The state of Texas is at it again. A state agency is considering using eminent domain to seize a piece of property from a private business after it sold its land to a real estate developer. This move comes months after the state, in conjunction with the city of San Antonio, initiated eminent domain proceedings against a bar owner to make room for an expansion to the Alamo.
In this case, the Texas Parks and Wildlife Commission (TPWC) is reportedly looking to acquire a plot of land on which a state park rests after a real estate development company purchased it from the company that had previously leased it to the state:
The Texas Parks and Wildlife Commission will hold a special meeting June 10 to consider acquiring the land through condemnation, the process by which governments can use eminent domain.
The developer, Dallas-based Todd Interests, plans to turn the property into a gated community with multi-million dollar homes and a golf course. The company will officially take over the land, which includes Fairfield Lake State Park, from the current owner on June 13.
Lawmakers previously considered allowing the state to use eminent domain to acquire the property. A bill filed in the legislature was significantly altered to focus on water rights in the lake rather than using eminent domain. House Bill 4757 was passed by the House, but left pending in a Senate committee after some senators warned it could open the state up to possible litigation.
TPWD is in the process of removing its personnel from the state park as the deal between Vistra and Todd Interests closes. The issue centers largely on the fact that the agency wanted to buy only the part of the land on which the park is located, but Vistra wished to sell the entire plot instead of selling it in portions.
Todd Interests indicated it is prepared to challenge the state if it decides to go the eminent domain route. However, due to Texas’ laws regarding this practice, the company will have an uphill battle:
Andrew Morriss, a Texas A&M law professor who specializes in eminent domain, said the state has the power to take back the property through condemnation because the land would serve a public purpose. He said parks, highways and schools are typical public benefits for which the government will seize private land.
“Texas is what is called a quick take state,” he said. “If the government wants your property and you don’t wanna sell it, too bad, they get it.”
“The argument now is gonna be about how much they have to pay for it,” he added.
This is yet another instance in which the state is using eminent domain to steal land from a business ostensibly to promote the “public good.” It is essentially a legalized violation of property rights.
It is worth noting that Todd Interests, the developer in question, claims that TPWD had multiple opportunities to purchase the land but failed to do so. As a result, Todd Interests entered into a contract with the property owner, Vistra Energy, to develop the land.
It is disappointing that TPWD did not act in a timely manner to acquire the property if they truly believed it was essential for public use. Perhaps it wasn’t as urgent a matter to the state because it knows it can use its authority to forcibly seize the land if they don’t want to engage in good-faith negotiations. The failure to seize these opportunities should not justify the use of eminent domain as a means to circumvent the normal process of negotiation and fair market transactions.
Rather than resorting to eminent domain, TPWD should explore alternative solutions that balance environmental concerns with property rights. In fact, if Vistra was not interested in selling just a portion of its land, the state could have negotiated to buy the whole plot. It could have then turned around and sold the part it did not want or need to another private entity. This would be a much preferable alternative to using the power of the state to simply swipe the land they want. It could have been a solution that worked for all parties involved. But, unfortunately, Texas isn’t exactly known for making a good faith effort to explore options other than eminent domain.
Engaging in meaningful dialogue with Todd Interests and Vistra Energy, exploring potential compromises, and even seeking partnerships could lead to mutually beneficial outcomes. But who cares about that when the law allows the government to summarily seize the land for its own use?