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Luke Ellis and Justin Hodge (Program Co-Chair) – Faculty at Houston Eminent Domain Conference

09 Wednesday May 2018

Posted by texascondemnation in Houston, Houston eminent domain, Pipelines, Politics, Property Rights, texas condemnation, texas condemnation lawyer, texas eminent domain, Texas Eminent Domain Attorney, Texas Eminent Domain Lawyer

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Luke Ellis and Justin Hodge (Program Co-Chair), Marrs Ellis & Hodge LLP, are both faculty at the upcoming Houston, Texas Eminent Domain: CLE International Conference on Thursday, May 10, 2018 and Friday, May 11, 2018.  Luke will be speaking on Thursday at 10:00 am on Texas Eminent Domain Legislative Reform Efforts and Justin will be speaking as part of a panel on Friday at 10:15 am on the Legal Impacts of Hurricane Harvey.   The full conference schedule can be found here.  We hope you can join us at the conference.

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Oil Pipeline Ruptures – Landowners Evacuate

21 Friday Jul 2017

Posted by texascondemnation in Pipelines, Property Rights, texas condemnation, texas condemnation lawyer, texas eminent domain, Texas Eminent Domain Attorney, Texas Eminent Domain Lawyer, Texas Railroad Commission, Uncategorized

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Bastrop County, Condemnation, Crane, Crude Oil, Diesel, Eminent Domain, Evacuation, Houston, Longhorn, Magellan, oil and gas, pipeline, Rupture, Spill, Takings

The Longhorn pipeline, a crude oil pipeline operated by Magellan Midstream Partners (“Magellan”), ruptured approximately 4 miles southwest of Bastrop, Texas on July 13, 2017. The pipeline transports crude oil from Crane, Texas to Houston, Texas, a distance of roughly 500 miles. A contractor was performing maintenance on the pipeline, which was operating when it ruptured. As a result, an estimated 1,200 barrels (50,400 gallons) of crude oil spilled into the surrounding area.

Residents within a 1-mile radius of the rupture were asked to evacuate while residents within a 2-mile radius were given the option to either evacuate or take shelter in their homes. FM 520, the nearby thoroughfare, was shut down in both directions.

When it ruptured, the Longhorn pipeline was running at or near its full capacity. The Longhorn pipeline is a large capacity pipeline capable of transporting upwards of 200,000 barrels of crude oil per day. A prolonged shutdown could potentially mean that suppliers would have to look elsewhere to get their crude oil transported to the Gulf Coast.

This is not the first spill involving a Magellan operated pipeline. In January, a pipeline transporting diesel fuel spilled roughly 45,000 gallons of diesel in Northern Iowa.

A significant portion of property takings in Texas are the result of oil and gas pipeline projects. Incidents such as this serve as a reminder that even after condemnation proceedings have concluded, pipelines can still carry risks and create health and safety concerns. Due to the hazardous nature of the products pipelines transport, the potential for accidents poses an enduring threat to crops, livestock, water supplies, and property values. Landowners would do well to keep these considerations in mind when approached by oil and gas companies seeking to obtain an easement across their land.

Written by Graham Taylor

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‪Vote to support to end #eminentdomain ‬for private gain. YES on SB 740 @loiskolkhorst

18 Tuesday Apr 2017

Posted by texascondemnation in common-carrier status, Denbury, Pipelines, Politics, SB 747, texas condemnation, texas condemnation lawyer, texas eminent domain, Texas Eminent Domain Attorney, Texas Eminent Domain Lawyer, Texas Transportation Commission

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‪Vote to support to end #eminentdomain ‬for private gain. YES on SB 740 @loiskolkhorst

Please watch the “‘TRANS PECOS’ | TEASER” on Vimeo.

 

The website for “TRANS PECOS” can be viewed here.

