Travis County Commissioners Court
February 24, 2009,
Item 25
>> now let's call back to order the voting session of the Travis County Commissioners court which we recessed a few minutes ago to take up the corporations.
item no.
25 is to consider and take appropriate action on legislative matter including a, update on legislation relating to juvenile justice issues in the 81st Texas legislature.
b, Travis County's position and strategy regarding legislation relating to eminent domain and condemnation, and c, house bill 78 and house bill 117 and senate bill 253, relating to the amount of a county expenditure for which competitive bidding is required.
morning.
>> morning, judge and Commissioners.
we have a brief but thrilling agenda for you today.
first of all, with respect to item a, the update and briefing on juvenile justice issues, our hope was to have chief stella medina here today.
she's not -- she had an unreplaceable scheduling conflict so she's not going to be here so I would like to ask the court's indulgence and ask that we move that to next week.
>> all right.
item b with respect to item no.
b, that has to do with having a discussion about eminent domain and condemnation legislation that has been filed this session and to ask the court's ideas with respect to general strategy.
we do not want to ask the court at this point to take a position for or against any of these bills but just want to advise the court about the number of bills that have been filed out there, what are the major provisions of those bills and then to just have the court have a discussion about general strategy with respect to that.
we've got a couple people from the county attorney's office who are going to be here as really substantive experts on the pieces of legislation that have been filed, but let me just begin by saying last session -- the general topic of condemnation and eminent domain has received a lot of attention since the supreme court's decision in kelo.
last one worked on clarifying eminent domain procedures in light of kelo and actually pretty much had a bill all worked out until it got to the senate floor and then on the senate floor there was an amendment added that had to do with what was called diminished access.
the theory behind diminished access is in addition to being compensated by a governmental entity or some other taker for your property, if it is taken, you should also be compensated if you have diminished access to it.
so for instance if a road is built that bypasses, like the toll roads they're talking about around many parts of the county and this part of the state, if a toll road is built that limits -- by virtue of its selection to where the on ramps and off ramps are, that limits access to your property, then you may have a cause of action against the government for diminished access to your property.
that's an oversimplification of the concept, but that concept has obviously riled up a lot of the pipeline operators, riled up a lot of the cities and counties, and as a result they petitioned governor perry to veto the bill, which he did.
so we're now back this session.
there have been some bills filed that pretty much track the legislation that got almost all the way through last session.
there have also been some bills filed that will address the issue of diminished access, but we'd like -- because it is an important issue for the court, we wanted to just brief the court about that legislation.
you have a listing of the bills that have been filed as of last Thursday in your packet, and then you have a memo from john hilly in the county attorney's office regarding the specifics of some of the legislation, and I would like to actually invite somebody from the county attorney's office either to make a brief presentation about each of the bills or at least to answer any questions that you may have about them.
>> I'm here to answer any questions you have about them and we're willing to do so as consultation with attorney in executive session.
>> well, I don't know if this would bar an executive session -- this is an executive session question, but could you maybe explain some of the stuff -- some of the stuff in the bills referring to kelo, the supreme court case?
could someone tell us publicly what that case entailed and what was the -- because it really doesn't go into explanation of what the supreme court ruling was in that particular case.
>> kelo is a word that -- the case is well-known in national circles.
it was a u.s.
supreme court case involving a private developer assisted by the condemnation authority of the city of new london, connecticut.
and the particular developer was a pfizer corp.
to redevelop the whole area of downtown.
it involved quite a few homes, and there were about eight homes, I think one owned by the property owners, or kelo, and essentially the claim was that the government was taking their homes away from them.
it didn't really go to the issue of just compensation.
it went more to whether or not the plan for condemnation and redevelopment of this, what was considered a blighted area and a dock-side area of new london, connecticut, you could actually use condemnation for that.
so much of the discussion since that time is that it is abusive to use eminent domain in order to accomplish what may not be a public purpose, that is a private developer being involved in this.
