In Texas 100 different TYPES of non-governmental entities have the authority to use eminent domain.

Eminent domain by non-governmental entities scrutinized

5/5/06

by James A. Bernsen

The Lone Star Report
Volume 10, Issue 36
Copyright 2006


Eminent domain was back on the Legislature's agenda this week, this time at the House Committee on Land and Resource Management.

At issue is one of the committee's interim charges – studying the use of eminent domain by non-governmental entities.

The most common of such entities are common carriers – railroads, pipeline companies and the like. Bill Peacock of the Texas Public Policy Foundation said that legislative counsel has identified 100 different types of entities with authority to use eminent domain.

Peacock said common carriers appear to have avoided extremes to acquire land.

"We haven't found any cases that we would ascribe to common carriers," Peacock said. "Not that they're not out there, perhaps, but that doesn't seem to be where most of the problems are. The problem seems to be among government bodies, generally."

Quarry concerns

But there is concern in one part of the state that private companies could use eminent domain for private gain. At issue is a proposed quarry in Quihi, a rural farming community in Medina County, west of San Antonio. [In the interest of full disclosure, the writer of this story's family farm is within five miles of the project, but is unaffected by it and the writer's family is neutral on the issue.]

Vulcan Materials, a large rock quarry company located in Alabama, has proposed the project. The company currently runs several such plants in Texas.

Medina County residents have been fighting for six years to stall the quarry project. Vulcan currently has a lease on the land but in order to utilize it, must build a railroad line from the site to the rail line which runs parallel to Highway 90 about 10 miles away.

The path such a railroad takes, therefore, has led to eminent domain concerns. A parade of landowners who are concerned about their property rights came before the committee on May 3, hoping to shut down one possible route that Vulcan could use to reach the land.

Brian Pietruszewski, a lawyer representing the Medina County Environmental Action Association, called the case virtually unique. What the company was trying to do, he said, was take advantage of a loophole in Texas law.

"That loophole," Pietruszewski said, "can be closed by the state making a greater effort to clarify what it passed last session in Senate Bill 7 by distinguishing more clearly between truly private rail ventures and true common carriers and the 99 percent of partnerships, consortiums, groups of industries organizing...to construct rail service to benefit their industries," he said.

The "loophole" is a statute that allows railroads to condemn land through eminent domain. Courts have narrowed it somewhat by stating that such railroads must be common carriers – transporters of goods for all takers – to satisfy the requirement that eminent domain be for a "public use."

Vulcan has established the Southwest Gulf Railroad to serve the proposed quarry. The rail line was approved by the federal Surface Transportation Board, and the railroad itself has been granted common carrier status. Although the line will be built specifically to serve the quarry, the company claimed in a 2003 press release that it could have other uses.

"As a common carrier, Southwest Gulf Railroad, which is wholly owned by Vulcan, will be capable of serving other shippers that could locate on or near the planned line," the release stated.

However, the route of the railroad is unlikely to generate much new business, as its entire path is in a rural area, and Quihi, the nearest town, has little more than 50 residents. Locals are concerned, therefore, that the common carrier designation is little more than a front to allow the company to exercise eminent domain.

Vulcan, however, maintains that the matter of the company's authority to use eminent domain is settled. But, as Clay Upchurch, a company spokesman said, it was an authority the company would rather not use.

"While the Southwest Gulf Railroad would have the same authority of eminent domain as any other railroad in Texas, " Upchurch said, "we would always consider it only as a last resort. Our goal is to work constructively with landowners to purchase any necessary right of way at a fair price."

But many landowners refuse to sell, and told the committee that eminent domain would be the company's next route. The company's common carrier status, moreover, is more than legalistic for the residents of the small town, which was settled during the Republic of Texas and still has many landholders living on the original land claims.

Russell Mangold, a resident of the area, asked committee members, "How can you put a value on land that has been in a family for over 100 years?"

Rep. Rob Orr (R-Burleson) said he was supportive of tightening up eminent domain legislation, but he didn't want the Legislature to get caught up in a local "nimby" (not in my back yard) dispute on whether or not the facility could go forward. If, he said, there were real eminent domain concerns in this or any similar projects, he would study the issue carefully.

Rep. Anna Mowery (R-Fort Worth) said that she would be completely opposed to any non-governmental organization using eminent domain authority.

"We believe that the people who use the extreme power of eminent domain – they should at least be elected by the voters," Mowery said.

Vulcan says the quarry is needed, and would benefit all parts of Texas.

"...As Texas continues to grow and as existing quarries are depleted, sources of high-quality construction aggregates become increasingly difficult to find," Upchurch said. "The stone mined in Medina County will support the economy in the region and around the state, including areas like Houston, which do not have an available local supply of limestone."

© 2006 The Lone Star Report: www.lonestarreport.org

"With toll roads on two sides of Plano, the Texas Department of Transportation wants to 'sell' State Highway 121."

Letters from Plano, Allen, McKinney


May 5, 2006

The Dallas Morning News
Copyright 2006

Stop the steady decline

A performing arts hall was approved for Plano in 1998 that eventually became the Arts of Collin County in Allen. Now we have a $95,000 marketing study for the Plano Centre and the adjacent property, originally designed for the arts hall and hotel. Other questionable decisions include a $1 million redo of Haggard Park, ending one of our most popular cultural events – the summer band concerts – and turning historic Rice Field over to developers, which allowed Wal-Mart to build on the Dallas North Tollway in violation of guidelines and with strong opposition by homeowners.

Last year, $515,000 was approved for public art, including $25,000 at the animal shelter, and $1 million went for infrastructure to display donated cattle. The real issues are deteriorating neighborhoods, rental properties, economic development and declining retail sales tax revenue due to neighboring competition.

With toll roads on two sides of Plano, the Texas Department of Transportation wants to "sell" State Highway 121. This will be another tax. Frisco Mayor Mike Simpson has been fighting TxDOT and the Regional Transportation Council with no support from Plano officials.

