Janek: "House amendments were crafted to create more litigation."

Legislation will not save property in path of TTC

7/23/05

By Kurt Johnson
Taylor Daily Press Copyright 2005

Even if the Texas Legislature limits property condemnations through eminent domain, the bill won't protect property owners vulnerable to the Trans Texas Corridor (TTC) or any other transportation artery.

Eastern Williamson County remains in the proposed path of a massive state plan to address Texas' long-term highway and rail transportation needs. One north-south route, a rail component, is on the drawing board for the Taylor and Coupland areas but hasn't been finalized.

A bill to limit property seizures under eminent domain was introduced in the special legislative session that ended Wednesday but the bill, like a pair of education bills the session was convened to address, failed.

Governor Rick Perry added the eminent domain issue to his call for the special session in response to a recent U.S. Supreme Court ruling allowing local governments to seize private property for economic development.

While expanding the scope of eminent domain condemnations, the court also said states were free to further limit eminent domain powers if they chose. That's what Perry sought to do in the legislative session after he and other lawmakers received phone calls and other communications from people opposed to property seizures for economic development.

While lawmakers say they want to limit the ability of all levels of government to take private property, they've steered away from protecting land needed for public projects like highways and railroads. Any legislation that passes might protect citizens from having their property condemned so it can be re-sold to private developers, but it won't offer protection from condemnation to build highways, railroads or similar infrastructure.

During the special session, the eminent-domain legislation favoring property owners was killed by Sen. Kyle Janek, a Republican from Houston who was the Senate sponsor of the bill. Janek said he objected to House amendments that "were crafted to create more litigation."

An exception to that premise is a provision in Janek's bill that would have allowed the City of Arlington to condemn property but then hand it over to the Dallas Cowboys so the NFL franchise could build a new stadium. The rationale for the exception is that the bonds for the project already have been sold.

Because the House and Senate initially passed different versions of the eminent domain bill, a conference committee was appointed to work out a compromise.

However, Rep. Frank Corte, a Republican from San Antonio, convinced more than 90 of his fellow House members not to negotiate with the Senate, contending it would weaken the bill.

The disagreement between Janek and Corte on the bill involved a provision that would require governments to pay replacement value - rather than fair market value - when property is seized. Corte wanted the "fair market value" language in the bill, but Janek said putting it in would create "a litigation nightmare."

Corte also said the Senate planned to remove an amendment by Rep. Terry Keel of Austin that would have prevented a government entity from claiming a public seizure for safety or health reasons when the underlying reason was really economic development.

Representative Beverly Woolley of Houston introduced another eminent domain bill in the House, but it also failed to pass amid the Janek-Corte controversy and the school finance complications that absorbed most of the lawmakers' attention during the session.

As the newly-called special session began Thursday, Perry had not expanded the scope of the session to consider anything other than public school finance. However, eminent domain, telecommunications legislation and judicial pay raises could be included in the new session as it progresses, just as they were in the session which just ended without any legislation being passed.

Taylor Daily Press: www.taylordailypress.net

“We want a tough bill. We made it really strong. They wanted to take things off.”

Eminent domain bills refiled in Legislature

July 22, 2005

From staff reports
Kerrville Daily Times
Copyright 2005

State Rep. Frank J. Corte Jr. of San Antonio re-filed two linked bills on Thursday to provide private property owners protection from eminent domain actions for the purposes of economic development.

In the final days of the first special session, the bills geared toward protecting property owners died due to disagreements in the various measures.

Kerrville state Rep. Harvey Hilderbran said Wednesday evening that House Representatives will fight to ensure a strong bill opposing the U.S. Supreme Court’s eminent domain decision allowing land to be seized for economic purposes will be opposed.

Speaking from Austin shortly before the conclusion of the first special session, Hilderbran said the Texas Senate had wanted a “watered-down” version of the legislation that passed the House.

“We want a tough bill,” he said. “We made it really strong. They wanted to take things off.”

House representatives rejected a Senate committee’s rewrite of the original House Combine Resolution. With the failure of the Legislature to reach agreement on school financing, Gov. Rick Perry called a second special session, which will provide an opportunity for some other legislation to be considered further.

If Texas approves a measure, it will join at least eight other states — Arkansas, Florida, Illinois, Kentucky, Maine, Montana, South Carolina and Washington — which already have laws forbidding such seizures of property.

The High Court placed the duty to decide on the individual government bodies. Texas legislators say they are reacting to protect residents and considering bills to bar the taking of private property solely for economic development.

“Texas property owners have spoken loud and clear on this issue and hopefully this second time will be a charm,” said Corte in a statement made after filing the bills Thursday. “Both bodies of the Legislature, the governor and the people of Texas all agree that the Texas legislators need to act immediately. I will continue this push.”

“HJR 11 and HB 12 will put broad protections into the State Constitution and will further define the issue to clarify the specifics of implementation,” he said.

“These bills are two of the first proposals filed this session, and I will also urge the governor to add this issue to the call again to ensure that meaningful legislation is passed,” Corte said. “We were caught off guard last month by the Supreme Court and that slowed down the process, but legislators have now had time to study exactly what is needed in Texas law and I think we can get something passed over the next 30 days.”

© 2005 Kerrville Daily Times: www.dailytimes.com

"Local and state authorities have stretched 'public use' to be synonymous with what their Ouija boards tell them."

Taking a sucker punch is supposed to teach you a lesson

7/20/05

Op-Ed By Alan Krigman
The Weekly Press & The University City Review
Copyright 2005

Members of the American middle class got sucker punched in June. Most didn't know it was coming. Many don't know what hit them. Some still haven't figured out why it happened. And more than a few won't learn anything from the experience.

