New Jersey Eminent Domain Law Blog

"They're going to put up some fence, and it's going to be in Eagle Pass just to make an example of the mouthy mayor of Eagle Pass." – Mayor Chad Foster, as quoted in the Houston Chronicle.

The Bush administration’s decision to move forward with condemnation to acquire the necessary easements for the construction of the border fence makes very little sense. "I think the way that the Bush administration is going about this, filing eminent domain actions against landowners and municipalities makes no sense," Senator Hillary Clinton said in a recent debate with Senator Obama held at the University of Texas in Austin.

In any taking such as this – a partial taking – the affected property owners will have a claim for the value of the land taken as well as damage to the remainder. The Texas Constitution provides compensation for any property taken or damaged as a result of an acquisition for public use in Article I, Paragraph 17:

TAKING, DAMAGING, OR DESTROYING PROPERTY FOR PUBLIC USE; SPECIAL PRIVILEGES AND IMMUNITIES; CONTROL OF PRIVILEGES AND FRANCHISES
No person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person; and, when taken, except for the use of the State, such compensation shall be first made, or secured by a deposit of money; and no irrevocable or uncontrollable grant of special privileges or immunities, shall be made; but all privileges and franchises granted by the Legislature, or created under its authority shall be subject to the control thereof.

The border fence project certainly falls within that provision and the damages to the remainder will in all likelihood be a larger issue than the taking itself. We posted earlier that the DHS wanted access to the properties for up to 6 months and the right to remove structures in the way of surveyors and engineers, and each landowner would receive $100 and be reimbursed for any damage to the property. See Don't fence me in with eminent domain (January 24, 2008).

"Even in the most egregious eminent domain cases, the party whose land is being taken is given his or her day in court. The people of Texas should be outraged by the sneaky, underhanded methods used by the Department of Homeland Security....Informing the city after the judge ruled that their land is already taken is not the Texan or American way of justice." -- Monica Weisberg-Stewart, co-chair of the Texas Border Coalition Immigration Committee, Caller Times

The line most-quoted in Robert Frost's poem Mending Wall reads, "Good fences make good neighbors." But it is the first line that speaks from the deep heart's core and tells us, "Something there is that doesn't love a wall."  Something indeed. History demonstrates that border walls and fences for the most part don’t work. The Berlin Wall came down when the U.S.S.R. lost power during the Reagan administration. The Great Wall of China did not keep out the Mongolian hordes. This week we have seen the Israeli wall around Gaza and along the Egyptian border breached by Hamas, through a few well-placed land mines, in order to allow Palestinans access to much needed supplies. According to the Associated Press, Egypt has not yet indicated how it plans to reseal the border, though it began positioning armored vehicles Thursday along sections of the breached, seven-mile frontier.

Onward to the vast Mexican-U.S. border: President Bush and Homeland Security head Michael Chertoff are committed to build 370 miles of the proposed 670-mile border fence through Texas, California, and Arizona by the end of 2008. Bush signed the Secure Fence Act of 2006 in October 2006, giving the Secretary of Homeland Security 18 months to achieve and maintain operational control over the borders of the United States. The act also provides for the construction of fencing and security improvements along the border area from the Pacific Ocean to the Gult of Mexico. There was an amendment to the act (inserted into a $555 billion spending bill signed into law the day after Christmas 2007 by President Bush). As reported in the Houston Chronicle on January 12, the measure repealed parts of the 2006 law.  But Senator Kay Hutchinson, who was accused by two congressmen of repealing the mandate to build the fence, said the new law, SA 2466, requires govenment to consult with landowners and elected officials as it moves to build 130 miles of fence in Texas.

However, the government will use eminent domain against property owners opposing acquisition and use of their land for this purpose. Municipalities and property owners affected by the fence question the efficacy of the proposed fence and the cost. As reported in the Rio Grande Guardian yesterday, Laredo Mayor Raul Salinas said, "The fence will not work, so why squander away taxpayer's dollars? I think we have to think about comprehensive immigration reform legislation and think about the guest worker program as alternatives to the wall."

