“It's the fear of the unknown that's causing landowners problems.”

Transportation department says it's not scouting land for new corridor

By Matt Joyce, staff writer
Waco Tribune-Herald
Copyright 2005

The Texas Department of Transportation went on the offensive Friday to quash rumors that it was surveying land in Central Texas for the Trans-Texas Corridor or preparing to acquire property for the proposed tollway project.

“We have taken this unusual means of releasing a special statement to assure the people of Bell and McLennan counties that this rumor is untrue,” the department said in a statement.

Some local officials and corridor critics said they had encountered similar rumors, which they attributed to uneasy landowners who fear the state's plan to build a 1,200-foot-wide network of roads, railway and utility infrastructure roughly paralleling Interstate 35.

“Any time landowners see (the transportation department) surveying, they get nervous,” McLennan County Commissioner Wendall Crunk said. “It's the fear of the unknown that's causing landowners problems.”

Spokeswoman Gaby Garcia said the department had received calls in Austin and at district offices about the possibility that survey crews around Waco and Temple had represented themselves as department employees or said they were working on the Trans-Texas Corridor.

“I don't know quite where these rumors come from, other than they are rumors,” Garcia said. “The department is in no way, shape or form close to any right-of-way negotiations, procedures or action.”

Gov. Rick Perry proposed the corridor in 2002 as a means for alleviating I-35 traffic and accommodating growth. The Legislature has since authorized the corridor's creation, and the Texas Transportation Commission has entered into negotiations with Cintra-Zachry, a development consortium, to fund the road's construction in exchange for operating the corridor as a toll way.

Parts of a 50-mile-wide study area for the corridor run through McLennan and Bell counties, and now the department is conducting an “environmental assessment” to narrow the potential route to a 10-mile-wide area from which the final alignment would be selected.

The department hopes to settle on its 10-mile-wide study area by late fall, but it also estimates that the final alignment will not be identified for four years.

Garcia said neither the department nor Cintra-Zachry was surveying in the area.

“If we don't even know where it's going to go, how can we determine if we need someone's property?” Garcia said.

Crunk, who spearheaded a commissioners court resolution opposing the corridor concept, said he had been contacted by a few rural residents with concerns about surveying activity along County Road 107 in eastern McLennan County. He said he did not believe it was related to the corridor.

The rumor also made its way to Chris Hammel, a board member of the Bell County opposition group Blacklands Coalition. Coalition members told him they saw surveying activity on Farm-to-Market Road 2268 near Holland, he said.

“It was almost like a neighborhood watch situation,” he said.

Hammel said he drove by the site and saw survey markers, but he did not assume any connection with the Trans-Texas Corridor.

“I have no earthly idea what it was for,” he said. “It would be rash to say it had something to do with the transportation department.”

mjoyce@wacotrib.com

757-5735

Wao Tribune-Herald: www.wacotrib.com

Nichols: Aim is to centralize thoroughfares for tollways, railways and utility lines to streamline the process of acquiring private property.

HIGHWAY BILL REVISIONS PLACE STATE IN DRIVER'S SEAT

By: SARA FOLEY, Staff Writer
Tyler Morning Telegraph
Copyright 2005

Increasing financing for Texas highways and improving state Amtrak routes are priorities U.S. Sen. Kay Bailey Hutchison discussed Friday at the East Texas Transportation Summit.
Sen. Hutchison said Texas will be receiving 92 cents for every dollar it sends to Washington for highway construction, because of recent revisions to a federal highway bill. Under earlier legislation, Texas received 90.5 cents per dollar.

"Good things are happening for Texas roadways," she said. "It wasn't everything I wanted, but we've come a long way."

The increase will result in $800 million more a year for roads. Sen. Hutchison said she will continue to work toward getting an even larger return for every dollar as long as she is a senator.

Sen. Hutchison also emphasized the importance of transportation alternatives such as Amtrak, adding that current Amtrak financing was inadequate.

"We're trying to make it go with one arm tied behind our back," she said.

Sen. Hutchison said she didn't think it was fair to subsidize Amtrak when it is mainly concentrated in the Northeast.

"We started the concept of 'national or nothing,'" she said.

A skeleton of standard Amtrak routes, which includes routes through southern Texas and one running down the middle of the state, is one solution Sen. Hutchison offered.

Sen. Hutchison said she valued Friday's conference because it helped build relationships between communities that could result in better roadways.

"Any time you can address transportation on a local level, you need to know the plan as a whole," she said. "The only way you can do that is to have planning by region. That's why this is so important."

Former state transportation commissioner Robert Nichols said that just seven or eight years ago, communities wrangled with each other over projects, whereas today they are more willing to make concessions on local projects in order to benefit an entire region, such as Northeast Texas.

"They focused on getting their piece of the pie," he said. "They felt like they were fighting."

Nichols also gave an overview of the Trans-Texas Corridor, Gov. Rick Perry's $184 billion vision of thousands of miles of tollways, railways and utility lines crisscrossing the state.

Part of the aim, Nichols said, is to centralize thoroughfares for those three items to streamline the process of acquiring private property easements for each component.

As an example, he said next-generation electricity transmission lines span as much as 250 feet, or twice the width of a typical four-lane divided highway. By incorporating space for the power lines alongside highway corridors, the state and utility companies can avoid having to "go through thousands of more parcels of private property."

Ed Pensock of TxDOT discussed Interstate 69, the planned north-south highway that will be part of the Trans-Texas Corridor, running from South Texas through Houston and Northeast Texas.

"I-69 is about linking the opportunities, markets and materials in Central and South America with North America," he said.

Building the Texas portion of I-69 the traditional way will only invite congestion within a few decades, similar to that seen today on Interstate 35, he said. Building it into the Trans-Texas Corridor will extend the life and usability of the highway, he said.

The Trans-Texas Corridor will provide separate lanes for commercial, passenger and rail traffic, and will be funded with tolls.

State officials are working on new, disposable toll tags for vehicles to allow quick passage through tollbooths around the state.

Mark Collette covers Smith County. He can be reached at 903.596.6303. e-mail: news@tylerpaper.com

©Tyler Morning Telegraph 2005 : www.zwire.com

Hutchison: “I don't want tolls on federal highways. Period. End of statement”

Hutchison touts I-69 project at regional transportation meeting

By MELISSA TRESNER
Longview News=Journal
Copyrignt 2005

TYLER – Planes, trains and automobiles were the topics of discussion for U.S. Sen. Kay Bailey Hutchison and local and state lawmakers Friday at a regional transportation summit in Tyler.

Hutchison, R-Texas, who outlined recent federal transportation legislation, was the keynote speaker during the daylong conference at Tyler's Holiday Inn Select.

“Transportation is our lifeblood, and we will never walk away from our responsibility to protect it,” Hutchison said on behalf of her colleagues in Washington.

Sponsored by the East Texas Council of Governments and the East Texas Rural Transit District, Destination East Texas: “Moving People” attracted about 230 city and county officials in addition to industry leaders and experts. Topics ranged from passenger rail service in East Texas, airport planning, alternative fuels and the proposed Interstate 69 corridor, which would link Mexico to Canada and go through this part of the state.

U.S. Congressman Louie Gohmert, R-Tyler, while not on the program, made a stop at the conference, saying opportunities for regional planning are never wasted.

“It does my heart good to see cities like Tyler and Longview working together. What a great opportunity,” he said.

Hutchison said the Surface Transportation Reauthorization Bill was good news for Texas because the state's share of highway funding increased by almost $800 million to about $2.89 billion annually.

Texas' rate of return will increase from 90.5 cents for every dollar to 92 cents within six years, she said.

Hutchison said the $50 million I-69 project will be good for Texas because 80 percent of traffic from Mexico comes through Texas.

The high traffic boosts the state's economy, but it also means more wear and tear for Texas highways, she said. The I-69 project will alleviate some of the congestion and road wear on highways already in place.

Hutchison, interrupted by applause several times during her 20-minute speech, said funding is a critical issue, but she doesn't believe it should come from tolls on interstates.

“I don't want tolls on federal highways. Period. End of statement,” Hutchison said.

Hutchison expressed her opinions about rail travel, as well, saying more people would take advantage of Amtrak's passenger rail if it were more reliable.

“If we had a fair shot at on-time performance and funding, Amtrak would be a viable transportation opportunity,” she said.

She said the federal government spends $40 billion annually on highways, $15 billion on airports and only $1 billion on Amtrak.

During eight break-out sessions throughout the day, local leaders and transportation officials met in smaller groups of about 10 to 30 to discuss a variety of issues.

Dietrich Johnson, the director of public transportation for the city of Longview, sat on one panel devoted to developing a regional transit plan for East Texas.

Officials from the city of Denton were on-hand in another morning session titled "Making the Transition to Alternative Fueled Vehicles" to give East Texas city council members and county commissioners a glimpse of Denton's newly-opened Biodiesel Production Facility. The city's solid waste fleet runs off the biodiesel blend produced on-site with – among other things – used cooking oil from restaurants.