I allude to Kelo v. New London, a 5-4 decision by the United States Supreme Court. The five nominal liberals (Stevens, Souter, Kennedy, Ginsberg, and Breyer) overruled the three ostensible conservatives (Scalia, Thomas, and Rehnquist) and the retiring "swing" Justice (O'Connor). The decision was that government entities could seize private property from one owner if they decided another owner would have a better use for it. This, as a reading of what the framers clearly intended to be the highly restrictive "eminent domain" clause of the 5th Amendment, which states, "... nor shall private property be taken for public use, without just compensation."

The ruling hinged on the meaning of "public use." This originally involved site-specific necessities like bridges but segued early-on into communal facilities including police stations, schools, and libraries. Over the years it was extended to such things as rights of way for railroads or power lines, which were privately owned but regulated as "common carriers" available to all, and which required contiguous holdings. Later, it was applied to urban renewal projects involving the demolition of structures determined to be "blighted" because they constituted a hazard to public safety and health, which hardly anybody disputes governments should protect.

More recently, local and state authorities have stretched "public use" to be synonymous with what their Ouija boards tell them comprises the "public benefit" or "greater good" that will result from economic redevelopment plans projected to yield greater tax revenues. The Court affirmed this interpretation. This broadened theory of "public use" is generally traced to the 1981 "Poletown" decision of the Michigan Supreme Court. That case allowed the forced sale and leveling of everything in a viable, ethnic, blue-collar neighborhood so General Motors could build a Cadillac plant there. Those who followed this precedent ignored the little fact that the plant neither created the jobs nor gave Detroit the tax revenues promised. And, last year, the same Court reversed itself in Wayne v. Hathcock, ruling that the Poletown decision had been wrong. Far too late for the displaced persons of Poletown.

So, why was Kelo v. New London a sucker punch? Until middle class people learned about this case, they typically assumed property taken for economic development was substandard and undoubtedly not worth saving. The attitude was often that the affected parties could always live or work elsewhere and would be better off if they did. Forget John Howard Payne's underlying sentiment in writing, "Mid pleasures and palaces though I may roam / Be it ever so humble, there's no place like home."

Now, the middle classes suddenly realize it could happen to their castles as well. A neighborhood needn't be in a state of decay for a use to be proposed that someone claiming to be a visionary says would induce greater tax revenues. Maybe the governor's newest closest personal friend, Donald Trump, would convince City Council that instead of owner-occupied rowhouses on the 4200 block of Regent Square (in Spruce Hill overlooking Clark Park), a high-rise condo would bring in the bucks to keep the Walnut West Library open full-time. Or accountants might haul in reams of spread sheets demonstratng how many jobs would be created (moving people from welfare to work, removing them from the dole while generating wage tax revenues), how much property assessments would rise (increasing real estate tax income), and how sales would grow (there's that 6% for the state and 1% for the city in sales taxes) if the Parking Authority had the power to condemn and demolish "Rindelaub's Row" then sell or lease the land to WalMart or Costco for a new in-town big box store with a garage below and office suites above.

As long as we're only playing arguendo, envision a scenario under these circumstances in which the denizens of Regent or Rittenhouse Square, fighting to save their homes and businesses rather than taking "fair market value" (which is how "just compensation" is usually set these days), fall back on the historic heritage purportedly inherent in the bricks, mortar, and balusters. Of course, doing so would be a tad duplicitous. This, because the costs of ownership associated with historically designated buildings that are old but not architecturally or culturally distinguished are among the factors the same solid citizens employ to gentrify neighborhoods without tearing them down. And the social engineering effect is akin to that of eminent domain for economic development. It drives folks - folks on a lower rung of the socioeconomic ladder, to be sure - out of their homes and businesses.

Or, maybe they think it's all right, as Winston Smith said in the novel, 1984, to "do it to Julia."


© 2005 The Weekly Press & The University City Review: www.philly1.com

"Who audits these folks?"

Letters to the editor

Toll roads aren't worth rising costs

07/20/2005

San Antonio Express-News
Copyright 2005

Maybe it is time for an investigation of the Texas Department of Transportation's San Antonio office, District Engineer David Casteel and Texas Transportation Commission Chairman Ric Williamson. These people have lied to the public in their toll road briefings about the 22-mile system proposed for San Antonio.

Start with the original briefing at Reagan High School, where we were told this toll road plan was the only viable way to go (after they looked at all the alternatives, none of which were presented) and it would cost $450 million. Then these same people quietly increased their estimate to $600 million. Now we find out they left out parts of the cost and it will be more than $800 million.

These people are in charge of the system (and our money) and they can't even compute the true costs (which will probably be $1 billion when they talk to us next)? If this was a federal office, we would have a congressional investigation, but who audits these folks?

It is time to clean house and start over. The toll roads will cost a lot more than they are worth to us and we don't want them. The Texas Toll Party (www.texastollparty.com) has been trying to give us the real facts. We need to listen.

Bob McKechnie

© 2005 San Antonio Express-News: www.mysanantonio.com

"As far as TxDOT is concerned, we're not concerned about this project. It's moving forward."

Spiraling cost puts tollway alliance on shaky ground

A marriage of convenience to pay for Southwest Parkway may be breaking up.

By Gordon Dickson Staff Writer

Fort Worth Star-Telegram Copyright 2005

In 1998, three agencies agreed to split the costs of the proposed toll road -- a rare positive step after decades of failed attempts to build it. The city of Fort Worth, the Texas Department of Transportation and the North Texas Tollway Authority believed they needed one another.

But the cost of the project has since quadrupled, and some people at the Plano-based tollway authority no longer want to spend their money on a project so far away from Dallas-area toll roads.

On the other side of the aisle, Fort Worth and the state Transportation Department insist that the road must be built as planned with intricate walls and attractive bridges. They won't accept cost-cutting measures that change the road's aesthetics.

