Forecast: Threatening Skies Ahead

Property owners living and working in downtown El Paso, Texas, haven’t had their property condemned by the city – yet.  Although the City of El Paso has declared a moratorium of sorts on using eminent domain to acquire property in the heart of El Paso, officials need only wait until November of 2008 before they can begin condemning properties that fall within their revitalization plans.[1] Government bodies at other levels within the state of Texas, however, are trying to make sure the city doesn’t get the chance to take that land for private development.

The grand plans for downtown El Paso were introduced in March 2006 by the Paso del Norte Group (PDNG), which, according to the group’s website would like the region to “become North America’s epicenter of U.S./Mexican Commerce.”[2]  Some 377 properties—houses, apartments and businesses—currently sit under the cloud of condemnation.^[3]

Responding to the threat initiated by the private developers and the city council, residents and property owners in the affected areas have come together to form an effective opposition. One such group, Land Grab Opponents, have threatened to sue if the city decides to use eminent domain, while the Unified Downtown Revitalization Coalition would like to draw up a new plan that would develop but not destroy the history and character of downtown El Paso.

Mayor John Cook hopes the moratorium will allow the city to negotiate with property owners affected by the redevelopment plan.[4]

Stuart Blaugrund, the lawyer for Land Grab Opponents, sees only a small reprieve for the citizens affected: “Actually condemning the private property may be the last thing you do…but your ability to do so is so ominous that the threat of eminent domain will permeate all so-called negotiations.”[5]  The El Paso situation underscores the fact that it’s not the filing of a lawsuit that matters to home and small business owners but the power to forcibly take in the end.

Not everyone on the city council, however, is in favor of using eminent domain – in fact, two out of the eight members openly oppose it.  In January, representative Eddie Halguin proposed an ordinance that would have limited the definitions of “public use” and “blight,” but the city council rejected it.[6]   The minority on the council is having a hard time just getting the council to talk about the possible use of eminent domain as part of the city’s plans.  One of the members supportive of the plan allegedly told Halguin, “I think we’ve spent too much time talking on this.”[7] 

While the City Council of El Paso stalls and delays the debate about eminent domain, another level of local government is taking the issue head-on in response to El Paso’s redevelopment plan.  On February 5, 2007, citing El Paso native Sandra Day O’Connor’s dissent in Kelo, the El Paso County Commissioners Court requested that the State of Texas pass legislation and initiate a constitutional amendment that would establish a “traditional definition of public use” and would prohibit local governments from “condemn[ing] private property for private development purposes.”[8]

Five days later, Texas Attorney General Greg Abbott released a statement regarding the process of eminent domain, confirming that “a city may not designate an area as a re-investment zone unless the area is unproductive, underdeveloped, or blighted….”[9]

In light of this, Blaugrund asserts that despite its designated status as “blighted” downtown, El Paso is economically vibrant, again demonstrating how vague and subjective “blight” definitions are, threatening any property in Texas.[10]

Meanwhile, the Texas legislature is working on changing eminent domain law in the state. Currently, there are constitutional amendments to limit the public taking of the private property have been introduced in the Texas House of Representatives and are currently in committee.  Additionally, legislation that would create a Landowners Bill of Rights was submitted in February. Other statutory protections are also expected to be filed.

The fight between the City of El Paso and its residents is far from over.  The people of El Paso as well as other Texas government officials are working to protect the rights of property owners and to ensure individuals get to keep what they’ve worked so hard to own.  The majority of Texans and Americans everywhere believe that private property should not be taken for private gain.