Land Use & Property Rights

Trans Pecos is building the international pipeline through Big Bend and ranch lands. One of those ranches believes pipeline representatives entered to survey without permission. This trespass included sinking stakes into the land. 

As a result of the pipeline trespass…an impending lawsuit. Its a case of landmen gone wild, threatening cease and desist orders against land owners.

BigBendNow

Houston churches that were facing eminent domain to make way for a new Housing Authority development, have sued to stop the eminent domain based on the Religious Freedom Restoration Act (RFRA).

RFRA is usually only a hot topic when conservative activists want to strengthen it to stop the social issues they oppose. 

But, the use of RFRA by the churches to stop eminent domain adds an added lawyer of constitutional protection. Now the local governmental entity will have to prove:

• there is a valid public use/benefit
• + that there is a compelling reason and the exercize of eminent domain is in the least restrictive means possible. 
  • Considering thre were multiple draft plans, the churches have higher odds of being successful

JD Supra

Previously on Information Intelligence:

Two 5th ward churches are in a brewing eminent domain battle over property that the Houston Housing Authority would like to develop for low income housing and a library. This story has it all- historic churches, a wheel chair bound pastor, and a city relying on recommendations from the neighborhood itself.

The churches: 

• First Christian Fellowship Missionary Baptist Church
• Latter Day Deliverance Revival Church

The legal actions:

• The churches, representated by the Liberty Institute, are seeking to stop the seizure of their land.
• The city says:
  • Only pursuing eminent domain against the Latter Day Revival Church
  • Negotiating, without using eminent domain, with First Christian Fellowship Missionary Baptist Church
  • And that they relied on recommendations from the Fifth Ward Redevelopment Corporation for the project

Let’s not forget the KY judge, who in 2014  stopped eminent domain at the trial court level because a church’s First amendment rights trump that of a government’s eminent domain authority.

Houston Chronicle     Houston Press     Legal Insurrection

• Washington Post:  Trump heralded the Kelo decision, which 80% of conservatives oppose. At the time, Trump said:
  • I happen to agree with it 100%. if you have a person living in an area that’s not even necessarily a good area, and … government wants to build a tremendous economic development, where a lot of people are going to be put to work and … create thousands upon thousands of jobs and beautification and lots of other things, I think it happens to be good.”
• CATO: Trump utilizes eminent domain through the casino reinvestment development authority to take land from elderly widow for parking lot. He ultimately lost in court.

California Gov. Brown is proposing to take land via eminent doamin from 300 farmers so some river deltas can be reworked to bring more water to populated areas.

Breitbart engaged a water and land use lawyer with the Pacific Legal Foundation, who said 3 important things:, 

• No oversight in eminent domain projects:“..the use of eminent domain does not allow for a proper system of “checks and balances,” even for controversial state infrastructure projects.”
• California can start work before legal issues are resolved.“The fact that they don’t have the project approved has generally not been a bar to acquiring the property,” Francois said. “If the project is controversial, they don’t need any special approvals to acquire the property, and that starts making the project look more inevitable. [State contractors could say] ‘Hey, we’ve already spent the money acquiring the property, we better get started building it.”
• Is the compensation to farmers just? “Are they only taking the property they need for the underground tunnels, or are they taking the surface estate as well?” Francois said. “It’s the cutting [the land] up that creates a significant problem that farmers think they are not getting properly compensated for.”

Breitbart

A brewing legal dispute in Iowa highlights the momentum away from allowing eminent domain authority for pipelines, transmission lines, and other utilities that are privately owned. 

An Iowa Attorney:

“The larger issue — what it really comes down to — is whether these guys have the power of eminent domain. this is not a utility, it is not public, it is not providing any necessary public service. A number of other cases have rejected such eminent domain arguments — the Bluegrass Pipeline case in Kentucky, the Clean Line case in Missouri, and a West Virginia district court ruling on a natural gas pipeline. I think the courts have trended a bit toward the constitution as opposed to private interests.”

Spencer Daily Reporter

Iowa- home the Presidential state fair and its fair share of pipelines. One Iowan expressed these views of the Ames Tribune:

“I see only corporate greed, trampling of private property rights and a threat to Iowa’s environment. Here’s my beef: show me the public good. “

His comments reflect tw growing eminent domain trends:

• a message & campaign trend of “no eminent domain for private (corporate) gain”
• a legal trend of denying pipelines eminnet domain when the pipelines do not deliver products to the land area taken. (Courts throughout the country are looking for a direct public use or benefit.)

Ames Tribune

California’s Governor Jerry Brown has proposed water tunnels to move water around California.  California farmers have water and the cities need it.

To accomplish this great water migration, California is proposing to use eminent domain against 300 farms to build the 30-mile-long tunnels that will reshape the delta formed by the San Joaquin and Sacramento rivers.

Landowners are facing a 30 day window to either accept or reject 1, single, offer from the state according to documents. 

AP via GOPUSA  AP (full AP story)   CBS Sacramento  Fresno Business Journal

Entering the SD 24 campaign is Christopher “C.J.” Grisham of Temple. He is the founder of Open Carry Texas, and has very specific views on private property rights.

Let’s take a peek, shall we? He says:

• “Property taxes are a form of slavery. When the government has the power to seize your property just because you don’t pay a ransom in the form of a tax, we don’t truly have private property rights.”

Temple Daily Telegram

California is toying with leasing water rights to bring water to needed areas of the state. In California farmers generally have the water rights and the cities are in need of water. 

The California farmers consider the water rights to be their private property and as such, they should be able to enter into agreements to lease those water rights.

