Now that the Supreme Court has confirmed that local governments can use
eminent domain to acquire property for economic development purposes,
municipalities across the country are, by and large, squealing for joy at
this new license to condemn. Before the ink on the decision was dry, a
Washington, D.C., City Council member said, "It puts to rest the issue of
whether the city has legal rights to take the properties. This strengthens
our hand to get control of the property."
Property rights advocates across the country are gnashing their teeth
at the inevitable use and abuse that this decision will encourage. Even
the usually moderate Justice Sandra Day O'Connor was struck by the
magnitude of the decision, stating in her dissent that "under the banner
of economic development, all private property is now vulnerable to being
taken and transferred to another private owner, so long as it might be
upgraded."
Fortunately, citizens across Texas can have the last laugh on this
matter. Most cities in Texas are governed by a charter, which grants and
limits the powers the municipality may exercise. Among those is the power
of eminent domain, which can be limited or expanded by charter amendment.
The city of Carrollton did just that in 1998, adding language to its
charter prohibiting the use of eminent domain if the purpose of the
acquisition is the promotion of economic development for a private
business enterprise.
This charter amendment was passed in part as a reaction to Hurst's use
of eminent domain to acquire 10 homes for the expansion of Northeast Mall.
In that case, 117 homeowners had to be relocated in order to accommodate
the expansion of the mall, which city officials deemed a "public purpose."
At the time it was a risky and controversial move; now such action has the
stamp of approval from none other than the Supreme Court.
Cities in Collin County and across Texas should consider and adopt
charter amendments similar to what was passed in Carrollton in order to
curb the enthusiasm of your local officials with regard to eminent domain
for economic development. Power such as this has a way of creeping and
expanding as the years wear on.
When the Supreme Court rules, there is typically no getting around the
decision. In this case local citizens can protect themselves from this
expansion of powers for municipalities at the expense of property owners
across the nation.
Matthew Marchant is an attorney at Strasburger & Price, LLP in
Frisco. His e-mail address is matthew.marchant@strasburger.com.
