July 3, 2025 • 29 mins
What happens when the government decides it needs your land? Does the Constitution really allow officials to seize your family home, farm, or business property against your will? The answer might disturb you.
Attorney Clint Schumacher, a leading eminent domain expert, joins us to unravel the complex world where constitutional rights, property ownership, and government power collide. Schumacher pulls back the curtain on a legal process that affects countless Americans but remains widely misunderstood.
We explore the landmark Kelo v. City of New London case that dramatically expanded government's ability to take private property, allowing cities to seize homes for economic development rather than traditional public uses like roads or schools. This controversial Supreme Court decision sparked nationwide outrage and legislative reforms, yet many property owners remain vulnerable.
The conversation takes a deeply human turn as Schumacher describes families losing properties held for generations – land that forms part of their identity, not just their assets. We examine the Henry family farm in New Jersey, owned by the same family for 175 years, now threatened by condemnation for affordable housing. This poignant example highlights how even worthy public goals create profound private sacrifices.
We also demystify the compensation process, revealing the often significant gap between government appraisals and true property value. Schumacher explains why property owners frequently feel shortchanged even when receiving "just compensation," especially when forced to pay their own legal fees from their settlement amounts.
Whether you're a property owner concerned about your rights - even His Eminence...the POPE ---His CHILDHOOD HOME was subject to eminent domain - or simply want to understand this fascinating intersection of law, economics, and human dignity, this episode provides crucial insights into a power that Schumacher calls "a necessary evil." Despite its importance for infrastructure development, nothing government does to innocent citizens feels more invasive than taking their property against their will.
Have questions about your legal rights? Contact us at producer@evenlegal.com. And while we sound smart and lovable, remember: we're not your lawyers, and this isn't legal advice!
Our Guest: Clint Schumacher
Clint Schumacher focuses his litigation practice on eminent domain and government taking litigation. Clint has represented property owners of all sizes that are being impacted by public projects. Before joining his present firm, Dawson & Sodd, Clint represented regional toll authorities and mass-transit authorities in some of the largest projects in north Texas. Clint’s dedication to excellence has led to him receiving the designation of Counselor of Real Estate, as well as that of Texas Super Lawyer in Eminent Domain by Texas Lawyer magazine in 2014-25. He has also been recognized by D Magazine as one of the top lawyers in Dallas. In 2021, Clint released a book on resiliency called Second Wind: Decisions the Resilient Make to Overcome Adversity. Clint is married to his college sweetheart, Jennifer, and they have three boys. Clint is also a dedicated football coach, having coached at Trinity Christian Academy (2016–2025) and Dallas Bills (2009-2017). He is a member of the Texas State High School Coaches Association and the American Football Coaches Association.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Bob Sewell (00:04):
Is that even legal?
It's a question we askourselves on a daily basis.
We ask it about our neighbors,we ask it about our elected
officials, we ask it about ourfamily and sometimes we ask it
to ourselves.
The law is complex and itimpacts everyone all the time,
and that's why we are here.
I'm attorney Bob Sewell andthis is season five of the
(00:26):
Worldwide Podcast that exploresthat one burning question.
Is that even legal?
Let's go.
Today's guest on Is that EvenLegal?
Is Clint Schumacher.
He is an eminent domainattorney in Texas.
He offices out of Dallas andI'm happy to have you on the
(00:48):
show.
Thanks for coming on the show.
Clint Schumacher (00:50):
Man, bob, thank you, Appreciate the
invitation, looking forward toour visit.
Bob Sewell (00:54):
So there's an interesting story in the news
right now that made me want tohave you on the show to talk
about eminent domain.
Show to talk about eminentdomain.
And it sounds very fancy,eminent domain, but it just
basically means the government'sgoing to take your property
right.
And so the story is apparentlythe new Pope he grew up in a
(01:18):
small town or a town calledDalton in Illinois I don't know
how small it is, but it soundslike a small town and his house
is being the town wants tocondemn his house and take over,
use eminent domain to take overhis house and turn it into a
(01:38):
tourist attraction.
And I just, first of all, Ifind it fascinating we have an
American pope and, second of all, that someone wants to go visit
his his middle class upbringingin Salt in Illinois.
But what are we talking aboutwhen we're talking about eminent
domain?
Clint Schumacher (01:58):
Yeah, you bet you know a lot of people are
surprised when they find outthat all of us that own real
property own it subject to ourgovernment taking it if they
need it for a public use.
And that's really the onlyrestriction against the
government exercising that poweris it does have to be for a
public use, and differentjurisdictions, different states,
(02:20):
define what that meansdifferently, and those concepts
come down from our federalconstitution, from state
constitutions, from statestatutes.
But yeah, all of us are subjectto having our property taken if
the government decides it needsit.
Bob Sewell (02:35):
Yeah, and that's the key words, right.
They have to take it for publicuse.
Those are the key words, right.
Clint Schumacher (02:43):
That's right for public use.
Those are the key words.
Right, that's right.
And there was a prettywell-known case that came out of
the US Supreme Court maybe 15years ago called Kelo versus
City of New London.
And until Kelo came out, I tellthem I did eminent domain and
nobody knew what the heck I wastalking about.
But Kelo kind of made thepapers, it made the newscast
because it really got a lot ofpeople worked up.
(03:04):
And the basic story in Kelo wasthe city of New London,
connecticut, decided they wantedto make way for a new developer
to come in and build a largeoffice, complex industrial
facility that was going toprovide a lot of jobs to the
community.
But to do that they were goingto have to take the houses of
many longtime residents, one ofwhom was Suzette Kelo.
(03:27):
And Ms Kelo said no, you're notgoing to do that, you're not
going to take my house.
And she fought them all the wayto the US Supreme Court.
And Bob, that was really thequestion before the court, which
was, in this particularinstance, did the city have a
justified public use to take MsKelo's house for economic
(03:47):
development?
And our Supreme Court at thetime said yes, that's enough,
you can do that and, man, thatcaused a massive outrage across
the country and, like 47different states, passed
statutes to said well, you know,the US Supreme Court may say
that, but that's not the rule ofthe road in our state.
Bob Sewell (04:04):
And they really restricted and tightened down
what public use means in thevarious states to another
private party, and that's notwhat we thought of traditionally
as public purpose, right, Imean, that's not how we
(04:31):
generally think about publicpurpose.