MoneyLife  

ProPublica

This week, Representative Isaac said,

“You don’t go on top of people’s property and steal their property. That’s theft, and I feel it is the same way with protecting private property rights if you are going to go under someone’s property and take their water.”

A 2015 bill by Rep. Isaac requires well owners in the part of Hays County that is protected by a conservation district to register those wells with regulators.  

TWCNews

The California Supreme Court last August ruled that if a project gets enough signatures to put it on the ballot, a city council can approve it without going to voters and without a California Environmental Quality Act review.

It is a ruling that is like sugar plm fairies dancing in the dreams of retail developers.

A 200 acre retail development in Carlsbad is moving forward under this ruling, side stepping requirements of state environmental review and voters. 

Voice of SanDiego

Asheville, NC is considering new rules for short term rentals including:

• Fines up to $500 per night
• Move away from complaint driven enforcement and move to a full time municipl employee enforcing the short term rental rules

The goal of the short term rental rules:

• Stop out-of-state property owners from buying up homes and “jacking up already high housing costs.”

CitizenTimes

11 states are bandying about 36 pieces of legislation to gain state control over federal land management. 

Supporters say the state should control land within its boundaries. Opponents, like the Center for Western Priorities issue reports entitled,  “Going to Extremes: The Anti-Government Extremism Behind the Growing Movement to Seize America’s Public Lands.” 

Polls say 52% support federal control over the public lands. But in these large western states, like Nevada where 85% of the land is under control of the federal government, the polls are discarded.

The most active states to gain state control over public lands: Nevada, Utah & Montana.

Governing

Eminent Domain works much differently in Mexico. The options are (1) take the negotiation or (2) Presidential decree will swallow up your land without any payment.

To that end, a group of landowners, who own land in the path of the pipleine heading toward Big Bend, accepted an offer of $750/each for a pipeline easement. 

Big Bend Now

This week a Clay County Farmer reclaimed 94 acres of land he lost in a Red River boundary dispute in the 1980s with eht Bureau of Land Management. 

Gainesville Daily Register

Breitbart

Times Record News

Add West Virginia to the list of states where judges are blocking access for pre-condemnation access to land without land owner permission.

Its generally legal that condemning entities can enter land that they will condemn to survey the land. But, that general ability is being called into question by the courts.

In 2014, California trial judge put the breaks on pre-condemnation access. This week, a West Virginia judge is blocking surveyors for the Mountain Valley Pipeline project from entering land without permission. 

The Register-Herald

Two 5th ward churches are in a brewing eminent domain battle over property that the Houston Housing Authority would like to develop for low income housing and a library. This story has it all- historic churches, a wheel chair bound pastor, and a city relying on recommendations from the neighborhood itself.

The churches: 

• First Christian Fellowship Missionary Baptist Church
• Latter Day Deliverance Revival Church

The legal actions:

• The churches, representated by the Liberty Institute, are seeking to stop the seizure of their land.
• The city says:
  • Only pursuing eminent domain against the Latter Day Revival Church
  • Negotiating, without using eminent domain, with First Christian Fellowship Missionary Baptist Church
  • And that they relied on recommendations from the Fifth Ward Redevelopment Corporation for the project

Let’s not forget the KY judge, who in 2014  stopped eminent domain at the trial court level because a church’s First amendment rights trump that of a government’s eminent domain authority.

Houston Chronicle     Houston Press     Legal Insurrection   

A 2011 Michelle Malkin column ties Donalad Trump to eminent domain abuses. The highlights:

• “Too many mega-developers like Trump have achieved success by using and abusing the government’s ability to commandeer private property for purported “public use.”‘
• “Trump has shown reckless disregard for fundamental private property rights. In the 1990s, he waged a notorious war on elderly homeowner Vera Coking, who owned a little home in Atlantic City that stood in the way of Trump’s manifest land development.”
• Trump doesn’t dirty his hands, instead eminent doamin is exercised by the Casino Reinvestment Development Authority or CRDA

RealClear Politics

Officials in Tulsa, Oklahoma want to remove the statutory requirement that if landwoners at trial receive a value 10% higher than the special commissioners, then the local government has to pay the landwoner fees and expenses.

Paying attorney fees and expenses led to this comment by a Tulsa official: “That 10 percent rule is basically a pain in the neck,” Swiney said. “I think it leads to abuse. It leads to bill padding. It discourages settlement and encourages litigation.”

Public Radio Tulsa

…”The city has never capitalized on this to bring tourism. The neighborhood where homes and businesses once stood, is now a giant weed-filled lot near the water. The proposed hotel, condo, restaurant and office complex that was supposed to be built went out the window because the development company that was awarded the contract went out of business after leveling all of the homes and businesses that were there.

This parcel is next to the property that was given to Pfizer by the city. That deal came with a 10-year tax abatement. They built an office complex on the waterfront, across the river from their main plant. They left in year nine and sold the property to General Dynamics Electric Boat division.

Many families and businesses were uprooted and forced to leave town because of the unavailability of replacement property. Shame is on the town planners for bringing this on, and shame on the Supreme Court for reinforcing their decision.”

Sun Sentinel

This fall filming will being for Little Pink House, the film devoted to telling the story of Susette Kelo.   

“[The producer] describes it as a classic David and Goliath story that focuses on Kelo, a single mother who had her Connecticut house seized by the city of New London and turned over to private developers. “

Reason    Little Pink House Film

Iowa landwoners are suing its version of the Texas Railroad Commission, because the Iwoa agency allowed a pipeline to have the authority to use eminent domain.

CBS2 Iowa

Long Beach Township took property from 7 beach front owners for a storm water project. Long Beach Township asserts it did so because a state agency told it to do so. A natual reply as that explanation worked well with our parents as 9 year olds- so and so made me do it. 

