BE CAREFUL WHAT YOUR SAY….IT MAY BE USED AGAINST YOU IN A COURT OF LAW

A Texas defamation of character law suit may set the stage for increased community planner and economic developer law suits.

Kelo and eminent domain ignites legal pushback against public Freeport Texas developer characterization.

Everyone knows today’s land use decisions are contentious pitting those engaged in private development and government officials who support increased tax base against folks impacted by the development and people opposed to new development of “any kind”.

The 1926 Standard Zoning Enabling Act, enacted by almost every state, established the requirement that governments who adopt zoning give the public a voice in the zoning entitlement decision process (typically a public hearing before the municipal planning commission) before a final decision is considered by local elected officials.

The resultant public input during the governmental entitlement process required by law often transcends into public vocalization of fact and fiction, incendiary name calling, rumors and innuendo.

Interestingly, zoning enabling laws typically do not require sworn testimony assuring truthfulness nor is there any means to challenge misinformation or misrepresentation of facts other than to place into the public record a different set of facts challenging misinformation.

Developers have become wise to this discrepancy resulting in an increased number of law suits where facts are ultimately displayed before a judge who becomes, “in many instances” the final land use authority (even though such authority is lacking in law or by common judicial precedents).

In Texas this past week, the court heard and will soon decide the merits of whether the words of an author chronicling the role of a developer and local government using the most contentious land use tool – eminent domain – to condemn and take private property for economic development purposes can be considered defamation of the character of the developer.

This case is based on 90-some claimed instances where the author, Carla T. Main defamed the developer’s reputation in BULLDOZED “KELLO” EMINENT DOMAIN and the AMERICAN LUST for LAND published in 2007.  The claim results from the Freeport Texas Economic Development Corporation (EDC) use of condemnation eminent domain powers to acquire private property (from an unwilling seller) for transfer to developer H. Walker Royall to develop a recreational marina.

As one might expect, the use of eminent domain power was incendiary resulting in legions of supporters and dissenters publically sharing their views during every step of the development approval process; matters recounted in the book.

Factual or not, the defamation of character suit is significant to every community planner and economic developer. 

It raises the question of whether comments offered by the public, an appointed commissioner or professional staffer in the public input process defame the character of the applicant.

This case presents a “slippery slope”, one that community planners and economic developers must take seriously.  Can comments made during a public input deliberative process result in personal defamation of character law suits?

Regardless of the outcome of the Texas case – community planners and economic developers are well advised to exercise caution when making comments about developers and other applicants seeking land use entitlements.   

It’s also time to seek advice and counsel concerning the public input and deliberative process used in decision making….as undoubtedly more litigating will happen.

Community planners and economic developers may also want to review insurance coverage both personal and coverage for citizen volunteer planning commissioners sitting on the many local government boards and commissions.

For more information on H. Walker Royall vs. Carla T. Main go to –

http://www.ij.org/index.php?option=com_content&task=view&id=2519&Itemid=207

http://ownerscounsel.blogspot.com/

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2 Responses to “BE CAREFUL WHAT YOUR SAY….IT MAY BE USED AGAINST YOU IN A COURT OF LAW”

  1. Barry Visel Says:

    OK, so now you know I read these once in a while. If I understand correctly, the eminent domain process offers to purchase land (willingly or not) at the current market value. Perhaps if the requirement was to purchase at the higher of current market value or market value at the conclusion of the project, some landowners might be more inclined to sell. Seems to me this would be more fair to the poor schluck who is asked to give up their land for the so-called public good. What do you think?

    • chuckeckenstahler Says:

      Glad to see someone ready my blog. The facts of the matters are accounted in the book and I believe there were several attempts to reach an economic agreement before condemnation.

      My big concern is not the condemnation but rather the notion that someone can cause a delamination of character law suit for someone characterizing the developer in an unflattering way.

      Such law suits will have a dampening someone speaking about a proposed development and negates the effectiveness of the public input process established in zoning enabling legislation.

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