The Northeast Texas Regional Mobility Authority, a three-year-old collaboration project between Smith and Gregg counties and the cities of Tyler and Longview, also was among session topics.

Robert Nichols, a former TxDOT commissioner, spoke during the lunch hour about the Trans-Texas Corridor plan.

He said the state needs a highway system that will support its population and its projected populations for the future. In 2050, it is expected that 40 million people, nearly twice the current number, will reside in Texas.

“What are we going to do with them? We've got to take different approaches. We've got to plan for the future,” Nichols said.

Longview New-Journal: www.news-journal.com

"In the rush to put statutory limits on public takings, lawmakers may have left just enough legal vagueness to invite a court challenge."

Editorial: The consolation prize: Eminent domain bill

San Antonio Express-News
Copyright 2005

When the U.S. Supreme Court handed down its controversial ruling expanding the traditional understanding of eminent domain this summer, it offered a legislative remedy.

"Nothing in our opinion," wrote Justice John Paul Stevens for the majority in Kelo v. City of New London, "precludes any state from placing further restrictions on its exercise of the takings power."

The Legislature's two special sessions have been abysmal failures in most respects. But with regard to securing private property rights against abusive interpretations of eminent domain, lawmakers scored a rare success.

By overwhelming margins, the House and Senate approved a measure limiting the exercise of eminent domain in cases of economic development and where it would confer a benefit on a private entity.

The bill, authored by Sen. Kyle Janek, R-Houston, also sets up an interim committee to continue studying the eminent domain issue and make recommendations to the 80th Legislature in 2007. That's important, because in the rush to put statutory limits on public takings, lawmakers may have left just enough legal vagueness to invite a court challenge.

Ultimately, the Legislature will probably need to present a constitutional amendment on eminent domain to Texas voters, as Rep. Frank Corte, R-San Antonio, has advocated.

In the meantime, the Janek bill represents a consolation prize for a summer's worth of depressing politics in Austin.


San Antonio Express-News: www.mysanantonio.com

Texas eminent domain bill: "The implications will have long-term impacts."

Eminent domain goes to governor: A look at what’s in the bill

8/19/2005

by James A. Bernsen

Volume 10, Issue 3
The Lone Star Report
Copyright 2005

The eminent domain bill finally made its way through the Legislature and onto the Governor’s desk.

The long-delayed passage this week of SB 7 by Sen. Kyle Janek (D-Houston) – prohibiting the public taking of private property for economic development – nonetheless proved that this Legislature can’t even pass consensus bills without major headaches and last-minute wrangling.

The final version ostensibly returns the state to the status quo before the U. S. Supreme Court’s oft-derided Kelo vs. New London decision, affirming New London, Connecticut’s right to pursue economic development by taking private homes through eminent domain. But the implications – and potential for future debate over eminent domain – will have long-term impacts.

SB 7 sailed out of the House and Senate last week after Gov. Rick Perry put it on the special session call. Opponents were few but vocal, and this week attempted to delay the bill even longer as the Senate debated concurrence with House amendments.

First, the vote was delayed a day in the Senate after Sen. Mario Gallegos (D-Houston), pointed out that there was not a quorum on the bill. He was urged on by Sen. John Whitmire (D-Houston), who shouted “point of order” to Gallegos.

The next day, Aug. 16, Gallegos decided to filibuster. With four days left in the session, however, Lt. Gov. David Dewhurst wasn’t buying it.

“With all due respect, I was out on the trail jogging yesterday and the day before and the day before that, and I did not see Sen. Gallegos out there jogging at the same time I did,” Dewhurst said. “I just don’t know how long that Sen. Gallegos is going to want to talk today.”

Gallegos didn’t even last two hours, and later that afternoon, the Senate concurred 19-5. Voting no on the bill were Gallegos, Whitmire, Rodney Ellis (D-Houston), Eliot Shapleigh (D-El Paso) and Judith Zaffirini (D-Laredo).

What’s in the bill

The House won on its provisions in the bill, by adding its amendments to the Senate plan and getting them rubber-stamped. Because of the time frame of the session, Janek couldn’t have taken amendments if he had wanted to, because any delay would have pushed the bill into conference and likely killed it.

LSR has discussed many of these bill provisions in depth in past issues. Here, in summary, are the key provisions:

* The bill applies to local governments, universities and the state. The original legislation left out the state, but it has been included since midway through the first special session. It also applies to corporate entities, water districts, and any other entity acting on behalf of a governmental entity.

* The bill contains a list of “traditional” eminent domain uses that are allowed. Although the list is not exhaustive, those chosen were added to preclude any legal arguments against those traditional uses.

* Eminent domain that creates an economic development as a secondary result, such as rehabilitation of a “slum or blighted area,” is not prohibited.

* Statements by governmental representatives that the purpose of a particular process is not for economic development do not create a presumption of fact; only a court determination of fact would stand.

* The bill prohibits universities from building “lodging facilities” through eminent domain. Zaffirini sought clarification for purposes of legislative intent on this issue.

The bill, Janek explained, would not prohibit the building of dormitories or of parking for dormitories. Nor would a building be considered a “lodging facility” if it was for students – whether long-term or short-term students taking a class. Therefore, if the University of Texas at Austin – which was until recently planning to use eminent domain to build a parking garage for a hotel project – would choose to build a parking garage for student housing instead, the bill would allow it. Building a facility for student parking then “swapping out,” however, could fall afoul of a provision prohibiting the use of routine eminent domain as a “pretext” for economic development.

Stadium issue

One of the key portions of the bill deals with sports stadiums. Projects already in the works – including a new stadium for the Dallas Cowboys in Arlington – are exempted. No others are. Any new stadium built in the future would be subject to such restrictions on eminent domain.

Under pre-Kelo eminent domain rules, a stadium could still be built, but the local governmental entity (city or county, in most cases) that used the powers of eminent domain would still have to retain ownership of the facility, and not convey any portion of that facility to a professional team.

The language of the bill, however, may go beyond that and could potentially be used to prohibit any stadium development through eminent domain. The bill prohibits the use of eminent domain for a purpose that “confers a private benefit on a particular private party through the use of the property.”

The language, of course, says “use” not “ownership,” a point that could well end up as an issue in a legal case.

It remains to be seen how much that would limit the future negotiations for a professional sports franchise. The Dallas and Houston areas already have new baseball, football, and basketball arenas. San Antonio has a new basketball arena, but if a future NFL expansion wanted to come to the city and wanted to pass on the 12-year-old Alamodome, its options may be limited.

Future of eminent domain

The initial legislation filed on eminent domain included a constitutional amendment, but in the process, that attempt was dropped. Therefore, any future legislature can undo or change the language of SB 7. While the passage of a bill, instead of a constitutional amendment, doesn’t set restrictions on eminent domain in stone, it also allowed the legislature out of an all-or-nothing corner.

Members with side issues – such as Rep. Harold Dutton (D-Houston), who wanted to pay replacement costs for homes taken – can hold out for the future. To that end, SB 7 includes a study of eminent domain itself. Additionally, Dewhurst said he intends to form an interim committee to review the results of that study and bring recommendations back to the Legislature in 2007.

“I think it’s going to address the more liberal leaning of the [U. S.] Supreme Court in their definition of what a taking is,” said Dewhurst, of SB 7. “I believe that here, under Texas law, we have a more conservative view, and so I believe that this bill moves in that direction.” O

© 2005 The Lone Star Report: www.lonestarreport.org

"If (the RTC) can't get agreement from TxDOT, it should not designate 121 as a toll road."

Frisco adopts SH 121 toll resolution

By: MIKE RAYE, Staff writer
Frisco Enterprise
Copyright 2005

The Frisco City Council said it was the only fix to a broken system and voted to adopt a resolution calling for local control over the destiny of State Highway 121 as a toll road Tuesday night.

Collin County Commissioners in attendance said they would stand firm with Frisco, Allen, Plano and McKinney in negotiations with the Texas Department of Transportation and rescind its approval of tolls if the state failed to follow the resolution to the letter.

"We urge you to pass this tonight and allow us to get on with negotiations with TxDOT," said Collin County Judge Ron Harris. "We will stand with the four cities if (this resolution) is not adhered to."

Frisco - the originator of the resolution calling for a local consortium of city and county governments to administer 121 and its tolls, maintaining local control of revenue generated by the highway - was the last of the group of five to adopt the resolution. It was not without trepidation, however. By a 4-2 vote with council members Maher Maso and Matt Lafata dissenting, the measure passed.

"TxDOT has pushed hard on this because they see 121 as an asset, based on our demographics," Maso said.

He added that with the state in control, even possibly farming out the project to private construction firms, there was uncertainty over how much it would cost the average commuter to drive from the Dallas North Tollway in Frisco to U.S. Highway 75 in McKinney. The rate per mile could be between 8 or 9 cents to as high as 15 cents per mile, translating into a yearly individual toll bill between $780 and $1,170.

