Someone wants your land your farm, your home or your business. You know that, ultimately, under eminent domain, you have no choice. What happens next? There are extremely difficult choices to make, one of which is whether or not to kick up a fuss.
Texas Farm Bureau believes it is time for a serious overhaul of Texas eminent domain law. As landowners, we regretfully understand that eminent domain will always be needed for true public projects, but property owners often find the deck stacked against them in these proceedings. Condemning authorities hold an unfair advantage over property owners.
Eminent domain is no longer a last resort when parties cannot agree. Instead, it s used to coerce the purchase of property at below market value. Condemning entities face no penalty for making an offer that does not reflect the fair market value. In fact, there is nothing to prevent these entities from making as cheap an offer as possible, regardless of the consequences for the owner.
In 2004, property owners lost a key protection when the Texas Supreme Court held in the Hubenak v. San Jacinto Gas Transmission case that courts will no longer determine if initial offers by condemning authorities are made in good faith. Now, any initial offer will suffice.
Owners who receive an unfairly low initial offer must decide if it is feasible to fight for the fair market value of their land or if the costs of going to court are too great.
Property owners who cannot bear that expense are forced to accept a low offer. Those that fight for their right to receive fair market value still lose. Even if the property owners win in court, they are still saddled with heavy legal costs.
One remedy would be to require that condemning entities make a good faith initial offer that reflects fair market value. More property owners would voluntarily sell.
Condemning entities also should be required to pay attorneys fees, expert witness fees and associated court costs if the court awards a higher judgment to the property owner than initially offered. Under current law, this is allowed but not required.
The current eminent domain system does not adequately compensate property owners. Many are left in a worse position after condemnation. The remedy is to replace fair market value with actual replacement value. This approach would eliminate the inadequate compensation for property owners trying to purchase similar land.
Condemning authorities should also pay for actual relocation costs to compensate property owners and restore them to their original position.
Property appraisers should be allowed to appraise the property at the highest and best use value including the project proposed by the condemning authority. Accurate appraised value will fairly compensate property owners and reflect the price the condemning authority would pay for this type of property in the marketplace.
For land that is condemned for use by a revenue generating project such as utilities or pipelines, the landowner should receive rent for an easement across that land. Property owners could receive a periodic rental payment as long as the project is using the easement on their land.
Farmers and ranchers recognize the need for eminent domain for legitimate public purposes. However, property owners must be justly compensated at rates that reflect the long term value of the condemned property. A property owner s efforts to achieve a fair settlement must be made less of a gamble. The farmers and ranchers of Texas urge the Legislature to level this playing field.
Kenneth Dierschke is president of Texas Farm Bureau and a grain and cotton farmer from San Angelo.