Sentiments are growing on both sides that it might be best to remove the tollway authority from the partnership. The topic is scheduled to be discussed at this morning's tollway board meeting in Plano.

"If the North Texas Tollway Authority determines that it is not feasible to build their portion of the project, then we will find another way," said Maribel Chavez, Fort Worth district engineer for the Transportation Department.

New options are available to pay for toll roads because of recent changes in state law, and North Texas cities don't need to rely upon a tollway authority, she said. It's now legal to turn over a project to the private sector, to seek help from the state's in-house turnpike authority or to form a county-level mobility authority and borrow the money.

Those options might be a better long-term deal for Tarrant County. In 20 to 40 years, after construction bonds are paid off, tolls collected on Southwest Parkway could be used for other Tarrant County transportation needs -- perhaps another road or mass transit.

Finding a new partner to share the costs wouldn't necessarily delay the project. The scheduled 2009 opening date is already viewed as overly optimistic, and 2010 is more likely.

But, Chavez said, "As far as TxDOT is concerned, we're not concerned about this project. It's moving forward."

Spiraling costs

The eight-mile road from downtown to southwest Fort Worth will cost $825 million, nearly triple the previous forecast, according to the latest estimate the tollway authority released in June.

Critics say the authority waited years too long to divulge that cost.

The price includes an estimated $379 million to be paid by Fort Worth, the Transportation Department and the Regional Transportation Council, an organization of local governments that disperses federal grants.

But the source of friction is the remaining $446 million, which represents the tollway authority's share of the project. The figure is more than five times higher than the tollway authority's original estimate in 1997, just before the agencies became partners.

Tollway officials say there's no way they can raise that much money from toll collections on Southwest Parkway -- even over 40 years. The road can generate only about one-third of the money needed based upon expected traffic counts.

That leaves a $291 million deficit, according to an ongoing revenue study.

Some other source of funding must be found, tollway authority members say. Perhaps the toll rate on Southwest Parkway could be set higher than on Dallas-area roads. Maybe the construction could be delayed or built in phases.

Or the rest of the Metroplex tollway system -- including the Dallas North Tollway and President George Bush Turnpike -- could absorb the costs. But that wouldn't be fair to drivers who use them, Dallas-area leaders say.

Although amenities such as landscaping and a 50 mph design speed limit have driven up Southwest Parkway's costs, Dallas-area drivers are stuck with toll roads built for speed, not beauty.

"If they can't get the Southwest Parkway project to somewhat function on its own ... Dallas County would be much better off pulling out of that project," Dallas County Judge Margaret Keliher said. "Fort Worth ought to be sensitive to the fact that we're not going to be able to increase tolls for the people already driving on the toll roads to put fluff on the Southwest Parkway project."

Without warning

Fort Worth area officials say they have been upfront about their high expectations.

During years of negotiations, they said, no one at the tollway authority warned that amenities might harm the project.

"It feels like somebody is out to kill the project, or make it impossible to build," said former Fort Worth Mayor Kenneth Barr, who was recently named to an advisory board overseeing a major state tollway project.

"This community agreed to make a major concession in allowing this to be built as a tollway. Now, to see these costs moved around in such a wide swing, it just doesn't make sense."

In 1997, the tollway authority commissioned a study that projected its costs for Southwest Parkway would be $80 million, including excavation, contingencies, utility adjustments and the construction of main lanes, bridges and toll plazas.

The total cost was estimated at $178 million.

At that time, it was expected to be a four-lane road with partial interchanges at Interstates 20 and 30.

Two years later, the I-20 and I-30 interchanges were upgraded, retaining walls and toll plaza areas were added, and the tollway authority's costs swelled to nearly $132 million.

In 2001, a separate estimate put the costs at slightly less, $120 million.

Since the initial estimates, the planned roadway has been expanded to six lanes, expensive traffic sensors have been added and the tollway authority has decided to build a Tarrant County maintenance office and satellite administration.

So it shouldn't be a surprise that the budget got bigger.

But the tollway authority staff decided not to put pencil to paper on those costs until the conclusion of a series of Fort Worth neighborhood meetings, during which skeptical residents were assured that Southwest Parkway would blend in nicely with their homes.

But in December, after the tollway authority approved Fort Worth's plan for the road, tollway board member Paul Wageman of Plano began demanding details of the associated costs.

Tollway staff members hadn't done an estimate in years, but they guessed that the amenity costs would be no more than $18 million.

Wageman pressed. So the tollway authority's new executive director, Allan Rutter, who took the helm in April, made an accurate estimate one of his first tasks. The amenities, Rutter determined, would cost a whopping $65 million.

But that's not the only place the costs went up.

A review of current and previous cost estimates, and traffic and revenue projections for Southwest Parkway shows that, until June, the tollway authority had failed to calculate at least $228 million in seemingly obvious expenses.

Among them:

• $112 million for engineering, legal fees, construction management and utility relocations.

• $35 million for toll plazas, a maintenance facility and traffic sensors.

• $64 million for unexpected costs.

• $17 million for mobilization of construction equipment onto the job site.

Tollway officials now acknowledge that they made a mistake in not giving Fort Worth officials, the public and their own board of directors a clearer picture of the costs.

"I'll be the first to admit we didn't take sufficient time to work with our other project partners on what the numbers mean and how we're going to talk about what this means for the project," Rutter said.

But Wageman isn't satisfied. He and board member Bill Meadows of Fort Worth are demanding an independent investigation into what went wrong. The issue is expected to be discussed this morning during the tollway authority's monthly board meeting in Plano.