"In an ideal world this council would not be supporting tolls," said council member Tony Felker. "This is an imperfect world and systems are broken. The state came to us and said we need to find another way to raise the money. We have to get (this road) built."

County Commissioner Jack Hatchell - a former chair of the Regional Transportation Council, a 40-member board made up of representatives of local governments of 16 Dallas-Fort Worth counties - said, ultimately, the RTC has the authority to approve or deny toll roads in the region. Once the resolution was approved by all five entities, it would be submitted to the state for approval, after which the RTC would make the tollway designation.

"The RTC has to designate it as a toll road in its regional transportation mobility plan for it to be tolled," he explained. "If (the RTC) can't get agreement from TxDOT, it should not designate 121 as a toll road."

Mayor Mike Simpson said area traffic was a problem that will only get worse, and improving 121 was the only way to ease commuter headaches. It was a problem that required immediate attention, he said.

"I hear complaints every single day about traffic and transportation," Simpson said. "I was on the phone with someone today for 45 minutes talking about it. People don't understand that from DNT (Dallas North Tollway) to Hillcrest will be under construction and completed in 2008, whether it is paid for or not paid for by tolls. The rest of it, we hope would be done around 2010.

"If we continue to wait, or if we decide not to toll the portion between the DNT and Hillcrest, they would not go ahead and build the main lanes from Hillcrest up to Custer, and we would not get the interchanges. If we continue to wait the people who are complaining now will really be upset five years from now when we haven't even started on some of these other main lanes and the intersections. I would rather be crucified now for making a decision than be criticized years from now for having done nothing."

A sticking point could surround the highway's right-of way. The section of 121 from the Tollway to Hillcrest Road is already funded through the gasoline tax, including the right-of-way to expand the road. Negotiations between Frisco and local landowners secured the donation of parcels for right-of-way for other stretches, and that land has value - just how much must be calculated, Hatchell said. Getting the land for free saved the state millions of dollars, he argued, a point that has to be raised.

Deputy Mayor Pro Tem Joy West reiterated concerns about how much weight the resolution would carry versus the state. She said she would vote in favor if the resolution had teeth.

"The only way I would support this is if (TxDOT) wavers from it one iota we pull out and start from scratch," she said.

Commissioner Hatchell said in the best-case scenario construction of the main lanes of 121 could begin in two years, opening to traffic in five years.

"I would love to think there is another solution to this; I would love to think the state would provide a better way to finance it," Simpson said, "But there are no answers. Like Judge Harris said, we need to stand as a unified body and tell the state, 'Do it and do it this way or we aren't going to do it at all.'"

City Manager George Purefoy, the author of the resolution that circulated among the three other cities and the county, returning to Frisco with only minor revisions, said the council's vote pleased him.

"This puts us in the best negotiating position with TxDOT," he said.

The next step is taking the resolution to Austin ahead of the RTC meeting Sept. 8.

©Star Community Newspapers 2005 www.zwire.com

Amendment added by Rep. Kolkhorst prohibits TxDOT from using eminent domain for highway "ancillary facilities."

Kolkhorst praises eminent domain bill passage

Brenham Banner-Press
Copyright 2005

AUSTIN -- Rep. Lois W. Kolkhorst (R-Brenham) praised a measure to restrict government's power of eminent domain, which won legislative approval and is now headed to the desk of Gov. Rick Perry.

The House version of the Senate bill, joint authored by Kolkhorst with Rep. Beverly Wooley (R-Houston) and Rep. Frank Corte (R-San Antonio), included an amendment by Kolkhorst which added additional limits to state government's power of eminent domain, including tighter restrictions over state transportation projects in relation to ancillary facilities.

The legislation was passed in order to bar government from seizing land strictly for commercial purposes. Perry, who added the eminent domain issue to the agenda of the special session on school finance, has the power to sign or veto legislation, or to allow it to become law without his signature.

"The passage of the eminent domain bill is victory for all property owners and Texans who believe in private property rights," said Kolkhorst. "As disappointed as I am about the stalemate over school finance and the lowering of property taxes, this bill carries equal weight to Texans who are concerned about the sanctity of the landowner.

"I've fought to lower property taxes for the same reason I've fought protect Texans from eminent domain abuses. All of our freedoms flow from our ability to own property."

In June, the Supreme Court ruled in the case Kelo v. The City of New London,allowing the city to condemn a neighborhood of private homes in order to make way for a planned research facility and upscale residences and retail stores.

The decision affirms that local governments can force property owners to sell to make way for private economic development when government officials decide it would benefit the public, even if the property is not blighted, and the new project's success is not guaranteed.

In its ruling, the Supreme Court left the issue up to individual states to address the issue, which has prompted an abundance of negative reactions and concerns.

Texas lawmakers worked quickly last week to advance a bill to restrict local governments from seizing private land for the promotion of economic development.

The original Senate bill banned governmental entities from using eminent domain to enable a private party to profit. Last week, the House passed an amended version of the bill on a 140-1 vote.

The House measure still allows eminent domain for more conventional uses, such as acquiring land for flood control, railroads, ports, airports and public roads.

The House version of the bill does not specifically address the Trans-Texas Corridor, but an amendment added by Kolkhorst prohibits the Texas Department of Transportation from using eminent domain to acquire land for highway "ancillary facilities," such as restaurants, hotels or similar commercial facilities, which have been discussed as part of the planned Trans-Texas Corridor.

"The goal of the amendment was to say you can't use the power of eminent domain to take land out of the hands of the private land owner in order to profit the government or a third party using the government's power," Kolkhorst said.

"The highway department can still negotiate with landowners to buy land for an ancillary facility if they choose, but this bill prohibits the use of eminent domain to simply grab it."

Ancillary facilities is a function that has traditionally been left to free enterprise, she said, like the private development of businesses lining today's current Texas interstates.

The proposed Trans-Texas Corridor includes controversial plans to build restaurants, hotels and convenience stores along statewide toll roads linking Canada, the U.S. and Mexico.

David Stall, founder of a citizen's group known as CorridorWatch.org, which opposes the Trans-Texas Corridor, praised the bill and Kolkhorst's amendment.

"Sen. Kyle Janek filed SB7 and a handful of representatives did their best to make the good bill even better, especially Rep. Lois Kolkhorst, who added an amendment restricting the Transportation Commission from using eminent domain to acquire property for revenue generating ancillary facilities," Stall wrote in a prepared statement to its members.

Brenham Banner-Press: www.brenhambanner.com

"Planned International Corridor is a giant step towards the complete destruction of property rights in America."

A JUDICIARY CALL TO ARMS PART I

THE POWER OF EMINENT DOMAIN

By: Tom Rose

Now that early reaction to the property-threatening 5/4 decision of Kelo v. City of New London has somewhat abated, it is time to start considering long-range steps for restoring our inherent right to own and control property.

I have refrained from speaking up until now because most reactions offered so far have not really cut to the heart of the matter. Rather, they have only offered short-term "band aid" solutions which will not change the long-continued trend in our country from gradually usurping and undermining peoples’ inherent right to be in control of the property they supposedly own. This is an exceedingly important issue to consider because the ultimate owner of property is in the powerful position of being able to control the destiny of every family, every business firm, and every voluntary organization throughout our nation. The question to be answered, then, is who is to emerge as the true or ultimate owner of property? The individual citizen? or some level of civil government?

At this moment, the recent U.S. Supreme Court decision of Kelo v. City of New London appears to be the last word in stating that civil rulers are indeed the true owners of property and that citizens only hold a fragile and temporary title to property until some unit of "civil servants" (who live on our tax dollars) decide that they want to usurp our rightful ownership. Ultimately the very concept of property is at risk, and the future of our nation is in question. Will we end up reconstituted as a constitutional republic as originally designed by our founding fathers? Or will our political destiny ultimately implode into a tyrannical morass of statist control wielded by dictatorial cabals at every level of society? The trend is already well established along the path towards statist control, so it can be reversed only by thinking and acting on basic principles rather than upon reflexive reactions.

In stating this I do not in the least intend to impugn some brilliant reactions like that of patriot L. D. Clements who came up with the idea of "taking" Justice David Souter’s home in New Hampshire for private use via the power of eminent domain, just as Souter ruled could be done in the case of property owned by ordinary citizens. Three cheers! It is high time that our "honorable" high and mighty civil servants who live in tax-payer provided cocoons are forced to "eat the same cake" that their unconstitutional court rulings force upon ordinary citizens. This same agenda should be applied to the homes of the other concurring judges who have, through their joint ruling, proven their inability or refusal to be bound by "the chains of our constitution!" But the board of selectmen in Weare, N.H., have already rejected Mr. Clements’ proposal. Good try! But it was not a long-term solution that would really solve our problem of a runaway and arrogant Supreme Court.