Sadly, our once dynamic and proud city is silent while others determine our future. Ken Lambert can restore Plano pride.

Joe Schumacher, Plano


© 2006 The Dallas Morning News Co www.dallasnews.com

"Gov. Perry wants private toll roads from the Valley northward instead of state support for existing highway system, which would include Interstates."

Cheers and jeers

We take a look at some of the good, and bad, people have done recently

May 5, 2006

The Brownsville Herald
Copyright 2006

Cheers to the do-gooders, leaders, champions and those who have inspired us. Jeers to the ill-informed and ill-intentioned, the welchers and those who ought to be ashamed.

Cheer: To the Brownsville Chamber of Commerce, which appears to be taking a more active role to serve more area businesses.

We recently reported that the chamber is recruiting businesses in the Southmost area, where many merchants said they weren’t even aware of the group or didn’t see how it would be of any use to them.

New members, however, seem to be inspired enough to be active parts of the organization. They are participating in activities and helping recruit new members. The Brownsville Independent School District recently decided to rejoin the chamber after having dropped out because officials didn’t see how membership would benefit the district.

Chambers of commerce are symbiotic in nature. They certainly benefit from the efforts of their membership, but also help promote the businesses and provide opportunities for networking among members. Merchants might find fellow chamber members who can provide merchandise, services or assistance easier or cheaper than existing suppliers.

But it all begins with a chamber organization that reaches out to the business community and shows them how the benefits are worth the cost of membership. It appears that the Brownsville chamber is moving in that direction.

Jeer: To the Texas Department of Transportation, which sent out invitations this week to local officials and representatives of this newspaper to the Texas Transportation forum June 8-9 in Austin. The theme of the forum is to celebrate the 50th anniversary of the Interstate highway system.

Ahem. Such celebrations might be more appropriate for people in South Texas if we were actually part of the Interstate system. Unfortunately, after half a century of highway building and more than a decade of hearing officials bellow that the North American Free Trade Agreement has made the Rio Grande Valley the gateway to our nation’s economic future, the Rio Grande Valley’s inclusion in the system remains but a dream.

Federal lawmakers have come to the area twice to announce that U.S. Highway 77 is planned as a future Interstate corridor. That designation was rescinded once, and could be again; it’s never been funded. And now Gov. Rick Perry wants to lay private toll roads from the Valley northward instead of continuing state support for the existing highway system, which would include the Interstates.

We appreciate the invitation to the party. It would mean more for the Valley, however, if we actually had an Interstate to celebrate.

Cheer: To officials who conducted statewide emergency evacuation tests this week. Texas communities have done well in the past without such exercises, but last year’s hurricanes Katrina and Rita proved that planning alone isn’t always enough. Implementation of those plans is the key, and tests like those conducted this week are valuable.

Certainly, tests can’t exactly match the real thing; but they offer an opportunity to check people, plans and the equipment they have to use if a real disaster should occur. Evacuation plans already existed in 2005, but Katrina in New Orleans exposed the horrible reality that many of the city’s oldest, sickest and most needy residents who couldn’t evacuate on their own hadn’t been considered. Evacuations in East Texas on the eve of Rita’s arrival led to gridlock on the highways that might have left thousands of drivers stranded in harm’s way.

Emergency planners already conduct disaster tests check the preparedness of emergency crews, hospitals and dispatchers. Extending such tests to civilian evacuation only seems logical.

We’re glad that the 2005 storms are being seen not as extraordinary events that might never occur again, but as opportunities to learn and be better prepared if similar emergencies happen again.


© 2006 The Brownsville Herald www.brownsvilleherald.com

Harris county officials are incensed at the "surprising and outrageous" price.

Toll road proposal draws fire

Radack says taxpayers would be hit with $3 billion bill for 3 roads

May 5, 2006

By RAD SALLEE
Houston Chronicle
Copyright 2006

The Texas Department of Transportation wants Harris County to pay more than $1 billion for permission to build three planned toll roads, and continue paying an undetermined share of their revenue for 40 years.

Although the Harris County Toll Road Authority expected to pay TxDOT for right of way and its service in obtaining environmental clearance for the projects, some county officials were incensed at the proposed price.

In effect, Precinct 3 Commissioner Steve Radack said, TxDOT is telling the county: "If you want to do these toll roads you've been proposing, you ought to send us a check ... for the privilege of trying to clean all the congestion off of our freeways."

The payment to TxDOT, plus construction expenses, "would cost the taxpayers over $3 billion and we'd still have to pay the state some of the tolls," Radack said.

County Infrastructure director Art Storey, who has been negotiating the issue with TxDOT, called the amount "surprising and outrageous." Storey said he will consult with Commissioners Court as soon as possible to decide how to respond.

County Judge Robert Eckels, who also chairs the regional Transportation Policy Council, could not be reached for comment Thursday.

The sum would apply to three tollways totaling more than 80 miles: 15 miles along U.S. 290 from Loop 610 to Huffmeister, 53 miles of the proposed Grand Parkway (Texas 99) from the Katy Freeway to the Eastex Freeway, and 14 miles of the Sam Houston Tollway, extending it from the Eastex Freeway to U.S. 90.

Besides the fee, TxDOT district engineer Gary Trietsch said in an April 24 letter to Storey that the projects would likely cost the county toll road authority $2.1 billion to build.

Trietsch said Thursday that his proposal of a $1.2 billion payment and a share of revenue represents a roughly 50-50 split of likely net profits from all the projects.

TxDOT is negotiating with Cintra-Zachry to build and operate a $6 billion toll road on Trans-Texas Corridor 35 in Central Texas.

"This is the sort of deal that foreign entities have been dangling before them, and they want us to compete with that," Storey said.

Cintra, the lead partner in the consortium, is headquartered in Spain.

rad.sallee@chron.com

© 2006 Houston Chronicle: www.chron.com

“We will be on the ballot. There is no question about that.”

