Eminent Domain & Toll Roads
EMINENT DOMAIN & TOLL ROADS
The United States Supreme Court’s Kelo decision in 2005 focused our attention on the evil use of eminent domain for private purposes. We saw powerful cronies reap a financial windfall by using government to seize private property for their pet projects. Everyone that I know was outraged.
Consistent with our strong history of respect for property rights, our Texas Constitution has greater eminent domain protections than does our federal Constitution. Article 1, Section 17 prohibits takings which transfer property to private entities for economic development or to enhance tax revenues.
Regrettably, however, just when we have to watch our federal government like a hawk, Texans now must keep a suspicious eye on our own state government’s land-grabbing tendencies. In the last 10 years, we have seen an alarming trend using eminent domain for ostensible public uses such as toll roads, most notably the Trans Texas Corridor, when the real beneficiaries are politically well-connected, rich and powerful private interests.
The Trans Texas Corridor is a gargantuan toll road to nowhere that would confiscate massive tracts of land for a project for which there is no true market demand. Effective control would be given to private, foreign concerns.
This is not good business. This is not the free market. This is not Texan. This is the rich and powerful becoming more rich and powerful by using their personal connections with high-placed members of government at the expense of landowners and taxpayers.
Texans came together to fight back against the machine to stop the Trans Texas Corridor, an amazing accomplishment in which we can take pride and courage for future action. But we all know that the TTC is not dead: it will be resurrected perhaps under another name Texas needs to stop these “public-private partnerships” -- a hallmark of crony capitalism, which is not capitalism at all, but a form of fascism. We must continue to be vigilant against the TTC and any of its variations or offshoots.
We need to strengthen the protections of Texas property owners against eminent domain. In 2007, an important law was passed which would allow property owners to be awarded legal fees when they prevailed in an eminent domain lawsuit. Our current governor vetoed it, thus guaranteeing that a property owner could never fully protect the value of their property, even if they won their suit. This law must be passed again, and I as governor will sign it.
In fact, I would strictly limit the use of eminent domain to acquisition of roads. Tracts of land for libraries, for example, can easily be bought and sold in the market without the coercive use of eminent domain. If it’s not worth buying an available piece of property from a willing seller at an agreed upon price, then the project is probably not that necessary, and we should just save our money. Texas should never utilize eminent domain to in order to acquire land for a non-capital project such as a stadium or convention center. Private companies find ways to build large facilities and venues without taking land, and the state should too.
The new legislation should include a provision requiring pay more than market value – say, 125% of the value of their property -- to compensate the property owner for losses in addition to loss of the land, such as the loss of business income, because this is not a voluntary real estate transaction. If the project is really so essential that we are willing to strip away property rights, it is important enough to compensate for the full loss of those rights, which often involve homesteads, birthplaces, and heritages. Why should these losses go uncompensated while others make fortunes from the construction, management, or increased value to surrounding land?
We need a moratorium on new toll roads and other major highway projects until TXDOT can illustrate that it can adequately maintain and make full use of existing roads. The State must stop choking its highways with traffic lights. If a developer creates a large subdivision which requires access to a highway, let them construct a proper entrance ramp, not petition the government for yet another stop light. They are choking our state to death and we are using our own money to do it.