Clint Schumacher (04:32):
How do we generally think about public
purpose?
Yeah, I think you got it.
I mean most people when theythink public purpose they think
highways, they think schoolbuildings.
You know, maybe they thinkelectric lines.
You know they think of thingsthat the city government or the
state government are going tooperate and that everyone in the
public is able to use parks.
But there are a lot of otheruses.
So, for example, pipelinesthat's a big use.
(04:54):
You know oil and gas pipelinesthat's really private companies
that operate those pipelines andthey are given the power in
almost all of our states to comein and acquire property for
that use.
At least in Texas and a numberof other places, the entities
that operate our electric linesare private entities.
You can buy stock in thoseentities and they've been given
(05:17):
the right to come in andexercise eminent domain for
those uses because thelegislatures in our various
states have said well, that's areally important use and if they
don't have the right to comeand condemn, it's going to
restrict this importantinfrastructure from being built.
Bob Sewell (05:34):
Right, and with those I sort of understand right
, because you know, here we haveit, we have a whole federal and
state regulatory system and andwe decided that in America we
want to have power to our homes,we want to have natural gas
piped right into our houses, wedon't want to have it trucked
(05:54):
into our houses, we don't wantto have batteries into our
houses, we want to have thewires and the pipes come in.
And so I sort of understandthat these private entities are
fulfilling government purposes,government regulatory schemes.
But KELA was different becauseit was a development scheme,
(06:14):
right.
Clint Schumacher (06:15):
Yeah, no, that's right.
And the public use in thatparticular case was providing
jobs to the citizens.
And you know, the city of NewLondon said this is something
good for our community.
The state of Connecticut saidyes, this is good for our
community.
And ultimately, the SupremeCourt agreed that's enough of a
public use.
It may not be anymore as we sithere in 2025, but at that time
(06:37):
it was.
Bob Sewell (06:39):
And the other thing that is interesting is what is
defined as how they end uppaying the value they assess.
Because that's an interestingidea Like how do you determine
(07:00):
what is the public use?
Excuse me, not public use.
How do you determine what isthe public use?
You know, excuse me, not publicuse.
How do you determine what thevalue is.
Clint Schumacher (07:07):
Yeah, I mean, thankfully in the US, as opposed
to some other countries, whenthe government does exercise its
right of eminent domain, we areguaranteed in the federal
constitution and in almost everystate constitution the right to
receive in some instances theycall it just compensation, in
other instances they call itfair compensation.
But all that basically boilsdown to this very practical idea
(07:29):
of what is fair market value.
If you and I were going to gomake a trade and neither you nor
I were compelled to sell orcompelled to buy, and we were
just negotiating a purchase,what is the price that we would
arrive at?
And that's what we're supposedto try to reflect for what the
government or a private entitythat has in it domain power,
what they're supposed to pay tothe property owner where they're
(07:51):
taking property and oftentimesyou can figure out the property
that you're actually acquiring.
Most of the time you're prettyclose as to what that is.
You can generally get thatfigured out.
Where you can get a little,where it gets more complicated
is the other thing you get as aproperty owner is damage to your
remaining property.
So if I take a part of yourproperty but I create damage to
(08:14):
the rest of it.
Well, I, the government, haveto pay you for that too.
Now that's where you can getsome very, you know, very large
differences of opinion.
Bob Sewell (08:23):
I think they call that severance damages right.
Clint Schumacher (08:26):
That's right.
Many states call that severancedamages.
That's right.
Bob Sewell (08:28):
So you're you know, maybe you have a five acre
parcel and and maybe it's wortha thousand dollars an acre as it
is.
But then you know, I'm makingthese numbers up, and so we got
five acres, a thousand dollarsan acre $5,000.
But the city takes all but anacre.
(08:48):
Now it's not worth $1,000 anacre.
That final acre is worth $500.
That's what you're talkingabout severance, because it's
just not the value isn't there,like it used to be.
Clint Schumacher (09:00):
Right.
The use is diminished or thevalue is diminished in some way.
That's right.
Yeah, but there's, and that's aninteresting concept, but
there's also a concept called aregulatory taking, right, yeah,
so there's times where thegovernment can pass some
regulation or some legislationthat by itself robs all, or
(09:26):
perhaps a significant amount, ofthe value of your property.
And probably the easiest exampleand the ones that have come up
to the Supreme Court are let'ssay you own beachfront property
in California and that propertyis very valuable if you can put
it to use.
But let's say you live in ajurisdiction in California that
says, you know what?
We've decided that people thathave beachfront property need to
(09:47):
make that property available tothe public so that anybody can
walk up and down it.
Well, now, all of a sudden,your beautiful piece of property
where you're going to buildyour dream house is a lot less
valuable because you can'tcontrol who's walking up and
down in front of it.
That's potentially a regulatorytaking, where there's some
regulation that impacts thevalue of your property.
(10:08):
The government's not physicallytaking it away, but they are
regulating how you can use it orperhaps who you can keep from
using it.
Bob Sewell (10:16):
Yeah, I had a situation arise and this one's
going to amuse you where, on thecity's general plan, they
listed my client's land as apark.
Yeah, there you go.
Listed my client's land as apark, yeah, there you go.
And so now, what do you sellthis property for when you, when
you have a quote unquote, yourland is, quote, unquote a park,
(10:40):
and you know well, now you got aregulatory taking in my opinion
.
And and uh, who's going to buythat land, knowing that the, the
use of that land in the futurewill be a park?
Clint Schumacher (10:55):
That's right.
The other way, the citydesignates it, is reserved green
space, which I think is just afancy way of saying park.
Yeah, as long as you keep it asa yard, we're good.
Bob Sewell (11:06):
Right, so you represent the government
generally on that side right, Ialmost always represent the
property owner.
Clint Schumacher (11:16):
We're on the other side of that.
Bob Sewell (11:18):
Oh, you're on the other side.
Okay, I misunderstood that.
So you are fighting the goodfight for the little guy.
Clint Schumacher (11:24):
Well, that's the way I like to look at it,
Bob.
You know, my friends on theother side of the aisle to
represent the government say,well, it's necessary for us to
do this because we've got tokeep the wheels of government
moving and we've got to haveinfrastructure.
And I get it.
But I do feel like, Bob, I'm onthe right side of that and
fighting the good fight, as youwould say.