>> and this blighted area, this is sometimes -- you know, it's -- who defines what's blighted.
the second question is that in these particular billions that we have, well, some joint resolutions, stuff like that, but in a lot of these bills that we're looking at here, is there any language in any of them that say "may" or "shall"?
>> in many of the bills there is the commandment "shall ".
>> shall?
>> shall.
and much of it has to do with the procedures and what kind of evidence and what kind of items can be compensated at the stage of the special Commissioners hearing, which is not a judicial proceeding, and then later on.
so yes, that kind of word is --
>> but the special Commissioners that normally are invoked in condemnation proceedings, they still will have their role diminished, or will it remain the same?
>> actually under one or two of these bills it would expand the role of the special Commissioners to put them in a position of making evidential rulings.
special Commissioners are not always lawyers.
in fact, some of the panels that we've had, they are real estate professionals whose primary and only responsibility during a special Commissioners' hearing is to determine the amount of just compensation for the part that is being taken, and then the damages, if any, to what is the remainder part.
these can be contested-type hearings where they normally hear from appraisers and landowners and engineers about the actual taking, butt special Commissioners are not equipped to be judges of the proceeding and conduct discovery which is being requested in some of these bills and rule on objections to the evidence.
>> let me expand on that for a second.
historically speaking, when someone was going to take property, when a public entity was going to take property from a landowner, it always was a last resort.
and one of the ways to ensure that fair value was given for that property was to take three land holders from the community, in the community from which it was being taken, to sit there and decide value.
and what mr.
martin is saying is that some of the proposals here are to expand that role from simple valuation to more of an arbiter of evidence position.
>> okay.
thank you.
>> I guess since the supreme court gave the decision in kelo, why is all this state legislation important anyway?
kind of boils down to whether it's a public purpose or not, right?
>> well, let me say this.
yeah, it would seem to be that simple.
litigation, as you know, for years, judge, has taken place in the state of Texas over how you calculate valuation.
how do you calculate the amount of money that should be compensated fairly to landowners whose property is being taken away.
and case after case for the last 20 years has been establishing the precedent in the state of Texas for how that's done.
and it's well-settled at this point under Texas case law.
many of the proposals here would unsettle that issue and introduce into the determination of valuation terms that have not yet been defined.
and so it will take, my guess, litigation in order to determine how to define those value waition terms.
>> I'll use one example of that, is that one of the bills asks -- says that in a partial taking, that the valuation being placed on the -- for condemnation purposes, consider the part taken, which is a portion of the whole, and then to define the effect upon the remainder as local market value.
now, the word "local" adds some uncertainty.
it is a vague term.
what is the locality?
as we have now, we have very objective standards under the universal appraisal standards.
we call those use pat standards.
and Travis County always uses an objective independently hired appraiser in which to evaluate the offers that are being made before condemnation ever occurs, and certainly throughout all the stages of the proceedings, if it does become a contested-type case, the appraisers that we use will always use objective criteria.
appraisal theory is a science, in a sense, and so the definitions of market value depend according to all the different variables of just what property is being taken, and then to somehow define what the locality of that market value is would open things up.
essentially, judge, you asked about kelo, this -- very little if any of these legislative amendments have anything to do with the kelo issue.
there are some indications that we should restrict -- the state should restrict private entities who have condemnation authority, but so far as this county government is concerned, that's a red herring, kelo.
most have to do with changing the substantive law as settled by the Texas supreme court over a number of years, and certainly some particular folks who feel agrieved by the limits, say on the project influence, community damages, would like to see the effect of those settled Texas supreme court decisions eliminated by these changes to be put into the law.
and the other thing has to do with the -- which is very basic to condemnation law, is that the decision to use condemnation as a last resort, or however it's used, is a legislative function under the separation of powers in government, the legislature, and you the legislative body of county government makes that decision to condemn or not to condemn based on your inability to acquire the property, if you're unable to come to a voluntary agreement for the purchase.
that is an issue, the courts have respect the separation of power and have said that it's not up to the courts to supersede their decision -- your decision over whether or not condemnation should be used or if it was necessary to this particular case.
one of the house joint resolutions has language that we put on the ballot in the fall for a constitutional change that would make it a subjective argument, that would make it a judicial question to determine whether or not you actually utilized the -- the condemning authority actually utilized that power properly or if it was necessary, in which case that would change hundreds -- a hundred years of Texas law and pretty much the law throughout most of the nation, as I understand, and federal law.
and that would be -- constitutionally, it would leave that open for judicial determination of which of course the judicial process involves a lot of adverse opinions as to what that might be.