According to the Guardian, Salinas was referring to the recent lawsuit where the the federal government won its lawsuit against the city of Eagle Pass to gain access to city-owned land. On Monday, U.S. District Judge Alia Moses Ludlom ordered the city of Eagle Pass, located on the Texas border 100 miles southwest of San Antonio to surrender 233 acres of municipal land. “It seems a little heavy handed,” said Eagle Pass Mayor Chad Foster, who also heads The Texas Border Coalition. The group of mayors, city officials, and business leaders have complained they had not had enough time and opportunity to comment regarding the effect of the fence on their communities, according to a report issued on January 16 by the Associated Press. Instead, Eagle Pass was sued for access to municipal land and blindsided when the judge's ruling was decided within hours on the very same day, before the city could challenge the lawsuit. "Giving the other side notice sounds pretty basic to me. The government is not even following what our justice system asks for," said San Juan Mayor Juanita Sanchez.

posted by Priya Prakash Royal

"The future of the Indian people and Indian democracy rests on the land question. While the Government is forced to pause in its inhuman project of land grab, let the farmers and the democratic forces of the country join in evolving charter and an agenda for land sovereignty." - Dr. Vardana Shiva

A public hearing was convened on Monday, November 5 in New Delhi to discuss Special Economic Zones (SEZ) and land rights. The hearing was sponsored by Navdanya, which began as a program of the Research Foundation for Science, Technology and Ecology (RFSTE) and was founded by world-renowned scientist and environmentalist, Dr. Vandana Shiva.  “The largest SEZs were allocated to Mukesh Ambani," said Dr. Shiva, chair of the public hearing. "This is a criminal subsidy the State is giving to the rich by stealing from the poor.” Eminent domain,  known as land acquistion in India, is governed by the Land Acquistion Act of 1894. The public hearing resolved that the Act must be amended to ensure that the government does does not acquire land for private companies.

By Priya Prakash Royal

The much-anticipated lighting of the next Olympic flame was dimmed when a Beijing resident burned himself to death last September. When Baoquan Wang was forcibly evicted from his home to make way for the city’s construction project for the 2008 Olympic Games in China, he became a human torch.

People all over the world are looking forward to the Beijing Games – except that is, the citizens of Beijing who are losing their homes through eminent domain to make way for the games. By the time China hosts the games, 1.5 million residents of Beijing will be displaced by eminent domain:

The Geneva-based Centre on Housing Rights and Evictions said residents were often forced from their homes with little notice and little compensation, as the government embarks on a massive city redevelopment to accommodate the Games. "In Beijing, and in China more generally, the process of demolition and eviction is characterised by arbitrariness and lack of due process," the group said in a report.

The statement prompted a sharp denial by China.  A spokesman for the Foreign Ministry, Jiang Yu, said that “the citizens have had their compensation properly settled.” However, after demolition, the former inhabitants are forced to relocate from their communities. Once again, poor rural citizens are forced to make way for massive income and popularity generating events.

by Priya Prakash Royal

The Bharatiya Janata Party, one of India's major political parties, created chaos in the Lok Sabha (House of the People), the lower chamber of the Indian Parliament, on Tuesday, May 14, 2007, when the treasury benches did not oblige Mamata Banerjee, the leader of Trinamool Congress, who demanded amendments to the Land Acquisitions Act. As a result of the chaos, Speaker Somnath Chatterjee adjourned the house 15 minutes earlier than scheduled.

Two months ago, at least 14 people were killed and more than one-hundred were injured in a West Bengal village during violent protests against farmland acquisition for industrialization under the proposed SEZ (Special Economic Zones). The government of India’s web site on SEZ lists about a hundred zones all over India that will be subject to acquisition under the SEZ Act as of May 1, 2007. The list includes a description of each development planned, the location of the area, the name of the developer, and the date of notification. India wants to industrialize, and it is going to do so regardless of the cost to its citizens' individual rights.

As of March 16, 2007, the SEZ Act allows the Board broad authority to change the classification of an area that is already designated as a SEZ. S.O. 393(E)(iii)(d). The act is directed towards the rights and purposes of the acquisition for the developer and does not directly address individual property owner rights. Interestingly, the web site’s sections on “FAQs” and “the procedure for setting up the SEZs” are still under construction.

by Priya Prakash Royal

The nail house was demolished, but the Chinese government’s power is not unlimited. The house was demolished on April 2 after a three-year standoff that made international news and flooded the national blogs  (China’s government has been censoring the media’s coverage of the incident). Last week, Wu signed an agreement to move into a similar-sized apartment in Chongqing, Time magazine reports.  Time reported, based on a witnesses’ observations, that the two-story brick building was “clawed into dust by an earth mover as a few dozen reporters and people looked on.” Zhou Shuguang, who witnessed the event, told Time that the demolition took about three hours and he has posted pictures to his blog.  