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Luke Ellis interviewed on Fox News: Border wall faces legal battles over eminent domain in Texas

12 Wednesday Apr 2017

Posted by texascondemnation in Border Fence, Border Wall, Landowner Rights, Politics, Property Rights, texas condemnation, texas condemnation lawyer, Texas Eminent Domain Attorney, Texas Eminent Domain Lawyer

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Border Fence, Border Wall, Condemnation, Eminent Domain

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The story can be viewed on our website.

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Texas Supreme Court Pipeline Ruling Sets back Texas Land Owner Rights

03 Friday Feb 2017

Posted by texascondemnation in common-carrier status, Denbury, Environmental Permitting, Landowner Rights, Pipelines, Politics, Property Rights, Supreme Court, texas condemnation, texas condemnation lawyer, texas eminent domain, Texas Eminent Domain Attorney, Uncategorized

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Appellate Court, Common Carrier, Common Carrier Test, common-carrier status, Denbury, Denbury Green Pipeline, landowner rights, Landowners, Opinion, politics, property rights, Public Benefit, Public Use, supreme court of texas, Texas, texas property rights, Texas Rice Land Partners, Third Party Contract

According to the Fifth Amendment of the U.S. Constitution and Article I, Section 17 of the Texas Constitution, applications of the eminent-domain power must be for public use. Jurisdictions have developed legal and administrative structures which allow private interests limited uses of the power. For Texas pipelines, the granting of eminent-domain authority can only take place when a project fulfills certain requirements. Chief among these is the ability to prove that the pipeline has a public use, meaning it is not being built exclusively for and used only by the entity condemning the land. Statewide, the common-carrier definition, and the derivative test determining whether the definition can describe a given pipeline, is used to establish and enforce the public use requirement.

In the recently decided Denbury Green Pipeline – Texas, LLC v. Texas Rice Land Partners, Ltd., the Texas Supreme Court clarified the access conditions for common-carrier status. In 2015, an appellate court established two additional barriers to common-carrier status. First, it held that a pipeline’s common carrier status must result from an examination of the intent of the constructing party to use the pipeline for public benefit at the onset of the project’s contemplation. Second, the pipeline’s use must serve a “substantial” public interest. The Supreme Court decision reversed these two holdings, the first on the grounds that it misinterpreted case law, and the second because it proceeded beyond the limits of precedent. The Supreme Court also held that Denbury’s post-construction product transportation contracts with third parties, and the fact that certain third parties would retain product title, was sufficient to evidence public use and therefore common-carrier status after the pipeline is built. This opinion is a significant blow to Texas landowner rights.

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Houston Churches Face Goliath in Eminent-Domain Battle

21 Friday Aug 2015

Posted by texascondemnation in Houston, Landowner Rights, Property Rights, texas condemnation, texas condemnation lawyer, texas eminent domain, Texas Eminent Domain Attorney, Texas Eminent Domain Lawyer

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Attorneys, Austin, Austin condemnation, Austin eminent domain lawyer, Blog, Church, Condemnation, Condemnation claims, Eminent Domain, Houston, Houston condemnation, Houston eminent domain lawyer, property rights, Texas, Texas condemnation lawyer, texas eminent domain, Texas eminent domain lawyer

He and the church have helped congregants through drug addictions and gang violence, establishing a youth center and food pantry as part of the church’s mission, but they may have encountered a problem they cannot overcome: the power of eminent domain.

Bishop Roy Lee Kossie has been preaching at Latter Day Deliverance Revival Church in Houston’s Fifth Ward for 50 years, starting his work in 1965 when the area had gained notoriety as one of the city’s most dangerous neighborhoods.

At that time, the Fifth Ward became known as the “Bloody Nickel.” But, decades before the spur of its neighborhood violence, locals simply called it the “Nickel.” The neighborhood had served as a hub for minority-owned businesses and development during an era of redlining and de facto segregation. Congressman Mickey Leland and Congresswoman Barbara Jordan are products of the Fifth Ward, both attending Phillis Wheatley High School on Lyons Avenue, one of the nation’s largest black schools before desegregation.

