A Texas lawmaker wants to use eminent domain to save a state park. Can it be done?
State Rep. Angelia Orr has filed a bill that would lead to a state takeover of the popular Fairfield Lake State Park. An expert in eminent domain law explains how that could work.
Fairfield Lake State Park, southeast of Dallas, is set to close to the public on Tuesday after more than 50 years as a public park.
The site’s property owner, Vistra, told the Texas Parks and Wildlife Department it was ending its land lease with the state in the wake of the property’s sale to a real estate developer – Todd Interests – that plans to turn it into an exclusive gated community with pricey homes and its own private golf course.
Vistra put the land up for sale last year, but Texas Parks couldn't afford the $110 million price tag.
“Losing Fairfield Lake State Park would represent a significant step backward in our efforts to expand outdoor recreational opportunities for Texas’ booming population,” read a statement from Texas Parks and Wildlife Commission Chairman Arch “Beaver” Aplin III. “This loss is especially unfathomable at a time when we are celebrating 100 years of state parks, yet absent any cooperation or interest in working with us from the developer, we have no other options.”
Now, one Texas state lawmaker wants to change that.
State Rep. Angelia Orr, R-Itasca, filed a bill in the state House she hopes would allow Texas to use eminent domain and take the land for public use.
KERA's Bekah Morr spoke with Austin attorney Luke Ellis about how eminent domain works in Texas, and whether it could save the state park. Listen to the story above or read the transcript below.
The below transcript has been edited for length and clarity:
First, let's take a step back and talk about what we mean by “eminent domain” in Texas. What kind of limitations are there on eminent domain, or can the state step in at any point and just say, “hey, we want to take your land and there's nothing you can do about it?”
Eminent domain is the power of the government to take private property for public use. There are some limitations, but they are relatively limited. For instance, the taking must be for a public use. The other big limitation on the eminent domain power is if the government takes land, the government must also pay just compensation to the property owner who is losing the land.
So in this case, the property owner had put the land up for sale in 2021 with a $110 million price tag. Texas Parks and Wildlife at the time said, “we can't afford that.” So now, if the state wanted to take the land and keep it as a state park using eminent domain, would they have to pay that landowner the $110 million?
Potentially $110 million or maybe even more. If, for instance, it turns out that the $110 million figure was representative of the property's value in 2021, but today it could be worth even more. Some could also argue it could be worth less. And the other point that I think would be disputed between the parties is the distinction between a contract price and an actual closed sale. Sometimes we see that be a difference of opinion between the government and the property owner when there's a contract in place, but the contract hasn't actually closed.
There's a bill that was filed recently by State Rep. Angela Orr in the Texas legislature proposing a state takeover of the land using eminent domain. Is that a common way for cases like this to begin in Texas?
The state of Texas itself has the sovereign power to take. I think the intent of that bill was both to draw attention to the issue and also to make it abundantly clear that if anyone were to challenge that the state of Texas, in fact, had the right to condemn [the land] for the purpose of continuing to maintain the public park, I think they wanted to be certain that there was also legislative approval for the state's ability to act. Whether they actually need that House bill to pass for the state to be able to take it, I think could be disputed. But certainly by passing the bill, it further emphasizes the state's right to take the property for a public park.
What is the climate like in Texas for landowners?
Most people have, I believe, a misconception that because we're Texas, we must have very staunch, well-protected private property rights. That is not what I see in my practice on a day-to-day, week-to-week basis. The framework for the exercise of the power of eminent domain in Texas is very one-sided on behalf of the government. It is not one that strikes the right balance between the tension of the government and the community needing infrastructure versus private property rights.
Is this, in your mind, a pretty surefire thing, if the state makes that call to take the land back and keep it a state park?
I do think the state is very likely to have the legal right to take the land in this case regarding the Fairfield Lake State Park. The bigger question that I think will exist in this case is, what is the correct amount of just compensation owed to the property owner that results from the taking? I suspect that could be an issue that could be hotly disputed.