Strengthening Oklahoma's eminent domain laws one clause at a time
But be careful... the government is never going to give up power or money willingly.
Eminent domain is a HUGE topic that I’d like to discuss at length because I firmly believe the citizens of Oklahoma are not only NOT being treated fairly within the letter of the current law - but that our laws remain woefully unprotective of the citizen, opening the door for agencies to engage in all sorts of unethical (and often illegal) business practices.
While I’d like to spend some time in the next few months discussing eminent domain at length, this post will focus on one specific bill that is successfully moving through our legislature this session - HB3159. This bill attempts to strengthen our eminent domain laws by forcing agencies who take surplus land through the eminent domain process to give original property owners and their heirs the first right of refusal to buy back their land at the lower of the original “taking” cost or current market value.
You need to know about this bill NOW so you can help get it heard and passed on the Senate Floor - and then most likely get it back to the House and Senate for a veto override… because we all know who our Governor works for.
Remember that the OTA is imbued with the full power of the State, and with that comes the power of condemnation, otherwise known as eminent domain, which I briefly touched on in my first blog post (Who is the OTA Part 1). Eminent domain is the power of the government to take private property and convert it into public use, referred to as “a taking.” The Fifth Amendment of the US Constitution provides that the government may only exercise this power if doing so will increase the general public welfare and if they provide just compensation to the property owners.
Why is HB3159 important?
House Bill 3159, authored by Rep. Eric Roberts, Rep. Annie Menz, Rep. Toni Hasenbeck and Sen. Todd Gollihare, strengthens the Landowner’s Bill of Rights in Title 27, Section 18, by adding a clause that requires an agency to give first right of refusal to the original landowner or to the first generation of heirs for any “surplus” land acquired through the use of eminent domain authority. “Surplus” land is land that the agency thought they were going to use for a project and acquired through the eminent domain process, but never ended up needing. The sale price must be the lower of either the current market value or the price received by the landowner under the eminent domain sale.
Many agencies acquire more land than necessary through eminent domain and currently, they sell it at auction to the highest bidder; most often to developers, who buy the land at higher prices than the agency acquired it at. These developers then rezone it commercial or high density residential and make a killing.
While this bill applies to all agencies exacting eminent domain land acquisitions on the public, we can specifically look at the Oklahoma Turnpike Authority to see their history of acquiring surplus lands and then distributing them to a select few developers at auction. In fact, the OTA is selling approximately 28 surplus properties across 7 counties on May 2, 2024 at the Dakil Auction House.
[Stay tuned for another more detailed post on this topic that will show you what developers benefited from a June 10,2022 OTA-Dakil surplus-land auction.]
Pike OFF OTA members protest outside the Dakil Auction House June 10, 2022. News coverage of the public auction can be viewed here (starting at ~27:40).
We must stop this eminent domain abuse. Agencies and developers CANNOT be allowed to profit at the expense of the original landowner who just had everything taken from them; at, many times, an undervalued price.
In order to stop this auctioning of “taken” land to the highest developer bidder, we proposed eminent domain language reform through HB3159.
If our proposed language was all that was in the bill and it made it through the legislative process successfully, I would say that we all just got a MAJOR win in a protective clause to the Landowner’s Bill of Rights that would restore “eminent domained” property to the original owner at a fair price.
But……….
Before it went to the House Judiciary Committee, the following paragraph was added:
Why’d they have to go and ruin a great thing?
I do not know who or which agency convinced the legislators to add this language in, but I can take a guess.
Besides observing evidence of historical (and present-day) land transfers between ODOT and OTA (and vice-a-versa), I do not know how common it is for state agencies to transfer surplus land to other state agencies and what the second state agency might use the land for. Are the ODOT and OTA the ONLY state agencies that do this?
And does this clause make it legal for a state agency to give the land to a County or a City or municipality to use as they see fit? Could they build a jail, a road, a park or a shopping center with that surplus land that was originally taken through eminent domain for a tollroad?
I do not believe the legislators understand how much this one sentence may allow state agencies to continue to abuse the power of eminent domain. The legislators have not experienced two state agencies engaging in a “land” swap to swindle the public.
But we have.
Obviously, I believe this clause is problematic from purely an OTA/ODOT perspective and let me briefly give you an example of why before I get back to HB3159.