The beach project was voided, a win for landwoners.  But, since an eminent domain qualifying project was involved, the state & local government were able to start accessing the property from day 1.

The landowners also got a win when the court found landowners weren’t given proper notices.

Day 1 is when a court says, landowners are due compensation for:

• fair market value and interest,
• a pro-rated share of taxes and attorneys’ fees

NJ.COM

The South Carolina Attorney General issued an opinion asserting that a pipeline probably does not have eminent domain authority which sent legislators into overdrive. 

The proposal floating around would require an oil and gas comapny to get approval from:

• The head of the state Department of Health and Environmental Control
• The head of the  Public Service Commission (its  7  members are elected by the Legislature)

Augusta Chronicle

During the vetting process, the new Ferris City Manager was asked about his stance on high speed rail, bouyed by allusions of the use of eminent domain. 

Ellis County Commissioners Court opposes the high speed rail plan, in part because of the impact on farm land and the use of eminent domain.

Sherman, the new city manager, said he will be too busy running the city to get into politics like high speed rail.

Waxahachie Daily Light

The use of eminent domain for private gain, or in other words, the use of eminent domain by private comapnies like pipelines or transmission lines is dominating state assembly races.

It’s not just Rs and Ds rebuking pipelines for different reasons. Rs support private property rights. Ds are exhibiting a greater concern for environmental issues.

But, it’s also Libertarians, who are actively and viably challenging Republicans. 

The News & Advance | Lynchburg VA

Rural opposition to high speed rail in Texas has a champion in the organization, Texans Against High Speed Rail. 

Opponents to High Speed Rail wants 2 wishes granted:

• Greater Transparency in the process
• No use of eminent domain, rural landwoners do not want to sell for “any price”
  • In 2015 Senator Kolkhorst authored SB 1601 to prohibit eminent domain for high speed rail

Dallas Morning News  Houston Press

New Jersey has the State Farmland Preservation Project. Farms that are active in the project are armed with information including:

• that there is no eminent domain authority for electric utility and intrastate natural gas pipeline projects.
  • A “utility company cannot cross a preserved farm. “
• public use projects that do qualify for eminent domain authority have to follow very specific compensation guidelines and that the project can approve or deny negotiations with a landowner.

NJ Department of Agriculture | Condemnation on Preserved Farmland      SADC to Pipeline Companies: Stay off Preserved Farms

“The Assuring Private Property Rights Over Vast Access to Land (APPROVAL) Act (H.R. 3062) directs:

• the U.S. Department of Energy (DOE)
• to obtain approval from a governor and state public service commission,
• prior to approval of any Section 1222 transmission project and
• subsequent use of federal eminent domain, as well as the approval of any tribal government for affected lands.”

Bill Text via CongressmanWesterman   AR RealEstateRama

The tax assessor for Belleville, NJ lowered a property value from  $528,000 to $298,900 and then the city manager exercised eminent domain against the price-reduced property.

Belleville is a special case where the tax assessor and the city manager are the same person. Conflict of Interest? A glimpse into other property value manipulations throughout the country?

NJ.com

Richmond, California, home to eminent domain for underwater mortgages, is also home to a new bonding mechanism to fight blight.

In 2013, Richmond created “Richmond Community Foundation” which uses this bond mechanism for blight:

• $3 million of social impact bonds to purchase, rehabilitate and sell blighted properties.
• During a four-year revolving period, sale proceeds will mostly go to purchasing new properties; during the final year of the bonds’ five-year life, proceeds will be devoted to repaying principal and interest.
• Bonds are issued by Richmond, but not secured by city revenue.
• bonds will be sold via private placement to a local bank that is meetings obligations under the Community Reinvestment Act

The homes will then swap owners like this:

• Homes will be offered to graduates from the Richmond Spark Point Center, a United Way Project.

CaliforniaEconomicSummit.Org

A Dallas man, who “wanted to stay where the hell he was and be left the hell alone,” is facing eminent domain to make way for a roadway for real estate development deal. That’s the jist of this Dallas Observer piece.

The piece says the public reason for the taking of his property is straightening an intersection 2 blocks away, but alludes to the real reason being a real estate development by former Cowboys.

Here’s what the landowner says transpired:

• Dallas Public Works recommended taking his property.
• One City Council meeting occured to approve it.
• The landowner says the process was not transperant and sent the message, ““Screw you very much.”

Eminent domain that benefits a private company could have new hurdles if federal legisaltion by Congressman Sensenbrenner passes. 

Economic benefit to a private company from eminent domain would cost a state federal economic funds for 2 fiscal years after a court ruling that the federal law has been violated.

WI Real EstateRama

11 Ohio counties are in the path of a proposed pipeline that has solidified citizen action in opposition to the pipeline.

The pipeline has been trying for 1 year to access property for normal pre-condemnation access to  properties. It hasn’t worked.

So, the pipeline filed suit, because people who are already heated over their desire to protect private property also love lawsuits. Not the best logic to gain support, but reasonable legal argument if public support is irrelevant.

What are the land owners saying?

• Using FERC (cue the federal government is evil theme music) isn’t appropriate, want access to Ohio Land, use Ohio laws and Ohio agencies
• They aren’t opposed to the pipeline; they are opposed to the pipeline’s route. It should be moved away from landowners that fear for safety.

Medina (OH) Gazette

Iowa was proposing that 75% of land for an eminent domain project be obtained with a willing buyer. The bill didn’t survive the legislature, but the author calls the session a success. The Iowa Speaker of the House says the issue will be back next year as vocal property owners are opposing pipelines in Iowa.   The Gazette

Information Intelligence May 21, 2015:

Willing buyers are a hot topic in eminent domain. No one wants to be forced into selling their property.  So, who doesn’t like this idea?