Bob Sewell (11:41):
But what amazes me is the differences in opinion,
like on values.
The government comes in and thevalue is always low.
It's always low.
There's a guy who represent thegovernment here out here in
Arizona, last name Lopez, andbehind the people like you,
(12:04):
behind his back, call himlowball Lopez and because he's
an appraiser for the government,and the amazing thing is it's
always 30% less than what theother guy is saying.
How does this work?
How do we?
Clint Schumacher (12:20):
make that determination?
Yeah, so all appraisers andthis is a very expert-driven
field, right?
So generally, the mostimportant people in a trial are
going to be the appraisers onone side or the other, and they
are given somewhat of adifficult task.
I mean, they've got to assumethis hypothetical world where
you actually want to sell yourproperty to the government and
(12:42):
the government is not forced tohave to buy it, which is
completely false.
But that's the hypotheticalworld that we operate in.
And they try to figure out well, what would these two people,
what deal would they come to?
Well, you know, that's hard tofigure out, but what you do is
you try to emulate what peoplewould do if they were in a
normal real estate transaction.
(13:03):
And so what people do is theylook at a couple of different
things.
We have what we call threeapproaches to value.
We have the sales comparisonapproach, the cost approach and
the income approach.
And if you think about it,these things kind of make sense.
And so the sales comparisonapproach is well, what would
another property like this sellfor?
And that's what all of us dowhen we buy houses or we rent
(13:25):
apartments.
Is we look at okay, well, threebedrooms, two baths, a pool,
what does that go for in thisneighborhood?
And we try to pay somethingsimilar to that Cost approach
says well, what would it cost tobuild this from scratch?
If you had to buy the realestate and then build the
building or whatever structureson it, what would that cost?
And that's how much you wouldpay.
Okay, that makes sense.
(13:46):
And then the third is an incomeapproach.
If it's an income producingproperty so think about a
warehouse that gets rented outfor industrial uses and they pay
X dollars per month what isthat income stream worth?
And you can do a calculationand figure that out.
And so you know, theseappraisers are all looking at
data, but at the end of the day,they've got to apply some
(14:07):
judgment to that data.
And there's some that may havea more conservative or lower
valuation from the data they see.
And there's some that may havea more aggressive valuation from
the data they see.
But that's what they're tryingto do.
Bob Sewell (14:20):
What's interesting to me is here in Arizona, a lot
of towns, the infrastructure isbuilt by the developer.
So let's say, I have a you know, I'm certain it's the same
thing out there in Texas, wherethe speculation is on the desert
right.
So people go out and buy desertland and then they just hold it
(14:41):
and the highest and best use ofthe land is buy and hold for 50
years, and that's what they do.
I mean, there's the wholeindustry around buying and
holding and selling these, theseparcels.
So, um, but there are timeswhen you, when they get to the
point, when the city comes outto the desert far enough that
they want to develop, and sowhat the cities around here do
(15:04):
is they say, hey, go ahead and,uh, you build out that road, you
put in that city light, you putin the sidewalks, you put in
the sewer, then you coulddevelop.
And that's just damn expensive.
(15:25):
Yeah, yeah, it is expensive,yeah, yeah it is and.
I mean, we're talking millionsof dollars for, for you know, a
quarter mile of road or whateverit is sometimes, and those and
those, those, you know if you'vegot a corner lot and it's
commercial, you know, and thereyou know that the lights are
(15:46):
going, you have lights andinfrastructure, but and it's
going to be just a hell of a lotof money.
So there are times when thecity, though, they're so sick of
this developer, this propertyowner, and they need to expand
the road, and they say, fine,we're going to build the road
because you're not developingthis and this is an infill lot,
(16:08):
so we're taking 15 feet of yourfrontage.
Those are times when the cityis taking property but they're
actually increasing the value tothe remaining parcel.
How does that work out?
(16:29):
At the end of the day?
You pay the city, or what'shappened there?
Clint Schumacher (16:34):
Yeah, so what you're describing is probably
what we would call an exaction,and cities have the right to
impose upon a developer the costto build the infrastructure
that supports that development,and at some level, when you
think about it, that makes sense.
I mean, otherwise, cities wouldeither go broke or they would
(16:57):
have to charge so much in taxesto everybody else that it would
become a problem, and so if thedeveloper is going to profit
from that neighborhood, it seemsfair that they ought to have to
pay for the infrastructure thatneighborhood requires.
Where you run into trouble,though, sometimes, is you'll
have cities that, let's say, getgreedy and they actually are
requiring the developer to dothings over and above the burden
(17:21):
that that development's goingto put on the city
infrastructure.
So you know you've got adevelopment that's going to put
in 10 houses and they want youto donate the land for a, you
know, six mile wide road.
Well, your 10 houses aren'tgoing to create that much
traffic.
So in that instance we call thatan illegal exaction, and so
that's an exaction.
(17:42):
That is more than the burdenyou're putting on the
infrastructure, which is all thecity can require you to donate.
With regard to your particularquestion, if that donation or
that exaction actually enhancesthe value of the property.
You, the owner, still get paidfor the actual property that is
(18:03):
taken or donated or burdened,but you may not have a good
claim for the damages to therest of your property because
your value went up, it didn't godown.
Does that make sense?
Bob Sewell (18:13):
Yeah, it does.
Is eminent domain a good thing?
Clint Schumacher (18:19):
I think I call it a necessary evil.
I mean, I think without eminentdomain we could not function as
a society like we function now,and so there's a lot of
benefits to having the kind ofinfrastructure that we have, and
you need an eminent domain tomake that infrastructure work.
But at the same time, if you'rean owner of property, there's
(18:43):
nothing.
I don't think there's anythingmore invasive that our
government does to an innocentperson than come in and take
their property against theirwill, and so it's very difficult
when you're in that situation.
And, bob, I talked to familiesthat have had property in their
families for a hundred years.
(19:03):
Their, their great grandfatherbought it and it's just been
handed down from generation togeneration and they never in
their wildest imagination couldever see themselves selling it,
because it's part of who theyare and part of who their family
is, and to have the governmentcome and take it or put
something across it is justemotionally damaging and you
(19:26):
can't get made whole for that.
And so I you know, I think it'snecessary, but I still think it
creates an incredible burdenfor the people that have to bear
that cost.
Bob Sewell (19:36):
There's a there's a farm out in it's New Jersey and
it's become a bit of a politicalfootball.
