Texas Eminent Domain Laws Get a Makeover – A Primer on Senate Bill 18 (PDF-44kb)
Texas Eminent Domain Laws Get a Makeover – A Primer on Senate Bill 18 Authors: Laura E. Hannusch, Brad Raffle, Joseph R. HerbsterThe Texas Legislature has enacted Senate Bill 18, a law that substantially changes eminent domain practices for both public and private entities. The new rules will most certainly make condemnations more time-consuming and costly. Depending on how courts react to the new focus on takings being solely for a public use, condemning authorities may find themselves having to defend a taking more vigorously than ever before.
In Kelo v. City of New London, 545 U.S. 469 (2005), the U.S. Supreme Court approved the government's use of eminent domain, in furtherance of urban "economic redevelopment" goals, to effectively transfer land from one private owner to another. The case arose from the City of New London, Connecticut's condemnation of privately owned real property so that the City could use it as part of a privately financed, comprehensive redevelopment plan. Unlike historical projects that sought to condemn "blighted" urban areas, the New London project was designed to achieve economic redevelopment of a depressed part of the City, promising new jobs and higher local tax revenues.
The Supreme Court's 5–4 decision in Kelo held that the general benefits a community enjoyed from economic improvement qualified such public-private plans as a permissible "public use" under the takings clause of the Fifth Amendment to the United States Constitution. The Fifth Amendment prohibits the taking of private property for public use without just compensation. Kelo stands for the proposition that governmentally authorized takings of private property—so that the property can be redeveloped by private commercial developers—is an acceptable "public use" of that property so long as the taking has a primarily public purpose, in this case improved economic prosperity in the area of redevelopment and enhancement of the local tax base.
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