"Was it incompetence or malfeasance? I'm not sure. But we were given a revised number that we used as a basis to vote on," said Wageman, who noted that the tollway board was told in December that the revised estimate for Southwest Parkway was $300 million. "If I had known the real costs, I never would have voted for it."

Still compatible?

Within 60 days, Rutter said, the tollway board will be presented with a list of perhaps three dozen funding options not only for Southwest Parkway, but also for six other long-term projects in the Dallas area.

Dropping out of the Southwest Parkway partnership is one option.

Another option may be for the tollway authority to bring in its own private funding partner, Rutter said.

"All of the options will be difficult and unpopular decisions," he said.

Fort Worth Councilwoman Wendy Davis, who as chairwoman of the Regional Transportation Council oversees road planning in 16 North Texas counties, is open to the idea of divorcing the tollway authority from Southwest Parkway.

But she is concerned about the quality of a successor. One reason that the tollway authority was an appealing partner in 1998, she said, was the agency's reputation for high-quality road work, efficiency and the ability to build projects fast.

Even so, the bitter funding dispute may have created irreconcilable differences.

"We lose credibility with the public and the community when we say, 'This is the number the project will cost,' and then there's a fourfold increase," she said.

IN THE KNOW

Southwest Parkway

Here are answers to common Southwest Parkway questions.

Question: Why did Southwest Parkway construction costs soar to $825 million? The previous estimate was only $300 million.

Answer: The two figures aren't really comparable. The $300 million was a round figure used by the Texas Department of Transportation during a federally mandated environmental review. It's based on the amount of federal money expected to be used in the project.

However, it's easy to understand why the public was confused. Previous cost estimates for the entire project, including the costs of converting it from a freeway to a toll road project, were much lower than $300 million.

Q: What makes Southwest Parkway a tough sell to the North Texas Tollway Authority?

A: Southwest Parkway would be separate from the rest of the Metroplex tollway system, so the tollway authority would have to build a satellite office and maintenance shop in Tarrant County. In addition, it's not as cost-effective as other roads in the tollway system. It would cost more because of its amenities yet handle far less traffic than Dallas-area roads.

Q: Isn't the North Texas Tollway Authority contractually bound to follow through on its 1998 agreement to share the cost of Southwest Parkway?

A: The tollway authority's participation in the project is contingent upon it being financially feasible, according to the agreement. A feasibility study is in progress.

Q: What if the tollway authority says the parkway is not feasible as currently planned?

A: A key new question arises: Will the tollway authority walk away and let the city of Fort Worth and the state Transportation Department try to find a new partner, or stay and try to force the other partners to scale it back?

Tollway authority officials say they've already invested $10 million or more in the project, and were counting upon Southwest Parkway to become part of their regionwide revenue flow. They may ask for a refund.

Fort Worth Star-Telegram: www.dfw.com/mld/dfw/

Corte: "If it's watered down, it's not worth passing."

Eminent domain bill appears dead for now

House refuses to negotiate, but it could be taken up again if there's another session

July 19, 2005

By POLLY ROSS HUGHES
Copyright 2005 Houston Chronicle

AUSTIN - Legislation to protect private property owners from certain land seizures appeared dead Tuesday when the House refused to negotiate a final version of the bill with the Senate.

Although Senate Bill 62 may be doomed for this special session, which ends at midnight, lawmakers are likely to revive the issue if another special session is called.

The bill was drafted in response to a recent U.S. Supreme Court ruling allowing local governments to seize a home or other private property for private economic development. The court, however, said states were free to further limit eminent domain powers if they chose.

Prompted by a flood of phone calls to lawmakers from worried property owners, Gov. Rick Perry added the issue to the special session agenda.

The Senate passed the bill first and sent it to the House, which added numerous changes to the bill before sending it back to the Senate.

Because the House and Senate passed different versions, each chamber needed to appoint members to a conference committee to work out a compromise agreement.

The Senate had agreed to negotiate with the House.

But Rep. Frank Corte, R-San Antonio, persuaded 91 representatives not to negotiate with the Senate, which he said would result in weakening the bill. Forty voted to negotiate.

"We need to do something for the property owners of Texas, and this is the only thing we have right now," Corte said. "If it's watered down, it's not worth passing."

Sen. Kyle Janek, R-Houston, who authored the bill in the upper chamber, said he will not accept the House's version.

A major sticking point, he said, is a provision that would require governments to pay replacement value — rather than fair market value — when property is seized.

"That's just a litigation nightmare," said Janek. "I didn't like that. We have to be very careful about the wording of that bill."

Corte told House members that the Senate also had planned to remove an amendment put on by Rep. Terry Keel, R-Austin, preventing a government entity from claiming a public seizure is for safety or health when it's really about economic development.

"This is a matter of principle," said Corte. "They're gutting the bill. They're erring on the side of government."

Corte had sponsored a resolution seeking a constitutional amendment limiting eminent domain, which he said would have provided stronger protection for Texas property owners. The Senate, however, refused to take it up.

Rep. Beverly Woolley, R-Houston, who sponsored the eminent domain bill in the House, denied Corte's allegations that a plan was already hatched to weaken the bill.

"There is no done deal. There is no bill printed. We need a bill out so we can calm the fears of our constituents. We need a balanced decision, not a knee-jerk reaction."

Janek said he didn't expect the bill to unravel in the waning hours of the special session.

"I'm surprised and disappointed," he said. "We needed this bill. I wish the House had not done this."

polly.hughes@chron.com

Houston Chronicle: www.chron.com

"The judge made it very clear that they can't make up things as they go along."

Judge denies CTRMA members six-year terms

Transportation agency members' terms will remain two years long

By Jimmie Collins
The Daily Texan
Copyright 2005

A Travis County judge ruled Friday that legislation providing six-year terms to board members of the Central Texas Regional Mobility Authority is unconstitutional.