It's owned by this henry family.
Christopher and andy henryowned the farm and they lease it
out right now, for what Iunderstand, and their town wants
(19:57):
to take it right.
It's been in their family for175 years and they want to put
it to public purpose and they'resaying, well, but I we're not
done with our livelihood andwe're not done ranching.
And what's interesting is we'retaught in law school that land
(20:18):
is unique, that there's nothing.
Each individual land is specialand unique and you can't
replace it.
Individual land is special andunique and you know you can't
replace it.
You know it's hard to imaginethat thought when we're, you
know, when you know most of usin cities live in tract housing
or apartments or whatever, andone apartment doesn't feel that
much different than from anotherapartment.
(20:39):
But people like the Henryfamily, they feel like land is
unique and that this is a partof them, irreplaceable.
That's the way they feel aboutit.
Clint Schumacher (20:52):
Yeah, and Bob, I can't tell you how many
conversations like that I've hadthrough the years and it's
interesting.
You gave me a heads up that youwanted to visit about that
particular case, which I had notheard about until you raised it
with me.
But I reached out to one of myfriends that practices in this
area in New Jersey named TonyDelapel, and Tony was very
(21:12):
familiar with the case and infact sent me a petition because
the Henry family they own it ina corporate entity, henry Realty
Company filed a lawsuit lastweek to stop that taking from
going forward.
But in New Jersey they havethese, I would say, fairly
aggressive affordable housingstatutes and, as I understand it
(21:35):
, where this property was, thetown of Cranberry there was a
court order of some sort that isrequiring the township to build
more affordable housing and sothey have decided that they want
to take the Henry family landto do that.
And so you've got these twocompeting.
You know you've got these twocompeting public, you know, uses
(21:56):
things that the public woulddeem important.
On the one hand you've gotaffordable housing I think
pretty much everyone would agreewe need more affordable housing
and on the other end, you'vegot somebody's private property.
Well, you know, cranberry, newJersey, can't build affordable
housing without finding someland to build it on.
And they just happened todecide that the Henry family
(22:17):
land, for whatever reason, wasthe right place to do it.
Well, you know, as you've said,that is the Henry family land.
I mean, that's their uniqueplot of land and they've got
whatever memories they've gotbuilt up into that piece of
property.
And so you've got these twovery important competing values
going up against each other and,at the end of the day, one of
them is going to have to give.
Either Henry is going to haveto give up the land or Henry's
(22:39):
successful in this challenge andthe town of Cranberry has to go
find somewhere else to build.
Bob Sewell (22:48):
The Constitution says for the Fifth Amendment to
the Constitution that says thatyou cannot take private property
.
The government cannot takeprivate property for public use
without just compensation.
We talked about that term justcompensation.
Is this the best system or isthere something else that we
(23:08):
could be doing, like I mean wethink about?
Let me put this into moreperspective.
Anyone who's visited New Yorkhas been to Central Park.
Central Park did not start outas Central Park.
That was owned by other peopleand it was confiscated or
(23:31):
condemned eminent domain,however you call it for the
public use.
And without that process andpeople still feel that what
happened there was unfair, howthey gave the compensation,
people still feel it's unfair,but nonetheless we did it and
(23:54):
the city of New York hasbenefited from Central Park for
however many years it's beenaround a couple hundred years,
if I'm not mistaken.
Is there a better system?
Should we in this country bethinking about something else?
Clint Schumacher (24:09):
Man?
That's a great question, bob.
I think, globally, if there's abetter system, I don't know
what it is, but, as with allthings, there are times where
the system gets abused andthere's times where a local
government or a private entitywith eminent domain power
(24:31):
exercises that power in a waythat is just not very prudent,
not very smart, not very, youknow, more short-sighted than
far-sighted.
And so you know, I don't thinkthere's a better system.
But I think there are certainlyinstances where the people
operating that system makeerrors in judgment, sometimes,
(24:53):
frankly, errors in morals, orsometimes it just there would be
a better way to handle aspecific instance.
But globally, I mean, I thinkit's probably something,
unfortunately, that we have tohave to make our society work.
Bob Sewell (25:11):
I tend to agree, and our system is good.
I mean, if I go to China I'mnot paid, just compensation.
They just take it.
Clint Schumacher (25:22):
Yeah, exactly right, that's right.
Bob Sewell (25:25):
And at least here I'm going to get something for
my sacrifice, right?
Clint Schumacher (25:31):
Well, that's right, and you know you get in
almost all of our states.
You would have a jury of yourpeers.
If you couldn't ever decide howmuch you were due, a jury of
your peers would answer thatquestion for you and for whoever
was taking your property.
And at the end of the day, youknow we've decided in America.
That's justice and you know so.
At least you have a remedy.
Bob Sewell (25:51):
Attorney's fees.
I want to talk about thatbecause that's kind of a rub and
in a lot of states, at leasthere in Arizona, the chances of
getting attorney's fees in aneminent domain case.
So I, you know I'm worth everydollar people spend on me, right
I mean, that's the way I viewit, but right I mean, but
there's a cost benefit andArizona generally, you don't get
(26:14):
attorney's fees in acondemnation case.
So you go up against thegovernment, the government pays
its fees and the homeowner orthe property owner pays his or
her fees.
Is that a common system and isthat a problem generally?
Clint Schumacher (26:32):
I do think that's a burden on property
owners, but that is the majoritysystem in the US, that the
government is not obligated topay the landowner's attorney's
fees.
And I think the argument thatproperty owners would make and
that I make when I have thisdiscussion with people, because
it's the same way in my homestate of Texas is you're really
not making a property ownerwhole.
(26:52):
If they've got to and I'm likeyou, bob, I think I'm worth
every penny I charge but if theproperty owner's got to pay me
out of what they get as fairmarket value, then they really
haven't gotten fair market value.
They've gotten something lessthan that because of the cost to
get it value.
They've gotten something lessthan that because of the cost to
get it.
On the other hand, there arestates like Florida is probably
(27:13):
the prime example where theproperty owner's counsel or
lawyer and their experts all getpaid for by the government.
Well, that makes governmentprojects more expensive.
And so the government wouldargue well, look, if we have to
pay that additional cost, thenthat is just.
Either one of two things happen.