The neighborhood, once flourishing with the hustle-and-bustle of local businesses, began to change in the 60s, according to the Texas State Historical Association, when upwardly mobile residents moved out to seek broader opportunities that stemmed from integration. Some attribute the neighborhood’s economic and social fall to Highway 59’s exclusion of Lyons Avenue and Jensen Drive – two of the Fifth’s busiest streets at the time – as exits on the major roadway, according to Houston History Magazine.

“The decline was slow,” Patricia Pando wrote in the Houston History Magazine. “Businesses did not disappear overnight. Nevertheless, by the late 1960s, the Lyons Avenue and Jensen Drive intersection was all but abandoned except for the still booming nightclub activity.”

The area’s decline did not, however, scare Bishop Kossie away from his church on Lyons Avenue. The church worked to acquire property, including the lots of two neighboring nightclubs, for its ministry.

“People shot first and asked questions later,” he said in a news release from the Liberty Institute. “But, we love this community. This is where the Lord called us and this is where we want to stay.”

He and the church have helped congregants through drug addictions and gang violence, establishing a youth center and food pantry as part of the church’s mission, but they may have encountered a problem they cannot overcome: the power of eminent domain.

The Houston Housing Authority (“HHA”) has made offers to purchase three of the church’s properties and has threatened to use eminent domain if those offers are not accepted, according to a lawsuit filed August 3 by Latter Day Deliverance Revival Church (“Latter Day”) and Christian Fellowship Missionary Baptist Church (“Christian Fellowship”). Liberty Institute is representing the churches and stated that the HHA was also seeking property owned by Christian Fellowship, a church that has been in the neighborhood for nearly 40 years.

The two churches in Houston’s Fifth Ward assert that the HHA’s use of eminent domain for a redevelopment project infringes upon the churches’ right to practice religion freely as the entity is seeking to take an “undeveloped” plot that Latter Day currently uses for parking and for its outdoor ministry in addition to other properties owned by the churches.

The HHA was seeking a total of four parcels from the two churches, three from Latter Day and one from Christian Fellowship, according to the Houston Chronicle. Christian Fellowship resides on one of those parcels, and the HHA planned to demolish the church to build a library, according to a lawyer for the Liberty Institute quoted in the Houston Chronicle Aug. 4.

The HHA initiated a redevelopment project in the Houston neighborhood in partnership with the Fifth Ward Community Redevelopment Corporation (“FWCRC”), an organization dedicated to revitalizing the historic Houston neighborhood through various development projects. The project, however, has come under public scrutiny since the lawsuit was filed. The HHA and the FWCRC altered their initial plan in response to the criticism, and their new plan would allow Pastor Quinton Smith to continue his 20-year career at Christian Fellowship.

“Toward ensuring [Pastor Smith’s] congregation continues its important presence in this community, I have asked our authority’s president, Tory Gunsolley, to work with our consultants to create an alternate development plan that does not include the property of First Christian Fellowship Missionary Baptist Church,” Chairman of the Houston Housing Authority Board of Commissioners Lance Gilliam said. “Unfortunately, that alternate plan will not allow us to include a new library. We recognize, however, that this sacrifice is balanced by the very real impact Pastor Smith and his congregation will have on the lives of existing and future residents of the Fifth Ward.”

Despite this alteration, the HHA and the FWCRC still plan to acquire Latter Day’s property to build a private health clinic.

“Although I applaud Bishop Kossie’s and his congregation’s impact on the quality of life in the Fifth Ward, I cannot provide him any comfort regarding our disagreement,” Gusnolley said.

The court has granted the churches a temporary restraining order to keep the housing authority off their properties but has not yet decided on whether the potential HHA taking violates the Texas Religious Freedom Restoration Act.

