2/9/2011 2:41 PM
The Texas Senate today passed SB 18 from Craig Estes (R-Wichita Falls), the bill that looks to enhance protections for landowners in eminent domain cases.
Although Sen. Leticia van de Putte (D-San Antonio) expressed concerns that a particular provision of the bill may put too much burden on landowners in litigation, the bill passed with no nay votes and no amendments offered.
Likely a big reason the bill passed unchanged is because it already contained provisions to mollify the concerns of Senators including John Whitmire (D-Houston), who said last session that provisions in the bill would make it impossible for the port authorities like the one in Houston to engage in the long-term planning necessary to develop infrastructure crucial for economic development.
Estes said on the floor that SB 18 seeks to protect property owners with "fair treatment, good faith negotiations and just compensation." The intent, he said, is to protect private property through comprehensive eminent domain reform – creating a truth in condemnation act, requiring a bona fide offer from the condemning authority to the landowner, and good faith negotiations.
SB 18 would protect landowners from any entity abusing its eminent domain authority, and from unfair condemnation, Estes said.
The bill requires that the condemning entity make a bona fide offer in writing to the property owner and prohibits confidentiality agreements, to preserve transparency, Estes said. Failure to make a bona fide offer would make the condemning authority liable for all court costs and attorneys' fees incurred by the property owner.
Condemning entities will also be required under the bill to provide property owners with the landowners' bill of rights, informing landowners that they have a right to repurchase the land if the condemning authority hasn't met certain requirements within 10 years. The requirements include a "significant amount of labor," "significant amount of materials," the hiring of work by architects or engineers, an application for state or federal funds or for a permit. If the condemning authority is public, it may pass a resolution stating that it will not complete more than one of the listed criteria before the 10-year anniversary of acquisition. So, some might argue, they get to kick the can.
This is what with which Van de Putte took issue. Although she ultimately voted for the bill, she said that that particular provision amounted to a "King's X." Estes said that the entity has to have a public vote, and is beholden to the voters in their community. The provision that gave Van de Putte pause was the product of negotiations with Whitmire and others to ensure entities like the Houston Port Authority, who need not years but decades to plan their projects, don't get their hands tied.
Estes said he did not intend that provision to allow condemning entities to "game the system."
Duncan said the public use has to be specifically defined by the public entity in a resolution when they seek to condemn, and the progress has to be related to that specific use. The public entity cannot condemn land for one purpose, and then try to change the purpose later, Duncan said.
Another crucial provision in the bill seeks to remedy what Gov. Rick Perry pointed to in 2007 as his reason for vetoing the eminent domain reform legislation HB 2006. In that bill, landowners would be entitled to compensation for "diminished access" to their property.
In SB 18, Estes' intent is that if a property owner suffers a "material loss of access," such that it affects the property's market value, the court must allow a fact finder to consider evidence on that loss when the fact finder determines what damages are due a landowner. Estes said this is lower standards than "material and substantial," but a higher standard than any "diminished access," which was considered so broad by Perry that it could cost hundreds of millions of dollars to Texas taxpayers.