Amarillo Global News: Our view: Eminent domain reform long overdue in Texas
Posted on 03/24/2019 under News
By: ANG Media Editorial Board
There are few things held more sacred by Texans than private property rights. Unlike other states, the majority of land in Texas is privately owned. Because of this, eminent domain, the ability of the government (or its agent) to convert private land to public use at a fair price to the landowner, is often a point of contention.
A 2005 Supreme Court ruling expanded the definition, public awareness and powers applicable under eminent domain. The Kelo decision held that “general benefits which a community would enjoy from the furthering of economic development” also qualifies as public use. In the aftermath of this decision, public entities have had enjoyed greater leeway relating to eminent domain.
In turn, this has led to charges of some large private companies steamrolling landowners and taking advantage of their naiveté, resulting in lowball offers and a process that favors large companies over individual citizens. This is an issue of importance for West Texas, which has seen a surging oil and natural gas production boom in the past decade and boasts lots of wide open spaces.
One organization working to bring reform to eminent domain so far as private companies are involved is the Texas Farm Bureau, the largest farm organization in Texas with some 500,000 members. They met with our editorial board this week and made a persuasive case for reform.
“We will accept that eminent domain is necessary sometimes,” Texas Farm Bureau President Russell Boening said in a news release. “We do not oppose that. However, Texas has left fairness and just compensation behind in the process.”
The legislature is working to level the playing field with two bills that would bring structure and transparency to the eminent domain process. House Bill 991, authored by Rep. DeWayne Burns (R-Cleburne) and Senate Bill 421, authored by Sen. Lois Kolkhorst (R-Brenham), propose important changes designed to strengthen the position of individual landowners.
First, each bill proposes minimum easement terms to protect landowners. In other words, a document provided to a property owner by a private entity for pipeline right-of-way must clearly outline specifics such as the maximum number of pipelines; the maximum diameter of pipelines; the type or category of products to be transported. If it’s for electrical transmission right-of-way, easement provisions include approximate location; plans for access; limiting third-party access; and landowner’s rights to damages in a handful of instances.
There are cases where terms are not spelled out or questions specifically answered up front, and then it’s too late for the landowner to do anything. This aspect of the proposed legislation would put an operational template in place for both parties.
The second major thrust of the bills is public meetings for private projects. The bills would require private entities to provide the local court with advance notice of the project and participate in a public meeting at the county level before acquiring any property. One restriction: public meetings would not be required in cases involving four or fewer property owners.
The meetings would require entities to provide a detailed description of the project as well as methods and factors used in calculating how property owners will be compensated. It would also be an opportunity for property owners to ask questions about the project and their rights.
The bills also include provisions outlining consequences for so-called lowball offers. Entities are expected to make fair-market offers for property that include appraisals. If evidence of a lowball offer is found, the bills include authority for damages to be awarded on top of the fair market price.
The issue was on the legislature’s agenda in the last session, but no headway was made. As the state continues to enjoy an economic boom and a significant growth in population, infrastructure needs will continue to grow. Addressing the use of eminent domain by private companies now is more important than ever.
In a recent survey commissioned by the Texas Farm Bureau, 89 percent of respondents favored financial penalties for too-low offers. The survey included five questions asked of 1,200 general election voters. Overall, more than 80 percent of both urban and rural voters surveyed support eminent domain fairness. Support was virtually identical among Democrats and Republicans.
“Eminent domain is not a normal business transaction,” Boening said in the news release. “The landowner does not have the option of walking away from the table.”
Farm Bureau representatives emphasized they are not opposed to oil and gas companies and utilities who help keep the state’s economy humming along. They also insist implementing these measures of transparency will make a complicated process smoother for landowners and quicker for private entities.
The overriding factor is protecting the property rights of Texans while balancing those against the real needs of interests that represent growth, progress and prosperity in Texas. To the extent possible, the groups are working toward a solution that considers the interests of all parties.
We join with the Texas Farm Bureau and private property owners across the state in urging the legislature to bring long overdue reform to eminent domain. This session is an important opportunity to emphasize the familiar refrain, “This land is our land” and safeguard rights associated with that.