Independent candidates say they have the signatures to get on governor’s race ballot

May 05, 2006

By Dan Genz
The Waco Tribune-Herald
Copyright 2006

This week was expected to be the last dash before independent candidates submitted thousands of signatures to make the ballot for the Texas governor’s race in November.

But because Comptroller Carole Keeton Strayhorn and celebrity Kinky Friedman report collecting well above the required amount of 45,540 signatures, their supporters will close petition drives across Central Texas on Wednesday with a sense of anticlimactic relief.

“We’re not doing a last-day push or anything,” said Will Lowrance, the Hillsboro mayor who collected more than 200 signatures for Strayhorn. “Her numbers are so far over the top.”

Strayhorn spokesman Mark Sanders reported at least 145,000 total signatures, while Friedman spokeswoman Laura Stromberg would only say the humorist and musician eclipsed the target by “tens of thousands.”

“We will be on the ballot. There is no question about that,” she said.

Despite the numbers, Waco pizza parlor owner and Friedman supporter Mary Duty wondered if it was enough as she prepared to send her last batch of signatures to the campaign headquarters Thursday night.

“I feel like we got that 1,000 (local signatures) we were supposed to get,” she said. “But I have this sense of dread and worry — what if the signatures get turned down?”

Both campaigns assumed thousands of their supporters’ signatures will be disqualified for a bevy of reasons and compensated by aiming for much higher goals than just 45,540.

If Strayhorn and Friedman qualify for the ballot, the state will be in for one of its most crowded November governor’s races in history. The independents would join Democratic nominee Chris Bell in challenging Republican Gov. Rick Perry’s re-election bid.

Lowrance and Duty said their petition drives appear successful because people in their communities are clamoring for a new leader.

“The people have just responded, they have come from all parts of Hill County saying we want to be part of ensuring that Carole gets on the ballot because we believe there has to be a change,” Lowrance said.

But Perry’s campaign called Strayhorn’s signature count underwhelming.

“Carole Strayhorn has often touted that she’s the highest vote-getter in the last couple of general elections, so I would think that anything less than 300,000 or 400,000 signatures would be a major disappointment for her,” Perry spokesman Robert Black said.

dgenz@wacotrib.com

757-5743

© 2006 The Waco Tribune-Herald: www.wacotrib.com

"TxDOT has told us we need to make a decision. They are being highly unreasonable in their time frames."

NTTA to consider SH 121 bid next week

May 04, 2006

By Amy Morenz
The Allen American
Copyright 2006

North Texas Tollway Authority commissioners are expected to decide on Wednesday if they want to build a State Highway 121 toll road in Collin County or manage the tollway for a private company that would build it.

State highway officials told the NTTA on Friday they have to decide by May 10, said Texas Department of Transportation spokesman Mark Ball.

“TxDOT has told us we need to make a decision. They are being highly unreasonable in their time frames,” said NTTA chair Dave Blair. “I don’t know what I will recommend. We would be considered as a bidder like everybody else and be in line.”

NTTA board members could examine a proposed interim solution to provide toll facilities for the Denton County section of State Highway 121, which is expected to be completed next month. The new SH 121 link will be completed without toll equipment needed to operate, Blair said.

From the start of the debate, state transportation officials have been leaning toward a private developer to sign a Comprehensive Development Agreement, which would provide upfront money to finance other road projects. State gas-tax dollars to don’t provide enough money to build and maintain Texas roads, TxDOT officials have said.

After almost two years of examining SH 121 toll road possibilities, Collin County commissioners were divided on April 21 about continuing to support the NTTA to build and manage SH 121 toll roads. Commissioners Joe Jaynes and Jerry Hoagland supported using a private company. Frisco previously rescinded a resolution that supported county the NTTA to build and operate the road.

The Regional Transportation Council, which distributes federal funding, approved a plan on April 13 that is considered a boom for private companies. Some believe it will help them pay $700 million to 900 million upfront for the right to build the main lanes and interchanges.

The RTC has been analyzing a funding crisis that includes $16.2 billion to improve capacity requirements and $31.4 billion for road rehabilitation.

The NTTA’s pending decision comes at the same time that Duncanville Councilman Grady Smithey is explaining his Regional Transportation Council vote.

While Plano Councilman Scott Johnson has described the proposal as “Robin Hood for roads,” southern Dallas County has contributed more to the regional system for years, Smithey said.

Southern Dallas County provided $833 million of gas tax funds to finance half the costs of building the President George Bush Turnpike that subsidizes its toll rates. The tollway’s rates would be double without that subsidy, he said.

“If anything, we have had a reverse Robin Hood program in effect -- delaying for years central and southern Dallas County improvements to fund northern Dallas and southern Collin and Denton growth,” Smithey wrote.

TxDOT figures show southern Dallas County has contributed $415 million for capacity improvements. Collin County received $792 per person in capacity improvements per person, compared with $497 for southern Dallas County, TxDOT data show.

“If we had those toll roads in southern Dallas County today, it would have fueled growth,” Smithey said.

The state also lent the NTTA funds to build the toll system, including $833 million that is gradually being repaid, he said. The state built frontage roads and exchanges for Bush Turnpike and has not been reimbursed $750,000 for yearly service road maintenance, Smithey said.

Tolls would pay for building and operation of SH 121 main lanes and constructing interchanges at North Central Expressway and the Dallas North Tollway.

Staff writer Krystal De Los Santos contributed to this story. Contact staff writer Amy Morenz at 972-398-4263 or amy.morenz@scntx.com.

Copyright © 2006 Star Community Newspapers www.courier-gazette.com

Transurban is currently negotiating for two toll roads in Texas

Transurban accelerates US toll bids

May 4, 2006

By Rod Myer
The Age (Australia)
Copyright 2006

TRANSURBAN may launch a US subsidiary as a base for a significant road portfolio there.

The company has made its long-promised first inroad into America with the $US611 million ($A815 million) purchase of a 99-year lease on the 14-kilometre Pocahontas Parkway in Richmond, Virginia.

