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Tag Archives: Congress

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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Private Toll Company Takes a Toll

24 Friday Apr 2015

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

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Attorneys, Austin, Austin condemnation, Austin eminent domain lawyer, Cindy Burkett, Condemnation, Condemnation claims, Congress, Eminent Domain, House Bill 565, politics, Roads, Texas Turnpike, toll roads, Transportation

State Representative Cindy Burkett, R-Sunnyvale, filed a bill to strip the Texas Turnpike Corporation of its power of eminent domain, so it would no longer have the authority to condemn and take land. Currently, Texas Turnpike Corp. may be the only private entity that can still condemn land to build toll roads. In 1991, the State of Texas repealed a law that gave private toll companies the power of eminent domain, but Texas Turnpike Corp. was grandfathered.

House Bill 565 sponsored by Representative Burkett was sparked by public outcry over the Texas Turnpike Corp.’s attempt to build the State’s only private toll road northeast of Dallas. The company had originally intended to build the road as part of its Northeast Gateway project, which aims to create an alternative to nearby Interstate 30. However, after intense opposition from cities and residents on the road’s path, the company backed down from building it.

Texas Turnpike Corp. has been searching for a project to develop for a while. When the company’s chief executive, John Crew, was asked how many projects the company had completed in its more than 20-year history, Crew responded “we haven’t done any.” Last year it eventually focused on the Northeast Gateway project.

Neal Barker, a spokesman for the corporation, said the facility offered by the project is “a reliever to 30 and a time saver.” Crew added that the company is just trying to build projects that the state and others can’t afford.

Contrastingly, landowners and residents in the path of the toll road were overwhelmingly opposed to building the road. Christopher Kurinee, a Hunt Country resident, claimed the Texas Turnpike Corp. was “a private company trying to take private land.”

Allowing private companies the power of eminent domain for “public use” continues to be a contentious issue in Texas as private companies can generate profits from their projects. According to Representative Burkett, “the eminent-domain process should begin and end with officials who are directly accountable to the voters, not to corporate shareholders.”

House Bill 565 was referred to the House Committee on Transportation and approved as substituted. It will likely be placed on the calendar for consideration by the full House of Representatives.

See the bill here.

Co-authored by Justin Hodge and Maithili Bagaria.

If you have any questions about HB 565, feel free to contact Justin Hodge at jhodge@jmehlaw.com

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High-Speed Train Between Houston and Dallas May Not Come So Fast

11 Saturday Apr 2015

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

≈ 3 Comments

Tags

Attorneys, Austin eminent domain lawyer, Condemnation, Congress, Dallas, debate, Eminent Domain, High-Speed Rail, Houston, Houston condemnation, Houston eminent domain lawyer, politics, SB 1601, Texas, texas eminent domain, Texas eminent domain lawyer

The anticipated high-speed passenger rail line that would travel between Houston and Dallas may not come to fruition if the Texas Senate passes a bill proposed to limit the eminent-domain powers of companies that own such lines.

The proposed bill, initiated by Senator Lois Kolkhorst, R – Brenham, defines a high-speed rails as an “intercity passenger rail service that is reasonably expected to reach speeds of at least 110 miles per hour” and excludes companies that own such rail systems from exercising the power of eminent domain for those projects. The Texas Senate Transportation Committee voted Senate Bill 1601 out of committee on April 8, according to The Texas Tribune.

Texas Central High-Speed Railway, the private company developing the $12 billion train line, has maintained that it has private funding for the entirety of the project and would be able to compensate landowners for the property needed to complete the project more than the government typically can during condemnation.

“We have the ability to pay more because it’s not taxpayer dollars,” Texas Central President Robert Eckels said. “We, in fact, can pay more as a private company and expect that we will be paying more.”

Proponents of the proposed bill argue that the private company should not have the authority to use eminent domain for its own profits.

“Eminent domain is probably the most horrific power that the government has, and to dole that out to individual companies that can misuse that or use it for projects that result in profits, we have to be very careful about doing that,” said Senator Bob Hall, R – Edgewood.

Representatives of Texas Central, however, feel that the company is being singled out as hundreds of private firms are currently authorized to use eminent domain in Texas, according to the Texas Tribune.

“All that we ask is that this train be treated like any other private train in Texas,” said Richard Lawless, Texas Central chairman and CEO. “It does not seem fair to us that this train should be prohibited in Texas just because it goes faster than other trains.”

While the state government may not authorize the use of eminent domain to develop this project, Texas Central has proposed its route to the Federal Railroad Administration.

“Quite honestly, I’d rather do this as a Texas project,” Eckels said.

The train is expected to travel to Dallas from Houston in less than 90 minutes, making one stop in College Station. The company hopes to complete the project by 2021, but a few legislative road blocks may slow its progress.

Read the proposed SB 1601 here.

Co-authored by Justin Hodge and Ayla Syed.

