The City of Houston withdrew its effort to condemn the outdoor ministry area of Latter Day Deliverance Revival Church, a predominantly black church in the city’s Fifth Ward. 

On June 5, 2015, the Houston Housing Authority (HHA) announced that it was exercising its power of eminent domain to condemn the church’s outdoor ministry area. This area would be turned over to for-profit businesses, which the HHA argues would create jobs, stimulate the economy and generate tax revenue.

Two months later, the Liberty Institute–who took the case pro bono on behalf of the inner-city church–filed a lawsuit against the City of Houston. The Institute argued that condemning the church would violate the Texas Religious Freedom Restoration Act, as well as other legal protections.

Last month the city of Houston withdrew the condemnation action and ended the legal proceedings, abandoning efforts to seize the church’s property.

Interstate 14, also known as the Fourteenth Amendment Highway, is a new interstate highway which will pass through Texas, and could connect with Mississippi, Louisiana, Alabama, Georgia, and South Carolina. The Highway was originally passed and signed into law by then President George W. Bush in 2005 as part of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users, or (SAFETEA-LU). It was a response to Congressional pressure after Hurricane Katrina in light of several evacuation controversies related to road logistics. The original bill however, did not allocate any funds towards project construction.

U.S. Senator John Cornyn, R-Texas, sponsored a bill which determines the precise Texas corridor through which the highway will pass. Approximately 700 miles in total, the corridor makes use of existing stretches of highway, such as U.S. Highway 190. I-14 will therefore pass through Killeen and Belton on its way to Bryan-College Station, Huntsville, and Woodville, before connecting with State Highway 63 at the Sabine River.

There are many time and money saving advantages to reusing existing stretches of highway. However, reusing existing roadway does not eliminate the need for new construction, which could take place for two reasons. Firstly, the corridor may still require realignments which will require the construction of new highway. Secondly, not all of the existing highway is up to interstate code. Modifying highways to conform to interstate code may involve adding lanes and partitions, removing traffic lights, and the construction of overpasses, underpasses, and access ramps.

Though the bill was initially intended to enhance disaster relief and evacuation capabilities, its proponents claim that it will provide military and economic advantages as well.

Representative Brian Babin, R-Texas said, “There is a reason this interstate already has a nickname, ‘Forts to Ports,’ as it provides either direct or very close access for some of our country’s most strategically important military and shipping assets.”

“By creating a more efficient interstate highway system in the heart of Texas, Interstate 14 will allow the state to attract more economic development and jobs,” said John Thompson, chairman of the Gulf Coast Strategic Highway Coalition.

Co-authored by Christopher Chan and Justin Hodge.

The 2016 presidential campaign has yielded interesting and sometimes controversial policy positions from Donald Trump. But a lesser well-known fact is Trump’s position on eminent domain. Despite being a Republican candidate, Trump has openly supported the seizure of private property for “public” use with “public” being a very loose term that allows the government a broad mandate with respect to property rights.

Trump’s policy views on eminent domain are best explained by two cases in which he attempted to use government agencies to condemn properties for his businesses.  In Trump v. Coking, Trump tried to purchase the home of Vera Coking to expand his hotel and casino in the state of New Jersey. When Coking refused to sell her home, Trump turned to a governmental agency–the Casino Reinvestment Development Authority (CRDA)–which would get him the property at a fraction of the market value using its power of eminent domain. New Jersey’s CRDA filed a lawsuit instructing Coking to vacate the property within 90 days and offering compensation of only $251,000. Coking fought back in court and ultimately won, forcing Trump to abandon his casino plans. Trump’s response? “I think that would have been a good eminent domain because you would have provided thousands of jobs. And this is a woman who couldn’t have cared less about her house. All she wanted was money.”

In another case, Trump claimed he would transform Bridgeport, Connecticut into “a national tourist destination” by building a $350m office and entertainment complex on the waterfront. Unfortunately, five businesses owned the land that Trump wanted. Trump’s lawyers circumvented this obstacle by making the City a partner with Trump Connecticut, Inc. and obtaining the land through the City’s use of its eminent domain power. Trump would later buy the land from the City. In the end, the project fell apart.