The Midwest Alliance for Infrastructure Now.

Savannah Georgia is managing blight by shaming property owners on their Top 100 Worst Properties list. 

The list is compiled by:

• Aggregating data on property complaints
• A determination by the city

The goal of the list: to reahbilitate blighted properties.

WTOC 11 City of Savannah completes work on quarter of 100 worst properties list

27 states and state agencies, as well as 14 agriculture-oriented organizations, have filed lawsuits across teh country to block the EPA water mapping project. 

The EPA is seeking to map water flows, including mapping of low flow waterways on private property.

Louisiana, Mississippi and Texas filed suit in U.S. District Court in Galveston, Texas. Joining the suit in Galveston are: American Farm Bureau Federation, American Petroleum Institute, American Road and Transportation Builders Association, Leading Builders of America, National Alliance of Forest Owners, National Association of Home Builders, National Association of Manufactures, National Cattlemen’s Beef Association, National Corn Growers Association, National Mining Association, National Pork Producers Council, and Public Lands Council.

High Plains AG Journal

The  Iowa Citizens for Community Improvement joined a coalition called, Bakken Pipeline Resistance Coalition. It sounds like Occupy movement, which recently started promoting anti-eminetn domain causes, like this.

But, Iowa Citizens for Community Improvement is led by a 67 year old, retired former Department of Natural Resources official. 

The whole shebang is encouraging more private negotiations. Iowa posts online negotiated easements, and the company cites 60% of the land being aquired by private negotiation. 

EagleFordTexas

There’s a possibility eminent domain could be used for expanding the Convention Center. Perhaps maybe plus a whole slew of ther hedge words, eminent domain may be used for a project that includes a new Westin properties hotel on Ceasar Chavez near/linked to the Convention Center.

Naturally landowners and businesses are  opposed to the use of eminent domain, but then the story gets interesting.

The response from the city on whether eminent domain is very nuances, let’s look:

• “explore other possibilities before moving forward with the process [eminent domain].”
• they also stressed compensation to the landowners.

Time will tell if the property remains in private hands and is sold to the hotel or whether eminent domain will be used. Business owners prefer the land staying in private hands.

KXAN

Legislating & regulating the use of drones is a delicate dance between privacy advocates, property rights advocates, and figuring out who owns air space.

Here are the most basic rules:

• A private person can operate a drone, in compliance with all other laws, without FAA approval.
• Beginning September 2014, a commerical enterprise, like the Cowboys, has to apply for a waiver from the FAA to operate a drone.

Dallas Morning News

16,000 signatures have been collected to opposed San Francisco’s short term rental ordinances.

Opposition to the short term ordinances  includes:

• affordable-housing proponents
• organized hotel labor

Opposition stems from the San Francisco short term rental ordinance:

• lacking enforcement teeth
• exacerbating the city’s affordable-housing shortage.

The initiative would amend the current short term rental ordinance to require:

• A cap on the number of nights a unit could be rented at 75 per year, regardless of whether a host is present or not. (current ordinance permits 90 days if owners are away, unlimited if the owner is present)

• Fine home-sharing platforms up to $1,000 a day for listing unregistered short-term rentals.

• Require both hosts and hosting sites to provide quarterly reports to the city on the number of nights a unit was rented.

• Create legal remedies for neighbors of illegal rental units if the city doesn’t act.

The Recorder

In a long attorney general opinion, relying on case law from Nevada to Florida, the attorney general of South Carolina has issued an opinion that an oil and gas pipeline in all likelihood does not get the privilege of eminent domain.

The opinion discusses South Carolina Courts, and other courts, striking down eminent domain for private companies. 

Its a trend that has been sweeping the nation from courts to legislatures. Everyone is looking for a public use connected to the land that is being taken.

South Carolina Attorney General Opinion (Kinder Morgan Pipeline and Power of Eminent Domain)

The Institute for Justice reviewed eminent domain reforms to protect private proeprty rights enacted after Kelo and found none of the doomsday messages.

• Revenues were not harmed by eminent domain reform.
• Jobs did not disapear.
• Development did not cease.

According to this reasearch, the world does not end, regardless of how strong the private property reforms are.

Institute for Justice

In Atlanta people sued when Cobb County tried to seek bonds to finance a stadium for the Braves.

The Court boiled it down to “national pasttime” and “economic benefit.”  the Atlanta Braves are a public benefit. 

Field of Schemes  NBC 11 Alive Atlanta   Athletic Business

Empower Texas is highlighting Houstonian barry Klien, founder of Houston Property Rights Association. In 1992, he founded Houston Property Rights Association to fight against zoning in Houston. Houston Property Rights Association has been active since.

Empower Texas highlights that “Because of his work, the Property Rights Foundation of America called him, “one of the most respected property rights activists in the nation.” With Klein’s tireless efforts and wealth of knowledge, he is changing local government a little every day.”

Empower Texas

• For 100 years Texas has permitted forced annexation
• Texas should stop this practice and stand for limited government and conservative policy
• City governments should not be allowed to trample property rights.

TPPF says these 2015 bills would have helped:

•  HB2221 which died on a point of order
•  SB 1639 which never made it out of House Committee.

TPPF

The US Supreme Court let stand a 5th Circuit ruling in favor of TCEQ. Guadalupe Blanco River Authority had sued saying a TCEQ action caused the death of a bunch of whooping cranes. 

GBRA was trying to show a regulatory taking of property, which means something of value had to be taken (whooping cranes) and it was the fault of the government (TCEQ). 

In this case, not so much proof of a regulatory taking according to the courts. A win for TCEQ. A loss for lovers of whooping cranes.