Pocahontas returned only $US11 million last year on debt of $US487 million because of a slow pick-up in traffic since its opening in 2002. But Transurban chief executive Kim Edwards said traffic should increase with the building of 3200 houses in its catchment area this year.

He described the deal as "very positive for us". It was done on "70 per cent debt, which is conservative compared to what's been done elsewhere".

Given projected traffic growth of 4.4 per cent a year and toll increases averaging 5.8 per cent for 10 years, Mr Edwards said revenue from Pocahontas should rise 10 per cent for the first four years.

"Pocahontas cements our position in the Virginian market," Mr Edwards said.

Transurban is now negotiating for two other projects in the region — the Capital Beltway and the I-95.

If it bought these, it would own a strategic, linked network of roads that would be the foundation of a US portfolio.

To build a significant US business, Transurban would need either to float a US company or develop a separate partnership with US investors, probably in about two years, Mr Edwards said.

Transurban will put in equity of $US136 million at the financial close, probably next month, and as much as $US55 million more over six years if returns do not meet expectations. The equity will be raised through Transurban's existing distribution reinvestment scheme.

The road crosses the James River and provides access to the Richmond International Airport. Transurban will also build a connector to the airport if state authorities give permission and federal authorities provide concessional funding of $US150 million. Of that, only $US45 million would go to the connector, while Transurban would be free to use the remainder to refinance bank debt on the rest of the project.

Deutsche Bank analyst Clinton Wood said he liked the deal. "It's got a long life and a higher internal rate of return than I expected. It's a very good starter asset (for a US road portfolio)," he said.

Mr. Edwards said Transurban was also negotiating for two toll roads in Texas and was examining another two in Britain.

The Capital Beltway deal should be finalised early next year and the I-95 in early 2008. High fuel prices and yesterday's rise in interest rates should not affect Transurban's profitability, Mr Edwards said.

Fitch Ratings maintained its A- credit rating on Transurban, but said the "acquisitiveness" demonstrated by the deal could affect future ratings.

Transurban shares lost 2¢ to $6.62.

The reporter owns Transurban shares.

Copyright © 2006. The Age Company www.theage.com.au

Rules governing Tarrant Regional Water District elections are as "screwy as a pig’s tail."

High Tide for the Water Board

The lakes may be low, but there’s no shortage of candidates — or voters.

5/3/06

By DAN MALONE
Fort Worth Weekly
Copyright 2006

As elections go, it’s a strange one. The outcome could redefine Fort Worth as much as anything in its history — Sundance Square, downtown’s renaissance, the Cultural District or the Stockyards.

And yet, the rules governing this contest are as screwy as a pig’s tail. It doesn’t take a majority to win. Being a registered voter in the city of Fort Worth doesn’t always mean you can cast a ballot. Candidates can be barred from voting. And some say no one gets to vote on what’s really at stake.

Welcome to the May 13 contest for the board of the Tarrant Regional Water District, the heretofore low-profile agency that’s supposed to make sure Fort Worth and area cites have enough water. What’s awakened this contest from electoral somnolence is a $450 million plan to build a lake just north of downtown, making water frontage as integral to central-city Fort Worth as the River Walk is to San Antonio. Opponents, however, are concerned about the cost of the redevelopment, who will pay for it, and the possible condemnation of private property around the lake.

With the backing of most of the city’s power brokers, the project has a whiff of inevitability. Some have even given Trinity Uptown, as the lake project is officially known, a nod-to-power nickname — “Lake Granger” after its cheerleader-in-chief, U.S. Rep. Kay Granger.

As if the election itself wasn’t strange enough, the 13 candidates vying for the board’s two open positions are about as diverse as creatures in a sale barn: an antiquarian book-seller, a land surveyor, a former television reporter, an antique lighting dealer, a retired theology professor, an environmental consultant, a well-known name from an iconic Fort Worth business, and two former city council members often at odds with each other. It’s a good thing most of the candidates have day jobs: Board members are paid a maximum of $7,200 a year, depending on how many days they work.

Many candidates credit the board with doing a good job of taking care of its primary business — providing water to the area through a network of reservoirs and pipelines constructed over the last 80 years. But they are almost evenly split on Trinity Uptown. (All but one of the candidates discussed their campaigns with Fort Worth Weekly; only Marty Leonard, daughter of a founder of the Leonard Brothers Department Store, did not.)

Some say the lake plan itself should be put to a vote so the public, and not the city’s power brokers, can decide whether to proceed. Others question whether the district should be operating a deer camp — with public money on public land near Lake Bridgeport — that the public can’t use.

Gina Puente-Brancato, the lone incumbent who’s running, said she’s not sure the opponents of Trinity Uptown would be successful in derailing the project even if they win both seats. “The train is in motion,” she said. And because the project is a collaboration involving the district, the city, and the U.S. Army Corps of Engineers, it’s not something that can easily be placed on a ballot.

“Everyone is asking, ‘Can the district put it up for a vote?’ It’s not a Tarrant Regional Water District decision,” she said. “There’s a lot of misinformation out there.”

Former councilman Jim Lane wants to make sure Fort Worth has adequate water to support growth and projects like Alliance Airport and Texas Motor Speedway. Providing an adequate water supply “is the only way we can continue to have these kinds of massive developments,” he said.

Marty Martinez, a retired manager for a defense contractor, grew up in San Antonio and said he’d like to see Fort Worth develop the lake into something like the River Walk in his hometown — an inviting spot for tourists and locals alike.

J.R. Kimball, a real estate broker, agrees that the project would be a boon to downtown: “I can’t think of any city in the country that wouldn’t like to have 800 acres of land that close to the central business district to develop,” he said. Both he and Lane said concerns that the district is going to condemn large tracts of privately held land for economic development around the lake are baseless.

But landscape architect Tom Waltz said any business displaced by the project should be given “much care and preferential treatment” when the lakeside properties are developed. He also said he would encourage water conservation measures to make sure adequate water is available for future generations.