Example of an eminent domain acquisition swap between state agencies
Look at the Indian Hills properties that ODOT purchased to rework the Indian Hills/I35 interchange back in 2021…. now that this Indian Hills corridor is part of the proposed East-West Connector of the turnpike, what is ODOT going to do with these properties?
The ODOT acquisitions of these EIGHT (8) properties cost a total of $16,276,327 and at the time of these purchases, this project was NOT included in the 8-year ODOT construction budget (more on this later). So why did ODOT purchase these properties years in advance of their proposed interchange project before it was even budgeted for?
And not to blow your mind a little more, but why did ODOT even need to acquire Andy Alligators property in 2021? It wasn’t even in their proposed interchange upgrade right-of-way plan and *supposedly* OTA’s Access Program had no routes designed until after the February 22, 2022 board meeting.
Well… it’s simple really.
OTA Executive Director Tim Gatz authorized ODOT Deputy Director Tim Gatz to purchase these properties under emergency authorization.
Legal?
Nope… but when you’ve got the Oklahoma State Supreme Court bought, and no other elected official in history has every held them accountable, why the heck not?
Andy Alligators is shown in green and the picture on the left shows Andy Alligators in relationship to ODOT’s proposed frontage road and interchange design with their right-of-way shown in pink.
In the picture on the right, OTA’s Interchange system is superimposed on ODOT’s proposed interchange upgrade and the orange overlay depicts OTA’s right-of-way extents. You can clearly see that the OTA’s right-of-way extends through the middle of the Andy Alligators property.
How can ODOT use taxpayer money to purchase land that isn’t within their project proposed right-of-way and isn’t budgeted for in their 8-year construction plan? Did they mis-read their proposed plan specifications? Where did the money come from? (They have failed to provide that information in multiple open record requests).
How can ODOT legally transfer taxpayer supported *surplus* property to an agency who is forbidden, by state law, to use anything but toll revenue and revenue bonds to finance projects?
How can ODOT advance-purchase land for another agency more than a year before the agency project was announced to the public and who stated publicly that they didn’t have preliminary designs until mid-2022?
Is ODOT clairvoyant?
Did OTA lie UNDER OATH in the Open Meetings Act depositions that they didn’t start *discussing* preliminary roadway alignment plans in the ACCESS program until December 2021?
Can you understand why we don’t want to allow state agencies to swap lands acquired through eminent domain? The potential abuses that come with this practice are immense. Just ask all the poor folks along the Kickapoo, when the OTA bought excess land just to turn around and give it to the County to build frontage roads (or build a jail)….and then sell the rest at the Dakil Auction….. more on this debacle later.
HB3159 ain’t perfect but it is still important
It is not perfect because of meddling special interests with money who get more air-time than constituents exposing the underbelly of a corrupt agency and calling for government accountability. It is not perfect because the government will never give back to the citizens a power it has acquired unless it is forced to.
While I just took a very lengthy detour to explain why I don’t agree with the added sentence in HB3159, and I will spend several more posts detailing how the OTA (and ODOT) engages in what I believe are egregious eminent domain abuse practices, I still think the eminent domain reform of adding in a right-of-first refusal to the original landowner is important.
We NEED YOU to help us get this bill passed with modifications. We NEED YOU to help us educate our legislators. Share this substack post with them. Write them an email. Make a phone call. Go to the Capitol and set a meeting with them. Explain how important eminent domain reform is and why it is important to deter agencies from buying so much surplus land. Tell them that if an agency does acquire surplus land that it is important to give the original landowner the first chance to buy it back. And then explain why the proposed clause of allowing state agencies to transfer land acquired by eminent domain to other state entities is a bad idea.
Contact Senate Majority Floor Leader (and elected presumed President Pro Tempore) Greg McCortney (405-521-5541 or greg.mccortney@oksenate.gov) and encourage him to schedule HB3159 to be discussed on the Senate Floor.
Once you do that, email YOUR senator and ask them to make a floor amendment striking the clause
Stop giving government MORE POWER. Preserve our personal property rights. Stay tuned. Much more to come!
Are you interested in learning more and helping hold a rogue "state instrumentality” accountable to the people? PIKE OFF OTA (501 c4) and Oklahomans for Responsible Transportation, Foundation (501 c3) are leading the charge in legal injunctive avenues and legislative reform and they could use your help. They are trying to dismantle a corrupt Goliath within our state and are doing a great job. Be part of the solution!
www.pikeoffota.com
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