Battle to Protect Private Property Rights Continues
By Leslie Kinsel, chair, TSCRA Legislative and Tax Committee
Protecting private property rights continues to be a top priority for Texas and Southwestern Cattle Raisers Association (TSCRA). We've been fortunate to have strong allies in the Texas Legislature who have worked with us to strengthen our state's private property laws so they better protect the landowner. Unfortunately though, as Texas continues to grow in urban areas, so will the urban representation in Austin.
Recognizing this reality, and under the strong belief that it should never be easy for an entity to take someone's private property, the TSCRA Legislative and Tax Committee streamlined and strengthened our eminent domain policy during the 2013 fall meeting. This new policy will be used to guide our efforts at the state capitol as we push toward stronger eminent domain laws for all landowners. Below is a summary of that policy and the key points.
First and foremost, the exercise of eminent domain should be appropriately limited and subject to the strict scrutiny of the courts. Any actions to take private property under the law should be transparent and subject to review. It is essential that property owners be fully compensated and treated fairly when they are forced to give up their property.
TSCRA will support and push for legislation that ensures fair treatment of landowners in eminent domain proceedings by:
1. Requiring advance written notice and complete information be given to the property owner regarding the project and the property owner's rights before any negotiations commence;
2. Requiring that the condemnor make a good faith offer in an amount designed to induce the voluntary transfer of property rights based on appraised fair market value of the property and damage to the remainder, furnish an appraisal to the property owner, and negotiate in good faith;
3. Providing for compensation for all losses suffered by the property owner, including the market value of the property taken, damage to the remainder, cost to cure, and diminution of access;
4. Providing for payment by the condemnor to the property owner of all costs and expenses, including attorney's fees, when the condemnor misuses the legal process or unnecessarily threatens the interests of private property owners;
5. Providing that the condemnor pay all costs and expenses, including attorney's fees, to the property owner when the award by the special commissioners or the court is greater than the condemnor's original offer;
6. Providing written notice of the condemned property owner's option to reacquire the condemned property and all associated property rights, including mineral and groundwater rights, for the price paid by the condemnor if the original project causing the condemnation does not occur;
7. Requiring advance written notice to private property owners of the intent to survey or access the property and secure such consent in writing before entering the property;
8. Providing the landowner with an indemnity, proof of insurance, or written assurance that any damages occasioned by the survey or other activities, including construction, on the property will be the responsibility of the condemnor;
9. Requiring the condemnor to take full responsibility for themselves and contractors, including reasonable measures to monitor all gates, cattle guards, and fences securing livestock as well as repair or replace any damaged gates, cattle guards, or fences;
10. Prohibiting access beyond the proposed and final condemnation area for unauthorized purposes;
11. Providing the landowner with a written statement or certificate of the condemnor's right to exercise eminent domain as well as a copy of the condemnor's resolution authorizing the taking of the landowner's property and its letter to the Texas Comptroller registering the right of eminent domain;
12. Requiring that the condemnation will specifically reserve to the condemnee all rights to groundwater and minerals unless the taking is specifically designated for the taking of groundwater pursuant to Texas law;
13. Ensuring that the condemnor limit the width of any temporary or permanent easement to the minimum essential for the proposed project, restore any surface area and vegetation, and take steps to prevent and/or eliminate the invasion of noxious plants;
14. Requiring the condemnor to pursue alignments along existing right of ways or other utilities to minimize damages to the landowner; and
15. Requiring the condemnor to provide the condemnee with an estimate of reasonable attorneys' fees required to evaluate the offer and proposed taking along with the appraisal and make an additional offer to pay this amount in a final settlement.
We have come a long way toward strengthening private property rights in Texas. Less than 5 years ago, entities could condemn private property for private use. Thanks to the voice of landowners like you, today the law allows eminent domain to be exercised only for public use. While that is great progress, there is much more work still to be done.
As more people move to Texas, more resources will be needed to sustain the growth. Cattle raisers' land, water and minerals will be highly sought after.
The battle over private property rights is ongoing and requires our constant vigilance, but I am confident that with your help, this association will continue to press on toward stronger reforms that protect all landowners.
"Battle to Protect Private Property Rights Continues" is from the December 2013 issue of The Cattleman magazine.