GBRA Press Release

Say you own property near a Native American reservation. Say you have to use a county road to reach your property, but the county road runs through tribal lands. Does the soveriegn authority of the tribe override your property rights to an easement that you have enjoyed?

Time will tell. Tribes in New Mexico are cutting off access to county roads that traverse tribal lands. Some non-tribal lands, that are wholly surrounded by tribal lands, may have no access to and from their land. 

Sovereign Authority of tribes v. Private Property Rights

Courthouse News

The trend that keeps on growing: regulators denying eminent domain authority for private entities.

In this case, Missouri regulators denied eminent domain authority for an electricity transmission line that would run through Missouri but would supply electricity to the benefit of Kansas. 

From St. Louis Post-Dispatch:

“The Missouri Public Service Commission’s 3-2 vote to deny the Grain Belt Express project’s route stalls the entire line, which already won approval from Kansas and Indiana.”

The ongoing Montana eminent domain fight for Missoula to take its private water utility by eminent domain has reach a new milestone. The global equity interest holder of the water utility has filed an appeal. Missoulian

The same happended recently inTexas. The year, 2014. The case,  Zachry v. Port of Houston. A global equity interest, named Zurich, stepped in to offer an opinion that sided with Zachry.  Will government contracts and eminent domain end up in court more often because of debt and equity holders? 

Way back when SB 18 passed in 2009, it required governmental & private entities with eminent domain authority to report to the Comptroller. They did, and more than 6,000 said, yes, we have the power to take private property.

This year that number will grow by at least the 150 or so special purpose districts that were created and granted eminent domain authority. 

Entities with Eminent Domain Authority Comptroller Database

TPPF has been talking reforming aset forfeiture for a couple years now, and now the CLU and Grover Norquist have joined forces to bring us Fix Forfeiture, a 501(c)(4).

Here’s what Fix Forefeiture wants to fix:

• Ensuring that no individual can have property forfeited without first being convicted of a crime.
• Addressing conflicts of interest created when the government agency responsible for an asset forfeiture retains those assets.
• Adding due process protections for the individual involved in an asset forfeiture.
• Establishing reporting requirements for government agencies that seize property.
• Exempting certain property from civil asset forfeiture laws that would create undue hardships for the property owner, such as a homestead or a vehicle.

Lancaster Online

FixForfeiture.Org

Institute for Justice has been litigating these case. The same Institute for Justice that represented Kelo in Kelo v. City of New London that set of eminent domain reforms across the country,

Libertarians and private property rights activists will not stop talking about Kelo. There are books and movies afoot about Kelo.

During this week’s 10 year anniversary, the libertarian presses were on fire:

• 10 Years After This City Seized A Woman’s Land: An Empty Lot | The Libertarian Republic
• Kelo v. City of New London 10 years Later | National Review
• Lessons from a little Pink House 10 Years Later | WallStreet Journal & CATO
• Ten Years After ‘Kelo,’ Eminent Domain Blunders Continue | Forbes Opinion by Professor of Capitalism
• Property Rights Are for the Little Guy | Washington Times
• The Kelo Debacle Turns 10 | Reason
• A Decade After Kelo: Time for Congress to Protect American Property Owners | Heritage Foundation
•  

Eminent domain may be used by Jersey Village against 16 businesses and institutions so that the Village can relocate water and sewer.

Houston Chronicle

Just Compensation for Raisins. Raisins Stand United. California rainsins grew up to be activists that won.

The US Supreme Court ruled in support of raisin producers this week by striking down a New Deal Era provision that allowed the FDA to take a certain portion of raisin crops to control raisin prices. 

The FDA exercised this taking in 2002-2003; opening the U.S. market up to foreign raisins.

Do you know where your raisins come from? The Supreme Court favors them coming from the US. That might be a stretch, but the Supreme Court does favor farmers retaining their crops.

WallStreet Journal   Washington Post/Volokh Conspiracy   Horne V. Dept. of Agriculture  Agrilife LawBlog Above the Law

The California Supreme Court this week ruled that developers can be required to provide a percentage of below market cost affordable housing.

Developers had argued that such a requirement was a taking of their property. The Court rejected this argument and found that local governments have “broad discretion to regulate the use of real property to serve the legitimate interests of the general public.”

Los Angeles Times

Building a project that crosse state lines or involves transmission lines or pipelines?

U.S. Sens. John Boozman and Tom Cotton have a bill for you. It will grant states veto power over electric lines.  It has a cute name: Assuring Private Property Rights Over Vast Access to Lands (APPROVAL) Act. 

Arkansas Reporter

Boozman Press Release

S 485 

Even states that offer relocation costs, don’t do it readily. In the case of Garden Gove, California, it took 2 judges to force payment of relocation costs to low income residents.

A mobile home park was taken via eminent domain to make way for the Great Wolf water park. Garden Gove is now ordered to pay  $141,540 to the displaced residents.

Orange County Register

On 2 separate coasts, 2 separate governmental entities are moving forward with eminent domain to build new water projects to protect cities from flooding.

• In New Orleans, the federal ARMY Corps of Engineers plans to use eminent domain against homes and businesses in a flood plain as part of the comprehensive hurricane protection plan. Government moves fast folks, it’s been almost a decade since Hurricane Katrina. Times-Picayune
• In Sacramento, the West Sacramento Levee Projects wants to seize 22 homes to expand and modernize the levee to protect Sacremento from flooding. CBS Sacramento

California is actively building high speed rail. This week the State Public Works Board approved its 246th condemantion resolution since 2013. Fresno Bee

Not only is aquiring land time consuming, but California’s experience is also teaching us that high speed rail is a lengthy process. To move high speed rail along more quickly, the California legislature added a budget rider that will:

• reduce the volume of reports managers of the rail project are required to provide the Legislature
• change the qualifications required for certain members of the project’s peer review group by including people with experience in large infrastructure projects other than high-speed rail.