I will propose some long-term solutions to the problem of unconstitutional court rulings, the power of eminent domain, and American citizens’ fundamental right to own and enjoy their property in part two of this essay, but first let us turn to some other matters that we should consider first.

1. Civil Rulers: Friends? or Potential Enemies?

In America we as citizens have tended to regard the people who work in civil government as our friendly neighbors and trustworthy protectors. What a mistake! I can remember when the policeman on the beat and the local judge or local politician were highly regarded as tax-paid benefactors to society. Indeed, some such individuals no doubt still strive to serve in that capacity. But it is absolutely foolhardy, if we believe in preserving freedom for our posterity, not to carefully bind all tax-paid civil servants with the "chains of the Constitution" that Thomas Jefferson so eloquently wrote about! There are always exceptions to any rule, but seemingly "good guys" can easily turn into "bad guys" on very short notice, given the right opportunity or temptation. Every person whom we place in a position of political power must always be regarded as a potential enemy of the people (as most of the Supreme Court judges have proven to be in some of their rulings). We must not, and cannot safely entrust anything but very limited power in the hands of civil "servants" at every level of government.

Widespread proof of the fact that wielders of political power are potential enemies of the people is evidenced by the ubiquitous response of local governments to the Kelo v. City of New London throughout our nation. I have been amazed at the large number of local zoning and planning commissions and boards of supervisors that have suddenly taken overt steps to steal citizens’ property under the power of eminent domain. The people who wield such dictatorial power are not friendly towards citizens. They can too easily wield brute political power to wrest effective control of honestly acquired property from law-abiding citizens. Such wielders of power should be recognized as the political thieves they actually are; they truly are enemies of law-abiding citizens!

A man in our neighborhood made a meager living by collecting other people’s junk, storing it on his property along the road, and then selling it off piece by piece as the opportunity arose. You can imagine the unsightly mess! Some neighbors wanted to pass a planning and zoning ordinance to solve the "neighborhood problem" this man created. I resisted the effort with these words:

I agree that Mr. ____’s property presents an unsightly mess and is a blight in the neighborhood. And I have urged him to clean up the premises to little avail. But I will defend to the end his right to use his property as he sees fit without outside interference. Who are we to impose our will on how he uses his property?

In God’s good time He took the gentleman, and his widow soon sold off most of the accumulated junk. The eyesore is now gone, for which I am glad. But I would never have interfered with his right to control the use of his own property.

As a young man I spent some years in Chamber of Commerce management. I observed that it is always the high-level "movers and shakers" in communities who end up pushing for planning and zoning boards. Such people become active in "community development" programs in which they usually have a contingent personal economic interest. They send in hired "facilitators" who "butter up" inexperienced "little people" in whom the facilitators implant illusions of grandeur and self-importance. The "little people," of course, are simply used as vehicles to put stamps of approval on the plans of various behind-the-scene special interest entities who manipulate the planning boards.

These official boards, in turn, are then used to pass ordinances that force the will of the high-placed individuals and special economic interests regarding property use onto the general public. Somehow, the populace always seems ready to succumb to the unproven idea that official boards and political edicts produce better community development rather than allowing the impersonal forces of the competitive marketplace take their normal course. Thus, we follow the coercive path of relying on the very expensive practice of government "takings" through the power of eminent domain. This coercive practice drastically infringes on people’s ability to alter the use of their property in response to competitive market forces while, at the same time, it artificially enriches the wealth of hidden individuals in the upper economic stratum of society. This is not a friendly process that benefits society as a whole; rather, it is a vicious scheme that all too often is used "legally" to rob ordinary citizens of their property and forcibly transfer it into the hands of the more politically adept leaders in the community.

The Ultimate Play in Eminent Domain!

In researching information for this article I came across an article by Phyllis Spivey entitled "Internationalizing U.S. Roads," dated June 6, 2005. She reveals that eight state governments are collaborating to build a national highway (Interstate #69) that will connect Canada, the United States, and Mexico. It is to run from Port Huron, Michigan, south to the Texas/Mexico border as part of what is being called the Trans-Texas Corridor (TTC), a 4,000-mile network of existing and new toll roads. Interstate 35 will be developed as part of the TTC. Eight states are involved in the project. The network is to be managed by foreign operators (who will be conveniently "out of touch" to local citizens).

Plans are for the TTC to be a corridor 1,200 feet wide with 10 vehicle lanes and six rail lines running north and south. The corridor is to include a 200-foot wide right-of-way for oil, gas, electric, and water lines.

In 2003 the Texas Department of Transportation sent emissaries to Europe in search of "partners" for building the massive corridor. In 2004 Texas selected a Spanish firm to finance and build the first segment of the TTC. And in March, 2005, Texas signed a 342-page contract with the foreign company. According to Corridor Watch, a Texas group that opposes the TTC, the planned corridor will consume 584,000 acres of land and will massively impact the environment, land owners, farms, ranches, wildlife, water rights, towns, local economies, and especially citizens’ right to own and manage their own property.

This planned international corridor, to be owned and operated by foreign entities, is a giant step towards the complete destruction of the very semblance of property rights in America. Can you imagine the salivating for other people’s property that is being generated throughout our land? Think of the vast sums of money to be paid in attorney fees by the resulting condemnation procedures, and the billions of dollars of potential "windfall profits" that speculators and developers will suddenly hunger after!

In 1849 Frederic Bastiat authored a book entitled The Law. In it he pointed out how government often uses the law as a vehicle to foster legalized theft, that is, how the law can be used as a means of legalized plunder. He fearlessly fought the socialists in France until he died in 1850. We need hundreds of thousands of modern-day Frederic Bastiats in America today if we have any hope of preserving our once-upon-a-time Republic. For an historical perspective and suggestions (all "politically incorrect," of course) of what freedom-loving Americans must do, watch for Part Two of "A Judiciary Call to Arms."

"Published originally at EtherZone.com: www.etherzone.com republication allowed with this notice and hyperlink intact."


Tom Rose is retired professor of Economics at Grove City College, PA. He is author of eight books and hundreds of articles on free-market economics. He is a regular columnist for Ether Zone.

We invite you to visit his website at: www.biblicaleconomics.com.

Published in the August 18, 2005 issue of Ether Zone.
Copyright © 1997 - 2005 Ether Zone.

We invite your comments on this article in our forum!

Mean Streets

Hands off our homes

8/18/05

The Economist
Copyright 2005

A Supreme Court ruling that allows the government to seize private property has set off a fierce backlash that may yet be as potent as the anti-abortion movement.

If you ever doubted the importance of the Supreme Court, consider the fuss about Kelo v New London. The five-to-four ruling by the court on June 23rd, apparently giving the government the power to bulldoze homes on flimsy grounds, has set off fiery protests across the country.

Americans used to believe that their constitution protected private property. The Fifth Amendment allows the state to seize it only for "œpublic use," and so long as "just compensation" is paid. "Public use" has traditionally been taken to mean something like a public highway. Roads would obviously be much harder to build if a single homeowner could hold out forever or for excessive compensation. The government's powers of "eminent domain" have also been used to clean up "blighted" slums.

Kelo was about something different, however. A private developer in New London, Connecticut, wanted to raze some perfectly nice waterfront homes to build an office block and some posh apartments. The owners didn't want to sell. The city decided to force them to, calculating that the new development would create jobs and yield more taxes.

The Supreme Court took the city's side. Rejecting "any literal requirement that condemned property be put into use for the ...public;" Justice John Paul Stevens said it was enough that the seizure should serve some vaguely defined "public purpose” such as those new taxes. This had nothing to do with slums or roads: instead, it massively expanded the government's power of eminent domain.

The backlash began immediately. Dissenting justices such as Sandra Day O'Connor (who retired last month) pointed out what extraordinary powers the court had just granted the government. "The spectre of condemnation hangs over all property,"she wrote. "Nothing is to prevent the state replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory."

If people can be evicted to make way for others who might pay more taxes, added Clarence Thomas, the court's only black justice, it is not hard to predict who the most likely victims would be. "Urban renewal," he noted, has sometimes been nicknamed "negro removal."

Seven days later, by a ten-to-one margin, the Republican House of Representatives passed a motion disagreeing with the court. A constitutional amendment to overrule Kelo is before the House, while a bill that would have a similar effect is before the Senate. Delaware, Alabama and Texas have already passed laws restricting the government's power to grab private property. Legislators from two dozen other states have either proposed similar bills, or promised to do so.

Meanwhile, a grass-roots movement has arisen to keep other people's hands off private homes. Libertarian groups such as the Institute for Justice, which were campaigning against eminent-domain abuse before Kelo, report an upsurge in support, both moral and monetary.

Property grabs on behalf of private developers have been common for some time: the Institute for Justice documented some 10,000 threatened or actual cases between 1998 and 2002. Several cities, including New York, claim that without eminent domain they could never have cleaned up their shabby centres; you could not have created the big spaces that modern retailers wanted at Times Square without forcing small shops to sell.