>> and we can see, being long time eminent domain attorneys that this conversation is having the same effect on you that it usually does, and any questions we can answer before we put you all to sleep?
>> I have a fact question about the way Travis County utilizes eminent domain.
what is our practice in utilization of eminent domain, just to put this into context as to what kind of problem or imagined problem the legislators think they're addressing.
>> well, generally speaking, you-all determine a public need, a road, a park, something that we are required to provide, that we endeavor then, through normal channels, to purchase those parcels, the property we need.
and only after a long time of purchasing based upon objective appraisals, so you're giving somebody fair market value, do you-all determine what to do.
and mr.
hill, do you want to say something?
>> just from a new miles an hour numerical standpoint, on the balconies tract, you've never taken one by condemnation.
you're not really allowed to do that.
for parks, all the parks parcels over the last 20 years that I can recall, I might chime in, I can remember one taken by condemnation, and so the vast --
>> streets and roads.
>> streets and roads.
>> buildings.
>> even that's rare, upon a percentage basis, it's a very small amount that don't go through the negotiations -- and either negotiations break down and you have to go to a condemnation.
>> and further, in those isolated instances in which we do resort to condemnation, if we were to behave unfairly in regard to market compensation, what would happen to us?
>> well, I'll let gary describe that.
it's never happened but describe that.
>> I didn't quite understand the question.
if we behave unfairly?
>> yes, what happens is -- and this has not happened, but what happens, if someone decides that you have not negotiated in good faith or you haven't done it fairly, then the issue ends, you lose jurisdiction and you have to start all over again.
so it's generally resolved in other cases in the court system.
that's why we are so proactive in trying to do this objectively up front.
>> okay.
>> questions?
>>
>> [indiscernible] the progress of bills and as particular bills begin to move, about which we have concerns or of which we're supportive, we will bring that to the court and ask the court to take action.
>> is this on the radar of the coc.
>> yes, it is, and the Texas association of counties, absolutely.
>> okay.
all right.
>> item c has to do with legislation that would increase the minimum amount of a county expenditure, which -- for which competitive bidding is required.
there are actually three identical pieces of legislation that we want to bring to the court this morning, house bill 78, house bill 117 and senate bill 253.
all of them have identically raised the minimum from $25,000 to $50,000.
sid griems, who is our county purchasing agent, is here to answer any questions the court has.
>> the city has got this legislation last session and so right now the cities are at 50,000 and the city -- I mee, the county oh mean, the county, school districts or others would like to have the same authority and we don't know of any opposition to it.
>> we're at 25,000 now?
>> we're at 25,000 now.
>> one of these bills would increase that to 50?
>> yes.
>> questions?
>> I approve.
>> I have one question regarding the last bill on the list of -- that one has another provision in it, to provide a sales tax for property tax relief, a swap, senate bill 402.
>> senate bill 402 is not posted for this week.
we pulled that down and we'll bring it back up next week.
>> sorry.
my mistake.
>> and there is one other bill that's not listed, senate bill 624, and that's another bill that deals with competitive bidding, and it was our -- the Texas purchasing association's attempt to get everybody in line.
it covers each one of the -- the school districts, the state and others.
so there's four -- there's going to be four bills out there that deal with the competitive bidding.
>> the motion is approved and is being increased from 25 to 50.
seconded by Commissioner Davis.
discussion?
all in favor.
that passes by unanimous vote.
thank you, members.
see you next week.
>> yes, sir.
>> okay.
look at the language and make sure that that's -- will be all right for next week or whether we need to change it.
>> okay.
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Last Modified:
Wednesday, February 25, 2009 4:26 PM