Texas - Do you want more bike trails in Texas? State Bill 219 (SB219) could hurt.

State Bill 219 (SB219) was introduced by Robert Nichols to the 81st Texas Legislative session. This is from his web page:

Protecting private property (SB 219)
Nichols filed legislation to prohibit the use of eminent domain for the purpose of recreational projects such as parks and bike trails. He filed similar legislation as one of his very first bills last session.

Bike trails are not just a recreation issue but also transportation and environmental issues. Many of our bike trails require the use of eminent domain acquisitions.

If this bill concerns you then you should contact your state representative and make your feelings known. You can determine your representative by going to: http://www.fyi.legis.state.tx.us/

meh...it just keeps the government from snatching up people's property to build parks...it wont pass anyway

Texas Bike Trail.


http://i256.photobucket.com/albums/hh187/10wheels/DaveFredChris005.jpg

I support such a bill. Eminent domain should be used extremely sparingly, as in only for roads. Public buildings can be built the old-fashioned way. Buy the land, build the building. Parks and bike trails too.

I support such a bill. Eminent domain should be used extremely sparingly, as in only for roads. Public buildings can be built the old-fashioned way. Buy the land, build the building. Parks and bike trails too.

This a very auto-centric way of looking at things, no?

If it is ok to use eminent domain to build more roads (presumably so that cars can use them), why would it not be suitable to use it to create transportation options for cyclists and pedestrians?

You can argue that eminent domain should not be used in any case, but to allow it for building more roads but not for non-automobile use seems to me to be emblematic of the problem that we've all been struggling with - that very few people (outside of the cycling community, at least) view bikes as viable transportation.

This a very auto-centric way of looking at things, no?

If it is ok to use eminent domain to build more roads (presumably so that cars can use them), why would it not be suitable to use it to create transportation options for cyclists and pedestrians?

You can argue that eminent domain should not be used in any case, but to allow it for building more roads but not for non-automobile use seems to me to be emblematic of the problem that we've all been struggling with - that very few people (outside of the cycling community, at least) view bikes as viable transportation.
Why do you think that roads belong to automobiles? A road is multi-use and can be used by automobiles, bicycles, and pedestrians alike, when designed properly. I assert my right to use the road on my bicycle and you should too. Eminent domain is terrible and roads are a special case where usually it can't be done by just purchasing the land. You always have a holdout you can't go around.

This a very auto-centric way of looking at things, no?

If it is ok to use eminent domain to build more roads (presumably so that cars can use them), why would it not be suitable to use it to create transportation options for cyclists and pedestrians?

You can argue that eminent domain should not be used in any case, but to allow it for building more roads but not for non-automobile use seems to me to be emblematic of the problem that we've all been struggling with - that very few people (outside of the cycling community, at least) view bikes as viable transportation.

I agree with the sentiment of your reply, but roads serve additional non-"transportation" purposes. They are arteries of commerce and delivery and the lifeblood of the economy. They provide right-of-way to emergency vehicles such as fire trucks and ambulances.

I question the legality of the bill. Isn't it at odds with the fifth amendment? I'm also concerned with the wording. This particular wording could cause someone to block a school being built by stating that the playground portion of the project constitutes shared recreational use...

kyle -

I do ride on roads quite often, including some roads that 99% of people would think one would be crazy to cycle on (I hear this all the time from my friends, wife, and family). But if there were a MUP that I could take instead, I would opt for that about 9 times out of 10. Considering that you use an MUP to commute daily to work, I find your original reply a bit surprising.

The problem with road construction is that legislators and municipalities almost invariably do not construct roads properly so that they can be used by both cyclists and pedestrians. Fortunately, this attitude is changing a bit, but for the most part cyclists are left to fend for themselves. I mean - it's not like Houston is like Copenhagen or even like San Francisco; I don't think anyone would argue that the majority of Houston roads are friendly for cyclists. If they were, then we would see more than 0.1% of the population riding their bikes regularly.

I am fortunate to live in an area of Houston (Montrose) which is probably the most cyclist-friendly in the city. However, there are some roads (Waugh bridge over Memorial and Allen Parkway) that most people (such as my wife) cannot and will not cross on bike. Either they lack the nerve to go toe-to-toe with traffic buzzing by at 40-50 mph or they physically cannot go fast enough (wife's top speed is 9 mph) to do it safely. You can tell them "take the lane" all day, but that is not a feasible solution for most people. Rather than suck it up and riding with traffic (like we do), they just choose not to bike. And that's why we're stuck in the current situation that we are.

For the vast majority of people I just described (who constitute the majority of potential cyclists in the city of Houston who do not currently ride) - MUPs are the solution that will get them to finally use bikes for transportation.