Either one, we've got toincrease the tax base to make up
(27:33):
for it, or two, we do lessprojects and because the taxing
question is largely a politicalquestion, not an eminent domain
question, it probably just meansthey do less projects, and so
you know that's the balancing orthe competing interest of that.
Bob Sewell (27:47):
I want to thank you for coming on, clint.
It's been really good it's been.
You're obviously a pro in whatyou're doing and I'm certain you
represent your clients verywell, so thank you for coming on
and talking about the subject.
Clint Schumacher (27:58):
Man, bob, I sure did appreciate getting to
visit with you.
I know there's.
You know, when you wake up inthe morning most people don't
think well, gosh, I'd love tohave a conversation about
eminent domain, but I thinkabout it almost every day.
I find it fascinating.
It's this interesting littleintersection of constitutional
rights, civil rights andproperty rights.
And you know, and like I say,it's a necessary evil, but we
(28:20):
try to help people get madewhole on the backside of it, and
so to get to visit with you onyour show, on your platform, has
been a great honor.
Bob Sewell (28:27):
Thanks for listening to the podcast Is that even
legal is now listened to in 100countries and available on
virtually all podcast platforms.
Leave us a review, send us someshow ideas and do so at
producer at even legalcom.
Don't forget, as smart as wesound and as lovable as we are,
(28:47):
we are not your lawyers and weare not giving you legal advice.
But if you need some legaladvice, get some.
There are some great lawyersout there and we are always
ready to help.
See you next time.
Is that even legal?
It's a question we askourselves on a daily basis.
We ask it about our neighbors,we ask it about our elected
officials, we ask it about ourfamily and sometimes we ask it
to ourselves.
The law is complex and itimpacts everyone all the time,
and that's why we are here.
I'm attorney Bob Sewell andthis is season five of the
(00:26):
Worldwide Podcast that exploresthat one burning question.
Is that even legal?
Let's go.
Today's guest on Is that EvenLegal?
Is Clint Schumacher.
He is an eminent domainattorney in Texas.
He offices out of Dallas andI'm happy to have you on the
(00:48):
show.
Thanks for coming on the show.
Clint Schumacher (00:50):
Man, bob, thank you, Appreciate the
invitation, looking forward toour visit.
Bob Sewell (00:54):
So there's an interesting story in the news
right now that made me want tohave you on the show to talk
about eminent domain.
Show to talk about eminentdomain.
And it sounds very fancy,eminent domain, but it just
basically means the government'sgoing to take your property
right.
And so the story is apparentlythe new Pope he grew up in a
(01:18):
small town or a town calledDalton in Illinois I don't know
how small it is, but it soundslike a small town and his house
is being the town wants tocondemn his house and take over,
use eminent domain to take overhis house and turn it into a
(01:38):
tourist attraction.
And I just, first of all, Ifind it fascinating we have an
American pope and, second of all, that someone wants to go visit
his his middle class upbringingin Salt in Illinois.
But what are we talking aboutwhen we're talking about eminent
domain?
Clint Schumacher (01:58):
Yeah, you bet you know a lot of people are
surprised when they find outthat all of us that own real
property own it subject to ourgovernment taking it if they
need it for a public use.
And that's really the onlyrestriction against the
government exercising that poweris it does have to be for a
public use, and differentjurisdictions, different states,
(02:20):
define what that meansdifferently, and those concepts
come down from our federalconstitution, from state
constitutions, from statestatutes.
But yeah, all of us are subjectto having our property taken if
the government decides it needsit.
Bob Sewell (02:35):
Yeah, and that's the key words, right.
They have to take it for publicuse.
Those are the key words, right.
Clint Schumacher (02:43):
That's right for public use.
Those are the key words.
Right, that's right.
And there was a prettywell-known case that came out of
the US Supreme Court maybe 15years ago called Kelo versus
City of New London.
And until Kelo came out, I tellthem I did eminent domain and
nobody knew what the heck I wastalking about.
But Kelo kind of made thepapers, it made the newscast
because it really got a lot ofpeople worked up.
(03:04):
And the basic story in Kelo wasthe city of New London,
connecticut, decided they wantedto make way for a new developer
to come in and build a largeoffice, complex industrial
facility that was going toprovide a lot of jobs to the
community.
But to do that they were goingto have to take the houses of
many longtime residents, one ofwhom was Suzette Kelo.
(03:27):
And Ms Kelo said no, you're notgoing to do that, you're not
going to take my house.
And she fought them all the wayto the US Supreme Court.
And Bob, that was really thequestion before the court, which
was, in this particularinstance, did the city have a
justified public use to take MsKelo's house for economic
(03:47):
development?
And our Supreme Court at thetime said yes, that's enough,
you can do that and, man, thatcaused a massive outrage across
the country and, like 47different states, passed
statutes to said well, you know,the US Supreme Court may say
that, but that's not the rule ofthe road in our state.
Bob Sewell (04:04):
And they really restricted and tightened down
what public use means in thevarious states to another
private party, and that's notwhat we thought of traditionally
as public purpose, right, Imean, that's not how we
(04:31):
generally think about publicpurpose.
Clint Schumacher (04:32):
How do we generally think about public
purpose?
Yeah, I think you got it.
I mean most people when theythink public purpose they think
highways, they think schoolbuildings.
You know, maybe they thinkelectric lines.
You know they think of thingsthat the city government or the
state government are going tooperate and that everyone in the
public is able to use parks.
But there are a lot of otheruses.
So, for example, pipelinesthat's a big use.
(04:54):
You know oil and gas pipelinesthat's really private companies
that operate those pipelines andthey are given the power in
almost all of our states to comein and acquire property for
that use.
At least in Texas and a numberof other places, the entities
that operate our electric linesare private entities.
You can buy stock in thoseentities and they've been given
(05:17):
the right to come in andexercise eminent domain for
those uses because thelegislatures in our various
states have said well, that's areally important use and if they
don't have the right to comeand condemn, it's going to
restrict this importantinfrastructure from being built.
Bob Sewell (05:34):
Right, and with those I sort of understand right
, because you know, here we haveit, we have a whole federal and
state regulatory system and andwe decided that in America we
want to have power to our homes,we want to have natural gas
piped right into our houses, wedon't want to have it trucked
(05:54):
into our houses, we don't wantto have batteries into our
houses, we want to have thewires and the pipes come in.
And so I sort of understandthat these private entities are
fulfilling government purposes,government regulatory schemes.