To those who say transperancy is cut, the California politicians say- it doesn’t harm transperancy, it enhances efficiency.

Sacramento Bee

Earlier this month, Denbury appealed the most recent appellate decision in its case aginst Texas Rice Land Partners. Denbury argues that the Court of Appeals did not follow the Texas Supreme Court’s test for common carrier, estbalished by this lengthy legal saga.

Denbury goes on to argue that the TX Supreme Court has new common carrier issues it needs to look at too. Such as- Is there common carrier status in §2.105 of the Texas Business Organizations Code?

Common Carrier: The Issue that keeps giving and will ultimately bring legislation to resolve a decade of legal wrangling.

Denbury v.TX Rice Land Partners   

Southeast Texas Record 

Taking private land motivates people. When it comes to Keystone XL pipeline in the Northern plains, there have been protests with crops, Willie Nelson fundraisers, parades, and now protesting at court houses.

Bold Nebraska

Water is a precious resource. Missoula Montana has recieved court approval to sieze a private water company by eminent domain. 

The private water company now has 30 days to provide Missoula with an appraisal of its valuation.  

The legal fees to get to this point: $3 million.

KAJ18     

Washington Times

A man living on Oriental Avenue in Altantic City is facing eminent domain action by the New Jersey’s Casino Reinvestment Development Authority. 

For all the Monopoly players, Oriental Avenue is a light blue property with a $6 rent.

Its a case that pushes into Kelo territory since the development authority wants to use the property for part of a “tourism village” to revitalize the economy.

What could have been a local story has turned national when CNN started paying attention.

CNN

A North Carolina Appeallate Court ruled that widening a road, at the end of a dead end street,  does not qualify as a public use.  

LexisNexis Legal Newsroom

” The Texas Pipeline Association, TransCanada Corp. and tort reform group the Texas Civil Justice League on Monday urged the Texas Supreme Court to review a ruling they say spells potentially disastrous delays for pipeline projects across the state.”

What’s the impending disaster? They say that the “lower appellate court decision threatens the longstanding precedent that entities with eminent domain authority can take possession of land before litigating any disputes that arise.”

Law360   Denbury v. Texas Rice Land Partners

DC United is building a new futbol stadium. For the American audience,  a futbol stadium is used for a sport that Americans calls soccer.  Now that we’re on the same page, stadiums are expensive.

In structuring the DC United Stadium deal, it calls for D.C. United to reimburse D.C. 50% of the excess cost (above $89 million on land acquisition and $61 million on land preparation) to a maximum amount of $10 million, paid in annual installments as part of the team’s ground lease.

Washington Business Journal

A Miami-Dad jury awarded a land owner $855,000 in  a partial taking suit. The local governmental entity initially offered $45,000 for the land it needed to build an emergency access bridge.

Daily Business Review

This story has it all- united landowners upset by pre-condemnation access by a private company exercising eminent domain for a project that won’t produce a direct public use in some states the pipeline crosses.  As an added bonus, the Georgia Governor is openly opposed. 

Another Southern rebellion is afoot according to the Los Angles Times . Landowners in the South are joining forces to stop pipelines. Here’s where the story gets more interesting:

“”What’s different about this project — unprecedented — is that a landowner controls three major newspapers along the pipeline route,” said Allen Fore, vice president of public affairs for Kinder Morgan.”

Landowners are increasingly unwilling to negotiate in response to “brazen” acts by the pipeline company.

And, here’s where owning newspapers comes into full impact: “the Savannah Morning News published mug shots of three company surveyors who were arrested on suspicion of trespassing on Morris’ 24,000-acre plantation without permission.” 

California legislature is considering “SB 593, which would require such “hosting platforms” to give cities and counties the addresses of rental residences, the number of nights the sites were occupied and the amounts the renters paid.” 

The big players in this business, Air BnB, and Homeaway, are hiring up. California lawyer types are thinking of it as a new test for the sharing economy- ride share, home share, etc…

How much flexibility you have with using your home & land may be a legislative session away. Will state regulation, limiting your ability ti put your home to the highest and best use, amount to an inverse condemnation? 

The Recorder
 

How did eminent domain use for economic development purposes fare, even with the US Supreme Court’s blessing in Kelo? There were no winners. 

• The land on which Suzette Kelo’s house stood is undeveloped.
• The company, Pfzier, which received tax incentives and abatements in the economic devleopment plan, closed its operations in New London in 2010.

Institute for Justice

Other states have reigned in eminent domain authority by denying eminent domain when there is no public use. Their actions have been via court action, legislation, and regulatory denial of permitting. 

The classic example has become a pipeline or transmission line that does not provide service or use to any part of the state through which it passes. 

Joining the legislative trend to reign in eminent domain standard of public use. President of the Cattle Raisers writes,”In my opinion, the current structure for determining what is truly public use is highly questionable, and I do not believe a private company should have the authority to use eminent domain just because they believe they meet the qualifications for public use. There must be a thorough and transparent process for making these critical decisions to take someone’s property.”  Cattlemen’s Column 

Sounds a lot like the growing rally cry- no eminent domain for private gain.

A former elected official is vowing to defeat incumbents in different districts if eminent domain overhaul isn’t finalized. The target: no eminent domain for private gain. 

Iowa is quickly moving forward to make it considerably more challenging for a private comapny to exercise eminent domain. 