The HHA and the FWCRC may have noble intentions for the Fifth Ward as the FWCRC has a history of involvement in the community that includes the building of more than 300 homes in an effort to revitalize the Nickel. But, if we have learned anything since Kelo, it is that economic growth and development should not be cause enough to infringe upon someone’s constitutionally-protected property rights. Latter Day purchased its parcels of land with a vision in mind, and the HHA should not come between the church and that vision without having a compelling reason vested in the public interest to do so.

Co-authored by Justin Hodge and Ayla Syed.

If you have any questions about this blog, please feel free to contact Justin Hodge (jhodge@jmehlaw.com). 

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College Station, Texas – Property Owner and Landowner Rights Conference

07 Friday Aug 2015

Posted by texascondemnation in College Station, JMEH Law News, Landowner Rights, Property Rights, texas condemnation, texas condemnation lawyer, texas eminent domain, Texas Eminent Domain Attorney, Texas Eminent Domain Lawyer

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Austin condemnation, Austin Eminent Domain Attorney, Austin eminent domain lawyer, College Station Eminent Domain, Houston condemnation, Houston Condemnation Lawyer, Houston Eminent Domain Attorney, Houston eminent domain lawyer, landowner rights, property rights, Texas Condemnation, Texas condemnation lawyer, texas eminent domain, Texas eminent domain lawyer, Texas Lawyer

College Station has been a hub for growth in recent years, and this growth has triggered the development of several large-scale infrastructure projects that will require the use of eminent-domain to reach fruition. In an effort to help educate local landowners of their rights in these proceedings, Johns Marrs Ellis & Hodge hosted the Property Owner and Land Owner Rights Conference on May 9 in College Station.

Aggie projects

Tiffany Dowell Lashmet

Tiffany Lashmet

Tiffany Dowell Lashmet, Assistant Professor and Extension Specialist who focuses on Agricultural Law at Texas A&M Agrilife Extension, spoke to those in attendance about easement negotiations and rights. Lashmet writes and maintains the Texas Agriculture Law blog for A&M, a site that has been regarded as one of the top legal blogs in the nation.

“Condemnation proceedings have very different procedures than other civil cases,” she wrote in one blog. “It is important for landowners to understand the condemnation process in case they ever find themselves faced with a condemnation suit.”

JMEH partners Luke Ellis and Justin Hodge also presented at the conference and provided a summary of Texas Senate and House bills pertaining to eminent domain. Most of the bills discussed did not make their way into legislation at the close of Texas’ 84th Legislative Session. The two also went over what the landowners affected by nearby projects could expect in an eminent-domain lawsuit.

“There were dozens of concerned landowners in attendance who are deeply impacted by these projects,” Hodge said.

The conference also included discussions about land valuation, typical valuation disputes in condemnation cases, and information about what to look for when obtaining an appraiser.

If you have any questions regarding this seminar or any other projects, please feel free to contact Luke Ellis (lellis@jmehlaw.com) or Justin Hodge (jhodge@jmehlaw.com).

 

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It Will Take More Than $75 Million to Build High-Speed Rail without Power of Eminent Domain

31 Friday Jul 2015

Posted by texascondemnation in Dallas, High-Speed Rail, Houston, Politics, Property Rights, texas condemnation, texas condemnation lawyer, texas eminent domain, Texas Eminent Domain Lawyer

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Attorneys, Austin, Austin condemnation, Austin eminent domain lawyer, Blog, Condemnation, Dallas, Dallas Eminent Domain, Eminent Domain, High-Speed Rail, Texas Central, Texas condemnation lawyer, texas eminent domain, Texas eminent domain lawyer

Despite its recent funds, the company behind the contentious high-speed passenger rail line between Houston and Dallas may not succeed without the use of eminent domain – a power reserved for takings that serve the public interest.

Texas Central, the company working on developing a high-speed passenger rail line between Houston and Dallas, announced the procurement of $75 million in funding for the project and the hiring of a new CEO last week. This funding will certainly help Texas Central take the next steps needed to develop the rail line, but the company’s efforts may be in vain if it cannot use eminent domain to secure the land needed for the project. Some have even said that the line cannot succeed without eminent domain.