But KELA was different becauseit was a development scheme,
(06:14):
right.
Clint Schumacher (06:15):
Yeah, no, that's right.
And the public use in thatparticular case was providing
jobs to the citizens.
And you know, the city of NewLondon said this is something
good for our community.
The state of Connecticut saidyes, this is good for our
community.
And ultimately, the SupremeCourt agreed that's enough of a
public use.
It may not be anymore as we sithere in 2025, but at that time
(06:37):
it was.
Bob Sewell (06:39):
And the other thing that is interesting is what is
defined as how they end uppaying the value they assess.
Because that's an interestingidea Like how do you determine
(07:00):
what is the public use?
Excuse me, not public use.
How do you determine what isthe public use?
You know, excuse me, not publicuse.
How do you determine what thevalue is.
Clint Schumacher (07:07):
Yeah, I mean, thankfully in the US, as opposed
to some other countries, whenthe government does exercise its
right of eminent domain, we areguaranteed in the federal
constitution and in almost everystate constitution the right to
receive in some instances theycall it just compensation, in
other instances they call itfair compensation.
But all that basically boilsdown to this very practical idea
(07:29):
of what is fair market value.
If you and I were going to gomake a trade and neither you nor
I were compelled to sell orcompelled to buy, and we were
just negotiating a purchase,what is the price that we would
arrive at?
And that's what we're supposedto try to reflect for what the
government or a private entitythat has in it domain power,
what they're supposed to pay tothe property owner where they're
(07:51):
taking property and oftentimesyou can figure out the property
that you're actually acquiring.
Most of the time you're prettyclose as to what that is.
You can generally get thatfigured out.
Where you can get a little,where it gets more complicated
is the other thing you get as aproperty owner is damage to your
remaining property.
So if I take a part of yourproperty but I create damage to
(08:14):
the rest of it.
Well, I, the government, haveto pay you for that too.
Now that's where you can getsome very, you know, very large
differences of opinion.
Bob Sewell (08:23):
I think they call that severance damages right.
Clint Schumacher (08:26):
That's right.
Many states call that severancedamages.
That's right.
Bob Sewell (08:28):
So you're you know, maybe you have a five acre
parcel and and maybe it's wortha thousand dollars an acre as it
is.
But then you know, I'm makingthese numbers up, and so we got
five acres, a thousand dollarsan acre $5,000.
But the city takes all but anacre.
(08:48):
Now it's not worth $1,000 anacre.
That final acre is worth $500.
That's what you're talkingabout severance, because it's
just not the value isn't there,like it used to be.
Clint Schumacher (09:00):
Right.
The use is diminished or thevalue is diminished in some way.
That's right.
Yeah, but there's, and that's aninteresting concept, but
there's also a concept called aregulatory taking, right, yeah,
so there's times where thegovernment can pass some
regulation or some legislationthat by itself robs all, or
(09:26):
perhaps a significant amount, ofthe value of your property.
And probably the easiest exampleand the ones that have come up
to the Supreme Court are let'ssay you own beachfront property
in California and that propertyis very valuable if you can put
it to use.
But let's say you live in ajurisdiction in California that
says, you know what?
We've decided that people thathave beachfront property need to
(09:47):
make that property available tothe public so that anybody can
walk up and down it.
Well, now, all of a sudden,your beautiful piece of property
where you're going to buildyour dream house is a lot less
valuable because you can'tcontrol who's walking up and
down in front of it.
That's potentially a regulatorytaking, where there's some
regulation that impacts thevalue of your property.
(10:08):
The government's not physicallytaking it away, but they are
regulating how you can use it orperhaps who you can keep from
using it.
Bob Sewell (10:16):
Yeah, I had a situation arise and this one's
going to amuse you where, on thecity's general plan, they
listed my client's land as apark.
Yeah, there you go.
Listed my client's land as apark, yeah, there you go.
And so now, what do you sellthis property for when you, when
you have a quote unquote, yourland is, quote, unquote a park,
(10:40):
and you know well, now you got aregulatory taking in my opinion
.
And and uh, who's going to buythat land, knowing that the, the
use of that land in the futurewill be a park?
Clint Schumacher (10:55):
That's right.
The other way, the citydesignates it, is reserved green
space, which I think is just afancy way of saying park.
Yeah, as long as you keep it asa yard, we're good.
Bob Sewell (11:06):
Right, so you represent the government
generally on that side right, Ialmost always represent the
property owner.
Clint Schumacher (11:16):
We're on the other side of that.
Bob Sewell (11:18):
Oh, you're on the other side.
Okay, I misunderstood that.
So you are fighting the goodfight for the little guy.
Clint Schumacher (11:24):
Well, that's the way I like to look at it,
Bob.
You know, my friends on theother side of the aisle to
represent the government say,well, it's necessary for us to
do this because we've got tokeep the wheels of government
moving and we've got to haveinfrastructure.
And I get it.
But I do feel like, Bob, I'm onthe right side of that and
fighting the good fight, as youwould say.
Bob Sewell (11:41):
But what amazes me is the differences in opinion,
like on values.
The government comes in and thevalue is always low.
It's always low.
There's a guy who represent thegovernment here out here in
Arizona, last name Lopez, andbehind the people like you,
(12:04):
behind his back, call himlowball Lopez and because he's
an appraiser for the government,and the amazing thing is it's
always 30% less than what theother guy is saying.
How does this work?
How do we?
Clint Schumacher (12:20):
make that determination?
Yeah, so all appraisers andthis is a very expert-driven
field, right?
So generally, the mostimportant people in a trial are
going to be the appraisers onone side or the other, and they
are given somewhat of adifficult task.
I mean, they've got to assumethis hypothetical world where
you actually want to sell yourproperty to the government and
(12:42):
the government is not forced tohave to buy it, which is
completely false.
But that's the hypotheticalworld that we operate in.
And they try to figure out well, what would these two people,
what deal would they come to?
Well, you know, that's hard tofigure out, but what you do is
you try to emulate what peoplewould do if they were in a
normal real estate transaction.
(13:03):
And so what people do is theylook at a couple of different
things.
We have what we call threeapproaches to value.
We have the sales comparisonapproach, the cost approach and
the income approach.
And if you think about it,these things kind of make sense.
And so the sales comparisonapproach is well, what would
another property like this sellfor?
And that's what all of us dowhen we buy houses or we rent
(13:25):
apartments.
