Eminent domain is a very touchy subject and understandably so. Government entities, municipalities and even non-profit utility corporations can exercise eminent domain when they need to “take possession” of someone’s land for public use. But, there are legal guidelines that must be followed for this to happen.
In the October, 2013 Avalon Water Supply and Sewer Service Corporation meeting, the board voted to formally end eminent domain for property surrounding the wastewater plant.
Through research, I discovered the following:
State and local governments are authorized to purchase property for multiple purposes. If a state or local government needs a landowner’s private property for a public use and the landowner refuses to sell his or her property, then Texas law allows the governmental body to take the property through a condemnation proceeding.
The term “eminent domain” generally refers to a governmental entity’s legal authority to force a private landowner to sell his or her real property for public use. When the government exercises its eminent domain authority and takes a landowner’s private property, the governmental entity must pay the landowner just compensation.
Pursuant to both federal and state constitutional requirements, a public entity may not take private property for a public use without providing adequate or just
compensation to the landowner.
According to the Attorney General of Texas publication, 2012 Texas Eminent Domain Laws Made Easy, governmental bodies should always attempt to acquire property through an ordinary negotiation and purchase process with affected landowners. However, if those negotiations are unsuccessful – either because an agreed-upon purchase price cannot be reached or because the landowner will not sell the property at any price – then if a project meets the legal burden for a public use, authorized entities can condemn the property.
Notice must disclose that exercising eminent domain is a possibility. For an exercise of condemnation authority to be valid, it must be approved by a record vote.
Under Texas law, condemning authorities are required to negotiate with landowners. To satisfy the legal requirements, condemnation authorities must be able to demonstrate a good faith attempt to reach an agreement for the sale of the property.
In the AWSSC September 13, 2011 special meeting, Dean Carrell presented a power point showing the Gillespie property to show what he could do to help Avalon if he was hired. He stated that the first thing the board needed to do was obtain 500 ft restricted easement. Vice President, John Goodwyn, asked what the restricted easement meant. Carrell stated that it would prohibit residential structures and animals.
A letter dated October 7, 2011 was mailed to the four landowners with property surrounding the sewer plant stating that “the only restrictions that the easements would impose is the prohibition of residential structures”.
In the October 13, 2011 meeting, John Goodwyn said that a possible alternative to restricted easements would be to submit a major amendment application and apply for variances. Avalon submitted the amendment and on February 8, 2012, TCEQ received the major amendment asking for variances.
On the agenda for the March 8, 2012 meeting, “Discuss and act on Gillespie land purchase” was posted. “Update on Gillespie Land” was on the agenda for the April, 2012 meeting. Eminent domain was never noted or discussed. If they requested variances, why would there be any need to discuss and act on Gillespie land?
At the March 8, 2012 meeting that Italy Neotribune covered, the board went into executive session. After they reconvened into open session, board member, Patsy Russell, stated that they were exercising their rights under the U.S. Constitution and taking the Gillespie Land. She also went on to say that they did not know how much land that they would need, but it would be between 500 and 800 feet to satisfy TCEQ’s required buffer zones. There was never a vote or discussion in open session regarding this. There was nothing on the agenda about eminent domain or taking anyone’s land.
Entities must not bully citizens with threats of “taking their land.” I believe it is unethical. I am not sure how or why Avalon Water Supply and Sewer Service Corporation could and did vote to formally close the eminent domain issue when they did not formally or legally vote to begin the eminent domain issue in the first place.
In this case with AWSSC, no offer was made to the landowner nor were there any negotiations to purchase the property. Eminent domain was never posted on any agenda but evidently it was discussed in executive session.
If Avalon truly needed the “Gillespie Land,” they should have done the right thing and entered into negotiations to purchase the land they needed at a fair price. That did not happen. I really hope they will address this issue and attempt to rectify this error. I hope this will not be swept under the rug or left unaddressed. I also hope that they will learn that they must follow the law in the future.
The end for now.