Port Freeport
HOUSTON - The 14th Court of Appeals has reversed a ruling holding that Port Freeport had the power of eminent domain to take land without a specific use in mind, opining that the Constitution does not condone a “take now” and “plan later approach.”
The opinion stems from a petition the Port filed to condemn property owned by several landowners for expansion purposes.
When filing the petition, the Port did not identify any specific plans for the landowners’ property, according to the 14th Court’s Sept. 18 opinion.
After a hearing, special commissioners determined that the Port must pay the landowners $28,000 total for their property.
The parties then filed competing motions for partial summary judgment and the trial court sided with the Port, holding that it had the power of eminent domain pursuant to Texas Water Code section 62.107.
The landowners appealed, contending that the taking was unconstitutional as a matter of law because economic development takings do not satisfy the Constitution’s public use requirement, and that the Port failed to plead a public use with specificity.
Conversely, the Port argued that it needed to plead only a “categorical use” to condemn the landowners’ property. “‘I’m from the [Port], and I’m here [for a public use]’ would be enough,” the opinion states. “Its condemnation petition said little more than that.”
Even when the case proceeded to discovery, the Port never could identify a specific public use, admitting that it did not have “any specific plans for what will be developed” because the land would be developed by third party businesses, and it doesn’t know what will happen to the property until it is condemned, the opinion states.
“The Constitution does not condone this take now, plan later approach,” the opinion states. “The government must tell the court what it plans to do with property so the court can exercise its constitutional duty to assess public use.
“Because the Port failed to do so, we reverse and remand.”
Appeals case No. 14-23-00948-CV
