WHAT CAN YOU DO IF THE STATE WANTS YOUR LAND?

Condemnation (Taking) of Private Property in Texas

I often write about a legal matter I have recently handled while the issues are fresh in my mind. This gives you, the reader, a current discussion of the subject matter.

To that end, I have read a lot of material recently about the taking of private property in Texas via government condemnation. Why? Because I am a lawyer and because it is happening to me. First, a little background on condemnation, then I’ll explain the process, and finally, if you are still reading, my case.

To condemn literally means to declare to be wrong. What it means to landowners is that the state basically “declares” you to be the wrong owner of some property or property right and takes it from you. How does condemnation work, you ask? First, the condemning authority (“condemnor”) must actually have authority to take land or a property right. Second, the condemnor must pay for what it takes. And third, the land must be taken only for a public use. Seems simple. However, the government is involved, so it is not simple. Each one of these three things has been litigated, litigated, and re-litigated. Lots of lawsuits. Each of these three elements has its own court opinions and interpretations and set of rules. In almost every situation, the landowner is fighting a David and Goliath battle.

For example, what gives a condemning agency authority? Almost always it is the government. Sometimes, contractors will be doing the actual work for the government. This allows plausible deniability for the government in the event of distasteful land acquisition practices such as misinformation or pressure tactics. Authority of the condemnor is occasionally litigated but it is usually clear that the government is the condemnor or that the contractor is working directly for the government.

What about the second element, the payment part? The law says that you must be compensated for any taking. That seems simple. However, the condemnor will NOT offer you fair money to start. In my own case, the contract appraiser compared my fully developed land developed with an office building and a large barn on it to properties that were vacant land. This, for the purpose of value comparison so the state could offer less money. In my opinion, that is a bad faith comparison. It is how a huckster would act. Value is often a litigated issue in these takings.

The third requirement is that the taking be for a public use. This is the most litigated part of condemnation. Commonly, a “public use” is a Right of Way Easement to build a road. An easement allows others to use the land for a limited purpose, but the owner retains ownership. The cases, however, largely stem from the government taking someone’s property and giving it to a private company. This is, again, in my opinion, unconstitutional. The state is not supposed to take land and give it to a private entity. The state has gotten around this unconstitutional conduct by carving out exceptions through years of lawsuits where the land grab is to “remediate blight or as a part of an overall plan for urban renewal.”

For example, in Freeport, Texas, the port authority has taken almost a whole lower income neighborhood to increase the size of the port and bring in more money in taxes and for the operators and private businesses operating in the port. The city of Freeport was happy for the chance at increased revenues and taxes and did not object to the takings of the community’s homes. However, the Port now wants some city land, and the city IS objecting to that!

OK. So now you have some background. What is the actual condemnation process? Here we go:

You get contacted by a private contractor that has been hired by the state to take land.
They tell you that your land is being “acquired” for a project.
They will seek your permission to survey your land. But they will do so without it.
Out of the blue one day, you will see survey stakes on your land.
The state, most likely, will be seeking a right of way, which is a type of easement for public use. Make sure you know what they are seeking. In my case, everything said right of way, but the actual deed was for fee simple ownership. A non-lawyer without deed writing experience would be unlikely to catch this.
The acquisition agent will try to get your cooperation but they have well-practiced strategies and plans in place to proceed without it. They try to paper you to death, sending you a hundred page proposal with lots of legal gobbledygook and flags on places to sign your name. They will send you a property owner’s rights manual that explains how few rights you actually have.
They may even offer a few thousand dollars for “immediate possession” of the premises. Sweet. If you are looking to sell, that is. Go for it.
In your offer package will be the amount offered. It will be lowball. The goal is to try to get your land as cheap as possible. You will likely notice that the property yours is being compared with isn’t comparable at all. The goal is to try to get you to argue. If you argue, you are negotiating. If you negotiate, it is tough to object and argue later that you want to keep the property. After all, you participated in a negotiation for compensation.
However, even if you are OK to sell, you may (and should) argue valuation with them, offering additional evidence to support your claim. Again, the first offer you see will be lowball. Do not be afraid to make a counteroffer.
After that, you will then get a “final offer.”
You can then make a final counteroffer.
You may go back and forth several times. In my experience, “final” here does not really mean final. Do not be fooled into believing that their first offer is their final one. It is not. You may even think that they are no longer interested. Don’t let your guard down just yet.
If you don’t mind selling and you do come to an agreement over price, you sign, and they take the land. That’s it. Easy peasy. The ordeal is over for you. Congratulations, you are a lucky person and have gotten rid of some land that you don’t need or want.
If you do not come to an agreement however, they start the well-oiled condemnation machine.
A condemnation suit is filed.
The court appoints a three person board of property owners to hear valuation arguments.
The Valuation hearing is held, and the board makes a valuation determination (or rubber stamps the States’ valuation appraisal.)
The state deposits the money with the court or gives it to you if you want it, and takes possession of your land immediately. Right away. It is no longer yours. There is nothing you can do about that. They will likely be using it by the next time you see it. (It will hurt, I feel your pain).