Is we look at okay, well, threebedrooms, two baths, a pool,
what does that go for in thisneighborhood?
And we try to pay somethingsimilar to that Cost approach
says well, what would it cost tobuild this from scratch?
If you had to buy the realestate and then build the
building or whatever structureson it, what would that cost?
And that's how much you wouldpay.
Okay, that makes sense.
(13:46):
And then the third is an incomeapproach.
If it's an income producingproperty so think about a
warehouse that gets rented outfor industrial uses and they pay
X dollars per month what isthat income stream worth?
And you can do a calculationand figure that out.
And so you know, theseappraisers are all looking at
data, but at the end of the day,they've got to apply some
(14:07):
judgment to that data.
And there's some that may havea more conservative or lower
valuation from the data they see.
And there's some that may havea more aggressive valuation from
the data they see.
But that's what they're tryingto do.
Bob Sewell (14:20):
What's interesting to me is here in Arizona, a lot
of towns, the infrastructure isbuilt by the developer.
So let's say, I have a you know, I'm certain it's the same
thing out there in Texas, wherethe speculation is on the desert
right.
So people go out and buy desertland and then they just hold it
(14:41):
and the highest and best use ofthe land is buy and hold for 50
years, and that's what they do.
I mean, there's the wholeindustry around buying and
holding and selling these, theseparcels.
So, um, but there are timeswhen you, when they get to the
point, when the city comes outto the desert far enough that
they want to develop, and sowhat the cities around here do
(15:04):
is they say, hey, go ahead and,uh, you build out that road, you
put in that city light, you putin the sidewalks, you put in
the sewer, then you coulddevelop.
And that's just damn expensive.
(15:25):
Yeah, yeah, it is expensive,yeah, yeah it is and.
I mean, we're talking millionsof dollars for, for you know, a
quarter mile of road or whateverit is sometimes, and those and
those, those, you know if you'vegot a corner lot and it's
commercial, you know, and thereyou know that the lights are
(15:46):
going, you have lights andinfrastructure, but and it's
going to be just a hell of a lotof money.
So there are times when thecity, though, they're so sick of
this developer, this propertyowner, and they need to expand
the road, and they say, fine,we're going to build the road
because you're not developingthis and this is an infill lot,
(16:08):
so we're taking 15 feet of yourfrontage.
Those are times when the cityis taking property but they're
actually increasing the value tothe remaining parcel.
How does that work out?
(16:29):
At the end of the day?
You pay the city, or what'shappened there?
Clint Schumacher (16:34):
Yeah, so what you're describing is probably
what we would call an exaction,and cities have the right to
impose upon a developer the costto build the infrastructure
that supports that development,and at some level, when you
think about it, that makes sense.
I mean, otherwise, cities wouldeither go broke or they would
(16:57):
have to charge so much in taxesto everybody else that it would
become a problem, and so if thedeveloper is going to profit
from that neighborhood, it seemsfair that they ought to have to
pay for the infrastructure thatneighborhood requires.
Where you run into trouble,though, sometimes, is you'll
have cities that, let's say, getgreedy and they actually are
requiring the developer to dothings over and above the burden
(17:21):
that that development's goingto put on the city
infrastructure.
So you know you've got adevelopment that's going to put
in 10 houses and they want youto donate the land for a, you
know, six mile wide road.
Well, your 10 houses aren'tgoing to create that much
traffic.
So in that instance we call thatan illegal exaction, and so
that's an exaction.
(17:42):
That is more than the burdenyou're putting on the
infrastructure, which is all thecity can require you to donate.
With regard to your particularquestion, if that donation or
that exaction actually enhancesthe value of the property.
You, the owner, still get paidfor the actual property that is
(18:03):
taken or donated or burdened,but you may not have a good
claim for the damages to therest of your property because
your value went up, it didn't godown.
Does that make sense?
Bob Sewell (18:13):
Yeah, it does.
Is eminent domain a good thing?
Clint Schumacher (18:19):
I think I call it a necessary evil.
I mean, I think without eminentdomain we could not function as
a society like we function now,and so there's a lot of
benefits to having the kind ofinfrastructure that we have, and
you need an eminent domain tomake that infrastructure work.
But at the same time, if you'rean owner of property, there's
(18:43):
nothing.
I don't think there's anythingmore invasive that our
government does to an innocentperson than come in and take
their property against theirwill, and so it's very difficult
when you're in that situation.
And, bob, I talked to familiesthat have had property in their
families for a hundred years.
(19:03):
Their, their great grandfatherbought it and it's just been
handed down from generation togeneration and they never in
their wildest imagination couldever see themselves selling it,
because it's part of who theyare and part of who their family
is, and to have the governmentcome and take it or put
something across it is justemotionally damaging and you
(19:26):
can't get made whole for that.
And so I you know, I think it'snecessary, but I still think it
creates an incredible burdenfor the people that have to bear
that cost.
Bob Sewell (19:36):
There's a there's a farm out in it's New Jersey and
it's become a bit of a politicalfootball.
It's owned by this henry family.
Christopher and andy henryowned the farm and they lease it
out right now, for what Iunderstand, and their town wants
(19:57):
to take it right.
It's been in their family for175 years and they want to put
it to public purpose and they'resaying, well, but I we're not
done with our livelihood andwe're not done ranching.
And what's interesting is we'retaught in law school that land
(20:18):
is unique, that there's nothing.
Each individual land is specialand unique and you can't
replace it.
Individual land is special andunique and you know you can't
replace it.
You know it's hard to imaginethat thought when we're, you
know, when you know most of usin cities live in tract housing
or apartments or whatever, andone apartment doesn't feel that
much different than from anotherapartment.
(20:39):
But people like the Henryfamily, they feel like land is
unique and that this is a partof them, irreplaceable.
That's the way they feel aboutit.
Clint Schumacher (20:52):
Yeah, and Bob, I can't tell you how many
conversations like that I've hadthrough the years and it's
interesting.
You gave me a heads up that youwanted to visit about that
particular case, which I had notheard about until you raised it
with me.
But I reached out to one of myfriends that practices in this
area in New Jersey named TonyDelapel, and Tony was very
(21:12):
familiar with the case and infact sent me a petition because
the Henry family they own it ina corporate entity, henry Realty
Company filed a lawsuit lastweek to stop that taking from
going forward.