Since Kelo, the law may have shifted in favour of the men with the bulldozers, but public opinion has swung sharply the other way. Polls suggest that 90% of Americans disapprove of the kind of seizures allowed by Kelo. Such is the anger that some developers say they are shunning even the kind of eminent-domain seizures that would have been legal before Kelo.

Property-owners fighting against local government have been buoyed by the backlash. In the town of Ardmore, Pennsylvania, for example, a small group of businessfolk received letters last year informing them that their shops were to be demolished to make way for a new development including apartments and a parking garage.

Their story is typical of the cavalier fashion with which eminent domain has been used, even before Kelo. Ardmore is part of the township of Lower Merion: its board of commissioners had decided that Ardmore's central thoroughfare needed sprucing up. They had some federal funds to build a new railway station, and they decided it would be nice if more commuters could live nearby so they could walk to the station. But instead of offering to buy out the people whose businesses would have to be demolished, they simply told them they would have to move.

"It was devastating," says Eni Foo, whose Chinese restaurant is on the list. "I've been in the United States since 1963. I came as a graduate student and stayed because I love America. I always believed America [respected] individuals' rights."

The local government had declared the area "blighted." But a brief walkabout reveals that it is no more blighted than the potato you ate for lunch. A couple of shop fronts are a bit tatty, but otherwise it looks fine. Indeed, the district has been officially designated "historic." since much of it was built in the 19th century. The condemned properties include a second-hand shop that supports the local hospital, a club for veterans of foreign wars and Scott Mahan's stationery shop, which has been in his family since 1926.

"I'm not an activist," says Mr Mahan, "but the more I read about it, the angrier I got. If they were going to do it the American way, they'd negotiate with everyone until everyone was happy. But using eminent domain is totally different."

Mean streets
Those who are uprooted under eminent domain must be given fair compensation. But if they have no choice but to sell, it may be hard to determine what a fair price for their property is. Developers who know the sellers have to sell will surely be tempted to "lowball" their offers.

The question is not whether the development plan is good or bad. (Some say it will make Ardmore prettier and less congested; others that it will make it uglier and more yuppified.) What matters is whether the plan represents such a pressing public good that it is reasonable to use the state's vast coercive power to execute it. For most Americans, Interstate-95 passes muster, but yuppie condos don't.

The merits or otherwise of the Ardmore plan have been obscured by the protests it has provoked. The "Save Ardmore Coalition" now has 1,000 members ” not bad for such a small town. Its members have linked up with national groups such as the Institute for Justice. And since Kelo, state and national politicians have started to take an interest. The Pennsylvania legislature is considering a bill to curb the abuse of eminent domain. Mr Mahan is going to testify.

Lower Merion's board appears to be retreating. Matthew Comisky, its president, admits that it was a mistake to send out those letters summarily telling shopkeepers they were to be evicted. He says that no final decision has been made as to whether to invoke eminent domain. The plan must first undergo an environmental audit, he says, and the board will not be able to vote on a final plan until next year. He denies that the protests have prompted the board to change tack, but admits that the protestors "have done a good job of publicising themselves."

Small-government conservatives hope that Kelo will prove to be a tipping point. "Twenty years from now, people will look back at Kelo the way people look back at Roe v Wade [the 1973 Supreme Court decision that barred the states from banning abortion]," says Grover Norquist of Americans for Tax Reform, a lobby group.

Before Roe, state legislatures were legalising abortion one by one, without provoking much protest. Roe galvanised pro-lifers by suddenly making (fairly unrestricted) abortion legal everywhere in America, and by doing so in a way that many still regard as illegitimate. The majority judges decided that the constitution contained a "right to privacy" which, though not mentioned anywhere in the text, allowed any woman to abort her foetus in the first trimester.

The Kelo ruling was less convoluted, but its opponents think it equally unconstitutional. Mr Norquist calls it both "outrageous" and "manna from heaven," since the property-rights movement it spawned will be at least as electorally significant as the anti-abortion movement. It will be worth 3-5% of the vote, he predicts.

Meanwhile, it has trebled Mr Comisky's workload. Since he also has a full-time day job as a lawyer, this means he hardly sees his family. "Last night I put my son to sleep at 9pm and got up 3am," he says. He adds that he will not seek re-election when his term expires.


© 2005 The Economist: www.economist.com

"The general opinion was that TxDOT has its mind made up and that in reality it will do no good to comment or express concerns."

Corridor route disturbs folks in Grimes County

Staff Report
Navasota Examiner
Copyright 2005

Judging by the reaction of nearly 200 Grimes County citizens last Tuesday evening, the proposed TransTexas Corridor's route through the area isn't a source of joy.

The Aug. 9 Texas Department of Transportation's informal meeting at the Navasota Intermediate School gym featured map displays and other informational charts set up around the perimeter of the gym.

TxDOT employees and employees of its consulting firm were on hand to answer citizens' questions while promoting the plan for a gigantic swath of multiuse transportation facilities from the Texas-Mexico border to the northeast corner of Texas and continuing through other states to Canada.

The artery would require a right-of-way of 1,200 feet - almost one-quarter mile - and is proposed to include multiple roadways. Plans are to serve passenger and transport vehicles, with dedicated truck lanes, railroads to carry high-speed passenger trains and freight and commuter trains. Utilities would include water, electricity, natural gas, petroleum and communications.

Those present overwhelmingly expressed an aversion to the proposal as presented by TxDOT and queried the department's representatives about how the route was selected.

State Rep. Lois Kolkhorst said after the meeting she, too, has issues with the project.

"I'm not against new highways. I just have grave concerns about the width, accountability, access and that the project goes against my free trade-enterprise values," Kolkhorst said.

Kolkhorst has authored HB 1273 in the state legislature, a measure that narrows the project's scope and seeks accountability safeguards.

As currently proposed, the corridor would enter Grimes County in the southwest corner and traverse northeasterly, exiting the county northeast of Shiro. The distance would be approximately 40 miles.

Over 4,000 acres would be taken for what many frankly see as a boondoggle. Their fears are that it would not only physically divide the county and impede their ability to get from one area of the county to another, but would also remove that acreage from making a positive economic impact on the county as they do now through agricultural or other business use, mineral rights or property taxes.

Citizens were told the corridor must provide for on-off ramps where it intersects state or federal roads, but no other access is to be provided. Such a concept is new in that the corridor is intended to be a pass-through. Historically roads, rails and utilities have connected cities and towns. The proposal, many think, will not substantially relieve the transportation problems in the county's cities and towns.

While one citizen expressed her belief that the corridor will cause growth in the vicinity of the ingress and egress points of the corridor, possibly creating new population areas, others thought it would sound an economic death knell by severely impeding growth.

A fairly recent economic study indicated that in the Navasota area 21.4 percent of the households have an annual income of $10,000 or less - more than twice the state average of 10.3 percent.

Whether the economic impact is positive or negative, the consensus was that it will negatively affect the rural lifestyle. The proposed route may even run near the new elementary school Navasota ISD is building in the Stoneham area. The potential for accidents in the area does not foster peace of mind for many people.

In response to citizens' inquiries about how this proposed toll road would be paid for, who would use it and at what cost, and who would be awarded the contract for building and for managing it once built, the state's representatives did not have any definitive answers.

They indicated that Texas does not have the funds to build the corridor, so the state has sought private investment through a company or consortium of companies to build the road and are negotiating a rate of return that the private investors can be guaranteed in the form of a percentage of the tolls.

Several citizens responded that these terms should not be negotiable items, but should be set terms offered by the state in a contract, without guarantees that investors will be repaid any money from taxpayers if the project fails or if toll revenues are not sufficient.

There have been reports that the contract was going to be awarded to a Spanish company, but the TxDOT response was that no decision had been made. Some attending were emphatic that the contract - if and when awarded - should go to an American company and preferably to a Texas company.

The state's representatives did confirm that the contract for the I-35 corridor from San Antonio to Dallas had been awarded to a consortium headed by a Spanish firm with only a 25 percent interest by an American company.

No dollar figures were mentioned for the cost of the total project, and citizens expressed great concern about the lack of information in this area.

Some think if there is any cost to the taxpayers at any stage of this project, or through higher guarantees to the investors, the legislature should give citizens an opportunity to vote on this matter before it can go forward.

Several people pointed out that if such a corridor is needed a more practical plan would be to use the current routing of U.S. 59 as much as possible, expanding the rights-of-way as needed. Several also said that wherever possible, lands already owned by the state or federal government should be utilized rather than using the eminent domain process to acquire land and displace people.

None of the state's representatives were able to answer the questions of how they could ensure that railroads, pipeline companies and others proposed to utilize portions of the rights-of-way would be interested in participating in this plan, or how those users would be determined or selected.