Trinity Uptown supporters estimate the project will cost about $450 million — and they’re counting on Congress to come up with about half of that. Opponents say the final bill could be closer to $1 billion and that Fort Worth taxpayers could get stuck with it.

If owners of property needed for the lake can’t agree with the district on sales prices, the district has the power to take the land through condemnation proceedings. And newly expanded powers that permit the district to condemn private property for economic development have some worried that condemned properties might be privately redeveloped by third parties.

Trinity Uptown “will displace over 80 businesses with a buyout or by eminent domain,” said Clyde Picht, the other former city councilman in the race. “Some will move. Some will close. Some are woman- and minority-owned, and industrial jobs will be lost. For what? So some developer can come in and make a killing, buying low and selling high? So a dozen restaurants can open by the lake and employ minorities at the lowest wage scale?”

Though Picht lives in Fort Worth, he wasn’t initially eligible to run for a seat on the water board. People who live in portions of the city annexed after 1996 are not within district boundaries and are not eligible to vote.

Candidates for office also must own land within the district. Picht, who lives on property annexed in 1998 and hence outside the district’s boundaries, solved his eligibility problem by buying (for a price he won’t disclose) a small plot of land from a friend who lives within the district. He remains, however, unable to vote in the election — even for himself.

Ben Boothe, an environmental consultant, is worried that the current drought may mark the beginning of an era of worldwide water shortages caused by global warming. If that’s the case, he said, the last thing the water board should be doing is “allocating resources for a reflecting pond” for a few rich businessmen downtown.

Tracey Smith, a former journalist, calls Trinity Uptown “a beautiful concept” but one that should have been submitted to voters. He believes backers of the project recalled an earlier massive scheme — nixed by voters — to remake the river into a navigable canal stretching from Dallas to the Gulf of Mexico. Thus, he thinks, they decided early on that the only way to achieve their goal this time was to make sure the project never went before the public for a vote.

Land surveyor Timothy Nold objects to the water board seizing private lands for economic development projects. If opponents of the project are able to win both seats, he said, the election will be “a shot across the bow of the water board.”

Howard Stone, a retired TCU theology professor and psychologist, fears the cost of the project will soar and that federal funds everyone is counting on won’t materialize.

“People like the concept of having something like [the River Walk] in San Antonio but aren’t prepared to pay the bill,” he said.

Bookseller Mike Utt fears that Uptown could become Fort Worth’s own Superconducting Supercollider, the gargantuan underground project near Waxahachie that the federal government spent millions of dollars on then abandoned. “Everybody says, “It ‘s [Trinity Uptown is] going to happen. You can’t stop it’,” Utt said. “I don’t want a $100 million ditch running through the city of Fort Worth. Inflation is going to push this way up over $1 billion. Who’s going to eat the rest of that? You and I as taxpayers.”

Former General Services Administration executive Gary Alexander is similarly concerned that the project will wind up in a losing competition for federal funds with efforts to rebuild New Orleans and other cites devastated by last year’s hurricane. “The federal money is not assured,’’ he said. “It has to be appropriated. ... Other flood control projects are probably more important than building a lake.”

Utt, Stone, and Picht also object to the water board using public lands and funds to operate its employee hunting camp.

“I can’t imagine there are many voters in Fort Worth who would say that’s appropriate,’’ Stone said. Utt said the district should sell the land or “build it into a park system so everyone can use it.”

Water board elections have often been held on days when voters had no other reason to go to the polls and turnout has been anemic. This year, however, the election is being held jointly with a county bond proposal, and city council and school board elections across the county. Early voting began Monday, and officials are bracing for a turnout that one candidate predicted may be may be as large as eight times the usual vote.

Fort Worth Weekly editor Gayle Reaves contributed to this report.

© 2006 Fort Worth Weekly www.fwweekly.com

"The Texas Legislature has much to do to protect private property owners."

Private property rights still in jeopardy

May 03, 2006

By Bill Peacock
The Navasota Examiner
Copyright 2006

When the U.S. Supreme Court announced its decision last year allowing the City of New London, Connecticut, to take Suzette Kelo's house for an office park and an upscale residential development, the public - unlike five of the Court's justices - correctly recognized the decision as a frontal assault on private property rights.

As a result, state legislatures around the country began looking for ways to rectify the problem. To their credit, Texas lawmakers were among the first to take action. But even they recognized their work as a stopgap measure during a special session to improve the situation until a more permanent solution could be found.

While most of the public's attention is on school finance, legislative committees and task forces are working behind the scenes to come up with a solution to eminent domain abuse. Though now that the public outcry on this issue is waning, there may be some doubt whether there is any work left to be done.

However, a quick look at a few cases of eminent domain reveals that the issue remains unresolved, and deserves continued scrutiny. Here are three examples.

Harry Whittington, more famous for his recent hunting encounter with Vice President Chaney, owns a city block near the Austin Convention Center. In 2001, the City of Austin decided it wanted to take his land - the problem was that it didn't know why. Only after the condemnation process began did it come up with the idea of a convention center parking garage and chilling plant. Even so, the city convinced a court that it should be able to take the property, and proceeded to build the garage.

However, it turns out that the city didn't actually need the land for a parking garage - it already had a nearby garage with ample space. The city was just loathe to give up the parking revenues it received from leasing spaces in that garage to the general public.

Mr. Whittington successfully appealed the district court's decision, and may still obtain the return of his property - with a parking garage to boot. While this might be seen as a victory for private property rights, in all likelihood the city would have already prevailed in court if it had followed the proper procedures.

Or consider Frank Newsom, who owned property in Harris County that a developer wanted to purchase for a retention pond required for a permit for a new neighborhood development. By building the pond on Newsome's property instead of his own, the developer could build more houses and earn more money, while the Malcomson Road Utility District would benefit from a higher tax base. Unable to convince Mr. Newsome to sell, the developer convinced the district to take Newsom's property.