According to the ruling judge, Darlene Byrne, constitutional law trumps state law, and because CTRMA is a regional and not a state board, it is only allowed terms of two years or less.

According to CTRMA spokesman Steve Pustelnyk, the ruling won't immediately affect the board because none of the members are over the two-year limit. Although CTRMA Chairman Bob Tesch was appointed by Gov. Rick Perry in January 2003, the board claims he is in "hold over status" until another appointment is made.

"You don't want the term to be up and then just leave the authority without a chairman," Pustelnyk said.

But Sal Costello, officer and founder of the anti-toll road group People for Efficient Transportation, said the group will be keeping a close eye on CTRMA to ensure they obey the law.

"The judge made it very clear that they can't make up things as they go along," Costello said. "The judge said every member can serve for two years or less, or they can't do business."

Once legal action was filed against the board by PET, state lawmakers proposed a constitutional amendment to legally make the terms six years.

"The people will get to vote on the amendment in November, but it won't have a major impact on how the board works," Pustelnyk said.

The six-year terms have advantages to the people and the board, Pustelnyk said. According to him, most of the projects CTRMA is responsible for take a long time, and the longer board members stay in office, the more likely they are to keep in mind the long-term view.

"If you get a new member every two years, there may be a lack of comprehensive knowledge about the projects," Pustelnyk said. "New people just may not understand the long-range plan."

Pustelnyk said that whether or not the members have six-year terms won't really stop work from getting done. After all, "it's a limit of each term and not a limit of how many terms they can work," he said.

According to Costello, the board needs to be held accountable to the people of Texas.

"These are unelected, unaccountable people who should not be setting rates for tolls, especially when tax dollars have already been used to pay for those roads," Costello said.

He said the board is unaccountable in that if the community does not approve of the actions of the board, there is nothing they can do to have the members removed or replaced.

While the majority of the board members are from Williamson County, a majority of the proposed toll projects are located in Travis County, Costello said. PET will be working on shutting down CTRMA because, according to Costello, it is just a "freeway tolling authority." Costello suggested the transportation system would be better off overhauling the Texas Department of Transportation and then leaving the toll roads up to its own division for toll authority.

"These RMA's are just wasteful new bureaucracies," Costello said.

The Daily Texan: www.dailytexanonline.com

“We need to protect I-35.”

Editorial: Protecting I-35

Interstate is important to Waco, no matter what happens with TTC-35

July 19, 2005
Waco Tribune-Herald
Copyright 2005

It's good that the McLennan County Commissioners Court supports efforts to upgrade Interstate 35.

It also is good that city of Waco officials want to make sure that if the Oklahoma-to-San Antonio portion of the proposed Trans-Texas Corridor is built, it is built as close to Waco as reasonable to ensure that Waco and McLennan County are not bypassed by a new north-south superighway.

The commissioners recently joined the River of Trade Corridor Coalition established to protect I-35.

The coalition, which was formed by the city of Dallas, has about 30 members representing cities, counties and businesses along I-35.

The chairman of the coalition, Dallas City Council member Bill Blaydes, said the group wants to make sure that the portion of the proposed Trans-Texas Corridor that will parallel I-35 does not hurt the cities and businesses that rely on I-35.

That's a laudatory goal because the north-south tollway portion of the Trans-Texas Corridor certainly has the potential to do considerable economic damage to cities and businesses that depend on I-35 in the same way that many communities bypassed by the railroads more than a century ago dried up while those located on a rail line prospered.

The coalition, in the words of McLennan County Judge Jim Lewis, supports “the maintenance and expansion of I-35 – that's the heartbeat of the community.”

Lewis is right that regardless of the outcome of the proposed Trans-Texas Corridor, “we need to protect I-35.”

Gov. Rick Perry proposed the Trans-Texas Corridor in 2002 as a way to meet Texas' transportation needs far into the future and to ensure the state's economic prosperity.

Perry's multibillion-dollar transportation plan envisions a 1,200-foot-wide network of tolled highways, railways and utility infrastructure crisscrossing 4,000 miles of the state at a projected cost of $184 billion.

Texas highway officials have said the corridor will be built near communities that want it and away from those that don't.

This is the potential problem for Waco and McLennan County.

The Legislature has already authorized the Texas Transportation Commission to build the corridor. The state is expected to sign a contract with private developer Cintra-Zachry to build the Dallas-to-San Antonio stretch of the corridor, known as TTC-35.

If the TTC-35 portion of the corridor plan is going to be built despite opposition to it, then Waco and McLennan County officials do not want to do anything to push it far away from Waco where it would be guaranteed to have a negative economic impact on Greater Waco.

At the same time, city and county officials should continue to push for improvements to I-35.

Waco Tribune-Herald: www.wacotrib.com

Corte: "If the House agreed to negotiate with the Senate on the bill, several amendments the House added to make it stronger would die."

House says no negotiations with Senate on eminent domain

Jul. 19, 2005

Associated Press

AUSTIN -Legislation that would have limited government from taking private property likely will not be approved in this special legislative session after the House refused to negotiate with the Senate on final details of the measure.

The legislation would have limited state and local governments from taking private property if the primary purpose is for economic development.

The bill was filed in response to a U.S. Supreme Court ruling that lets local governments take land for private development to generate tax money. The court ruled 5-4 last month in a case involving the city of New London, Conn., which sought to take homes to make way for a private development.

The Senate approved the bill first and sent it to the House. Lawmakers there added provisions to the bill and kicked it back to the Senate. Senators agreed to negotiate with the House on the differences, but the House refused Tuesday.

Rep. Frank Corte, R-San Antonio, said if the House agreed to negotiate with the Senate on the bill, several amendments the House added to make it stronger would die.