After the taking:

HOWEVER, now is when you CAN do something else if you still do not want to lose the land. You can file an objection. That puts your case in court as a real case and not a rubber stamp condemnation proceeding. The valuation determined at the hearing is no longer controlling.
Beware that you will need to have a good chance of getting the land back before taking this step. An attorney will be necessary here and you most likely will not be able to recover his fees from the other side.
This can be expensive. You will go through the discovery process and develop your own theory of why you should get your land BACK. That’s right, you are trying to get your land BACK because it is already gone, the state owns it. The state may even already be using it or allowing some private company to use it.
As I mentioned above, you can only argue a few things. That is, that the condemning authority did not actually have authority. That the condemnor failed to negotiate in good faith, leading to unfair restitution or has not paid you at all. Or, thirdly, that the taking is not for a public use.
Know that the cards are stacked in favor of the state at every level until you get in front of a jury. Even then, know that the state will have very experienced counsel on their side.
The court will order you to do some alternate dispute resolution such as mediation before you can even get to that jury. Don’t expect too much from this except more expense.
Then, if you have a trial, you will present evidence of whichever theory you are using. At this point, you probably have a lawyer, so I don’t need to get too much into the weeds of the matter here.
If the state moves to dismiss the case because it looks like they will lose, they may have to pay your attorney fees. May. This too will be litigated over.
After the trial, you will either get your land back or not. If you do not, you will still get paid, but you may still have to argue over the amount. Remember, the rules require the state to pay for land it takes. There is no requirement that the state pay top dollar though.
If you win, you will get your land back but will likely still be out your attorney fees, which might be into 5 digits by now. It appears the state often bases its purchase offers on what it would cost to fight the condemnation. That way, if you lose, they get the land and you have spent all that money. If you win, it will still cost you the attorney fees. The state relies on this fact to discourage objections. Lopsided? Unfair? Of course. That is why it is called a taking and not a giving. You can, though, ask the court to award damages if the state damaged the land while owning it. That too, though, is a tall ask that requires evidence and litigation.
Lastly, if you have made your objection frivolously, the state may ask that the court order you to pay its attorney fees. Another arrow in the state’s quiver.

That is the process through an attorney’s eyes based on what I have learned and what I have experienced.

If you’ve read this far, you may be wondering about my case. Here it is. Around the year 2000, the Texas Department of Transportation (TxDOT) began the public notice phase of the Highway 36 Project. Hearings and public meetings were held. It was determined that the highway would be widened to four lanes with a grassy median and shoulders or at least a middle turn lane. One town, Jones Creek, Texas was able to force the state to alter its plan due to the fact that churches, businesses and homes would have been destroyed, gutting the town. That, and the highway was already four lanes through town.

The project sort of languished until the Port of Freeport recently began expansion to increase business. So, 20 years later, and apparently with some renewed urgency, the state is interested in developing this “hurricane evacuation route” that just happens to be a valuable trade route from the new port.

As part of this project, someone from the Texas Department of Transportation contacted me regarding taking a small corner of my property to make a round off of the turn-in on this little one lane road by my office. This, to comply with some sizing rule. I didn’t hear anything else about it. Years later, a private land acquisition contractor, Stateside Right of Way Services, started contacting me about land. And they wanted a lot more than a little roundoff piece. They want 4700 square feet out of a one acre lot. That is about the size of two modern homes put together.

All documents from Stateside Right of Way Services say, “Right of Way.” Even the deed has ROW written on it. However, the state is not seeking a right of way. A right of way is an easement. I have even offered to practically donate a right of way easement. However, the state wants to own this strip of land outright for who knows what purpose. I have asked several times and they will not say.

In my case, I am arguing that the public purpose requirement for a taking is not present. This little road is a one lane dead end. Little more than a driveway to eight residences. It is not in the way of the proposed highway. There is no economic benefit to the community in the state’s taking. The completion, shape, size, location, and performance of the highway will not be affected whether the state owns this land or not. In fact, in this spot, the state was not even supposed to be doing any construction.