In a 2005 Supreme Court decision in Kelo v. City of New London, the Court held that the city of New London, Connecticut could condemn the property of Susette Kelo and her neighbors so that Pfizer could build a research facility. However, the private developer was unable to finance the redevelopment project, leaving the land an empty lot that benefits no-one. The Court decision set a precedent that allows virtually any public benefit to count as public use, serving as an easy justification for using the power of eminent domain.

Although prohibited by State law in Texas, large corporations and business tycoons like Donald Trump can partner with governmental agencies to extract private favors in other jurisdictions. What’s interesting about Trump is that his views on eminent domain are not shared by many fellow Republicans. A conservative group, Club for Growth Action launched an ad campaign attacking Trump for making many lose their property rights. In a rare situation, many Democrats and Republicans are united in opposing the abusive use of eminent domain, leaving Trump in the small group of extremely wealthy Americans that can leverage their wealth to bend the law in their favor.

Co-authored by Maithili Bagaria and Justin Hodge.

An Oncor construction project performing a major transmission line upgrade demonstrates the danger of living near an easement owned by the power company. The upgrade is being made to an existing transmission line which runs between two electrical sub-stations, one located on Fairgrounds Road and the other near Midland International Air and Space port. Though many people own homes along the route, Oncor possesses an easement over their land, a status granting Oncor a superior legal right to use the properties. This right-of-way extends for a width of 50 feet and enables Oncor to remove any and all obstacles within the area that they see fit including trees and small buildings.

From Oncor’s point of view, “This is going to help provide stability to the entire system in Midland and surrounding areas so that we can bring power into where the demand is,” said Sue Mercer, a spokeswoman for Oncor. “We do recognize that it’s going to be a major project for us, and mostly because of its location — through the residential and commercial areas, it traverses the full width of Midland. It’s a project that’s needed, and our main goal is to keep the public safe and maintain reliability for our system.”

For affected residents however, these statements fail to capture the reality of their situation.

“We have a really beautiful backyard and we spend a lot of time out there,” said Rebeca Nicholson, a Midland resident. Regarding the construction noise and modifications to her property, “We’re not really sure we could live there hardly.”

“Everybody’s pretty upset,” said Henry Shaw, Nicholson’s 88 year-old neighbor “If my wife were able, I would probably [leave] too.”

Both Nicholson and Shaw expect significant devaluations of their properties and claim to know others who are experiencing worse. Home appraiser Perry Taylor agrees that home values will be adversely affected.

“There’s no blanket statement that could cover each individual’s scenario,” he said. “Some are going to be affected greatly.

A property owner is entitled to compensation for damages resulting from a taking of their property. However, in cases involving the construction and upgrading of a transmission line within an existing easement, a property owner should look to the language of the easement to determine if any recourse is possible. The terms of an individual easement may specifically provide for recovery of damages for construction upgrades. Moreover, actions by the easement holder beyond the terms of the easement agreement or outside the property boundaries of the easement could require Oncor to pay just compensation plus damages.

Luke Ellis, a partner at Johns Marrs Ellis & Hodge LLP was recently quoted in a Dallas Morning News article that discussed the progress of the Houston to Dallas High Speed Rail project. Mr.  Ellis, a Texas eminent-domain lawyer whose practice involves representing landowners against the government and private entities seeking to condemn their property, expanded upon the condemnation process and the political forces surrounding the project that ranges from Harris County to Dallas County, Texas. “The high speed rail will present many new and unprecedented damages to Texas property owners” Mr. Ellis noted. For instance, “The high speed rail reports limited access across the rail line. Practically this means property owners may have their properties divided by the railway taking.” At the end of the day, “The high speed rail serves no benefit to the specific property owners that will be forced to give up their land for the project,” Mr. Ellis concluded.

You can read the full article here.

Sanchez Energy Corporation and Targa Resources Partners LP have announced a joint venture agreement through which they will share construction costs and ownership of a new cryogenic natural gas processing plant. Cryogenic plants are facilities which specialize in supercooling natural gas for distillation purposes.  It is still unclear whether the joint venture will have access to the power of eminent domain. It is likely that the additional pipeline will pass through privately owned land. But whether the joint venture will be able to take the land, hinges on whether the plant’s operational parameters qualify as public use. The plant has a projected capacity of 200 million cubic feet of natural gas per day, with the possibility to increase future production to as much as 260 million feet of natural gas per day. Operational requirements of the plant dictate that an additional 45 miles of pipeline must be constructed to connect it to Sanchez Energy’s existing Caterina gathering system. The plant will be located in La Salle, Texas.