One person posed the question of what this corridor would connect to at the Texas-Mexico border. Are Mexico and Canada working on a similar connecting transportation facility? Otherwise, it would seem to be a road to nowhere, being built for the benefit of Mexico and Canada.

Others expressed concern that illegal immigration and drug traffic could be greatly increased because of easier access into Texas and concern about the criminal activity this could bring.

Although comment sheets were available, the general opinion was that TxDOT has its mind made up and that in reality it will do no good to comment or express concerns. Those wishing to comment have until Aug. 29 to submit their views to TxDOT if they want them to become part of the official record on this issue. After that date, comments will not become part of the official record. These should be sent to the TTC website at www.keeptexasmoving.org or by mail to Ed Pensock, Jr., P.E., Director of Corridor Systems, Texas Turnpike Authority Division, Texas Department of Transportation, P. O. Box 14428, Austin Texas, 78761.

Navasota Examiner: www.navasotaexaminer

Support for tollway would be revoked if TxDOT refused to grant local governments authority to set the tolls and retain excess revenues.

Frisco adopts 121 toll resolution

Officials seek local control in setting tolls, keeping revenue

By BILL LODGE
The Dallas Morning News
Copyright 2005

The Frisco City Council voted Tuesday night to join Collin County and the cities of Plano, McKinney and Allen in an effort to exert local control over expansion of State Highway 121 as a tollway.

Support for the tollway would be revoked by the Collin coalition if the Texas Department of Transportation refused to grant local governments authority to set the tolls and retain excess revenues.

"The Texas highway system is broken," council member Jim Joyner said before the 4-2 vote. He said Highway 121 is becoming too congested to delay the project any longer.

Mayor Pro Tem Mayor Maso and fellow council member Matt Lafata opposed the action.

"We have no agreement with TxDOT," Mr. Maso said.

Mr. Lafata said a toll road would discourage area shoppers from coming to Frisco.

The resolution calls for tolls on Highway 121 from Collin County's border with Denton County to Central Expressway.

Bob Brown, deputy Dallas district engineer for the Transportation Department, said before the Frisco meeting that a joint agreement by all five Collin County governments sets the stage for completion of the Highway 121 expansion before unbearable gridlock becomes a daily experience.

"If everything goes right, we think it can be open to traffic in 2010," he said. Frisco officials estimated the cost of the construction project at $400 million and noted that the Transportation Department already has spent $300 million for rights-of-way and service roads. They also estimated that the five Collin County governments have contributed an additional $100 million in rights-of-way and related construction.

Changing Highway 121 to a tollway also triggers some federal laws, Mr. Brown added.

"That kicks off a new environmental study," he said. "We use some federal dollars ... so we have to do a study showing that we comply with environmental laws."

The resolution adopted by Frisco and the other Collin County government entities calls for local control of the tolls and equal sharing of any extra money that is generated by those tolls.

E-mail blodge@dallasnews.com
Dallas Morning News: www.dallasnews.com

"I'm not going to be run over from some guy with a big ego from TxDOT."

Wolff raps state transit officials as rude, pushy

Patrick Driscoll, Staff Writer
San-Antonio Express-News
Copyright 2005

State transportation officials have pushed San Antonio leaders, treated them rudely and ignored them, Bexar County Judge Nelson Wolff charged Tuesday.

But that said, it's best to try to work with the Texas Department of Transportation on toll road plans and strike the best deal for the community, Wolff said as county commissioners debated whether to hold back funds from its local toll road agency.

"Let's give it a chance," Wolff said. "But let me tell you, I'm not going to be run over from some guy with a big ego from TxDOT."

Commissioners will decide whether to lend the year-old Alamo Regional Mobility Authority $500,000 for the upcoming fiscal year when they pass their annual budget. They've already advanced the authority $750,000 and the city has lent $500,000.

Commissioner Lyle Larson, who says he's been ostracized by Gov. Rick Perry for opposing state toll road plans, is trying to cut the authority's funding.

"I don't know what kind of Kool-Aid's being sloshed around Austin," he said. "But let me tell you, people are opposed to this."

Larson claims the state asked the county to form the authority just to have a shield against angry motorists. The authority is bureaucratic deadwood, he said, because state officials insist on deciding how to handle private proposals to build the city's first 47 miles of toll roads.

"What's the purpose (of the authority)?" he asked. "It's very difficult for me to understand."

Mobility authority Chairman Bill Thornton said those are fair questions that should be asked all the time. He also said there had been little communication from TxDOT since April, when a private consortium proposed taking over the first toll roads in San Antonio.

But that's changed in recent days with two letters from TxDOT, Thornton said.

One letter, dated Monday and signed by TxDOT Assistant Executive Director Amadeo Saenz, reiterated a promise that state officials will not sign a development contract unless the authority agrees.

The other letter, from TxDOT's San Antonio office, offers to let the authority take over projects to add toll lanes on Interstate 35 from downtown to Schertz and on Bandera Road between loops 410 and 1604, and to build a toll interchange at U.S. 281 and Wurzbach Parkway.

"Stay the course," Thornton advised commissioners. "I read that as a tremendously significant vision of the future."

The surprise that jolted Wolff, Thornton and others was when Spain-based Cintra and its local partner, Zachry American Infrastructure, made an unsolicited proposal to the state in April to build and operate toll lanes on Loop 1604 and U.S. 281 on the North Side.

Cintra-Zachry officials say they can build the system faster and free up $610 million in tax dollars. Local leaders have speculated the companies would seek higher toll rates and collect the fees for up to 50 years.

But the state had planned to build half of that tollway and give it to the mobility authority, which would have expanded it. In June, without input from San Antonio, the Texas Transportation Commission decided to pursue the Cintra-Zachry offer and advertise for other bids.

On top of that, Wolff said, he didn't like the way transportation commissioners treated San Antonio leaders at that meeting.

"That did not leave a good taste in our mouths," he said.

But with gas taxes drying up and newer vehicles getting better gas mileage, toll roads might be the best answer to tackle traffic congestion, Wolff said. So it's important for San Antonio to work with the state in an effort to share profits and keep an eye on toll rates and other details.

"I don't know of any other way than toll roads," he said.


pdriscoll@express-news.net

San Antonio Express-News: www.mysanantonio.com

Gallegos' fillibuster left fellow senators scratching their heads.

Filibuster fails to stop eminent domain limit

Lawmaker's UH arguments leave some baffled

By POLLY ROSS HUGHES
Copyright 2005 Houston Chronicle Austin Bureau

AUSTIN - Sen. Mario Gallegos so strongly opposes a bill limiting government powers of eminent domain that he tried to kill it with a 2 1/2 -hour filibuster Tuesday.

His attempt failed, but it left fellow senators and even Lt. Gov. David Dewhurst scratching their heads.

"I don't know. I don't know," Dewhurst said about what motivated Gallegos.

Gallegos, a Houston Democrat, complained during floor debate that wording added by the Texas House to save a hamburger restaurant "affects my district!"

The amendment by Rep. Rene Oliveira, D-Brownsville, prohibits universities from using eminent domain powers to take land for a "lodging facility" or a parking garage to accommodate it.

It originally only applied to the University of Texas, which wanted to seize the land of Player's restaurant, owned by Oliveira's cousin, to build a parking garage for a proposed conference center and hotel.

Oliveira later expanded the amendment to include all universities, arguing that state-supported schools should not be in the business of competing with privately owned hotels operating in the free market.

Gallegos said he thinks the restriction is unfair to the University of Houston-Downtown, just in case the Hilton Hotel decides three years from now that it wants to run a hotel-restaurant management project downtown as it does on the university's main campus. "I do not like the amendment. Rene Oliveira's amendment denies them that right," he said.

Dewhurst said Gallegos first told him it was the city of Houston that opposed the eminent domain bill, but bill sponsor Sen. Kyle Janek, R-Houston, told Dewhurst that Houston Mayor Bill White does not oppose it.

"Then it was the University of Houston was opposing the bill," he said of his conversation with Gallegos. "So I said, 'Fine, let's get the president of the University of Houston on the phone.'

"Then he said, 'No, it was the developers.' "

UH spokesman Eric Gerber said the school was not concerned about the bill's eminent domain limits on its future downtown development.

"Officially, no, University of Houston doesn't have a horse in that race," Gerber said.

Senate Bill 7, with the amendment, was approved and sent to the governor Tuesday afternoon.

polly.hughes@chron.com

Houston Chronicle: www.chron.com

"There was no reason to talk any longer."

Eminent domain bill headed to Perry

Houston lawmaker's filibuster fizzles.

By Mike Ward
AMERICAN-STATESMAN STAFF
Copyright 2005

A high-profile measure designed to prohibit governments from seizing private property for commercial development is on its way to Gov. Rick Perry, who will probably sign it.

The Senate's 17-6 vote came after Sen. Mario Gallegos, D-Houston, spoke against the legislation for two hours in the late morning. It was billed as a mini-filibuster but turned out to be more like an early lunch break for most senators.