While the trial court initially found in favor of Newsom, the appeals court overturned part of the ruling and said that this taking was for a public use. While the court did leave open the possibility there might not be a public necessity for this taking, Newsom's property and money are tied up fighting a court case which should have never begun.

Finally, there is the case of FKM Partnership's battle with the University of Houston. After FKM approached the university about the possibility of a partnership in a retail shopping center on FKM's property, the university decided it wanted the property for itself. After at first claiming it needed the property to complete its obligations in creating right-of-way for Texas Highway 35, it later decided it wanted only part of the property to complete the acquisition of its east campus areas.

Again, a trial court found in favor of the property owner. And yet again, an appeals court found in favor of the local government entity, noting that there was nothing wrong with the case that the University couldn't correct by updating its paperwork.

While all of these cases are on appeal and have yet to be finally decided, there is obviously something wrong with a legal system that allows such cases to proceed as far as these have. It is clear the Texas Legislature has much to do to protect private property owners from the overreach of local governments.

Bill Peacock is the director for the Center for Economic Freedom with the Texas Public Policy Foundation, an Austin-based research institute. He may be reached at bpeacock@texaspolicy.com.

Copyright © 2006 The Navasota Examiner www.navasotaexaminer.com

"It makes it hard to watchdog them when they do things like that.”

Freeport OKs deal in empty chamber

May 3, 2006

By Chris Robinson

The Facts (Clute, Texas)
Copyright 2006

FREEPORT — Councilman Larry McDonald burst out of the municipal courtroom’s wooden doors late Monday night, pausing in the lobby only to shout at City Manager Ron Bottoms that it was wrong for them to act on an item when people outside were unaware council had resumed open session.

Minutes earlier, council wrapped up a closed-door executive session lasting about an hour and approved a settlement agreement with the co-owners of Trico Seafood Co., Dennis Henderson and George Gala.

The settlement allows the city to acquire about 200 acres of Trico’s waterfront property for the proposed marina, provided the city shoulders the cost of moving Trico further down the Old Brazos River and replicating its facilities. No information was available on the cost of the project.

The settlement was approved 4-1, with McDonald opposed. He later said he opposed it because he wasn’t provided with information on the issue before executive session.

Bottoms said he made every effort to check the lobby to announce open session had resumed, but many of those waiting were in the parking lot. Mayor Jim Phillips agreed Bottoms looked as best he could for anyone waiting outside.

McDonald, however, said he believes Bottoms wasn’t thorough because camera equipment owned by Wright Gore III, son of the president of Western Seafood, was left in clear view in a chair outside the courtroom.

No audio recording was available of the action on the settlement, City Secretary Delia Munoz said, because she left before executive session began. However, she said the meeting notes indicated there was no discussion on the item in open session. She also said council normally conducts business with the chamber’s doors closed, regardless of whether the session is open or closed. It was not unusual, then, for the doors to remain closed after Bottoms had entered the lobby to check for anyone when the council reconvened in open session.

Clan Cameron, a candidate for Ward A on council, was one of the people waiting in the parking lot.

“It’s happened before,” he said. “It all boils down to how they’ve made their decision in the executive session. When it gets to public session, it’s already a done deal, but it’s kind of an exclusion thing. … It makes it hard to watchdog them when they do things like that.”

The settlement is part of a larger push by the city and its economic development corporation to acquire privately owned waterfront land for the construction of a marina, which is intended to revitalize downtown Freeport and usher in further economic growth. Though the process has been kept at bay by pending litigation with Western Seafood and Western Shellfish over their properties, council recently approved extending a loan of $219,000 to the EDC for the purchase of the Western Seafood property using eminent domain.

Phillips said Tuesday he expects the funds to be at the court registry by the end of this week, after which Western Seafood will have 45 days to appeal the purchase.

Gore could not be reached for comment on the issue.

Earlier in the meeting, council delayed approval of rezoning 186 acres of property previously annexed by Port Freeport pending a city planning commission recommendation.

Port Executive Director A.J. “Pete” Reixach argued the property would be more beneficial if it was classified as M-2 heavy industrial instead of R-1 residential, but Phillips and members of the planning commission weren’t convinced they should grant the port that classification without further deliberation on the port’s plans for development.

Planning commissioners agreed to present their recommendation at council’s next meeting.

In other business Monday, council:

RESCHEDULED: The next regular council meeting from May 15 to May 22 to canvass election results.

APPROVED: A tax abatement agreement with Air Liquide Large Industries worth about $207,000 for the development of a $7.7 million hydrogen booster station. Air Liquide representatives said Monday the station has been completed.

HEARD: From 19 motorcycle enthusiasts representing seven motorcycle organizations in proclaiming May as Motorcycle Safety and Awareness month. Roddy Mohler of Texas Motorcycle Rights Association II said the presentation was part of a larger push for the eventual addition of motorcycle safety signs, which he would like to see installed at every entrance to Freeport.

Chris Robinson covers Freeport for The Facts. Contact him at (979) 237-0151.

© 2006 The Facts. A Southern Newspapers publication. Published in Clute, Texas. thefacts.com

Transurban takes "first baby step" into the U.S. market

Transurban Buys Pocahontas Parkway Road for $611 Million

May 3, 2006

Bloomberg
Copyright 2006

Transurban Group, Australia's second- biggest toll road owner, agreed to buy Virginia's Pocahontas Parkway for $611 million, gaining its first U.S. motorway.

Transurban bought the rights to manage, operate and maintain the 8.8-mile (14 kilometer) highway known as State Route 895 for 99 years, the Melbourne-based company said in a statement today. Transurban plans to build an extension linking the route to Richmond International Airport in Virginia's capital.

Transurban is among companies attracted to the reliable cash flows from toll roads that it estimates will spur some $200 billion of deals worldwide in the next 10 years. Macquarie Infrastructure Group and Cintra SA got state approval in March for their $3.85 billion bid for Indiana's toll road as U.S. states sell rights to their highways to pay debt.