"We need to do e for the property owners in Texas and this is the only thing we have right now," Corte said. "If it's watered down, it's not worth passing."

The Senate had two choices: Accept the House bill or let it die. Sen. Kyle Janek, who sponsored the bill in the Senate, said some provisions in the House bill were unacceptable.

Janek, R-Houston, said he was disappointed but will try to have eminent domain added to the next special legislative session if Republican Gov. Rick Perry calls lawmakers back again. Perry is expected to call another session if a school funding package fails.

Perry is the only person who can set the topics to be discussed during legislative sessions.

"I think every day we wait, somebody else's property is at risk," Janek said.

---

The eminent domain bill is SB62.


The Associated Press: www.ap.org

"Did those people ask to have their land taken away? No, they did not."

House approves limits on eminent domain use

July 18, 2005,

By POLLY ROSS HUGHES Austin Bureau
Houston Chronicle Copyright 2005

AUSTIN - Private property owners would be protected from state and local governments seizing their land for economic development purposes under a bill overwhelmingly approved by the Texas House Sunday night.

The bill, drafted in response to a recent U.S. Supreme Court decision allowing eminent domain seizures for economic development projects, gained final passage 136-0.

Earlier Sunday, the House also gave final passage to legislation allowing phone companies to offer enhanced TV services throughout Texas, which one report shows will create 12,000 new jobs and $1.8 billion in ongoing annual investments.

The House version of the eminent domain bill was amended to stop the city of Freeport from seizing waterfront land from a family-owned shrimping company to make way for a private marina project.

The Senate has passed similar legislation, but differences must be worked out in a conference committee before midnight Wednesday when the special session ends.

The House bill also requires local approval from county commissioners courts for state use of eminent domain to seize land for gas stations, convenience stores, hotels and other commercial enterprises in the median of the Trans-Texas Corridor, Gov. Rick Perry's ambitious toll road project.

House sponsor Rep. Beverly Woolley, R-Houston, said the recent Supreme Court decision in Kelo vs. New London, Conn., "harms what we hold dear in Texas, the protection of private property rights."

That decision ruled in favor of the city of New London, which condemned 15 private properties for an economic development involving a private corporation.

"Ultimately, what the court decision said is, you are allowed to own property, pay your mortgage, pay your taxes and you can keep your private property until someone offers to pay more taxes on that property," Woolley said. "This decision has shocked and alarmed property owners across the country."

The Supreme Court, in making its decision, specifically said state legislatures and other local governments are free to restrict the use of eminent domain further if they don't want to allow its use for private economic development purposes.

Perry added the eminent domain issue to the special session's agenda after a flood of calls and letters from Texans seeking private property rights.

The House approved several other amendments,including one by Rep. Frank Corte, R-San Antonio, requiring governments to pay replacement value to property owners in certain land seizures.

Rep. Will Hartnett, R-Dallas, protested that the change would affect nearly every eminent domain seizure in Texas and undo 50 years of eminent domain law.

Corte, however, argued property owners have little say when governments seize their land, so it is only fair they get reimbursed for replacing it.

"Did those people ask to have their land taken away? No, they did not," he said.

The bill, which was passed in the Senate 25-4 before the House amended it, makes clear that eminent domain can be used for traditional purposes such as railroads, public roads, utility services, water and wastewater projects and drainage projects. It would allow economic development seizures if the land is blighted and harmful to the public.

The bill allowing phone companies to compete with cable companies will also return to the Senate because it was amended in the House.

It allows companies that want to offer TV services to get a statewide franchise starting in September. In return, the companies would pay a fee based on their gross revenues.

Houston Chronicle: www.chron.com

"I think there is a sense of urgency because people are outraged."

Home, seized home

July 18, 2005
By Donald Lambro

The Washington Times, Copyright 2005

Who says you can't fight city hall, or even the Supreme Court?

A long-overdue property rights revolt is brewing around the country in response to the high court's outrageous decision last month in Kelo v. City of New London, Conn. The court ruled that governments can seize private property and then turn it over to big-business interests for economic development.

The alarming property takeover ruling, by a narrow 5-4 vote, reminds us anew of the sweeping governmental powers issues that are at stake in choosing who will replace retiring Justice Sandra Day O'Connor (who, by the way, wrote a blistering dissent against the decision).

The use of eminent domain to condemn property and purchase it at a fair market value for public purposes, to build roads and erect other public facilities, has been an accepted practice by state and local governments, though one that is restricted by the Fifth Amendment to the Constitution. It guarantees private property shall not be seized by eminent domain except for "public use" and in such cases, only for "just compensation."

But in the case against Susette Kelo, the city of New London went far beyond that constitutional stricture and said her property could be taken, not for public use, but to promote local economic growth by turning it over to developers for anything from strip malls to amusement parks.

The June 23 ruling has triggered a political backlash in Congress and in many states. Fueled by mounting grass-roots anger, a number of state legislatures are expected to act on anti-seizure legislation before year's end, and many more are expected to act early next year.

The House quickly condemned the court's decision by a vote of 365-33 and bills have been introduced in both chambers, drawing strong support across the political spectrum, from House Majority Leader Tom DeLay on the right to Michigan Rep. John Conyers Jr., the top ranked Democrat on the House Judiciary Committee, on the left.

"We've been getting calls from all over the Hill from House members and senators looking to do something legislatively to address this issue," said Nancie Marzulla, president of Defenders of Property Rights, a group that has led the charge in many eminent domain battles.

"I think there is a sense of urgency because people are outraged," she told me. "For people on the Hill to be responding in this way means they are hearing from their constituencies who are calling up their offices and saying, 'What are you doing about this?' "

And for anyone who wonders what the issues will be in next year's elections, it's a safe bet this will be one. "It's a powerful political issue based on the reaction I've seen and what our members are hearing," says Duane Parde, executive director of the American Legislative Exchange Council (ALEC), which represents 2,400 state legislators across the country.