But in New Jersey they havethese, I would say, fairly
aggressive affordable housingstatutes and, as I understand it
(21:35):
, where this property was, thetown of Cranberry there was a
court order of some sort that isrequiring the township to build
more affordable housing and sothey have decided that they want
to take the Henry family landto do that.
And so you've got these twocompeting.
You know you've got these twocompeting public, you know, uses
(21:56):
things that the public woulddeem important.
On the one hand you've gotaffordable housing I think
pretty much everyone would agreewe need more affordable housing
and on the other end, you'vegot somebody's private property.
Well, you know, cranberry, newJersey, can't build affordable
housing without finding someland to build it on.
And they just happened todecide that the Henry family
(22:17):
land, for whatever reason, wasthe right place to do it.
Well, you know, as you've said,that is the Henry family land.
I mean, that's their uniqueplot of land and they've got
whatever memories they've gotbuilt up into that piece of
property.
And so you've got these twovery important competing values
going up against each other and,at the end of the day, one of
them is going to have to give.
Either Henry is going to haveto give up the land or Henry's
(22:39):
successful in this challenge andthe town of Cranberry has to go
find somewhere else to build.
Bob Sewell (22:48):
The Constitution says for the Fifth Amendment to
the Constitution that says thatyou cannot take private property
.
The government cannot takeprivate property for public use
without just compensation.
We talked about that term justcompensation.
Is this the best system or isthere something else that we
(23:08):
could be doing, like I mean wethink about?
Let me put this into moreperspective.
Anyone who's visited New Yorkhas been to Central Park.
Central Park did not start outas Central Park.
That was owned by other peopleand it was confiscated or
(23:31):
condemned eminent domain,however you call it for the
public use.
And without that process andpeople still feel that what
happened there was unfair, howthey gave the compensation,
people still feel it's unfair,but nonetheless we did it and
(23:54):
the city of New York hasbenefited from Central Park for
however many years it's beenaround a couple hundred years,
if I'm not mistaken.
Is there a better system?
Should we in this country bethinking about something else?
Clint Schumacher (24:09):
Man?
That's a great question, bob.
I think, globally, if there's abetter system, I don't know
what it is, but, as with allthings, there are times where
the system gets abused andthere's times where a local
government or a private entitywith eminent domain power
(24:31):
exercises that power in a waythat is just not very prudent,
not very smart, not very, youknow, more short-sighted than
far-sighted.
And so you know, I don't thinkthere's a better system.
But I think there are certainlyinstances where the people
operating that system makeerrors in judgment, sometimes,
(24:53):
frankly, errors in morals, orsometimes it just there would be
a better way to handle aspecific instance.
But globally, I mean, I thinkit's probably something,
unfortunately, that we have tohave to make our society work.
Bob Sewell (25:11):
I tend to agree, and our system is good.
I mean, if I go to China I'mnot paid, just compensation.
They just take it.
Clint Schumacher (25:22):
Yeah, exactly right, that's right.
Bob Sewell (25:25):
And at least here I'm going to get something for
my sacrifice, right?
Clint Schumacher (25:31):
Well, that's right, and you know you get in
almost all of our states.
You would have a jury of yourpeers.
If you couldn't ever decide howmuch you were due, a jury of
your peers would answer thatquestion for you and for whoever
was taking your property.
And at the end of the day, youknow we've decided in America.
That's justice and you know so.
At least you have a remedy.
Bob Sewell (25:51):
Attorney's fees.
I want to talk about thatbecause that's kind of a rub and
in a lot of states, at leasthere in Arizona, the chances of
getting attorney's fees in aneminent domain case.
So I, you know I'm worth everydollar people spend on me, right
I mean, that's the way I viewit, but right I mean, but
there's a cost benefit andArizona generally, you don't get
(26:14):
attorney's fees in acondemnation case.
So you go up against thegovernment, the government pays
its fees and the homeowner orthe property owner pays his or
her fees.
Is that a common system and isthat a problem generally?
Clint Schumacher (26:32):
I do think that's a burden on property
owners, but that is the majoritysystem in the US, that the
government is not obligated topay the landowner's attorney's
fees.
And I think the argument thatproperty owners would make and
that I make when I have thisdiscussion with people, because
it's the same way in my homestate of Texas is you're really
not making a property ownerwhole.
(26:52):
If they've got to and I'm likeyou, bob, I think I'm worth
every penny I charge but if theproperty owner's got to pay me
out of what they get as fairmarket value, then they really
haven't gotten fair market value.
They've gotten something lessthan that because of the cost to
get it value.
They've gotten something lessthan that because of the cost to
get it.
On the other hand, there arestates like Florida is probably
(27:13):
the prime example where theproperty owner's counsel or
lawyer and their experts all getpaid for by the government.
Well, that makes governmentprojects more expensive.
And so the government wouldargue well, look, if we have to
pay that additional cost, thenthat is just.
Either one of two things happen.
Either one, we've got toincrease the tax base to make up
(27:33):
for it, or two, we do lessprojects and because the taxing
question is largely a politicalquestion, not an eminent domain
question, it probably just meansthey do less projects, and so
you know that's the balancing orthe competing interest of that.
Bob Sewell (27:47):
I want to thank you for coming on, clint.
It's been really good it's been.
You're obviously a pro in whatyou're doing and I'm certain you
represent your clients verywell, so thank you for coming on
and talking about the subject.
Clint Schumacher (27:58):
Man, bob, I sure did appreciate getting to
visit with you.
I know there's.
You know, when you wake up inthe morning most people don't
think well, gosh, I'd love tohave a conversation about
eminent domain, but I thinkabout it almost every day.
I find it fascinating.
It's this interesting littleintersection of constitutional
rights, civil rights andproperty rights.
And you know, and like I say,it's a necessary evil, but we
(28:20):
try to help people get madewhole on the backside of it, and
so to get to visit with you onyour show, on your platform, has
been a great honor.
Bob Sewell (28:27):
Thanks for listening to the podcast Is that even
legal is now listened to in 100countries and available on
virtually all podcast platforms.
Leave us a review, send us someshow ideas and do so at
producer at even legalcom.
Don't forget, as smart as wesound and as lovable as we are,
(28:47):
we are not your lawyers and weare not giving you legal advice.
But if you need some legaladvice, get some.
There are some great lawyersout there and we are always
ready to help.
See you next time.
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