Texas Legislature Takes Stand Against Kelo Decision

"It should provide a safe harbor, so to speak, from the provisions of this law," Jay Doegey, city attorney for Arlington, tells GlobeSt.com about the measure that cleared the legislature on a 17 to 6 vote two days ago. City officials are caught in the throes of using eminent domain to secure properties in the path of the 75,000-seat stadium and designated parking areas. To date, agreements have been reached with 49 of 168 property owners. Roughly 60% is needed to get the critical mass to break ground in spring 2006, according to Doegey.

Senate Bill 7 safeguards 11 development areas. Stadiums and community venue projects are part of the exceptions until Dec.1, the only exclusion with a fuse. Doegey says Arlington was one of many municipalities opposing the deadline even though the football stadium wasn't affected because it already had voters' approval. Nonetheless, SB7 opens the door for legal arguments when Doegey and his team go up against hold-out property owners' attorneys to get the foothold needed to ramp up construction.

From Doegey's viewpoint, the defining point is Arlington won't be using eminent domain strictly for economic development to benefit a private party, i.e. Dallas Cowboys' owner, Jerry Jones. The nature of the project, Doegey says, is "public purpose," one that will attract tourists and residents plus provide a gateway for large events requiring enclosed space.

The stopgap measure does provide for further study. The review, including the definition of adequate compensation, is to be completed by Dec. 1, 2006. "I think it's terribly flawed," Doegey assesses of SB7. "I don't think it's well thought out."

With regard to Kelo's impact in Texas, "it didn't represent an expansion of the law," Doegey says. "This statute is narrower than what Texas law would have permitted before."

Prior to the Dallas Cowboys' stadium, Arlington's last highly publicized scrape with eminent domain ended in 1995. Doegey says the fight began in 1991 to get the land for Ameriquest Field, or the Ballpark at Arlington in its pre-naming rights' days, and didn't end until a year after it opened. He's bracing for a similar run with the football stadium even though the number of in-hand agreements is "ahead of schedule." Though it won't hold up the groundbreaking, he predicts "two to three years" will be spent on settling the scores, including appeals.

Gov. Perry openly called for action in the aftermath of Kelo vs. the City of New London. SB7 was widely endorsed by private property advocacy groups and the Texas Association of Realtors. According to TAR, Texas is the third state in two months to pass a law barring municipalities from using eminent domain powers to generate tax revenue via private developments. Legislators in another 31 states are crafting similar proposals to restrict Kelo's reach.