Therefore, whatever the state wants this land for now is not something that was a part of the initial public hearing or the original plans. The prior owners, my grandparents, were not on the list of affected property owners published in 2000. I believe that the state wants to allow contractors to park equipment and materials here to cut transport time and fuel costs shuttling between the actual construction areas on the ends of town by putting a pit stop in the middle of town. That way, they use less equipment and save money. Of course, that means construction will take longer since the contractor will not muscle up enough equipment to have simultaneous operations going. Contractors bid on these jobs a decade or more in advance, so they likely are complaining about their profit margin. Therefore, I think the state wants to take this property to allow a private business to protect its’ intended profit. Additionally, there are truly vacant properties nearby which the state is well aware of because they used these vacant lots as value comparisons to my developed property.

This is an improper reason to take private land. I have addressed this matter with the state’s acquisition contractor in these words and the state has not denied my assertion. But the agent is a minion at this point without any authority to do anything except press for the sale. They have offered over nine thousand dollars to own this little strip ($9,481). I have counter-offered a public use right of way for 47 dollars. You read it right, forty seven dollars. A token amount. They refused my counteroffer and restated the exact same offer they have made three other times of $9,481 for ownership of the strip. If that doesn’t startle a person, I don’t know what will.

Never mind that that state will have to get the zoning on the property changed and an exception for a lot size that is not provided for in the Jones Creek City land use rules. In other words, as it stands, my land is restricted from such disruptively commercial activity. ANY use by the state would be a violation of the restrictions currently put on the property by the city of Jones Creek. I have been told by Jones Creek that it is necessary to seek permits and inspections for commercial conduct on the property. I had to apply for a variance just to run my little one attorney office in the house I restored on the property.

I will be objecting and fighting to keep my land. This is not always appropriate. However, here, I think the state does not need this land for completion of the highway. It will be built according to years old plans and my property is not in the path. My grandparents were not on the original list of affected property owners.

Important to me though, there is what I have termed “the burden of perpetual uncertainty” by where I will never know what to expect when I come to my property. I will never know with what disruption I will have to deal. What will the state be doing with that land today? Will it be a load of dirt that blows all over the place?, a large road stinking tar-covered piece of equipment parked for days bleeding oil and hydraulic fluid into my drainage ditch?, or a bank of porta potties complete with attendant fragrances and doors slamming shut every few minutes?. What effect will this have on the use and value of my property. How will it affect my clients’ access to my office. The strip they want to take comprises almost all of my frontage on the side road bordering my property as well as one third of my highway frontage. And all of this, right in the heart of the most commercial part of this bucolic little town.

That alone is unforgivable. Currently, this stretch of Highway 36 is already two lanes each way, but the construction contractor has choked the highway down to one lane each way. The state’s contractor actually took our mailboxes off of our posts on our property and put them on the warning barrels at the edge of the active lane!!!! What’s more, I would have to stand in the highway to get my mail from the mailbox. They did not ask me. I’d love to see a permit for that. I doubt one exists. The mailman has to fully stop highway traffic to deliver mail! There is nowhere for him to pull off the highway. I turned my mailbox around and wrote “Do Not Stop- Too Dangerous” on it with a note that I had forwarded my mail. A few days later, someone had turned it back around. I doubt it was the postman as there was no mail in it. I forwarded all my mail elsewhere and removed my mailbox from the highway marker barrel. I will not support such reckless endangerment.

If a person voluntarily sells land, they have some control over its use. A seller can reserve an easement via contract term and can even contractually prevent certain activities on the property. In a condemnation proceeding however, the seller has few rights. And, where the state seeks actual title to the land, the landowner will lose all control of the property. This is why the state is only allowed to take land that it truly needs to complete the highway as part of a public use and cannot take land that it does not truly need for this public purpose. This is why the most common condemnation reason is a Right of Way and not a fee simple purchase of land. Make sure you know which the state is seeking to take. A Right of Way can benefit your friends and neighbors and can make one feel like part of the community. A taking of fee simple ownership just feels like a big bully taking your land to have a new place to poop.

As a status update, the state has not yet taken the final step in taking my land, the condemnation lawsuit. I’ve made it clear that I will not sell and that I will fight to get it back if they take it. Construction is now underway on the highway in front of my office. The Crepe Myrtles my grandmother planted and that the state will rip up if they take my land are blooming. Maybe for the last time.

July 5, 2023, by J.K. Tarrant, Attorney at Law

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