Entire text of SB 219

By:AANichols S.B.ANo.A219
A BILL TO BE ENTITLED
AN ACT
relating to prohibiting the use of eminent domain to take private
property for recreational purposes.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONA1.AAChapter 2206, Government Code, is amended by
adding Section 2206.002 to read as follows:
Sec.A2206.002.AAPROHIBITION OF EMINENT DOMAIN FOR
RECREATIONAL PURPOSES.AA(a) This section applies to the use of
eminent domain under the laws of this state, including a local or
special law, by any governmental or private entity, including:
(1)AAa state agency, including an institution of higher
education as defined by Section 61.003, Education Code;
(2)AAa political subdivision of this state; or
(3)AAa corporation created by a governmental entity to
act on behalf of the entity.
(b)AANotwithstanding any other law, a governmental or
private entity may not take private property through the use of
eminent domain if the taking is for a recreational purpose.
(c)AAThis section does not affect the authority of an entity
authorized by law to take private property through the use of
eminent domain for a purpose listed in Section 2206.001(c) unless
the purpose is considered a recreational purpose under Subsection
(d).
(d)AAFor the purposes of this section, "recreational
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81R1686 PMO-D 1
purpose" includes:
(1)AAa parks and recreation system, or improvements or
additions to a parks and recreation system, including sidewalks, or
an area or facility that is part of a parks and recreation system;
and
(2)AAa park, greenbelt, or trail.
(e)AAThis section does not affect the authority of a
governmental entity to condemn a leasehold estate on property owned
by the governmental entity.
(f)AAThe determination by the governmental or private entity
proposing to take the property that the taking does not involve an
act or circumstance prohibited by Subsection (b) does not create a
presumption with respect to whether the taking involves that act or
circumstance.
SECTIONA2.AASection 21.103(a), Parks and Wildlife Code, is
amended to read as follows:
(a)AAExcept as provided in Subsection (b) of this section,
the department may acquire park sites, including property already
devoted to public use, by purchase [, condemnation,] or any other
manner permitted by law.
SECTIONA3.AASections 13.305 and 21.103(c), Parks and
Wildlife Code, are repealed.
SECTIONA4.AAThe change in law made by this Act applies only
to the taking of private property by eminent domain for which a
condemnation petition is filed on or after the effective date of
this Act. A taking for which a condemnation petition is filed
before the effective date of this Act is governed by the law in
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S.B.ANo.A219
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effect immediately before that date, and that law is continued in
effect for that purpose.
SECTIONA5.AAThis Act takes effect September 1, 2009.
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kyle -

I do ride on roads quite often, including some roads that 99% of people would think one would be crazy to cycle on (I hear this all the time from my friends, wife, and family). But if there were a MUP that I could take instead, I would opt for that about 9 times out of 10. Considering that you use an MUP to commute daily to work, I find your original reply a bit surprising.
It should be noted that I commute on an MUP that was built without the use of eminent domain, rails-to-trails, in fact. I would be sharply opposed to bulldozing someone's house to build an MUP when there were road alternatives to get where I was going. Its just not worth doing that to someone.


I am fortunate to live in an area of Houston (Montrose) which is probably the most cyclist-friendly in the city. However, there are some roads (Waugh bridge over Memorial and Allen Parkway) that most people (such as my wife) cannot and will not cross on bike. Either they lack the nerve to go toe-to-toe with traffic buzzing by at 40-50 mph or they physically cannot go fast enough (wife's top speed is 9 mph) to do it safely. You can tell them "take the lane" all day, but that is not a feasible solution for most people. Rather than suck it up and riding with traffic (like we do), they just choose not to bike. And that's why we're stuck in the current situation that we are.
A pedestrian bridge is being built to alleviate this problem. The project is called Tolerance Bridge (yuk!), but the name may change.

dallassoxfan -

According to the wording in the bill, it concerns the taking of private land by government entities. So a school (presumably public land) would not be affected by SB 219. The 5th amendment is about right to jury by trial, double jeopardy, etc. - I assume you mean the 4th amendment (unreasonable search and seizure). I don't believe eminent domain violates any 4th amendment rights; the 4th is primarily designed to protect individuals during questioning by law enforcement authorities.

I'm not a huge fan of eminent domain per se, btw. I just find SB 219 troubling because it relegates an entire segment of public works (the parks and trails dept) to second-class status and states they are not accorded the same eminent domain rights as other government depts. Houston Metro's light rail line is not going to be used by police, ambulances, or emergency workers either. However - they have been exercising their full eminent domain rights to seize private property that is in the way of the proposed rail lines.

Eminent domain is being used (so the argument goes) to benefit the public and society as a whole (even if it obviously is a negative for the individual private parties affected). Does providing safe transportation alternatives for non-automobiles not fit into this category? That is essentially what SB 219 is saying.

So that this argument doesn't drift away from its original intent -

I am not arguing for or against eminent domain in itself. We can debate all day about the merits of public benefit vs. individual property rights.

