It seems very appropriate that we’re posting the Texas Court of Appeals’ decision in Burgess v. City of Wentworth Village, No. 02-24-00252 (June 19, 2025) today, the twentieth anniversary of Kelo v. New London.
Because on the Kelo-versary, we start as the Burgess opinion did: an epigram wherein the court quoted a concurring opinion recognizing the inherent unfairness of eminent domain and how just compensation is very often inadequate:
On occasion, to serve a public purpose, a citizen’s private property must be taken without his consent. We tolerate such intrusions because society cannot function without roads, schools, military facilities, and other vital infrastructure. Eminent domain also requires “just” or “adequate” compensation, to be sure. U.S. Const. amend. V; Tex. Const. art. I, § 17(a). But the condemnation process is complicated, time-consuming, and sometimes confusing. And no compensation can accurately value the sweat, tears, pride, love, beauty, and history that, for some property at least, is its chief value. A given exercise of eminent domain may turn out to be all for nothing, too. Grand plans can fail. Property may therefore be permanently damaged without purpose.
These circumstances help explain why our law directs Texas courts to carefully scrutinize any exercise of eminent-domain authority. Condemnation is one area in which the government must turn sharp corners. It is a fit role for the judiciary to ensure that the government stays in its lane.
Slip op. at 1 (quoting Miles v. Tex. Cent. R.R. & Infrastructure, Inc., 647 S.W.3d 613, 632 (Tex. 2022) (Young, J., concurring) (footnotes omitted) (emphasis added)).
What prompted the court to start off the opinion that way? Read on.
Burgess owned land on the south side of a city-owned-and-operated golf course. The city wanted to expand and build a new short-game practice area, and for that it needed 3.5 acres of Burgess’ land. Before it even owned it, “behind the scenes” the city was in negotiations, and had entered into a 99-year lease with, a private golf course operator to upgrade and operate the practice area.
Burgess, the city and the operators couldn’t reach an agreement for a voluntary purchase (the last offer was $1.1 million), so the city condemned. The resolution of taking declared:
(1) City “desires to expand and operate” the publicly accessible golf course “to serve existing and future development in the City,” (2) acquiring the land was necessary for such, and (3) this acquisition constituted “a public use for a public purpose.” [Emphasis added.] It further declared that the land was “needed so that [City] can complete the Project [golf course expansion], which is a public purpose and is necessary to serve the public health, safety[,] and welfare.” The resolution was silent about the UPL [the private operator/lessee] lease and City’s intent to acquire the land and transfer it to UPL.
Slip op. at 5.
In Texas, before you go to court, you first go to special commissioners. After that hearing, the commissioners concluded just compensation was $1,545,500. The owner rejected that and invoked his right to go to court. Once in the trial court, he challenged the validity of the taking, an argument the court rejected. The jury eventually determined compensation was $1,313675, a figure above the city’s last offer, but below the commissioners’ award. The trial court awarded the owner costs.
Both parties appealed. The public use issue for the court of appeals boiled down to the standard of review. “Ordinarily,” the court noted, “the standards of review for a case are well-established.” Slip op. at 6. And you know what that means in a Public Use claim means: near-total judicial deference. Rational basis review. But the court considered whether “relatively recent statutory and constitutional amendments regarding eminent domain, a detailed analysis is necessary in this instance.” Id.
The court began with the text of the Texas Constitution. It noted the requirements of public use and “adequate” compensation as questions to be resolved by the courts, but also noted that “a legislative declaration of public use by the condemnor was entitled to judicial deference.” Slip op. at 7. To succeed, the owner had to prove bad faith, fraud, or that the taking was wholly arbitrary or capricious. And that, friends, is as rare in Texas as elsewhere.
But after the U.S. Supreme Court’s Kelo decision (twenty years ago today!), the Texas legislature placed new statutory limits on takings which confer a private benefit on a private party, or is for economic development. Then, the people of Texas amended their constitution:
In this section, “public use” does not include the taking of property under Subsection (a) of this section for transfer to a private entity for the primary purpose of economic development or enhancement of tax revenues.
Slip op. at 10. The Texas Supreme Court “has not directly addressed the interplay between these recent statutory and constitutional amendments and the procedure for establishing an eminent-domain taking for ‘public use.'” Id.
So the court of appeal did so. It concluded that the government’s declaration of public use is owed no deference, or a presumption.” Slip op. at 12. “We agree that the condemnation of the land itself with the general scope of use for a ‘park[,]'” and parks are generally a public use. Slip op. at 13. “However, City’s analysis falls short[,]” because “[i]t is the constitutional limitation on transferring condemned property for an impermissible purpose that distinguishes this case.” Id.
This could be a taking for economic development even if the taking is for a park, and thus limited:
Further, City cannot prevail on its argument that this is a condemnation of a park for “public use” under the Local Government Code. Because Article I, Section 17(b) constitutionally limits “public use” by exception, the Local Government Code cannot authorize what the constitution prohibits. Maher, 354 S.W.2d at 925. In other words, the constitutionally determinative issue is not solely the land’s use as a “park” but also whether the primary purpose of the transfer of the condemned land to a third party was made for purposes prohibited by Section 17(b). Tex. Const. art. I § 17(a), (b).
Slip op. at 17.
Having determined that it would not be applying a deferential standard of review, the next question it address was what standard it would apply on appeal. Check out page 20-21 for the very Texas-specific analysis. We’re not barred in Texas so we’re not 100% confident of what this all means under local procedures, but it sounds pretty typical: if the court is making some kind of jurisdictional or sufficiency analysis, it reviews the allegations in the pleadings. If it looks like a question of fact, it is treated as summary judgment is treated. Both are reviewed on appeal de novo.
Next, the court applied the above standards to Bennett’s objections. Was the city’s taking primarily for economic development? This is a question of fact and the court below should not have resolved it by summary judgment:
Certainly, if “purpose” is a fact issue then “primary purpose” is all the more a fact issue.
Slip op. at 25.
Check out the briefs of the parties for more. Worth reading:
Burgess v. City of Wentworth Village, No. 02-24-00252-CV (Tex. App. June 19, 2025)