After decision, an amendment is quickly proposed to limit powers of eminent domain

June 24, 2005

By Mike Snyder and Matt Stiles (View author info)
Copyright Houston Chronicle

Texas' cultural commitment to private property rights surfaced quickly Thursday as a state legislator moved to blunt the impact of a U.S. Supreme Court ruling that local governments may seize land for private development.

Hours after the court's 5-4 ruling came down, Rep. Frank Corte Jr., R-San Antonio, said he would seek "to defend the rights of property owners in Texas" by proposing a state constitutional amendment limiting local powers of eminent domain, or condemnation.

Houston Mayor Bill White and Harris County Judge Robert Eckels offered assurances that the city and county do not intend to condemn land for private development projects.

But officials in the beachfront town of Freeport, south of Houston, said they would move aggressively to condemn property owned by two seafood companies to clear the way for an $8 million private marina.

The Supreme Court ruled against a group of property owners in New London, Conn., who challenged a city plan to demolish their riverfront homes to make way for offices, a hotel and other commercial buildings.

Justice John Paul Stevens, in the majority opinion, said such projects are within the scope of a clause in the Fifth Amendment to the Constitution that authorizes condemning property for "public use."

Stevens wrote that promoting economic development, the stated goal of the New London project, "is a traditional and long accepted governmental function, and there is no principled way of distinguishing it from the other public purposes the court has recognized," such as taking land for roads, parks or libraries.

In a sharply worded dissent, Justice Sandra Day O'Connor said the majority's interpretation of "public use" was so broad that "the specter of condemnation hangs over all property. Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory."

Joining Stevens in the majority were Justices Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. Dissenting with O'Connor were Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas.

The opinion said states concerned about excessive use of condemnation were free to pass laws restricting it, and Corte said he intended to do just that.

Corte said he would ask Gov. Rick Perry to add the condemnation issue to the agenda of the special legislative session now under way so that the proposed constitutional amendment could appear on the November ballot.

Perry spokeswoman Kathy Walt said the governor would consider requests to add items to the agenda, but probably not until legislators resolve the school finance issue. She said Perry supports property rights and was concerned about the Supreme Court ruling.

Corte said in a news release that his proposed amendment would "limit a local governmental entity's power of eminent domain, preventing them from bulldozing residences in favor of private developers."

White and Eckels said such concerns were unfounded in Houston and Harris County.

"The city of Houston has not, and likely never will, use eminent domain powers as aggressively as some cities simply for the purposes of economic development," White said in a statement. "We do respect property rights, and believe that eminent domain should not be used in a way that might simply benefit one economic interest versus another."

The mayor said, however, that he is pleased the court upheld the use of eminent domain to reduce blight.

Eckels said Commissioners Court has shown no inclination to condemn land for private development, and he would not support any move to do so.

The Metropolitan Transit Authority, empowered by the law that created it to condemn property within 1,500 feet of transit stations, is not "currently planning" to use that authority for projects along the Main Street light rail line or elsewhere, spokesman Ken Connaughton said.

Asked if the agency might exercise the authority in the future, Connaughton said, "Who knows what happens tomorrow? But there are no plans to do it."

Barry Klein, president of the Houston Property Rights Association, said he considers Metro's condemnation authority excessive. He said quasi-governmental agencies such as management districts and tax increment reinvestment zones might also try to take advantage of the court ruling.

"I'm sure there are some self-servingly creative people in the leadership of these organizations who will try to find a way to do this," Klein said.

Developer Ed Wulfe of Houston-based Wulfe & Co. said Houston's public entities have long resisted acquiring property through eminent domain unless it was for road improvements or other public uses.

Wulfe said, however, that governments and developers can use the type of condemnation cited in the New London case as a tool to redevelop inner-city neighborhoods that stand to benefit economically.

"I think on a very, very careful and selective basis it could be used to improve neighborhoods," said Wulfe. "Whether it's creating affordable housing or jobs, it could be an interesting way to remove blight."

Matthew Deal of Lewis Realty Advisors, a property appraisal and consulting firm that deals in condemnation, said Houston's new downtown sports arenas offer a good example of the benefits of local governments taking full advantage of their eminent domain powers.

The sports arenas energized parts of downtown that were "ridden with crime, boarded-up buildings and dangerous to be in," said Deal, calling the Supreme Court ruling "a score for governments and their development partners."

The case is Kelo et al v. City of New London, 04-108.

Chronicle reporters Nancy Sarnoff and Bill Murphy contributed to this report.