Pocahontas is Transurban's "first baby step into the U.S. market,'' said Jason Teh, who helps manage the equivalent of $4.2 billion at Investors Mutual Ltd. in Sydney, including more than 22 million Transurban shares. "A lot of the state governments there are running budget deficits and they need the cash from wherever they can get it.''

There are $25 billion of private investments proposed for new and existing toll roads in six U.S. states including Virginia, Texas and Oregon, according to a report last month by the Los Angeles-based Reason Foundation, which advocates for such privatization.

More Highway Sales

More U.S. states will sell roads as they seek to raise non- tax revenue to pay for repairs to heavily traveled highways and bridges, Merrill Lynch & Co. said in a report in March.

The firm said 14 U.S. states have enacted laws allowing for toll-road, public-private transactions, and five more have introduced legislation permitting it.

Shares of Transurban fell 1 cent to A$6.63 at 10:44 a.m. in Sydney. They've gained 0.5 percent this year, lagging behind the benchmark S&P/ASX 200 Index's 10 percent rise.

The company will take control of the road by November and agreed to pay all of Pocahontas Parkway's existing debt. The road has bonds valued at $487 million due, included in the purchase price. Transurban paid $191 million in equity.

``They should be able to fund that reasonably well,'' said Luke Maffei, an analyst at Shaw Stockbroking Ltd. who rates the shares ``neutral.'' ``They'll be looking for additional revenues going forward in terms of traffic increases and toll escalation.''

Foothold in Virginia

Pocahontas Parkway will account for 4 percent of Transurban's road portfolio, which includes highways in Sydney and Melbourne.

``Transurban has acquired an asset with a solid growth outlook at the right time in its life cycle,'' Transurban Chief Executive Officer Kim Edwards said. ``Pocahontas Parkway also gives Transurban an operational foothold in Virginia.''

Last month, Spain's Abertis Infraestructuras SA agreed to buy Italy's Autostrade SpA to form the world's biggest highway Network and compete for more road projects.

Governments in Europe and the U.S. are selling off roads and airports amid competition from banks, construction companies and investors for acquisitions.

Last year, Transurban was named preferred bidder for a $900 million development of Virginia's I-95 tollway and short-listed for a Dallas road development.

Transurban didn't name its adviser for the latest deal. It spent $11 million on finance and arranging fees.

Standard & Poor's said it's reviewing Transurban's BBB+ rating for a possible cut.

To contact the reporter of this story:
Vesna Poljak in Sydney vpoljak@bloomberg.net

Last Updated: May 2, 2006 21:28 EDT

©2006 Bloomberg www.bloomberg.com

Spain's Albertis buys Italy's Autostrade, creating the world's biggest toll road operator

Autostrade Board OKs Merger With Abertis

May 2, 2006

The Associated Press
Copyright 2006

ROME -- Italian highway company Autostrade SPA said its board on Tuesday night approved a merger with Spain's Abertis, which analysts have described as an acquisition by the Spanish infrastructure company but the Italians insist is a "merger among equals."

Autostrade's chief executive, who opposed the deal, was stripped of his powers.

Autostrade also said in a statement that Abertis was expected to approve the plan at a board meeting scheduled for Wednesday.

Autostrade in the statement continued to describe the 12 billion euros ($14.7 billion) deal as a "merger," but some terms suggest that Abertis is buying Autostrade. The new company would be called Abertis, be based in Barcelona and be run by the Abertis CEO.

Politicians and union leaders in Italy have expressed concern that Autostrade will come under Spanish control. Analysts and investors have welcomed the deal, which would create the world's biggest toll roads operator, with a market value of 25 billion euros ($31.4 billion) and 20,000 employees in 16 countries.

The deal is "an industrial operation, an operation in a transparent market to create a European champion able to compete on the international level and to carry out further investments, beyond those planned, including in Italy," the ANSA news agency quoted industrialist Gilberto Benetton as saying after Autostrade's board met.

The company confirmed Italian news reports that the CEO, Vito Gamberale, had been stripped of his powers.

Autostrade Chairman Gian Maria-Gros-Pietro will take over Gamberale's responsibilities, the Apcom news agency reported.

Earlier in the day, the company said its board of directors would consider a motion to replace Gamberale after he wrote a letter saying the planned acquisition was not in Italy's national interest.

Two unidentified members of the board cited "just cause" for removing Gamberale after he reversed his support for the deal and said he would lobby against it at the board meeting which was expected to rubberstamp it, the company said.

Autostrade said that while Gamberale had voted in favor of the deal at an April 23 board meeting, he later wrote to the company's chairman to express his concerns.

© 2006 The Associated Press: www.ap.org

"There's always an element of surprise associated with it."

Toll Road Violators Could Owe Thousands In Fines

Fines Added To Price Of Toll

May 1, 2006

NBC Channel 2
Houston
Click2Houston.com
Copyright 2006

HOUSTON -- The EZ tag lanes on Harris County toll roads are designed to make it fast and easy to pay a toll. But the KPRC Local 2 Troubleshooters discovered not paying could cost a lot more than you might think. Amy Davis uncovered the hidden fees and fines that can turn a petty toll road dodger into a dodger in debt.

Keesha Jones has a busy job greeting drivers and collecting cash at a tollbooth as drivers pay their way.

While some wait in line, others "throw and go." Eighty percent use an EZ tag to pay the $1.25 toll.

But thousands of drivers on Harris County toll roads are not paying a dime.

How can running just a handful of tolls end up costing hundreds, or even thousands of dollars?
"There's always an element of surprise associated with it," said Tracy Smith, manager of violation enforcement for the Harris County Toll Road Authority.

It was a big surprise for driver Sonny Willis.

"I think the total of the tolls was somewhere around $40. But I think the total with the administrative fees was somewhere around $400," he said.

Not paying at the tollbooth costs much more than the price of the toll. Here's why.
Paying your way at three tollbooths costs $3.75.

But if you're caught not paying at those same three booths, you would pay a $33 administrative fee added to the $3.75 toll cost.

If the fine is not paid in 30 days, another fine of $42 is added.