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

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JMEH Partners Testify in Front of Senate Committee, Advocate for Bill to Stop Eminent-Domain Abuse

27 Friday Mar 2015

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

≈ 1 Comment

Tags

2015, Attorneys, Austin, Austin condemnation, Austin eminent domain lawyer, Blog, Condemnation, Condemnation claims, Congress, debate, Eminent Domain, Houston, Houston condemnation, Houston eminent domain lawyer, politics, Senate Bill 474, Senator Kolkhorst, Texas, Texas Senate

Marrs Ellis & Hodge, LLP, partners Justin Hodge and Luke Ellis testified in front of the Texas Senate Committee on State Affairs on March 9, 2015, in favor of a bill that would better protect landowners in eminent domain proceedings and help ensure that the fear of legal fees would not prevent landowners from seeking just compensation for their property.

Senate Bill 474, proposed by Senator Lois Kolkhorst, R — Brenham, would require those seeking to acquire property to reimburse landowners for their attorney’s fees if the award by the special commissioners exceeds the condemnor’s offer for the property prior to the proceedings by at least 10 percent.* The bill would also require reimbursement of attorney’s fees if the case moves beyond the special commissioners’ hearing to court and the award exceeds the condemnor’s offer prior to the proceeding by at least 10 percent.

Luke Ellis

Luke Ellis

Ellis and Hodge were the first among the five individuals
invited to testify in front of the Texas Senate Committee on State Affairs. Ellis opened the testimonies by describing a situation in which a landowner purchases a piece of land for $300,000. The landowner then builds a home on the land and spends $200,000 on construction, bringing the landowner’s total cost to $500,000.

An entity wants to use that land for a project that would serve some public purpose, and that entity offers the landowner $300,000. The landowner, knowing the amount he or she has spent on the property, then seeks legal counsel from an attorney. The attorney fights the case for a period of one to four years, at the end of which a jury awards the landowner $500,000.

“Has that landowner recovered in full for the benefit that [his or her] land has provided to our entire community?” Ellis asked the committee after setting up his example. “The answer, under the Texas system as it exists today, is a very definitive no.”

Ellis stated that the landowner does not recover in full in this process because of the attorney’s fees and legal costs required to combat low offers in court, especially when the landowner has to pay for experts and appraisals to counter the condemnor’s experts and appraisals. Ellis then went on to read the language in both the 5th Amendment of the U.S. Constitution that requires condemning authorities to give landowners just compensation for their properties and Article 1, Section 17 of the Texas Constitution that requires adequate compensation.

“But, in Texas, as the system exists, you don’t get just compensation or adequate compensation,” Ellis said. “You get adequate compensation less the cost it takes you to achieve adequate compensation, and that’s not a fair system for Texas landowners.”

SB 474 graphic2

This graphic is not representative of every path a condemnation case can follow and does not in any way offer legal advice. This graphic simply presents a the number of paths a hypothetical case could follow in context of SB 474.

The debate on SB 474 centers on whether the bill would have a fiscal impact on the government and increase the cost of condemnation. When presenting her bill, Senator Kolkhorst stated that the bill would not significantly increase costs to the government, and Ellis agreed with this in his testimony. Ellis said this bill would decrease litigation as it would incentivize condemning authorities to make a fair offer that landowners would want to accept initially.

“Condemnors have absolutely no incentive to treat landowners fairly. They’re a business. There is no penalty to make low offers to start,” Ellis said of the current system, adding that condemning entities often make low offers to “wash away” those afraid of a legal battle.

Ellis also described the abuse of power that often occurs in these legal battles as condemnors who can afford to run up legal costs and/or expert fees often do so to tire the landowner’s financial resources and ability to fight low offers.

“We believe [SB 474] is the first and a very strong step in trying to balance the scale,” Ellis said.

Hodge also testified and gave a personal testimony of his family’s experience in an eminent-domain proceeding. His family owned a ranch near the Bell-Williamson county line, and his grandfather had spent his lifetime drilling more than 70 water wells on that ranch looking for water to feed their livestock.

Hodge’s grandfather passed away, and Hodge’s father found seven commercial-grade water wells on the property. Hodge’s family contracted with local communities to make use of those water wells until the State of Texas, through the Department of Transportation (“TxDOT”), decided to build a safety rest stop on the ranch in 2006.

“They wanted 28 acres, and, in fact, they were taking the property where six of those seven commercial water wells existed,” Hodge said. “That was a shock to us. We begged and pleaded with TxDOT to move the safety rest stop.”

TxDOT did not move the location of the rest stop. Hodge’s family fought the state’s $350,000 offer for six years. The state did not include any compensation for the water underneath their property in its offer and argued that the water underneath the property did not belong to the landowners, a position that Hodge said ran contrary to nearly a century of case law in Texas.

The Hodge family case went in front of a jury of six people in Bell County, who awarded the family $5.8 million as just compensation for their loss of the water and land.

