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What is eminent domain?

An aerial view of the upper decks of I-35 and the neighborhoods surrounding them. The highway bisects the image diagonally. From this high, cars appear as small rectangles moving along the interstate. Next to the highway on the east side is a line of businesses and a few billboards. Farther east are pictured the tops of single-family houses and trees. On the west side of the highway, A large condominium complex is under construction. In the distance, the Hancock Golf Course and the Hancock Shopping Center are visible.
Nathan Bernier
/
KUT
TxDOT's I-35 expansion project will have the biggest impact on properties along the east side of the upper decks. The upper decks will be removed and the highway's footprint widened to accommodate extra lanes.

Transportation mega-projects in Austin include plans to carve new light-rail routes through the city's streets, widen I-35 to as many as 20 lanes in some areas and double the capacity of Austin-Bergstrom International Airport.

While the public projects differ wildly in their focus, they all involve seizing private property through something called eminent domain.

Eminent domain is nothing new in Austin, but you'll be hearing a lot more about it in the coming years. So KUT's Jennifer Stayton spoke to KUT transportation reporter Nathan Bernier about what eminent domain is and how it's being used.

The conversation took place at Dirty Martin's, an almost century-old hamburger joint in UT's West Campus neighborhood that could be forced out by construction of a light-rail line and reconfiguration of city streets.

The transcript has been edited for clarity.

Can you explain in simple terms what eminent domain is?

Eminent domain is really an attempt by the government to balance the rights of property owners against the needs of the common good. That's the idea. Whether the balance is actually struck is fought over all the time.

The philosophy is that a single person should not have the power to stop important infrastructure projects that are deemed necessary and are in the public interest.

Not everyone agrees about what's in the public interest. But examples of such projects include highways, road projects, public transit facilities, public buildings, pipelines, airports, railroads. Really the list goes on.

But also, the idea is that if the government seizes someone's property, the person should be fairly compensated. What is fair compensation? That's hotly debated.

Eminent domain as a concept is not a new idea. It dates back at least to the Magna Carta, which in the year 1215 was the first written constitution in Europe.

In the United States, the Fifth Amendment to the U.S. Constitution says in part, "nor shall private property be taken for public use without just compensation."

The Texas Constitution has similar language. But it's really in the Texas Property Code, the law adopted by the state Legislature, where the process is spelled out for taking someone's property.

That law continues to be amended by the state Legislature session after session.

What happens when the government wants to seize someone's property?

Basically, the process starts with an initial offer for the property. The first thing that happens is the government has to send a letter saying, "Hey, we want to take your property for this project and here's what we're offering."

For a lot of people, this letter lands like a bomb in their lives, because it can totally ruin people's plans. It can force them to move. It can mess with their business. It can destroy what they wanted to do for their retirement.

I've heard from eminent domain attorneys who talk to people shortly after they received these offer letters, and they say people can be devastated or furious about it.

What I find so interesting about this is that a lot of the time, the government agencies that are sending these letters have often already been involved in public discussions about what the plans are. The information has been out there.

I've spoken to multiple people where I am the one breaking the news to them that the building where their business is located could get seized and shut down. It's not something I enjoy doing.

What happens if the person who owns the property thinks the price they're being offered is too low?

This happens all the time. The government body — the condemning authority, as it's called — has to come with an appraisal spelling out how they arrived at the numbers they came with. And they are required to negotiate with the property owner in good faith.

But if they can't reach an agreement, the government body makes a final written offer at least 30 days after that first offer we talked about. And that final offer has to be equal to or greater than the value in the appraisal that they ordered.

The property owner only has 14 days to respond to that final offer. If the owner declines the final offer, then it goes to condemnation proceedings.

What is the whole process with condemnation proceedings?

A judge will appoint three actual property owners who have no stake in the property being seized, obviously. They're called special commissioners.

The commissioners take a look and calculate damages for the land. They look at the value of the property, what it will be used for and any financial injury to the landowner caused by leaving. They look at a whole bunch of stuff.

If the property owner is still unsatisfied with what the commissioners decide, they can sue in civil court.

A lot of the properties that could be condemned for the I-35 expansion or Project Connect are leased by business owners. I assume some renters, too. Would they get anything?

They both get something. Renters can get moving costs covered within 50 miles in Texas — more if it's a federal project. They have to provide receipts.

Renters can also qualify for money to pay for a comparable home. Say you've been renting a place for 10 years at $800 a month. The landlord never raised the rent. Then boom, you're forced out. The market has changed so much, you're not going to find a comparable place for $800 a month. So there is money available to make up the difference.

With commercial tenants, it's a little different. A lot of leases have condemnation clauses in them that deal with these situations. But generally speaking, the way Texas operates, the government determines how much a property is worth, and then that gets split up between the tenant and the owner.

The simplest way I can explain this is that the tenant gets whatever the market value of the rest of the lease is, including any optional renewals, minus the rent they would pay.

So for simplicity's sake, say the business is paying $1,000 a month in rent and has 10 months left on the lease. So they owe $10,000. But the actual market value of the lease — what they could charge to sublet for those 10 months — is $20,000 or $2,000 a month. That means the leaser would be entitled to $10,000 from the government pay out.

It seems like this can be pretty disruptive to people's lives, even if they are compensated.

Yeah, it's extremely disruptive, even if the government decides not to take your property.

For example, where we are right now, we're sitting here at Dirty Martin's. The Austin Transit Partnership that's designing this light-rail system has not finalized its plans.

savedirtys_MM_041322
Michael Minasi
/
KUT
Plans for light rail along Guadalupe could uproot a number of businesses, including Dirty Martin's.

But the owner, Mark Nemir, cannot sell this place because everyone knows that it could get condemned. Same with businesses along I-35 that could be seized through eminent domain. They're going to have a very hard time, if not an impossible time, getting out, if that's what they want to do. So they're kind of locked in for years amid this uncertainty.

Then once you are forced to leave, a lot of businesses are so location specific, like this place right here, Dirty Martin's. Mark Nemir has told me that he doesn't want to move somewhere else because this is a West Campus business.

How are things looking for Dirty Martin's in potential eminent domain proceedings?

It's not really looking great for the restaurant.

Nemir said he's going to continue to fight because for him, this is his life, this is his livelihood, this is his whole world. He's not going to give up. He does have a lot of support.

But it's going to be very difficult for Nemir to stop the government from seizing this place. So far all the proposed plans call for demolishing Dirty Martin's to make way for a light-rail line that's going to increase the number of people who can move through this area.

If you found this reporting valuable, please consider making a donation to support it. Your gift pays for everything you find on KUT.org. Thanks for donating today.

Nathan Bernier is the transportation reporter at KUT. Got a tip? Email him at nbernier@kut.org. Follow him on Twitter @KUTnathan.
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