The company recently avoided roadblocks set in place by Texas legislatures, some of whom aimed to prevent the company from using eminent domain for the high-speed rail (read our blogs about Senate Bill 1601 here and here). Texas Central has consistently advertised that it can provide better deals for landowners than a governmental agency could and that the rail uses a fraction of the fuel used by commercial aircrafts, but the thought of a privately-owned company invoking the power of eminent domain for a potentially profitable venture has galvanized many Texans against the rail. Many have joined the efforts of Texans Against High-Speed Rail, a group organized around public opposition to the rail.

“Our aim is to protect private property rights, maintain efficient modes of transportation, and prevent the wasteful use of taxpayer dollars or public subsidies for high-speed rail transportation,” the group stated in its mission statement (Click here to visit the group’s website).

Texas Central’s newly-appointed CEO Tim Keith, a Dallas resident who has nearly 25 years of experience in large-scale real estate and infrastructure project development, recognizes this local opposition to the company’s project.

tim-keith-21-750xx450-600-7-0

Tim Keith

“When it impacts communities and people’s land, it’s very personal,” Keith said to the Dallas Morning News, adding that he plans to better communicate the potential benefits of the project to the public.

Texas Central has submitted its rail line to the Federal Railroad Administration and is awaiting the results of an environmental impact review of the project.

Co-authored by Justin Hodge and Ayla Syed.

If you have any questions about this blog, please feel free to contact Justin Hodge at jhodge@jmehlaw.com

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Supreme Court Rules California Raisin Reserve Requirement is a Taking

17 Friday Jul 2015

Posted by texascondemnation in Politics, Property Rights, Supreme Court, texas condemnation, texas condemnation lawyer, texas eminent domain

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Attorneys, Austin eminent domain lawyer, Blog, Condemnation, Eminent Domain, Government takings, Horne v. USDA, Houston eminent domain lawyer, politics, property rights, Raisins, SCOTUS, Supreme Court, Texas condemnation lawyer

In its most recent round of decisions, the Supreme Court ruled in favor of our favorite raisin farmers in Horne v. USDA and determined that the raisin reserve requirement mandated by the California Raisin Marketing Order did indeed constitute a taking under the Fifth Amendment (read our previous blog on Horne v. USDA here). This ruling is a welcome move in the right direction to better protect individual property rights.

Chief Justice Roberts delivered the Court’s 8-1 opinion in which Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito concurred in full and Justice Stephen Breyer, joined by Justices Elena Kagan and Ruth Bader Ginsburg, concurred in part and dissented in part. Justice Sonia Sotomayor wrote a solo dissent.

“The reserve requirement imposed by the Raisin Committee is a clear physical taking,” Roberts wrote in the majority opinion. “Actual raisins are transferred from the growers to the Government. Title to the raisins passes to the Raisin Committee.”

As with almost any government taking, the original property owner is entitled to just compensation for his or her property. The Supreme Court majority determined the amount initially assessed by the government as a fine for the Horne’s withholding their raisins from the reserve constituted the fair-market price for the Horne’s raisins.

“The Government has already calculated the amount of just compensation in this case, when it fined the Hornes the fair market value of the raisins: $483,843.53,” Roberts wrote. “There is accordingly no need for a remand; the Hornes should simply be relieved of the obligation to pay the fine and associated civil penalty they were assessed when they resisted the Government’s effort to take their raisins. This case, in litigation for more than a decade, has gone on long enough” (citations omitted).

This point of the ruling garnered a dissent in part by Breyer, who reasoned that a lower court should be the proper venue for determining compensation for the Hornes.

