Wednesday, December 06, 2006

ACRE Eminent Domain Info

To: Anti-Corridor/Rail Expansion (ACRE) email list
December 6, 2006


On October 26, several hundred Texas landowners packed the Sts. Cyril
and Methodius Hall in Granger to organize against the Trans-Texas Corridor. The meeting was hosted by Dan and Margaret Byfield, founders of the Texas Landowners organization. The first action was a mass letter-writing campaign before the election, which I covered in a previous message I will report on the results of this campaign in a future email.

This message is to report the eminent domain information that was
presented at the meeting.

The reason that many of us along the Perry/Krusee Corridor route are thinking about condemnation or eminent domain proceedings is the release by Cintra, the Spanish corporation that has the contract to plan the Corridor, of their Master Plan, which shows the eastern part of Williamson County criss-crossed by vehicle, rail, and utility routes.

Dan Byfield opened the eminent domain presentation by letting the audience know that discussing condemnation is “not throwing in the towel. We are sending a message. The cost of land acquisition just went up.”

Chris Swanson, of the Austin firm of Barron, Adler and Anderson, discussed the condemnation process and how landowners can prepare for condemnation by getting expert legal representation before TxDOT comes knocking on the door.

The following comments are quotes and paraphrases from Mr. Swanson’s talk:
You the landowner will recover more if you are represented by an attorney.

If you have an attorney, you will set yourself up in the best position possible for the condemnation process. Regarding this process, first, TxDOT hires an appraiser to set a fair market value. They usually hire the same appraiser they work with all the time. They will select appraisers that are on the low end of valuing property. That becomes the basis of their “good faith” offer to you.

If an appraiser sent by TxDOT tries to talk to you, you are under no obligation to talk to the appraiser. You should be cautious about what you tell their appraiser. You can make a counter offer to TxDOT. An attorney can help you with this.

There is no negotiation with TxDOT. Their offer is a take it or leave it deal. If you do not agree with their offer, you can appeal to a special commission. The county judge appoints landowners to be these special commissioners. There is no requirement that they know anything about real estate.

They set an administrative hearing. You can go in and make a case for your value. There is an advantage to you if you have a specialized appraiser and attorney. The commission then issues an opinion. You are due fair market value of the property that will be taken plus damages to the remainder that will not be taken.

Once the commissioners decide that TxDOT is entitled to take your property, TxDOT deposits that amount as payment to you. Then, your property can be taken. Either side can appeal. You cannot appeal whether TxDOT is entitled to take your property. You can only appeal the amount that you will receive.

If you appeal, the case goes from the administrative phase to the judicial phase. A jury gets to decide the price. At this point, negotiations on price can occur. Ninety percent of cases settle between the commissioners’ decision and jury trial.

What can you do to get ready? You can do things to increase the fair market value of your property. Different types of property have different values in the marketplace. You can add value to your property by subdividing it, by bringing utilities to it, by planning a commercial use for it, since commercial property is more valuable than residential. Look into the best way that you could develop your property if you should choose to do so. This will help establish a higher market value for your property.

A condemnation attorney can help you select appraisal experts and land planners.

How is a condemnation attorney paid? By contingency fee. We don’t get paid unless we are successful in increasing the money you get—the increase from what you were first offered by TxDOT to the amount that you are awarded by the special commissioners or by the jury. Your attorney takes a percentage of that increase, typically a third.

If people along the Corridor route consult attorneys about their rights, this could influence whether the Corridor gets built. TxDOT’s and Cintra’s budgets will be affected by how many people get attorneys and fight.

Dan Byfield commented, “Bringing in a condemnation lawyer is part of the strategy. Our goal is to stop the Trans-Texas Corridor from being built.”

This message is not an endorsement of any particular attorney. In addition to Mr. Swanson’s firm, there are many condemnation attorneys in our area. An attorney who handles condemnations is a member of our email list:

Tony R. Bertolino of the Austin firm Bertolino Lorenzana. Buz Garry (my husband) of Coupland is a member of the Austin firm Wright & Greenhill. He notes that some general law firms have attorneys who do condemnation work.


In a related matter, the attorneys of the Castle Coalition of the Institute for Justice represented Suzanne Kelo, in the recent case before the Supreme Court. The Court ruled that her municipality could take her house and turn it over to a private developer—a decision that outraged people of all political stripes across the country.

Christina Walsh of the Castle Coalition has sent around an email asking citizens to contact their Senators about Federal eminent domain protection legislation.

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