposition

Joining other courts, which appelate court denied immediate eminent domain authority for a pipeline? A Pennsylvania appeals court

What argument is made to deny eminent domain authority to the pipeline? 

• The pipeline has not obtained approval from the state agency that must approve a certificate of convenience and necessity to trigger eminent domain authority
• Plus, the pipeline is interstate
  • so it can’t be regulated by the state
  • and, there is no interstate eminent domain authority
• There is no public benefit to Pensylvania because the goods carried on the pipeline will be used for export

State Impact Pennsylvania | Appeals court clears way for eminent domain suit against Sunoco Logistics

• The land taken for the infamous Kelo case, remains largely undeveloped and thus not an increased tax revenue source
• The job creator, Pfizer, left before its property tax exemption expired, and would have increased its taxes by 400%
• New London lost 1,500 jobs when Pfizer left

Legal Solutions via Reuters | TODAY IN 2005: SCOTUS DECIDES KELO V. CITY OF NEW LONDON

Which large western state utilizes redevelopment agencies that have eminent domain authority? California 

When did redevelopment use of eminent domain slow? During the financial downturn

Which use of emient doamin garnered the ire of property rights advocates in California?

• The use of eminent domain 
• To transfer private property to another private party
• The transfer, used by school districts & local governments, was to increase jobs or increase tax revenues

What’s the California Legislature doing now to eminent domain for redevelopment?

• Increase funding for redevelopment efforts
• Redefine blight to allow for property where the median income is below the state average

What has the California Legisaltive Analysts Office said about eminent domain for redevelopment? 

• ““The state’s costs associated with redevelopment have grown markedly over the last couple decades, yet we find no reliable evidence that this program improves overall economic development”
• Any increase in jobs would have resulted without the redevelopment agency use of, or threat of,  eminent domain 

California’s AB 2492 (2016)

San Diego Union Tribune | Op-Ed Pacific Legal FOundation | Lawmakers move to revive abusive eminent domain

Which state has a constitutional right to farm on its November 2016 ballot? Oklahoma

What eminent domain protections does it include?

“The Legislature shall pass no law which abridges the right of citizens and lawful residents of Oklahoma to employ agricultural technology and livestock production and ranching practices without a compelling state interest. Nothing in this section shall be construed to modify any provision of common law or statutes relating to trespass, eminent domain, dominance of mineral interests, easements.”

What do opponent claim is the intent of the constitutional amendment? To allow a water rich protion of the state to sell water to water poor areas of the state and to neighboring state, Texas.

The ADA News | Right to water? Right to Farm opponent expresses concerns about possible water grab from eastern Oklahoma if constitutional amendment is passed by voters

Who filed suit against the City of Austin short term rental ordinance? Texas Public Policy Foundation

What’s the goal of TPPF?  No licenses for property owners who lease out property for less than 30 days

What 2 constitutional rights are alleged in the lawsuit? The Right to Assemble. The Right to Privacy. 

How does TPPF address the argument that short term rentals are nuisances? That the city data does not support the city’s claim that the nuisances warrant special regulation

How many times does TPPF say property owners were prosecuted concerning short term rentals? 5 times. All 5 were for operating without a license.

Dallas Morning News | Ordinance targeting renters stirs up sharing economy fight over Airbnb in Austin

TPPF | TPPF Files Lawsuit to Halt City of Austin Short-Term Rental Ordinance

Let us count the ways that eminent domain is destroying land, irreplaceable landscapes and precious natural resources in Texas:

• Private companies using land for profit
• utilities and infrastructure running rampant
• The proliferation of MUDs
• MUDs serve private developers 

Wimberley Valley Watershed | How Eminent Domain Abuse is Destroying Texas’ Most Valuable Landscapes

The Requestor: Chairman Byron Cook initiated RQ- 0113-KP about Texas Central Rail

The Questions asked of the Attorney General:Do the parties have eminent domain authority to condemn property for Texas High Speed Rail?