I am simply disagreeing with the intent of SB 219 - which seeks to establish that eminent domain (which has been validated by the US Supreme Court as a legal instrument) is ok for roads but not ok for bike trails and parks. If SB 219 passes, it will certainly set a precedent that cyclist and pedestrian infrastructure is not on equal footing with automobile infrastructure or public transit lines.

Rail-to-trail bike paths are ideal because there is already existing right-of-way (ROW) due to the now-defunct railroad. Same deal with bayous; Houston has done a fantastic job of creating MUPs along their lengthy bayous (White Oak and Braes stand out in particular).

However, it is interesting to not that when many of the railroads were first built in the mid and late 1800's, they were built by private companies such as Union Pacific, which were granted broad eminent domain rights by the government to seize any private land that stood in the way of the railroads.

I haven't been able to definitely verify if this has been the case with Houston's old railroads, but it is noteworthy that many of Houston's railroad ROWs go straight through historic and older neighborhoods (Heights, Third Ward, Fifth Ward). I would hesitate to say that MUPs such as Columbia Tap did not make any use of eminent domain, when there is a high likelihood that the existing railroad ROWs used eminent domain to construct the railroad in the first place.

That's water under the bridge, right-of-ways that were already taken. I'm talking about the future. This law can't change what's already been done.

dallassoxfan -

According to the wording in the bill, it concerns the taking of private land by government entities. So a school (presumably public land) would not be affected by SB 219. The 5th amendment is about right to jury by trial, double jeopardy, etc. - I assume you mean the 4th amendment (unreasonable search and seizure). I don't believe eminent domain violates any 4th amendment rights; the 4th is primarily designed to protect individuals during questioning by law enforcement authorities.


No, I mean the Fifth Amedment:


No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation

The Fifth is more than just "pleading the fifth"

My concern about schools is say my local school has grown and placed a bunch of those trailers out back for the students, squeezing out some of the fields and play areas. Budgets get freed up and they get an alottment to build an actual building. They claim eminent domain and choose to buy out 6 houses behind the school for expansion. The new building will be built on existing land, but the eminent domain will be used for a playground and football field. Said homeowneers could tie it up in court by using this bill.

Here's another example. The state uses eminent domain to build a prison on some old farmland off the interstate. Because the prison will include a recreation area, it is taken to court...

This bill is a waste of time and will serve no purpose other than gumming up projects through countless injunction defining "recreation"

Exactly - but it demonstrates the point that eminent domain has been used many times in the past with many unintended consequences/benefits that are enjoyed even today (and in the future). Many people today are benefitting indirectly (through rail to trails) from the eminent domain rights being granted to railroads over a hundred years ago.

SB 219 would take a major step backwards for establishing MUPs and bike trails, because it would give even more of an advantage to the automobile (read: road) construction lobby. Eminent domain is not going away, but SB 219 seeks to eliminate its use for creating bike trails.

The result will be that private organizations will push gov't to continue using eminent domain to build new freeways and roads, while organizations that seek to create pedestrian and cyclist infrastructure are at an extreme disadvantage because they are not able to utilize the same playing field It will make it even more difficult (politically and economically) to move forward with more sensible development that benefits non-drivers.

No, I mean the Fifth Amedment:


No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation

The Fifth is more than just "pleading the fifth"

My concern about schools is say my local school has grown and placed a bunch of those trailers out back for the students, squeezing out some of the fields and play areas. Budgets get freed up and they get an alottment to build an actual building. They claim eminent domain and choose to buy out 6 houses behind the school for expansion. The new building will be built on existing land, but the eminent domain will be used for a playground and football field. Said homeowneers could tie it up in court by using this bill.

Here's another example. The state uses eminent domain to build a prison on some old farmland off the interstate. Because the prison will include a recreation area, it is taken to court...

This bill is a waste of time and will serve no purpose other than gumming up projects through countless injunction defining "recreation"

Eminent domain does compensate the private landowners, however. It is just forcing them to sell to the gov't - not forcing them to give up their land without any compensation.

I agree that the language of the bill leaves a lot of ambiguity and endless fights over what defines "recreation". That is almost a good enough reason in itself to kill the bill.

One thing to keep in mind is that even the construction of bike paths along roads could be affected by this. If the city or county wants to build a road with an extra wide shoulder devoted for a bike path, they would not be able to use eminent domain to get the extra ROW width to do it under this new law. In Harris County, we unfortunately are stuck with leaders who don't believe bikes belong on the roads with cars, yet they are very slow to build useful commuting paths for bikes. Without the ability to use eminent domain to get the ROW for such paths and with leaders deadset against building roads to accomdate bikes, we would be at a stalemate in trying to improve bicycle commuting opportunities.

There are better ways to achieve what this congressman is trying without a blanket prohibition on the use of eminent domain.