“Use of eminent domain also deepens the feelings of landowners and others “who feel the average person’s freedom and liberty doesn’t matter anymore and that big corporations with political connections and deep pockets can simply waltz in and confiscate someone’s land,” he said.”    Globe Gazette 

A transmission line that was denied eminent domain in Arkansas, faces a second denial for the use of eminent domain because the transmission company cannot show need.

From the regulators:

” A Missouri Public Service Commission staff report found that while CLEP demonstrated abilities to finance and build the project, it had not “established the need.” That is the basis of the opposing commissioners’ decision.”

From landowner’s perspective: 

“[The] Grain Belt Express “does not merit certification” because neither its purpose nor its potential benefits to Missourians “justify the authorization to exercise eminent domain power,” asserted the Missouri Farm Bureau. ” 

Utility Dive

South Carolina lawmakers tells us their emoinent domain laws are old- decades old. Back in the olden days lawmakers though of eminent domain as something for utilities and power companies, not pipelines. 

Specifically, lawmakers never considered pipelines owned by private companies. Whereby private companies gain eminent domain.

The proposal would require oil and gas pipelines to gain approval from their version of the PUC and of TCEQ before being afforded the ability to use eminent domain authority. 

South Carolina is mirroring the Georgia approach for eminent domain use by pipes. Recently, the Georgia agency refused eminent domain for a pipeline project.

North Augusta Star

After a San Francisco trial court determined that an offer for land was reasonable, the First District Court of Appeal said not so fast, trial court judge and here’s why:

• a landowners cannot reasonably reply on an offer that is contingent
• Especially when those contingencies are future apprval by indepedent agencies and boards

SF Gate

The Texas Central Railway survived the – no eminent doamin for you- chopping block. An attempt had been made in House Bill 1 to remove the railway’s ability to qualify for eminent domain. Ft. Worth Star Telegram

The President of the Texas and Southwestern Cattle Raisers Association explains 5 reasons they oppose the Railway:

• Primarily funded by Japenese sources with uncertain long-term financial security.
• Will require over 3,000 acres of right-of-way for the railway.
• Harmful impact to private property in 11 counties. (Dallas, Ellis, Freestone, Grimes, Harris, Leon, Limestone, Madison, Montgomery, Navarro & Waller). Prime Cattle Land.
• Negatively affect grazing and moving cattle, transporting equipment and the ability to continue to efficiently and effectively use property.
• The use of eminent doamin by a private company to sieze private land for a public use.

  Gilmer Mirror

On the 10th anniversary of the 2005 U.S. Supreme Court decision Kelo, there’s a new focus on how the transfer of land harms the poor. 

The Washington Post, Volokh Conspiracy, features a heavily edited quote from the NAACP, post-Kelo: 

“As Hilary Shelton of the NAACP put it in testimony before the Senate Judiciary Committee, “allowing municipalities to pursue eminent domain for private economic development [has] … a disparate impact on African Americans and other minorities….”

Washington Post | Volokh Conspiracy  Real Clear Policy 

Find an appraiser that can:

• Address value based on cash flow potential, not price per square foot that you would typically see with a commercial property
• Look for appraisers with experience in special use properties

Retail Petroleum Consultants, Condemnation: Appraising Gas Stations and Car Washes, How to Ensure Just Compensation for Business and Goodwill

California Eminent Domain Report

A growing sentiment in the Texas House is the Senate Liberty Caucus support of special purpose district bills that grant these districts the power of eminent domain. These districts can also levy taxes and assess fees. 

May 27th Texas Local & Consent Calendar

An Arkansas Landowner alleges that there is no public benefit to Arkansas for a pipleine from Oklahoma to Tennessee.  Further, the only benefit is to the private company building the pipeline.

Growing case law supports this position throughout the country to deny common carrier status to interstate transportation of oil, gas, and electricity. 

Arkansas Business

If there is no public use in Kentucky, then a common carrier isn’t afforded eminent domain to build a pipeline in Kentucky according to a Court of Appeals Panel last week.

This growing trend in eminent domain litigation- is the public use occuring within the govenrmental entity that is granting the power of eminent domain.

Over the last year, court rulings have impacted pipelines and transmission lines.

SunHerald

The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain is now in print. 

10 years after the epic eminent doamin case, we get…the book. Polls show 80% of Americans oppose Kelo. Justice Scalia talks about how bad it is to this day & predicts it will be overruled.

Washington Post: Volokh Conspiracy

As a reminder that it’s really just your bad local governments that use eminent domain, the Department of Justice has put up a series of delightful photos detailing the history of eminent domain use by the federal government.

The History lesson:

• “whenever the United States acquires a property through eminent domain, it has a constitutional responsibility to justly compensate the property owner for the fair market value of the property.  See Bauman v. Ross, 167 U.S. 548 (1897); Kirby Forest Industries, Inc. v. United States, 467 U.S. 1, 9-10 (1984).”
• The Federal government does nice things with eminent domain:facilitate transportation, supply water, construct public buildings, aid in defense readiness, construct of public buildings and aqueducts to provide cities with drinking water, maintain navigable waters, production of war materials, and build pretty things like parks and the Gettysburg Railway.

Justice.Gov

Robert Henneke, newly hired as the head of TPPF’s Center for the American Future,  will belitigating government overreach and 10th amendment issues, including:

• environmental
•  private property
• and business autonomy rights.

It’s like a Texas version of Institute for Justice, the group of attorneys that represented Kelo in Kelo v. New London, the preeminent eminent domain case of the last 20 years. 

TPPF

Appraisals that continued to lower the price of land in dispute were deemed “strong arm tactics” designed to force settlement, and were the basis for a pro-land owner ruling by the  Virginia Supreme Court.