ALEC is now drafting a model bill to ban property seizures for commercial purposes and, once approved by its board, will be sent to all its members for legislative action. A growing number of states have eminent-domain reform bills pending, including Delaware, Georgia, Minnesota, New Jersey, Texas and the "cradle of liberty," Massachusetts.

In Alabama, Gov. Bob Riley has just introduced a bill in the legislature's mid-July special session. Bills are expected to be introduced in Illinois and Pennsylvania.

Massachusetts House Minority Leader Brad Jones, after a deluge of angry constituent phone calls, introduced a nonbinding resolution condemning the court's action and was swamped with both Democratic and Republican cosponsors.

He filed a statute last week that would prohibit local officials from taking private property by eminent domain for the sole purpose of economic development, and will seek a state constitutional ban as well. "We're not taking any chances," he says. "Respect for private property rights is a founding principle of our democracy. It's crucial for the legislature to take a stand to defend those rights."

In a biting dissenting opinion, Justice O'Connor warned that under the court's ruling, "Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory. "The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms," she said. "As for the victims, the government now has license to transfer property from those with fewer resources to those with more." The Founding Fathers, she said, "cannot have intended this perverse result."

By dropping the words "for public use" from the Fifth Amendment, the Supreme Court opened the door for powerful developers to take over someone's property for their own commercial enrichment.

The counter-revolution now begins in the states to permanently nail that door shut.

The Washington Times: www.washtimes.com

"Government shouldn't be able to take property to pad its tax coffers."

Limits on property seizures debated

Jul. 17, 2005

By Anna M. Tinsley, Staff Writer
Fort Worh Star-Telegram Copyright 2005

State lawmakers feeling the heat for overburdening the working class are taking a stand for the average Joe -- and his property.

They, along with federal lawmakers, are considering proposals to protect homes and businesses from being seized by governments merely for economic development, a practice that Texas law has allowed for decades.

"They have been criticized for deals on retirement, school finance and property taxes that don't help the great majority of people," said Bruce Buchanan, a political science professor at the University of Texas.

"Here's a chance to do something that is a little bit more in the stream of helping the little guy."

Last month, the U.S. Supreme Court thrust eminent domain into the national spotlight when it clarified in a 5-4 vote that local governments may take private homes and businesses for economic development.

Texas Gov. Rick Perry quickly made the issue a priority for state lawmakers already gathered in a special session.

"One of the most basic rights in Texas is the right to own property, and government shouldn't be able to take that away to pad its tax coffers," he said.

The state Senate has approved a bill to limit governments' ability to take private property to spur economic development. The House approved putting a proposed constitutional amendment on the issue before voters.

Each version must be approved by the other chamber before the special session ends Wednesday. Both proposals allow Arlington to move forward with condemnation plans to build a Dallas Cowboys stadium, which voters agreed to help fund.

In Washington, federal lawmakers are considering a bill that would cut off federal funds for cities that use eminent domain for economic development projects.

U.S. Rep. Kay Granger, R-Fort Worth, said legislators need to move carefully to allow flexibility when cities need it and enable economic development in blighted areas.

"I want to make sure it is helpful and not harmful," Granger said. "I don't want a situation where we pass a law that makes it less clear."

Local projects

At stake could be projects around the state, such as Freeport's plan to seize the land of two seafood companies along the Old Brazos River to make way for a multimillion-dollar private marina.

Some fear that the proposed legislation could hurt or derail Fort Worth's $435 million plan to create a 33-acre lake and river bypass channel north of downtown.

At issue is whether the project is for flood control or economic development.

Tarrant Regional Water District officials say the project is needed to prevent catastrophic flooding. But property owners fear that the main focus is redeveloping the area, creating multilevel apartment complexes and riverfront office towers.

Corsicana attorney Glenn Sodd, who is advising some of the 80 property owners who will have to move if the project goes ahead, said the district's use of eminent domain may hinge on Texas courts' deciding what the project's purpose is.

"Hundreds of millions of dollars are not being spent just to make the levees stronger," said Sodd, who noted that the Corps of Engineers set aside a $10 million flood-control plan in favor of the Trinity River Vision. "Ninety-nine percent of that project is all about economic development."

Proposed federal legislation could also hurt the project, which is slated to receive $110 million in federal funds for flood control.

Another key local project, the Southwest Parkway toll road, may avoid being affected by the current legislation, said Michael Weaver, project manager for Austin-based Prime Strategies, which handles the project for the city.

That's because Supreme Court rulings and legislative proposals focus on taking private property for a separate private purpose, he said.

"That's certainly not what the city of Fort Worth will be doing with the Southwest Parkway," Weaver said. "This will be taking property for a public purpose."

Likewise, a key Texas road project -- the Trans-Texas Corridor -- may not be affected, said Mike Cox, a spokesman for the Texas Department of Transportation.

Private companies will develop the corridor -- as toll roads, rail lines or utility corridors -- in exchange for collecting fees or tolls for many years. But the land is owned by the state and considered public property.

The first piece of the corridor -- which could be under construction by 2007 and finished by 2015 -- will connect North Texas to San Antonio through a toll road.

As for the new Cowboys stadium, proposed legislation protects the project, allowing officials to use eminent domain as planned to acquire land.

But residents have hired lawyers to defend their rights.

Dallas attorney Bob Cohen, who represents owners of 53 properties in the estimated 200-acre area, said he hopes that the Legislature can stop eminent domain.

"I will be sending money to the Legislature to stop this," he said. "It's wrong."