Gallegos gave up about 12:30 p.m., after a speech in which he said "eminent domain" 1,043 times, according to Senate doorkeeper Sheldon Massenburg, who counted.

Gallegos said he was worried that the measure, Senate Bill 7, would hurt public colleges and universities.

A provision added to the measure by the House last week prevents universities from using eminent domain to acquire land for lodging facilities, parking or a parking structure to be used in connection with a lodging facility. The provision, though aimed at the University of Texas, which is trying to acquire the land occupied by Player's restaurant, would apply statewide.

Gallegos said he quit Tuesday because Lt. Gov. David Dewhurst would not recognize a point of order noting that a quorum was not present, a move that would have killed the legislation.

"There was no reason to talk any longer," he said.

The eminent domain measure, by Sen. Kyle Janek, R-Houston, was triggered by a June ruling by the U.S. Supreme Court that allowed city officials in New London, Conn., to condemn and take a widow's home for a commercial development.

The case quickly became a hot-button issue across the country for property rights advocates, who insisted that eminent domain lawsuits should not be used for private development.

Lawmakers moved quickly in the first special session in June, then again in the current special session, to prohibit such suits in the future.

Under the bill, governmental entities would be prohibited from condemning private property for economic development projects. Exceptions were carefully written in for public-use projects such as roads, parks, libraries, auditoriums, ports and utility work.

Also exempt would be the construction of a new Dallas Cowboys stadium in Arlington and an urban renewal project involving an empty downtown Dallas high-rise.

After Tuesday's final vote, Dewhurst announced that he plans to appoint an interim Senate committee to study whether further action is needed.

"This is going to address a more liberal leaning of the Supreme Court," Dewhurst said. "It is an important step."

Kenneth Dierschke, president of the Texas Farm Bureau, a group that lobbied hard for the change in state law, applauded Tuesday's vote but said his group will be back in 2007, pushing lawmakers to let voters put the same prohibition against property seizures into the Texas Constitution.

Perry hailed the legislation.

"This bill provides common-sense protection for every private property owner, and I will continue to work with members of the Legislature to add further protections in the state constitution," he said in a statement.

mward@statesman.com; 445-1712

Austin American-Statesman: www.statesman.com

"I think what they need to do is widen the roads they have and make improvements."

What effect will planned corridor have here?

Property, environmental concerns surface at Trans-Texas Corridor meet

August 16, 2005
JASON COLLINS
Victoria Advocate
Copyright 2005

Victoria area residents who attended Monday evening's meeting on the Trans-Texas Corridor were concerned not only about losing land that has been in the family for generations, but also its impact on wildlife.

The meeting, held at the Victoria Community Center, provided people with information on route options being suggested for the specific section of the Trans-Texas Corridor known as the "Northeast Texas to Mexico element" or the Interstate 69/Trans-Texas corridor that would pass through the Victoria area.

The Texas Department of Transportation is holding similar meetings, all from 5 to 8 p.m., this week in Goliad, Edna, Beeville, El Campo and Wharton.

No presentation was given at Monday's meeting where more than 60 people had already arrived by 6 p.m. Instead, engineers and consultants on the project walked among the crowd answering questions posed by the attendees who closely examined the maps and statistics on display.

Shane McAdams said that he is concerned with the scope of the project.

"I think they are taking too much land," said McAdams, who has family property along the existing U.S. Highway 59 in Victoria County.

His concern, he said, was that corridor project would consume property that was once used for farming and ranching and will become "in my opinion, a lot of wasted land."

His alternative was to use the existing right of way of Highway 59 for the proposed I-69.

Kevin Janak, of the Mission Valley area, agreed.

"I think what they need to do is widen the roads they have and make improvements," Janak said.

However, he also proposed a solution he said is being used where land is at a premium.

"Why couldn't we do like California and double layer it?" he said. "That would be something to consider."

Both Janak and McAdams and others attending had the chance Monday to either submit their opinions and concerns in writing or verbally to a woman taking dictation.

The corridor is a proposed multi-use, statewide network of transportation routes that would incorporate existing as well as new highways, railways and utility right-of-ways.

The portion of the corridor through the Victoria area would be developed as a stretch of the proposed I-69, a planned 1,600-mile national highway connecting Mexico, the United States and Canada.

The proposed I-69/TTC project area is about 1,000 miles long and 20 to 50 miles wide and generally follows U.S. Highway 59 from Texarkana through Victoria to Laredo, with connections to the Rio Grande Valley following U.S. Highway 77 through Refugio, and U.S. 281, which intersects Highway 59 southwest of Beeville.

Sid and Mary Beck of Raisin said one of their concerns is for the wildlife of the area.

The corridor will cut up the state, reducing breeding possibilities for deer and other animals, thus limiting the gene pool, she said.

She, too, wasn't opposed to the corridor but to its expanse.

While some had already formed their opinions, others were there to find out more about the corridor.

"I have not heard a whole lot about it," Victoria resident Douglas John said as he stood in front of one of the many displays.

Jack Heiss, project manager from Austin, said that he has heard a spectrum of responses about project.

"A lot of people are concerned about their property especially those in the study," he said.

"Our purpose here is to provide the populace with information about the environmental issues," Heiss said.

Those environmental issues aren't just flora and fauna but also the corridor's impact on people and their cultural.

This is just one of the first steps.

"We are in the process of writing the Environmental Impact Study for Tier 1," Heiss said.

That report will ready by late spring of 2006, at which time additional meetings or hearings will be held.

An Advocate poll that began last month has also garnished both favorable and opposing opinions on the corridor.

Kenneth Schustereit, in the Advocate online poll wrote on Aug. 9, "Both the TTC and the new state surcharges on traffic offenses are nothing but a constitutionally illegal revenue scheme/scam hatched by Rick Perry."

Rick Merlin, in the poll, wrote Aug. 4, "This is just another example of the rich helping the rich get richer at taxpayers' expense (see Bush's energy bill)... The TTC will be nothing more than an easier way for illegal aliens and drugs to come into Texas."

Andre Salm, in the poll on Aug. 3, wrote, "More populated states than Texas, such as California, have not found a need for a corridor from north to south and east to west in their state... This is a land grab to make Rick Perry and other politicians rich at taxpayers' expense."

Hollie Ragle, on July 30, wrote, "This is about the biggest waste of money they could think of. Utility companies will not use it. When they lay a pipeline or an electric line they use the shortest route. To run the utilities down the Trans Texas Corridor would be out of the way and too expensive."

Janice Dickerson, on July 31, wrote, "As a truck driver who has traveled from coast to coast, all I can say is it's about time. It should help to bring in business; therefore, more jobs, which result in better economic conditions... One last thought, the farther the trucks have to travel in round about ways to deliver our merchandise, the higher the cost to purchase same."

Dwight Mutschler, on July 31, wrote, "It is imperative that I-69 be built to accommodate the number of vehicles that utilize the highways that are proposed for that sector. I am not sure that the TTC needs to be 20-50 miles wide however... With the population of Texas continuing to grow at the current rate, something like the TTC will become a necessary evil, but it doesn't have to become a monster."

Some poll responders were also concerned that an investor in the corridor was from outside the country.

Mary Jahn, on Aug. 3, wrote, "I understand the need for a better highway system; however, the Trans-Texas Corridor will be solely owned by a corporation from Spain at the cost of over 600,000 acres of privately owned land. Not to mention the fact that American taxpayers will still be bearing the burden for this by loaning the money to the Spain corporation."

To post comments at the Advocate's poll, go to www.thevictoriaadvocate.com and click on the "Quick Links" box and then on "Trans-Texas Corridor."

Jason Collins is a reporter for the Advocate. Contact him at 361-580-6521 or jcollins@vicad.com.

The Victoria Advocate: www.thevictoriaadvocate.com

Dewhurst: Lawmakers will continue to study the issue to see if any changes must be made in the 2007 legislative session.

Senate adopts eminent domain measure, sends bill to governor

By JIM VERTUNO / Associated Press
Copyright 2005

The government's power to take private property for economic development would be limited under a bill approved Tuesday by the Senate and sent to Gov. Rick Perry for his consideration.
Perry had added the property seizure issue to the call of the special session last week, urging lawmakers to protect Texans' private property. The Senate's 17-6 vote of approval came as any hope of passing a school finance measure appeared to have faded for good.

The Republican Perry, who usually reserves comment on a bill until he's ready to sign into law or veto, praised this one.

"I applaud members of the Legislature for passing a bill that ensures government cannot seize private property simply to generate more tax revenue," Perry said. "This bill provides common sense protection for every private property owner."

The bill was filed in response to a U.S. Supreme Court ruling that let governments take land for private development to generate tax money, prompting worries that local governments would seize homes and turn the property over to developers. Texas is one of at least 25 states that have considered changes to eminent domain laws this summer.

