IJ Defeats “Take Now, Plan Later” Eminent Domain Scheme

Pam Tilley grew up in the East End of Freeport, Texas—a once-thriving historically black neighborhood of single-family homes, businesses, and churches. Today, however, there is nothing left of that tight-knit community. The nearby Port of Freeport acquired all of the land through a mix of eminent domain and supposedly “voluntary” purchase agreements (made under the threat of condemnation). The Port has since bulldozed the neighborhood, including Pam’s childhood home. 

What did the Port plan to do with all of this land? It didn’t have a clue. All the Port could say is that it planned to market the property to third-party businesses, who might themselves have a use for it. This scheme was illegal, twice over. 

First, government cannot seize private property without a specific plan for how it is going to use it. That’s called “land banking,” and it is unconstitutional. Second, in Texas at least, private property cannot be taken for the mere purpose of economic development. After the U.S. Supreme Court’s infamous decision in Kelo v. City of New London, Texas (like several other states) specifically amended its state constitution to forbid these kinds of takings. 

The Texas Court of Appeals recently agreed, holding that the Port of Freeport had unlawfully taken Pam Tilley’s family home. According to the court, the Texas “Constitution does not condone this take now, plan later approach. The government must tell the court what it plans to do with property so the court can exercise its constitutional duty to assess public use.”

Sadly, this ruling came too late to save the East End. Like many states, Texas law allows condemnors like the Port to take possession of property—even while the courts are still considering whether the condemnation itself is lawful. The Port used these procedures, however, at its own risk. Now Pam and her family can seek damages for the violation of their rights. And more importantly, they have left a legacy: a judicial ruling that will protect property owners across Texas.

Jeff Redfern is an IJ senior attorney.