Land Use & Property Rights

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

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