“You’re probably asking, ‘Well, aren’t you made whole? Isn’t your family made whole in that situation?’ And, the answer is no,” Hodge said to the committee. “We had to pay, as a family, more than $2 million in attorney fees to get that $5.8 million, and that doesn’t include expert costs associated with [the legal battle]. That was money my grandfather had worked hard for to pay for college educations for his great grandchildren, my father’s grandchildren, and my children.”

“This is a bill that will help landowners like my family, landowners…who have to bear a huge cost for the community” Hodge added. “[SB 474] stops abuse.”

Senator Kolkhorst modeled the bill after similar bills in effect in other states in an effort to help stop this abuse.

“The spirit of SB 474 is just to say, if you need to, you can access the courts,” Kolkhorst said. “And, if you were wronged, those fees will be paid by those who wronged you.”

SB 474 is currently pending in the Texas Senate Committee on State Affairs. If passed as currently written, the bill would go in effect September of 2015.

*In Texas, if a landowner and the condemning authority cannot agree to an amount for the property, a panel of three court-appointed special commissioners will determine an award for the property.  If either party objects to the award, the case then proceeds to a court where a judge or jury determines the fair-market value of the property in question.

If you want to hear Ellis and Hodge’s testimonies, please visit  http://youtu.be/H9psHmXLexw. If you have any questions about SB 474, please feel free to contact Justin Hodge at jhodge@jmehlaw.com.

Co-authored by Justin Hodge and Ayla Syed.

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Is ‘Actual Progress’ Being Made?

14 Saturday Feb 2015

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

≈ 1 Comment

Tags

actual progress, Attorneys, Austin, Austin condemnation, Austin eminent domain lawyer, Blog, common law, Condemnation, Condemnation claims, Congress, Eminent Domain, schwertner, senate, texas eminent domain

I believe governments should only use their eminent domain authority as a last resort, but the truth is, it’s a power rampant with abuse and misuse…Texas has a storied history of defending private property rights, and this legislation will preserve that proud tradition by holding government more accountable.” – Senator Charles Schwertner

Eminent domain laws in Texas may receive a slight tweak if recently-filed Senate Bill 479 passes into legislation. Senator Charles Schwertner, R – Georgetown, authored the bill that could more narrowly define “actual progress,” a broad phrase that currently requires those who invoke the power of eminent domain to make “actual progress” toward the intended use of the condemned land within 10 years.

After the 10-year period, the landowner can repurchase the land at the original price paid by the condemning entity. This may prove more difficult than necessary for the landowner as the law currently does not clearly define “actual progress,” and Schwertner hopes his bill will help remedy that ambiguity in an effort to better protect landowners in eminent domain cases.

“I believe governments should only use their eminent domain authority as a last resort, but the truth is, it’s a power rampant with abuse and misuse,” Schwertner said in an announcement of SB 479, according to the Austin Business Journal. “Texas has a storied history of defending private property rights, and this legislation will preserve that proud tradition by holding government more accountable.”

The proposed amendment to 21.101 of the Texas Property Code would define actual progress as including three of the following:

  1. The “performance of [a] significant” amount of labor on the property or other properties related to the development of the intended project;
  2. The purchase or obtainment of a “significant” amount of material for the property or other properties required for the public use project;
  3. The hiring of and/or “significant” work by an architect, engineer, or surveyor for the purpose of developing the property or other properties for the public use project;
  4. Application of state and/or federal funds for the project for which the property was purchased; or
  5. Application of a state and/or federal permit to develop the property or other properties related to the public use project.

(Read the proposed bill here). If you have any questions about SB 479 and its potential impact on eminent domain cases in Texas, please feel free to contact Justin Hodge at jhodge@jmehlaw.com

Coauthored by Justin Hodge and Ayla Syed.

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How the 2012 Presidential Election Can Affect You, the Landowner

09 Friday Nov 2012

Posted by texascondemnation in Politics, Property Rights

≈ 1 Comment

Tags

2012 Elections, Condemnation, Congress, Eminent Domain, Environmentalists, Keyston XL, oil and gas, pipeline, President Obama, property rights, Texas Condemnation, texas eminent domain, TransCanada

With America’s new president decided, both sides of the energy argument speculate victories. Some oil and gas enthusiasts think President Obama is likely to pass TransCanada’s Keystone XL Pipeline in his second term now that the company has assured that the pipeline will not pass through a sensitive aquifer in Nebraska. At the same time, environmentalists are looking forward to the President’s motions towards clean energy, absent the use of fossil fuels. Whether President Obama will favor one side over the other is left to be revealed when Congress convenes in early January, but in the meantime, we do know the President plans on employing an “all of the above” strategy to solve the energy issue. This means no energy source is likely to be abandoned completely. This also means landowners will need to be far more wary when it comes to their property rights. Whether it is a wind farm or a pipeline, or anything in between, you have the right to just compensation for your land if a private company or the government decides to condemn it. Eminent domain laws were not set in place to favor one side over the other. Know your rights and how to fight back.

To read more about how the 2012 election will affect eminent domain, visit here.

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texascondemnation

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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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