The Facts and Statutes key to whether Texas Central Rail has eminent domain power:

• surveyors have been requesting pre-condemnation access to land to survey for the purpose ofplanning, building, maintaining and operating an electric rail road.
• pre-condemnation access can only exist because the entity has the power of eminent domain
• High Speed Rail has gone so far as taken landwoners to court for not allowing pre-condemantion access
• High Speed Rail claims Sections 81.002, 112,051, 112.053, 131.011 and 131.012 of the Transportation Code support that it is a railroad that has eminent domain authority under the Transportation Code
• High Speed Rail meets neither the formation date requirement nor the current operation as a railroad requirements of Transportation Code Sections 81.002 
• High Speed Rail fails to meet the definition of interurban electric rail in Section 113.011 and 113.012 because Texas old civil statutes define interurban electric rail and it is not high speed rail for these reasons:
  • High Speed Rail is not a Section 81.002 railroad
  • Civil Statutes show interurban electric rail was to connect suburbs with their cities
  • Interurban rail has to be completed within 1 year of condemnation
  • They sell energy to the public
  • Require municipal approval for tracks that traverse a city

KOXE | Lawmaker Revives Eminent Domain Question for Dallas-Houston High Speed Rail Project

Gilmer Mirror | Lawmaker Revives Eminent Domain Question for Bullet Train

Which state legislature has formed a Pipeline study group to recommend eminent domain reform? Georgia in coordination with its year long prohibition on eminent domain by pipelines

What is required of the 13 members of the Pipeline Study Group?

• Between June- December hold up to 5 hearings
• Issue a report by December 31, 2016
• Examine whether petro-pipelines eminent domain powers are:
  • prudently exercised
  • responsibly conducted
  • consistent with the state’s essential public interest

Who sits on the pipeline study commission?

• 3 Senators
• 3 State Representatives
• The director of the Environmental Protection Division of the Department of Natural Resources or his or her designee
• The commissioner of community affairs or his or her designee;
• 5 Governor appointees, including:
  • 1 member representing the petroleum industry
  • 4 members representing a cross-section of the interests of local government, business, agriculture, and conservation.

Savannah Now | Pipeline study group forming in Georgia to look at eminent domain

Private property rights protestors are protesting a Trump campign fundraiser in Atlanta.

Call it bad timing: The Trump fundraiser is occuring when a national convention of private proeprty rights advocates are gathered in Atlanta for the “Pipelines and Eminent Domain Strategy Session.”

Bold Nebraska | Eminent Domain Advocates to Protest at Trump Rally in Atlanta

Which city in the Northwest is proposing new short term rental ordinances? Seattle

The intel you need to know:

What opponents to Seattle’s regulations say:

• Seattle’s regulations “deprive [Seattle property owners] of our ability to keep ourselves afloat” during hard times
• Harming people who provide inexpensive accommodations to visitors to Seattle, who then spend money in Seattle
• Disrupting Seattle’s social fabric by allowing short term rentals that bring people into neighborhoods who don’t care about the neighborhood

What supporters of Seattle’s regulations say:

• Allows “part-time entrepreneurs to thrive while reining in large-scale, commercial operations”
• Bed and breakfast owners say the regulations level the playing field

What the regulations say:

• Only property owners, who are renting out their homestead, would be able to legally offer short term rentals year round
• Property owners, not renting out their homestead, would be capped at 90 days during 1 year

Seattle Times | Airbnb, other short-term rental hosts speak against proposed Seattle rules

Which state has an ombudsman, or public counsel, for eminent domain? Missouri

What does the Missouri Office of Public Counsel do for Missourians facing eminent domain?

•  providing property owners with guidance on the condemnation process
• documents the use of eminent domain in Missouri and provides the Legislature with an annual report of how Missourians are affected by eminent domain

Which state agency houses the Missouri Office of Public Counsel? Missouri’s Public Utility Commission

The Missouri Times | Meet the Missouri Office of Public Counsel