Under the Constitution, governments cannot take private property for public use without "just compensation." Governments have traditionally used their eminent domain authority to build roads, reservoirs and other public projects. But for decades, the court has expanded the definition of public use, allowing cities to employ eminent domain to eliminate blight.
In June, the Supreme Court ruled 5-4 that New London, Conn., could take homes for a private development project. But the ruling also allowed states to ban that practice.

Even with Tuesday's vote, Republican Gov. David Dewhurst said lawmakers would continue to study the issue to see if any changes must be made in the 2007 legislative session.
___

The eminent domain bill is SB7
The Associated Press: www.ap.org

Sen. Gallegos: University officials " said they're OK with it but I'm not OK with it.”

Filibuster stalls passage of eminent domain bill

Lisa Sandberg/Austin Bureau
San Antonio Express-News
Copyright 2005

AUSTIN — Plans for the Senate to consider a bill to restrict government's power of eminent domain were put on hold this morning when an opponent of the bill, Sen. Mario Gallegos Jr., D-Houston, began a two-hour filibuster.

“As long as I can stand, I'm going to filibuster this bill,” Gallegos informed his colleagues. Shortly after, at 10:25 a.m., he began reading from a document.

Sen. Kyle Janek, R-Houston, authored the bill, which would bar government from seizing land strictly for commercial purposes.

The filibuster ended two hours later when Gallegos paused, conferred with Senate leaders, then relinquished the floor.

Gallegos later said he stopped when it became clear the Senate lacked a quorum for a vote.

“It's easier for me to walk off the floor and kill the bill than to continue the filibuster,” he said.

But Lt. Gov. David Dewhurst rescheduled debate for 4 p.m. this afternoon, and Senate tradition doesn't allow a filibuster to resume, once broken.

Gallegos said he feared that the bill could “handcuff” downtown universities that want to expand their campuses. An amendment to the bill, added by the House, specifically restricts universities from seizing property to build hotels.

He acknowledged that his concern about the amendment regarding hotels for universities was not shared by officials at the University of Houston, which falls within his district.

University officials “said they're OK with it but I'm not OK with it,” he said.

Janek's legislation was prompted by a U.S. Supreme Court decision in June that broadened the eminent domain powers of government entities but left the door open for states to set the rules. Specifically, the ruling said the city of New London, Conn., was within its rights to seize private homes so a private developer could build a biomedical research facility.

The ruling triggered a backlash in several states and in Congress. Delaware and Alabama have already passed laws limiting eminent domain powers.

In Texas, while Janek's Senate Bill 7 has enjoyed broad support — the House passed it last week by a vote of 140 to1 — it has not been without critics.

Rep. Will Hartnett, R-Dallas, who cast the sole House vote against it, said he was concerned that the bill would be costly to taxpayers. He said most eminent domain proceedings involve owners of commercial properties and many of them might be encouraged to go to court to demand unjust compensation.

Under the bill, governments could still seize property for “public use,” though what constitutes “public use” is left undefined. The bill specifically mentions railroads, airports, ports, waste disposal projects, libraries and museums as legitimate uses of eminent domain.

The bill calls for an interim study to help lawmakers identify ways to improve upon the legislation in the next regular session that begins in 2007.


lsandberg@express-news.net

San Antonio Express-News: www.mysanantonio.com

Bexar County Commissioner: "We've never wanted to toll the roads."

Role of toll road authority under fire

Elizabeth Allen, Staff Writer
San Antonio Express-News
Copyright 2005

At the same time the Alamo Regional Mobility Authority is carefully rebuilding its relationship with the state, Bexar County Commissioner Lyle Larson has put its future funding up to a vote.

Larson, angry about the state's look at a private bidder to build North Side toll road projects after encouraging the county to set up the local entity, has been trying to line up votes to delete part of the RMA's funding at today's commissioners court meeting.

"I'm really not a proponent of creating layers of government when they're not needed," Larson said. "We've never wanted to toll the roads."

Initially, he said, "a couple" of other commissioners said they agreed with him, but by Friday they had started moving away from that position.

The other three commissioners said they were undecided, but all said they felt it was important to maintain a voice in the toll road development issue.

County Judge Nelson Wolff takes some credit for maintaining that view.

"I'm having a few people work a few people," Wolff said. "Now's not the time to cut and run."

Wolff said the RMA, though less involved than local officials originally envisioned, can still have a say in the process of building a 22-mile toll road system on Loop 1604 and U.S. 281 that he sees as inevitable.

Though Larson said a county staff member could handle the RMA's duties, Wolff said he disagrees.

If the RMA stays intact and involved, he said, it could reap part of the toll revenues and keep them invested in local roadways, and it could possibly own the toll system at the end of the process.

Commissioners have funded the RMA with $750,000 in loans, with another $500,000 coming from the city. If the county cuts off the RMA, it would be tough to operate beyond a year, said RMA board member Jim Reed.

More importantly, he said, it would be seen as a vote of no-confidence by the county at a time when the RMA is working up a memorandum of agreement with the state that would outline its role in setting up an agreement with the private developer — Spain-based Cintra and locally owned Zachry American Infrastructure.

eallen@express-news.net

San Antonio Express-News: www.mysanantonio.com

HNTB is lead consultant for Trans-Texas Corridor

Texas roadwork propels firm

HNTB adding space, employees

Related Link: Ex-General Barry R. McCaffrey, now Chairman of HNTB Federal Services Corporation, pushes Trans-Texas Corridor

8/15/05

Giselle Greenwood
Austin Business Journal Staff
Copyright 2005

When Gov. Rick Perry announced the Trans-Texas Corridor highway project in 2002, engineering firms across Texas perked up. Thanks to projects such as that one, an engineering firm in Austin is experiencing significant growth.

To accommodate growth in its business, HNTB Corp. is moving into 11,000 square feet at 301 Congress Ave. in downtown Austin. It's exiting 5,000 square feet at Southpark I in South Austin. Derek Silva and Alan Lacey of Austin's NAI Commercial Industrial Properties Co. represented HNTB in the deal.

The relocation is expected to be completed by mid-September.

"We're in a high-growth environment," says Nathan Stosberg, business manager in HNTB's Austin office. "We're experiencing double-digit growth year over year. It's very exciting."

The extra space HNTB is occupying will come in handy for the estimated 20 workers expected to be added in Austin through the end of 2006 in Austin, including civil engineers, roadway designers and environmentalists. The firm now has 58 employees in Austin.

"There's certainly a lot of competition for qualified highway engineers," Stosberg says.

"The talent pool is certainly deep, but there's a lot of civil engineering firms out there doing what we're doing and there's a lot of competition for their skills."

Two clients -- the Texas Department of Transportation and the Central Texas Regional Mobility Authority -- have contributed substantially to HNTB's expansion.

Recently, HNTB secured work from the Alamo Regional Mobility Authority, San Antonio's equivalent to the CTRMA in Austin. For the Austin and San Antonio mobility groups, HNTB is the general engineering consultant for their toll road projects.

For the Trans-Texas Corridor, HNTB is the lead consultant. Perry's plan for the Trans-Texas Corridor calls for $184 billion in toll roads, railways and utility lines across Texas. The first part of the corridor be an I-35 bypass.

HNTB isn't the only engineering firm benefiting from the boom in transportation projects in Texas.

Clif Davis, a principal in the Austin office of Fort Worth-based Carter and Burgess Inc., says that as more funding has opened up for transportation projects, demand for engineering firms -- and the talent to pull off those projects -- has risen.

For its part, Carter and Burgess has ramped up its management team to accommodate major transporatation projects, such as the toll roads.

"I think we'll continue to see the projects come, which means we'll need more engineering firms and more people," Davis says. "So I see the trend going up."

Kansas City, MO.-based HNTB has 60 U.S. offices with more than 2,900 employees.

Giselle Greenwood can be reached at (ggreenwood@bizjournals.com) | (512) 494-2529.


HNTB expands main Austin office

HNTB Corp. is moving its main Austin, Texas, office to a location with more than double the space to accommodate the office's increased work load and employee count, a company official said Monday.

Scott Smith, president of Kansas City-based HNTB Corp.'s central division, said the company's Austin office will move from about 5,000 square feet in south Austin to about 11,000 square feet in downtown Austin by Sept. 15. The company also has two project offices and a total of about 60 employees in the Austin area, Smith said.

The Texas Legislature passed a bill in 2003 creating the Trans-Texas Corridor highway project, for which HNTB is the general consultant, Smith said. The project calls for $184 billion in toll roads, railways and utility lines across Texas.

Two clients -- the Texas Department of Transportation and the Central Texas Regional Mobility Authority -- have contributed substantially to HNTB's Texas expansion.

HNTB Corp. ranks No. 3 on the Kansas City Business Journal's list of area engineering firms and is part of HNTB Cos.

Austin Business Journal: www.bizjournals.com