Eminent Domain

Supposedly, Texas has a law preventing eminent domain abuse.  It doesn't seem to have stopped a Texas judge from seizing 105 acres of land, valued by an independent commission at $1.9 million, for the sum of $1 instead -- and ordering the owner to pay back the original $1.9 million to the government, with interest.  That is not a typo.  I did not leave out the word "million" from the second figure.

This is obscene.

It cannot stand.

The Volokh Conspiracy is reporting on legislation introduced to correct the poorly-decided Kelo v New London at the federal level.  He even gets the federalism issue right; the legislation applies to actions of the federal government, and to actions of State or local governments through the use of Federal funds.  State governments would still need to pass laws restricting the use of the eminent domain power without federal funding.

In the wake of Kelo v New London, developers have been moving rapidly to make inquiries about possible hotel locations.  And while I would normally oppose any use of eminent domain powers for private economic development, in this case, it couldn't happen to a better Supreme Court Justice.

UPDATE: It could, however, happen to a few more justices... what was the vote tally on that case again?

The Institute for Justice is launching a campaign to oppose eminent domain.

SaysUncle has the details.  That vote's sure going to sting in 2006.

Just hours after Kelo v New London, the city of Freeport, TX made the news by filing papers to seize a number of waterfront businesses in order to install a private marina.  It didn't take long for the State legislature to file resolutions to put a Constitutional change on the November ballot.  Of course, it's not perfect:

Lets amend our Texas Constitution to add this language, "Private property shall not be taken through the use of the power of eminent domain if a primary purpose of the taking is for economic development."

Sounds good to me.  The current resolutions propose language that restricts country and local governments but does not restrict the state government.  

Hold The Mayo has a carefully-thought-out amendment to offer.  It's a hell of a lot better than flag-burning or gay marriage.  Here's the meat:

The right to ownership of property being the cornerstone of liberty, no government body within these United States shall have the authority to take property from one private citizen, corporation, or organization to be given or sold to any other citizen, corporation, or organization for any reason. No private citizen, corporation, or organization shall own any right, title, or interest in the property so acquired. Public use shall be understood to be property entirely owned, maintained and operated by government for the direct use of the public for a period of not less than 50 years.

Just Compensation shall be higher of the twice average price paid for similar property in the preceding twelve months or the average of the previous 12 recorded similar property transactions.

Any more comments before we start flogging this to Congress?

UPDATE: One of my comments concerning restricted-access sites (eg, military bases) on this language produced another revision:

The right to ownership of property being the cornerstone of liberty, no government body within these United States shall have the authority to take property from one private citizen, corporation, or organization to be given, sold, leased, rented, or otherwise conveyed in any form to any other citizen, corporation, or organization for any reason. No private citizen, corporation, or organization shall own any right, title, or interest in the property so acquired. Public use shall be understood to be property entirely owned, maintained and operated by government for a period of not less than 50 years.

Just Compensation shall be higher of the twice average price paid for similar property in the preceding twelve months or the average of the previous 12 recorded similar property transactions.

In a surprise move, Gov. Rick Perry expanded the agenda of the special legislative session Friday to include proposals to protect private property from being seized by a government agency for private development.

Perry set the stage for lawmakers to adopt changes to eminent domain laws, including a proposed amendment to the Texas Constitution, that would prohibit or greatly restrict state and local governments from condemning land solely for economic development purposes.

This is a reversal of a decision Perry (Texas governor) made less than 30 days ago.  He's feeling the heat from Kelo v New London.

The Senate proposal is mixed news.  It's not bad, but it's not perfect, and it has a fairly long list of exceptions:

Under Senate Bill 62, the taking of private property through eminent domain lawsuits for economic development purposes or to be turned over to a private developer mostly would be prohibited.

Approved exceptions would include transportation projects such as railroads, highways, ports and airports; water supply projects; pipelines and utility projects; flood control projects; and community sports arenas, such as the new Dallas Cowboys stadium in Arlington.

Citing the exceptions as proof the measure would have wider impact than predicted, foes criticized it as a legislative wolf in sheep's clothing.

I don't think those exceptions should be necessary under the "public use" standard, but they may help avoid litigation.  I'm nervous about the exceptions for flood control projects, and the community sports arenas exception is obviously wrongheaded.  It's also implemented as legislation, rather than a Constitutional amendment, meaning that the legislature can ignore it with a simple majority vote any time they feel like adding an exception.

The Texas House is working to put an amendment on the ballot instead.  That may be a better approach.

The Democrats are arguing in favor of eminent domain, of course; it's hard to believe that they really are this deaf to public opinion:

Whitmire and others warned that the wording of the measure would prevent or impair such projects as San Antonio's new Toyota plant and a hotel-parking-conference center proposed at the University of Texas.

Yes, a new Toyota plant is a taking for economic development.  Toyota should buy the land.  A new hotel at the University of Texas is a taking for economic development, even if the university will own the land, and the university should buy the land (or preferably, get out of the hotel business!  Sheesh).