Sanchez Energy will invest approximately $115 million in the plant’s construction costs and will receive a 50% ownership stake as well as the new pipelines. Targa will contribute approximately $125 million, and receive a 50% ownership stake plus all of the transportation capacity on the pipeline. They will also be responsible for the actual construction of the plant. The joint venture will collect fees for the transportation of product on behalf of the two companies, has the option to expand production capabilities, and if necessary, utilize additional land. The plant should be operational by 2017.

Co-authored by Christopher Chan and Justin Hodge.

The Texas Department of Transportation (TxDOT) is in the process of deciding the route for a planned extension of State Highway 249. “The preferred route crosses F.M. 1774 south of Plantersville and connects to SH 105,” said TxDOT spokesman Bobby Colwell. The majority of the new route will be a newly constructed road. “TxDOT continues to consider refinements to the route to reduce any impacts to property owners.”

On the one hand, TxDOT, with its power of eminent domain, can strip landowners of their property as they deem necessary. These takings, combined with the inconveniences and inevitable damages caused by construction are bound to make life more difficult for residents. On the other hand, the road, once completed, could provide faster traveling times to Houston. Commutes from smaller towns in the county to larger cities often take longer without a major highway, which hinders access to industry and better-paying jobs. Grimes County Judge Ben Leman, who has been collecting opinions from potentially affected landowners, believes that despite the costs imposed on residents, the road could be a net positive for the community.

However, it seems that Leman does not speak for everyone. Some residents have banded together to form a group called “Stop Grimes 249.” The group is encouraging community members to contact their county commissioners and urge them to choose the “No Build” option. They are also asking TxDOT to reallocate the funds towards improving State Highway 105 and Interstate FM 1774 instead. These residents are rightfully concerned that many properties will be damaged and destroyed by the construction process. Additionally, there are worries that the remaining properties may not even benefit from the economic opportunities purported by highway advocates as they will not have access to the new toll road.

A public hearing is anticipated in early 2016, while construction could begin as early as 2017 in some parts of the corridor.

Co-authored by Justin Hodge, Christopher Chan and Maithili Bagaria.

The Texas Department of Public Transportation (“TxDOT”) will hold a two hour public meeting this Tuesday, Sept. 29 at the Lake Jackson Civic Center to discuss proposed expansion plans to State Highway 332. The plans would expand the highway from FM 521 to State Highway 288 in Brazoria County, according to a TxDOT announcement.

“The proposed project would reduce traffic congestions, accommodate population growth and improve mobility,” said Danny Perez, a spokesperson for the department. “Further, expanding the roadway would provide the needed capacity during hurricane evacuations.

The project would also replace bridges at Buffalo Camp Bayou, as well as the diversion channel east of the bayou. It would also add a drainage channel running south of the highway and into the Brazos River. Finally, the project would add walkways running alongside the highway to aid pedestrian transit.

Residents of Brazoria County should be aware that, should this proposal continue forward, the power of eminent domain will likely be used to acquire the land parcels needed for the project. Preliminary diagrams released by TxDOT have indicated that the taking of additional “right of way” will be necessary to accommodate the expansions.

If approved by Texas voters, Proposition 7 will reallocate billions of dollars to the State Highway Fund for new highway expansion projects – which will very likely lead to more condemnation and eminent-domain cases throughout the State of Texas. The proposition, which will be on the ballot on November 3, 2015, will redistribute tax revenue from two sources, the general sales and use tax, and the motor vehicle sales and rental tax.  The proposition reallocates all annual sales tax revenue that exceed $28 billion from September 1, 2017 to September 1, 2032 to the State Highway Fund, up to $2.5 billion per year. Additionally, 35% of all annual vehicle sales and rental tax revenue above $5 billion from September 1, 2019 to August 31, 2029 will be directed to the State Highway Fund.

Senator Robert Nichols, co-author of the bill, had the following to say: If voters pass the proposition, it “would be the largest single increase in transportation funding in Texas history.” The additional funding will finance miles of new roads and highways.  Texas property owners should educate themselves on the upcoming vote because the additional funding will no doubt lead to more condemnation and eminent-domain cases.

To view the bill please click here.