Sodd represents several apartment owners and residents living in the path of the stadium. He said taking property for the project violates the Texas Constitution because the stadium doesn't benefit the public.

"It would be different if they were building a highway, school or fire station," he said. "The land is being taken essentially to be given to a football team."

Sodd said that if his clients felt they were being fairly compensated, they would be more likely to agree to the city's terms. But it's cheaper for the city to condemn the land and take it than it is to make fair deals, he said.

"Basically, these people are being run out of town," he said.

A longtime practice

Local governments have long been able to claim private property for government use.

The Fifth Amendment to the Constitution allows the practice -- primarily for public use, such as roads, schools and bridges -- as long as property owners receive fair market value for losing their property without their consent.

Texas cities have been able to acquire private property for economic development since lawmakers approved the Development Corporation Act of 1979.

"Generally, cities have the authority to use eminent domain for any public purpose," Fort Worth City Attorney David Yett said. "Cities also have been able to use the power for economic development.

"It's a power you have to use judiciously and only as a last resort," he said. "If you need property for any public purpose, you try to acquire it. You're only allowed to use [eminent domain] if good-faith negotiations don't lead to resolution."

And if state or federal lawmakers change cities' authority to use eminent domain, it would dilute elected officials' ability to make important decisions for their communities, Yett said.

Fort Worth Chamber of Commerce officials worry that proposed legislation could cripple needed community projects even though eminent domain is being used prudently.

"If used correctly, eminent domain has provided some great movement for communities in the economic development arena," said David Berzina, executive vice president of economic development. "We hate to see that potential limited."

Staff Writers Andrea Ahles, Sally Claunch, Gordon Dickson and David Wethe and News Researcher Adam Barth Contributed to This Report.

Fort Worth Star-Telegram: www.dfw.com/mld/dfw/

Is this really economic development?

Pols won't seize land, just clients

7/15/05

By RICK CASEY
Staff
Houston Chronicle, Copyright 2005

Teas politicians, Democrat and Republican, tripped over each other in their eagerness to make Texas safe from last month's U.S. Supreme Court ruling allowing the use of eminent domain for economic development projects.

How terrible, they harrumphed, that a governmental body could use its power of eminent domain to take property from one individual or business so it could be used by another business!

In less than three weeks - lightning speed for state government - the governor authorized the Legislature to take up the issue in special session and both houses produced bills protecting landowners from having their property seized for use by private companies.

Unless, of course, that private company is the Dallas Cowboys. This is, after all, Texas.

But while the governor and his buddies are protecting us from land grabs for private companies, they're showering certain favored companies with our money.

Water tower, too

Take the Cabela's outdoors store that opened last week in Buda, a small town just south of Austin. Please.

The Nebraska-based former catalogue store went public a few years ago and started building stores all over the country. Following in the footsteps of Missouri-based Bass Pro Shops, it created shops that look like theme parks, called them tourist draws and snookered public officials to grant tens of millions in tax breaks and subsidies.

They call it "economic development."

The tax subsidies, breaks and incentives total more than $60 million, according to documents obtained by the Austin American-Statesmen. (Is there more? Cabela's sued Attorney General Greg Abbott to try to keep the newspaper from obtaining some documents.)

The town of Buda and Hays County expect to pitch in as much as $40 million, mainly for infrastructure, $4.5 million in county sales taxes will go back into the project, the state will pay $20 million for road enhancements, and the governor's Texas Enterprise Fund will kick in several hundred thousand dollars.

Showing no restraint, Buda will turn its water tower into an advertisement for the store and pay toward some billboards as well. And the Texas Fish and Wildlife Commission is delivering Guadalupe bass for the store's 60,000-gallon aquarium.

Nebraska special session?

We Texans aren't alone. The governor of Nebraska is considering calling a special session for the sole purpose of passing state subsidies for a Cabela's store.

And a town in Ohio three years ago considered exercising eminent domain to move a couple of recalcitrant landowners out of the way for a Cabela's store. The store was built without such a land seizure, but not without subsidies.

So what's the matter with this? Simple. Retail isn't economic development.

Economic development is about creating wealth. Retail is about disposing of wealth.

That doesn't make retail unimportant. We want to buy nice things with the wealth we create.

And retail does provide jobs, but only as many jobs as wealth created elsewhere will support.

Cabela's and the politicians they have snowed argue that the Buda store will attract hordes of tourists, and that creates jobs.

I don't know how many people will travel farther than, say, 100 miles for a fancy outdoors store, but consider this:

The state is also subsidizing a new Cabela's in Fort Worth. Nobody from north of Fort Worth will drive past it to get to Buda.

There's a big, extravagant Bass Pro Shop in Katy (built with tax subsidies), so nobody east of Houston needs go to Buda.

And Bass Pro Shop is planning a megastore in San Antonio, just 70 miles south of Buda.

Interestingly, developers several years ago approached San Antonio officials seeking tax breaks, saying they needed them to attract a Bass Pro Shop. They were told the city policy was to not give tax breaks to retail stores.

Their reasoning was simple. They had just seen a close-in suburban town give big breaks to Target, which opened a new super store - and closed down two older stores within San Antonio city limits. The new store didn't create jobs. It simply moved them.

Bass Pro apparently decided it could make money in San Antonio without tax money.

One of those speaking against subsidies for Bass Pro was, not surprisingly, Katy-based Academy Sporting Goods. Its owner, Arthur Gochman, understands that a new sporting goods store, no matter how fancy, doesn't create new buyers. It takes them from other sporting goods stores.

"I don't mind competing," he said. "I just want a level field."

The politicians, with their subsidies, aren't taking his property from him. Just some of his customers.

"Economic development" in Texas, it seems, is subsidizing Nebraska and Missouri companies at the expense of Texas companies.

Houston Chronicle: www.chron.com