Does this mean that China just demolished its progressive march towards preventing eminent domain abuse? Not quite. A Chicago Tribune article reported that the outcome is favorable to the couple who owned the “nail house”. They negotiated a ground-floor apartment with space to open up a restaurant. Wu did not want to give up the building for a space on a higher floor because of her restaurant business.

What will the new property law in China hold for one woman’s battle against eminent domain?

By Priya Prakash Royal

“I have more faith than others….I believe that this is my legal property, and if I cannot protect my own rights, it makes a mockery of the property law just passed. In a democratic and lawful society a person has the legal right to manage one’s own property.” - Wu Ping

For two years, Ms. Wu Ping, a restaurant entrepreneur,  has refused to yield to the unchecked power of developers. So her house stands in the middle of a construction site, towering above a 33-foot-deep pit. It is barricaded. They call it a  "nail house"  because it sticks out like a nail in neighborhoods have been "moved" (??) and  because its owners are the last hold-outs.  Dingzihu (???) is a Chinese word that means a household or person who refuses to vacate their home to make way for real estate development.   Most of the other property owners in the Chonqing neighborhood have left. Photos of the house are all over the blogs and international media, although China's newspapers have been censored. Bloggers said the govenment decreed the subject was suddenly out of bounds.    

The developer plans to build a six-story shopping mall on the site. The homeowners have all been compensated for their lost property, but Ms. Wu turned down the offer of about $525,000 for her 263 square-yard house because she believes, “A citizen’s legal property is not to be encroached on.” This was the slogan planted by her husband, a local martial-arts champion, on a hand-painted banner on the roof. Ms. Wu and her husband refuse to leave until they are given similar property in the area in compensation.

by Priya Prakash Royal

'The revision of the property law delivers an important political message that China will stick to the direction of [economic] reform and opening up." - Yin Tian, legal expert Beijing University

The National’s People’s Congress passed its new property law on March 16 this year. This new property law takes effect on October 1 and is intended to address the conflicts of a changing society, to protect the interests of farmers and of urban residents, when their homes are subject to eminent domain according to Yin Tian, a legal expert at Beijing University. Gone are the days of Mao, and now the socialist reform in China initiated by Xiaoping Deng in the 1980s is at the forefront again: this time by giving the people at least some individual property ownership rights. The government can still take land for public use, but the land will be owned by the individual and not the collective, at least, for some duration.

China began discussing the first drafts of a property law in 2002. But in 2005, “leftists” objected to the law because they felt that the gap between the rich and poor would widen. The leftists had been opposed to any laws that moved China from a communist to a socialist or capitalist regime. They have debated over the direction of China’s economic and political development since the 1980s, when Xiaoping Deng launched the first economic reforms.

Deng’s successors, retired leader Jiang Zemin and current state president and party leader Hu Jintao, continued Xiaoping’s policies of leading the country towards socialism but added “Chinese characteristics.” Essentially, China’s move towards socialism from communism can be more aptly described as “relaxing” communism. Although the changes resulted in rapid economic growth, it created increasing income gaps and regional imbalances due to the current leadership's regression toward a “people-centered” government.

by Priya Prakash Royal

One problem with the power of eminent domain is that the government and not the public or the free market determines both “public use” and “just compensation.”

Utah, typically non-conformist in the legal arena, has once again taken the road less traveled. And it may have borrowed one idea from a system recently developed in India. Yesterday Business Week reported that Utah, one of the first states to rein in the use of eminent domain, has proposed legislation to allow a redevelopment authority to condemn property. But House Bill 365 would also allow the community to determine which takings qualify as being in the public's interest:

It requires 80 percent of those who live in a proposed redevelopment project area to sign a petition saying they want the land condemned. It would also require a two-thirds vote of a city's redevelopment authority board to approve the condemnation.

India, the world’s largest democracy, may follow suit in launching this concept. Swaminathan S. Anklesaria Aiyar, columnist for the Times of India, recommends several changes in India’s land acquisition laws, including one which empowers the farmers:

The new land law should provide for state governments or corporations to negotiate acquisition proposals with farmers, and then let the farmers vote on the deal. If a large majority--it could be two-thirds or three-quarters--vote in favour of selling, this should be binding on the minority. In this scheme, the final decision will lie not with the state government or corporation, but with the community of farmers. It will constitute community-led acquisition. It will respect both the property rights and dignity of farmers, and make them full partners in industrialisation.