Letter to Livestock Weekly

August 23, 2010

Via Email: skelton@livestockweekly.com
Mr. Steve Kelton, Editor
Livestock Weekly
PO Box 3306
San Angelo, TX 76902

Dear Mr. Kelton:

I was happy to see an article concerning the vast amount of new right of way acquisition for the CREZ power transmission projects in your August 5 issue. I certainly appreciate the work Mr. Fambrough and his colleagues at the Real Estate Center do for rural Texas landowners on a regular basis. However, as an active practitioner representing landowners in both eminent domain proceedings and CREZ routing cases pending at the Public Utility Commission, I must respectfully take issue with several of Mr. Fambrough’s comments as reported in the article.

Mr. Fambrough speaks of the CCN order as the beginning point in evaluating one’s options. Curiously, he makes no mention of the administrative process by which the power line route is decided, and the CCN is formulated. Under the CREZ routing process set out by the Texas Legislature, selected utilities propose a variety of potential routes for each CREZ project. Affected landowners can intervene into those administrative cases before the PUC. In those cases, one route for each project is selected by the Public Utility Commission. Therefore, by intervening in the case, the landowner has the opportunity to let the utility and the Commission know how a potential crossing would affect their land. Interested landowners can and should explore whether intervening in the CCN might be a reasonable option for them with an attorney who has practiced before the PUC in CCN cases.

I have been active in several such dockets this summer. Unfortunately, it seems a good amount of the time the process has focused on the “path of least resistance”; i.e., “let’s put the line on folks who haven’t intervened in the case.” Therefore, again, landowners should strongly consider participating in the CCN process if they are opposed to the routing of a CREZ line across their property.

Next, and most importantly, the statement that landowners impacted by a power line should appear before the special commissioners panel with only an appraiser and not an attorney is simply ridiculous. Interestingly, I don’t know a single real estate appraiser with condemnation experience who would advocate this approach. The special commissioners must, by law, be landowners. There is of course no such requirement for jurors later in the process. Therefore, the special commissioners’ hearing often represents the landowner’s single best opportunity to present their case to a decision maker who “gets it” with regard to the impact of the condemnation on the landowner’s property and operation. This is no time to take the field with less than a full team.

Think about it this way. Condemnation hearings, whether before the special commissioners or at trial, are not lawyer vs. lawyer and appraiser vs. appraiser. Rather, it’s often the landowner’s attorney against the condemnor’s appraiser and the condemnor’s attorney against the landowner’s appraiser. Rest assured, the condemnor will be represented by counsel, and said counsel will cross examine the landowner’s appraiser vigorously whether or not the landowner shows up with a lawyer. Put another way, the landowner’s lawyer’s most important jobs are to cross examine the condemnor’s appraiser, and to prepare the landowner’s appraiser for cross examination. Any suggestion this work can be ignored is unconnected to the realities of the process.

Third, the idea that one shouldn’t focus on compensation because “you’re not going to get fair market value for your property anyway” is fatalistic and short-sighted. The fights in condemnation cases generally, and particularly in power line easement cases, are most often not about the value of the easement strip being taken – rather, the fight is over the existence and extent of damages imposed by the power line on the remaining property of the landowner. The outcome here often turns on the application of specific, complicated legal doctrines to fact-specific situations. A landowner needs counsel in this situation who has actually handled power line condemnation cases before and understands the case from all perspectives in order to have the best chance to get what the United States and Texas Constitutions say he’s entitled to: just compensation.

Again, rest assured that the power line company will be represented by experienced attorneys who understand the ins and outs of condemnation law. Landowners should be too.

As an aside, Mr. Fambrough’s characterization of the Hubenak case is simply inaccurate. Hubenak affects the process, but does not change the measure of damages in a condemnation case. It’s a decision I have often criticized publicly, however, my criticisms focus on the fact that the decision takes away the landowner’s stick if the condemnor doesn’t negotiate in good faith. Regardless, I have worked with several eminent domain lawyers from around the state in drafting and advocating for changes to the Texas Property Code that would basically overturn Hubenak and help landowners in certain situations to receive fairer compensation. We’ve been blessed with fine advocates in the Legislature, including State Senators Craig Estes from Wichita Falls, Glenn Hegar from Katy, and Robert Duncan from Lubbock, and a host of House members. This legislation was vetoed in 2007, passed the Senate in 2009 but died in the House traffic jam over Voter ID, and hopefully the third time will be the charm in 2011.

I hope this “from the trenches” viewpoint has shed a little light on a complicated process that, unfortunately, is not as landowner-friendly as it should be. Quite frankly, its unlikely to ever be a landowner-friendly process. Therefore, a landowner should go into the process with an experienced advocate for his or her interests. Each and every time.

Best regards,

Zach Brady