The state supreme court  found all the appraisals must be presented to the fact finder to determine value. 

The difference in appraisals: $150,000. The legal fees for the state’s outside counsel: $140,000. 

Virginian Pilot  

This week ISD Trustees voted to use the power of eminent domain to obtain 46 acres of undeveloped land to build a highschool. 

The ISD statement: “…we were unable to have successful negotiations. We are going about it in a professional manner. We have hired a top-flight appraiser and we are making a very fair offer.” The ISD streses that it only wants 6.7% of the landowners 677 acres. 

Montgomery Courier

To use eminent domain in Georgia, a pipeline company must have approval from the Governor and the Department of Transportation. In this case, a pipeline company wished to build a 210-mile pipeline to move gasoline and ethanol across Georgia to terminals near Augusta, Savannah and Jacksonville.  For this pipeline, wishes and dreams did not come true. 

What stopped the pipeline from getting eminent domain?

• The Governor had said the pipeline is not good for the state.
•  Land owners were opposed.
• The agency received 3,000 public comments.
• Ultimately, the agency found the pipeline didn’t meet the requirements for a common carrier to receive eminent domain authority for the project.

Jacksonville News

17 states have passed laws concerning drones. The Feds say, who cares- we control air space, not the states. It’s the perennial states right fight.

The International Association of Chiefs of Police says they have few tools to protect citizens from drones.

The Wall Street Journal points us to a 1946 the US Supreme Court established that property owners have exclusive control of the area immediately above their land, which is estimated to be 83 feet.

Wallstreet Journal

Its harder and harder to build insfrastructure in Texas. Tollroads, high speed rails, pipelines are greeted by protestors, private property rights activists, and lawsuits. 

The Midwest has responded with the Midwest Alliance for Insfrstructure Now. It is a coalition of:

• “agriculture, business, and labor sectors aimed at supporting the economic development and energy security benefits associated with infrastructure projects” 
• “Expansion of our energy infrastructure — such as pipelines — provides a safe and efficient means of moving resources to market”  

Texas Infrastructure is Growing too.  

Willing buyers, a hot topic in eminent domain. No one wants to be forced into selling their property.  So, who doesn’t like this idea?

The Midwest Alliance for Infrastructure Now. 

Private property rights as engrained in Texas as the Lone Star. Dueling private property rights are facing a detante.

Denton’s fracking ban sought to protect use and enjoyment of your private property, your home. In contrast, HB 2595 would prohibit initiative and referendum petitions that restrain private property rights. Sounds just like what Denton did, until one sees that there are also private property rights in mineral interests, which is what HB 2595 sought to protect.

What can continue this detante? Perhaps an earthquake that breaks apart land interests and mineral interests. 

Houston Business Journal 

The 143-mile Trans-Pecos pipeline will take West Texas gas to Mexico. To get there, it has to build a pipeline through lands owned by Texans. 

Say you’re a ranch owner, and you’re asked for a 50 foot easement for a pipeline that won’t deliver its goods to the U.S. Did the Constitution contemplate a public use outside the U.S.? 

A land owner quote from a meeting in Alpine, TX: “If it were supplying people in this state with fuel, I could better understand it,” Nelson said. “Using eminent domain to [take over land] to supply another nation — I got my reservations about that.”

Al Jazeera America

Iowa’s proposal to require condemning entities to negoitate agreements for 75% of the land it needs to aquire continues to move rapidly through the Iowa Legislature. It is expected to easily make it to the Governor’s desk for his signature. WNAX

Strong early voting numbers in Tarrant Regional Water Development Board races, which have been spurred by an eminent domain dispute.

At the end of early voting 11,292 early ballots were cast. An additional 5,840 ballots were cast by mail. In contrast, the 2013 numbers were 8,143 early walk-in votes and 4,015 mail-in ballots. 

Ft Worth Business Press 

While Iowa is leading the pack on “No eminent domain for private gain,” Tgexas is moving forward with no eminent domain for private toll roads. 

HB 565 is awaiting referral to a Senate Committee. Dallas Morning News

On Thursday, May 7th,  Senate State Affairs is hearing HB 2536. Its a fascinating new front in eminent domain legislation granting free reign to condemning entities in Harris County. 

This bill will allow a condemning entity to unilaterally select the court for eminent domain proceedings.  Wouldn’t we all love the power to unilaterally select the best court? the best line at the gas station? the best lane on the freeway? 

Surprise, surprise, more people oppose eminent domain according to an Austin environmental  lawyer.  

Opposition to eminent domain use for a water pipeline that seeks to move East Texas water to DFW has fueled campaign contributions, and court cases related to open records. 

Tarrant Water Campaign is Over East Texas Land: Ft Worth Star Telegram

At least one eminent domain lawyer thinks large value, 7 or 8 figure, eminent domain cases may be forced into a new three judge panels that can be convened by request of the AG. Texas Lawyer describes the bills as:

“allow[ing] the Texas attorney general to petition the Texas Supreme Court’s chief justice to convene a mandatory three-judge court to hear school finance or redistricting cases. The panel would consist of the original district judge who got the case, and two others appointed by the chief justice: a district judge from another county and an intermediate appellate court justice from another district. An appeal from a three-judge court would go straight to the Supreme Court.”

As filed the SB included a provision that would allow a 3 judge panel to be called by the AG for other claims of statewide importance. It’s not in the CSSB, but that language remains in the HB and concerns some eminent domain lawyers.
 

HB 1091  SB 455  Texas Lawyer

Decreasing property values, eminent domain, property divisions and intrusions lead the reasons why Navasota area residents oppose high speed rail. They gathered at the Grimes County Expo Center. KAGSTV