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October 17th, 2008
Charter language regarding eminent domain powers may be revised

Residents will have an opportunity on November 4 to amend a section of the Charter giving the city the power to seize private land.

In its final report, the Charter Review Commission recommended that residents “eliminate verbiage that is redundant of state law” by excising repetitive language in Section 2.02(a) and taking out a reference to “adequate compensation” to landowners. Kathy Morris, Chair of the Charter Review Commission, said she recommended getting rid of the reference to “adequate compensation” because eminent domain already entails giving landowners fair market value for their seized property.During the oral argument phase of a recent US Supreme Court eminent domain case, Kelo v. City of New London, Justice Antonin Scalia asked Wesley Horton, the attorney representing New London, whether it is appropriate for a city to “take property from people who are paying less taxes and give it to people who are paying more taxes.” Justice Sandra Day O’Connor chimed in with her own question.

“For example, Motel 6 and the city thinks, well, if we had a Ritz-Carlton, we would have higher taxes. Now, is that okay?” O’Connor asked.

“Yes, Your Honor,” said Horton. “That would be okay.”

After the Supreme Court agreed, ruling 5-4 in favor of New London, some states passed laws restricting eminent domain powers. After Texas modified its laws to limit government entities in the state from using economic development as a reason for invoking eminent domain, the City of San Marcos similarly modified its Charter. The 2006 Charter Review Commission stated in its final report that “the new state statute does not go far enough in restricting the City’s eminent domain authority.” Residents agreed, voting that year to add a subsection to the Charter preventing the city from using the “economic development” rationale.

Assistant City Attorney Andy Quittner said landowners are usually willing to sell, though when the city considers the price offered to be too high, it invokes eminent domain. The case goes to the County Court at Law, which appoints commissioners to assess the property’s value, though Quittner said “there’s always opportunity for settlement” at any time in the process.

“The only thing the city, at least for quite some time, has used eminent domain (for) is whenever we’re building a road project, or if we have to expand the sewer or water line or some kind of public works-type project,” said Quittner.

Quittner said the city wants to complete a road building project between Hunter Road and Ranch Road 12, but some landowners have disputed the prices being offered. “Two of the pieces are still – they may end up in court,” Quittner said. “The process is kind of long, so it’s hard to say where it’ll end up.”

Quittner said when the city is installing a pipeline, commercial property owners are often happy to sell because such projects increase the value of their land. He said the city invoked eminent domain powers to complete a Wonder World Drive overpass years ago.
“That was another one that was just a disagreement about value (of the property),” Quittner said. “And that’s usually what it is. It’s rarely over the right of the city to take the land, or even the need for the project.”

by Sean Batura

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