In her dissent, Sotomayor reasoned that the marketing order does not constitute a per se taking and was, instead, a reasonable government regulation on partaking in the raisin market. Sotomayor also construed the marketing order as a regulatory taking rather than a total, per se taking because the Hornes held a residual interest in the reserve raisins. She reasoned they would receive a portion of the proceeds if the government sold those raisins and, therefore, had not lost all of their property rights to those raisins.

Her reasoning did not prevail in this case, and the Supreme Court’s ruling in Horne v. USDA sets a precedent that will help better protect property owners from unjust takings.

Marvin Horne, who has been entangled with this matter for more than a decade, said he was astounded by this victory, the LA Times reported.

“It’s been 11 years, and a lot of water over the dam,” he said.

Co-authored by Justin Hodge and Ayla Syed.

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The Eminent Domain Reforms that Could Have Been

19 Friday Jun 2015

Posted by texascondemnation in Politics, Property Rights, texas condemnation, texas condemnation lawyer, texas eminent domain

≈ 1 Comment

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Austin condemnation, Austin eminent domain lawyer, Condemnation, Condemnation claims, Congress, debate, elections, Eminent Domain, house of representatives, politics, reform, senate, Texas, Texas Condemnation, Texas condemnation lawyer

As Texas’ 84th Legislative Regular Session closed on June 1, several bills pertinent to eminent-domain reform were sent to the political junkyard where other legislative “almosts” and “could-have-beens” also reside.

Senate Bill 1601, which would have excluded high-speed rail from using eminent domain and thwarted the development of the Texas Central High-Speed Railway between Dallas and Houston, never made it out of the Senate Transportation Committee. The bill was initiated by Senator Lois Kolkhorst, R – Brenham, who filed it with the Texas Senate on March 12 this year in order to better control the use of eminent domain by private companies. To read more about this bill, please read our blog.

Senator Kolkhorst also initiated Senate Bill 474, which died in the Texas House of Representatives after passing through the Senate by a 25-6 vote. In an effort to encourage fair initial offers, the bill would have required those seeking to acquire property to reimburse landowners for their attorneys’ fees if a panel of special commissioners, judge or jury determined the value of the land to be at least 20 percent higher than the amount offered by the condemnor during a condemnation proceeding. The bill initially required compensation only if the value exceeded the offer by at least 10 percent, but that number was changed to 20 percent in the Senate Committee on State Affairs. The House Land and Resource Management Committee left the bill pending. To read more about SB 474, please read our blog.

Senate Bill 479 faced a fate similar to SB 474’s as it made its way out of the Senate in a 29-1 vote only to be left perpetually pending in the House Business and Industry Committee. The bill, authored by Senator Charles Schwertner, R – Georgetown, would have more narrowly defined the phrase “actual progress.” In Texas, a landowner can repurchase his or her land if the condemning party has not made “actual progress” toward the intended use of the property within 10 years of the taking. “Actual progress,” however, can be difficult to define, and SB 479 would have helped remediate that ambiguity. To read more about SB 479, please read our blog.

Co-authored by Justin Hodge and Ayla Syed.

If you have any questions about this post, please feel free to contact Justin Hodge at jhodge@jmehlaw.com

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Luke Ellis and Justin Hodge are partners with Marrs Ellis & Hodge LLP. Justin heads the firm's eminent domain practice in the Houston office. Luke heads the firm's eminent domain practice in the Austin office. Luke Ellis is widely recognized as one of Texas’s top young lawyers—and one of the top lawyers of any age practicing in the area of eminent domain. Mr. Ellis has broad experience and has enjoyed success in many types of civil litigation. Justin Hodge is a trial lawyer who represents Texas landowners in condemnation, eminent-domain, and real-estate lawsuits. He represents landowners in condemnation proceedings, not the governmental authorities or private companies taking property. Mr. Hodge has handled complex condemnation and eminent-domain cases throughout the State of Texas. If you have questions about any of the issues raised in this blog, we invite you to discuss them with us at jhodge@mehlaw.com or lellis@mehlaw.com.

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