Perry touts eminent domain reform, but his bill tells different story

April 1, 2011                                                                                                                 
 Gov. Perry Touting Property Rights Legislation that Does Not Protect Landowners
SB 18 is a Giveaway to Special Interests and Private Toll Road Companies
AUSTIN— While House members were debating the appropriations bill on Thursday, Governor Rick Perry was holding a press conference to urge state  legislators to swiftly pass SB 18, property rights legislation which the governor declared an emergency. While the governor and some lawmakers are claiming SB 18 protects landowners, critics of the legislation say the bill is full of loopholes and excessive legalese yielding most protections virtually meaningless.
Many organizations and landowners across Texas have been highly critical of the legislation, including the Property Rights Coalition of Texas (PRCT), a coalition of state-wide and national property rights experts, transportation advocates, tax reform groups and landowners. They maintain that SB 18 does not guard landowners against wrongful takings nor does it ensure that property owners will be fairly compensated for their land. They say the bill does not go far enough to protect property owners from eminent domain for private gain and economic development purposes and point to a loophole in the bill’s repurchasing provision, which means a person could lose their property indefinitely—even if the condemning entity doesn’t use the land.
“SB 18 does not provide meaningful protections for property owners in Texas,” said Melissa Cubria, Advocate, Texas Public Interest Research Group (TexPIRG) and co-founder of PRCT. “SB 18 will benefit utility companies, the oil and gas industry, real estate developers and private toll road investors before it ever benefit the citizens and landowners of Texas,”
 Governor Perry stated Thursday that SB 18 protects landowners by requiring that the condemning entity state specifically the public use for which the land is intended. While this may be true, it does not protect landowners from unlawful takings because it does not include a strong definition for the term “public use,” which is critical to ensure that property is only taken for legitimate purposes.
“Without a strict definition for ‘necessary public use,’ private corporations can condemn a landowner’s property, build a private toll road and claim that they did so in the name of public use. After all, the Trans-Texas Corridor (TTC) was packaged as a “Community Development Association,’” said Cubria.  “This poses imminent threats to property owners in Texas as there are close to 30 private toll road bills working their way through the legislature right now, not one of which includes a single safeguard.”
"Perry has no credibility on property rights,” notes Terri Hall, Founder/Director of Texans Uniting for Reform and Freedom (TURF) and co-founder of PRCT. “The very bill he's touting as 'reform,' actually enriches private special interests and condemning entities and does nothing to prevent wrongful takings in the name of a 'public use'."
Authors of SB 18 admitted on the floor of the Senate that the bill’s weak and inconsistent language would likely lead to more lawsuits for property owners in Texas. The burden of proof is placed on property owners who  may find themselves defending their rights in lengthy, expensive legal battles with well-connected, well-funded special interests and their powerful attorneys— but the legalese of the bill would make that fight nearly impossible to win.
Similarly, while Gov. Perry states that SB 18 requires a government entity to make a legitimate, "bona fide" offer at the beginning of the process, the bill defines the term vaguely. The only requirement for a “bona fide” offer is that it be presented to a landowner and that the appraisal be made by any certified appraiser. Under the terms of SB 18, ExxonMobil can use an in-house appraiser to calculate an arbitrary price for the value of the land. If property owners feel they’ve been low-balled they’ll have to go to court to prove it.
Supporters of SB 18 are also touting the bill’s buy back provision, which would allow property owners to buy back their property if it goes unused. The only problem is that the provision contains a loophole, which would enable the condemning entity to keep the property indefinitely. According to a bill analysis of SB 18 by Bill Peacock of Texas Public Policy Foundation (TPPF), who has not formally joined the coalition but who advises PRCT members on property rights issues, “…the “buy-back” provision in SB 18 is at least as bad as current law, and will harm rather than improve property rights in Texas.”
“Governor Perry and Commissioner Staples are both correct in noting the dangers of ignoring eminent domain reform,” stated Marc Scribner, land-use and transportation policy analyst at the Competitive Enterprise Institute (CEI), a Washington-based free-market think tank and PRCT coalition member.  “However, like many politicians, words speak far louder than actions. The so-called reforms included in SB 18 do very little to enhance property rights protections in Texas. On the contrary, this bait-and-switch allows government bureaucrats to continue seizing private property for arbitrary reasons while tricking Texans into believing their land and homes are safe. Hopefully, the governor and legislature will support pro-property rights legislation in the near future—to be able to make that leap from mere rhetoric to substantive reform.”
“The bill leaves property owners vulnerable to laws governing surplus land,” said Paul Westmoreland, a PRCT coalition member. “Parcels can be labeled as ‘surplus’ by a condemning entity if the land is no longer deemed necessary for the project for which it was taken—one of many problems with the repurchase sections and the combining of parcels. The state can keep surplus land indefinitely, which undermines the already weak repurchase provision in SB 18.”
“If Governor Perry wants to deliver on his promise and protect property owners or fixing the state’s broken eminent domain laws than he should be pushing legislation that actually solves the problem instead of making it worse,” concluded Westmoreland.  
PRCT is calling for provisions that increase transparency, establish due process, ensure landowners are adequately compensated for their property, and make private interests and condemning entities accountable for any egregious practices. PRCT is touting their bill, the Property Rights Protection Act (PRPA), as an example of real eminent domain reform and the bill they think lawmakers should be considering.
Click here for more information about the Property Rights Protection Act
Members of the Property Rights Coalition of Texas (PRCT) include:
Texans Texas Public Interest Research Group (TexPIRG)
Texans Uniting for Reform and Freedom (Texas TURF)
Americans for Tax Reform (ATR)
Competitive Enterprise Institute (CEI)
Institute for Liberty
Property Rights Alliance
Freedom Action
Public Citizen
Selous Foundation
We Texans
Texans for Accountable Government (TAG)
Stop Tarsands Oil Pipeline
Property owners and landowners from across the state of Texas
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TexPIRG a non-profit, non-partisan consumer advocacy organization