They Want to Erase Us Out

A new and disturbing report issued today by the Institute for Justice Texas Chapter documents how homes, farms and small businesses across Texas continue to be threatened by eminent domain for private gain.

The report, They Want to Erase Us Out: The Faces of Eminent Domain Abuse in Texas , spotlights the threatened abuse of eminent domain in three Texas cities (El Paso, Houston and San Antonio), and asks Texas legislators to limit this awesome power of government to take land from one private owner and hand it over for another private person’s use.

Matt Miller, executive director of the Institute for Justice Texas Chapter, authored the report, which resulted from months of interviews around the state. The Institute for Justice is the public interest law firm that represented the property owners in the infamous U.S. Supreme Court eminent domain case Kelo v. New London. Miller said, “Thousands of Texans now live under the active threat of eminent domain abuse. These home and business owners have well-founded fears that their property may soon be taken from them to make way for private redevelopment projects cooked up by developers and city officials. Their only fault is that they are located on land coveted by developers and government officials.”

Miller points out that although 43 states including Texas have reformed their laws post-Kelo, the 2005 Texas reform “was riddled with loopholes and earned a C- in the Institute for Justice’s 50 State Report Card on eminent domain reform—our lowest grade above failing scores.”

Texas attempted to enact more substantive reform in 2007. House Bill 2006 would have closed the “blight” loophole and defined “public use” more accurately so it “allows a state, a political subdivision of the state, or the general public of the state to possess, occupy, and enjoy the property.” Although it passed the State House of Representatives by a vote of 125 to 25 and the State Senate unanimously, House Bill 2006 was ultimately vetoed by Governor Perry. Last week, the Governor called for a state constitutional amendment to close the loopholes and better protect property owners.

Among the stories featured in They Want to Erase Us Out is that of Billy Cavender, owner of Cavender Cadillac in San Antonio, the oldest Cadillac dealership in Texas. When Cavender saw the new redevelopment plans for the River North area of the city, he noticed that his dealership’s facilities had been turned into a grocery store and café—without asking him if he had any desire to move. Cavender and other business owners have battled officials’ closed-door meetings and nonresponsive attitudes.

El Paso has been called the “poster child” for eminent domain abuse in Texas. Gil Kimmelman, an El Paso businessman, is one of hundreds of El Paso business owners who will be wiped out under the city’s aggressive downtown redevelopment plan. Kimmelman said, “I’m going to be put out of business, not because I’ve made a mistake in my merchandising, in my pricing, in the way I was running my business. I’m being put out of business by the government.” The city wants to give his two stores, included in their 133-acre scheme, to a group of developers who promise boutique outlet stores, new condos and retail at a higher tax value.

Residents across Houston could be threatened by eminent domain abuse as private developers team up with those creating the city’s light rail system. This project would allow for the easy condemnation of any property within a quarter mile of any Metro rail station to bring condos and other “transit oriented” development in place of the homes and businesses that occupy the land today. Ron Robles, who lives directly in Metro’s path, said, “One option has the rail line going right through our property. The other has a station right in front of my house. I’ve lived there 10 years. I’ve lived in Houston all my life. We have gone up to the City Hall many times, and we have brought many people with us. We have spoken out to City Council and the mayor, and they have just turned a deaf ear to us.”

Another Houston resident, Daphne Scarbrough, scrimped and saved to open her brass fabrication business on Richmond Avenue in Houston. She said, “The bottom line is this is America. We have people that have come here from another country to open a dry cleaner, Laundromat or restaurant. That is what America is about: working hard, saving your money, being able to buy your own piece of property and have your own building and run your own business on a daily basis. These people—the light rail developers—will take all of that away.”

In the open letter to the Texas Legislature that concluded the report, Miller said, “The time for true eminent domain reform in Texas is now. Our local officials have shown themselves to be unable to resist eminent domain as a way to grease the gears of massive re-imaginings of some of our largest cities. Rather than government deciding where roads, schools, parks and police stations should be located, local officials have gotten into the business of choosing winners and losers in the development game. The winners are usually wealthy and politically connected, and the losers are usually average citizens who were minding their own business.”

Miller concluded, “Meaningful reform would close the blight loophole that is being exploited. It would make public use a question for judges and not the elected officials in the legislative or executive branches of government—the very individuals who seek to abuse eminent domain. And it would fundamentally recognize that redevelopment is not in and of itself a public use under the Constitution.”

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