So, the total for three tolls turned into $78.75.

"For every third violation within a 12-month period, a notice is sent out," Smith said.
And, for every third violation notice, another set of fees is tacked on.

So, if you run those three booths every day during a workweek, 15 unpaid tolls could cost $393.75.

Run those three booths for one month and you could owe $1,575.

Every year, constables round up repeat violators -- some of whom owe tens of thousands of dollars in tolls and fees.

Violators who don't pay also cannot renew their vehicle registration.

But why are the fees so high?

"We have to be able to take care of the operational expenses, the court expenses. There's not really a valid excuse for violating the toll," Smith said.

"I think it'll get their attention. We're talking 10 times what the toll would cost -- it's not worth it," Willis said.

The good news for Willis -- his 40 unpaid tolls was a paperwork mix-up. He will only have to pay $40, not $400.

The Toll Road Authority said that violators are not charged anything if they don't run more than three tollbooths in a year. That way, an honest mistake won't cost anything.

And, even big-time violators have a chance to negotiate smaller fines and fees.

Every week, 250 violators get that chance in a special court set up for toll road fines.

If you have a news tip or question for the KPRC Local 2 Troubleshooters, drop them an e-mail or call their tipline at (713) 223-TIPS (8477).

Copyright 2006 by Click2Houston.com. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

© 2006, Internet Broadcasting Systems, Inc. www.click2houston.com

Trinity Uptown allows Water Board candidates to give 'em the old Razzle Dazzle

Trinity plan enlivens races

Apr. 30, 2006

By MAX B. BAKER
Fort Worth Star-Telegram
Copyright 2006

Even after 22 years, some members of Jim Oliver's family still thinks he works for the Water Department.

As general manager of the Tarrant Regional Water District, Oliver leads a state agency that has quietly provided water to more than a million people in about 75 cities and municipal districts spread over 10 counties, overseeing seven reservoirs and miles of pipelines.

"What we do is so low profile," Oliver said recently. "I have relatives who think I work for the Fort Worth Water Department, some who think I report to Tarrant County."

Oliver and his agency's days of political obscurity are coming to an end with the sweeping Trinity Uptown project.

Thirteen candidates are seeking two seats on the water district's supervisory board in the May 13 election -- including two former Fort Worth councilmen and a local philanthropist making her first bid for public office -- focusing unprecedented attention on an organization that's been around since the early 1900s, in one form or another. Early voting begins Monday.

Drawn to the race by the controversial $435 million Trinity Uptown project proposed for the near north side of Fort Worth, many of the candidates admit they know little about the district's core mission of providing water and flood control. At a recent forum in east Fort Worth, all the candidates and the audience wanted to talk about was Trinity Uptown.

Board Vice President Hal Sparks, who is not up for election this year, said a lot of what the district does is "pretty dry and complicated."

"It is not, 'Ohhh, gosh! It's going to be fun to do Trinity Uptown.' It is a significant part of what we consider, but in time devoted to issues, it is 10 percent or less," Sparks said.

'Razzle Dazzle'

Few people disagree, though, that Trinity Uptown is a watershed event in the district's history.

"It is interesting, and the sexiest thing [the district] has done in the last 100 years and maybe for the next 100 years," said board member Gina Puente Brancato, who is seeking to keep her seat.

The Trinity Uptown project will alter the water board's profile from director of a technical agency that pumps untreated water through massive pipes to that of a general contractor for a major urban redevelopment project.

The 800-acre Trinity Uptown is billed as a flood control project that will create a development with housing for 10,000 families and 16,000 new jobs. The project calls for creation of a Town Lake and a Trinity River bypass channel that would cut through north Fort Worth, creating an island with mixed development.

The water district is providing $64 million, with the largest contribution -- $217.5 million -- expected to come from the federal government. Fort Worth is kicking in $26.6 million, Tarrant County another $11 million. A tax increment financing district, or TIF, was established by Fort Worth in 2003 to pour an expected $115.9 million into the project.

Opponents of Trinity Uptown say the flood control part of the project could be done for about $10 million, and say the overall price tag for the deal could go beyond $700 million, with local taxpayers picking up the tab. They are outraged that some of the land likely will be taken from its owners by condemnation, through the use of eminent domain.

For many, the water district board election will serve as a referendum on Trinity Uptown, offering voters their first chance to voice their opinions on the project. The controversy is credited with attracting the unprecedented number of candidates seeking the two open seats -- one held by Brancato, the other left vacant by the death of Charles Campbell, a 15-year board veteran. The two candidates with the most votes will win the seats.

Two former Fort Worth City Council members came out of retirement for the race -- Clyde Picht, who opposes the project, and Jim Lane, who supports it. And philanthropist Marty Leonard, a member of one of Fort Worth's leading families, has taken a rare step into the public arena by seeking a board seat. She also supports Trinity Uptown.

The candidates include four involved in real estate, two former military pilots, an engineer, a land surveyor, an antique books dealer and a retired religion professor. While five candidates indicated they didn't plan to spend more than $500 on their race, others plan on spending tens of thousands of dollars. Lane and Leonard have hired the Eppstein Group, the city's most prominent political consulting firm.

The race has also drawn the kind of campaign contributions usually reserved for high-profile City Council races. Leonard already has spent more than $17,000, and Brancato has spent about $8,000. Picht has taken in nearly $8,000 in contributions to add to the $5,000 he already had on hand, and Lane has raised $1,200, according to campaign finance reports.

The slate appears almost evenly divided on the Trinity Uptown project. Seven candidates largely support it, although some of them voice reservations: Lane, Leonard, Brancato, Gary Alexander, J.R. Kimball, G.J. "Marty" Martinez and Tom Waltz.

Picht is the highest-profile of the six candidates opposed to Trinity Uptown, who also include Mike Utt, Tracey Smith, Ben Boothe, Timothy Nold and Howard Stone.

Utt compared the project's lack of firm detail to a song from the musical Chicago.

"I see the downtown folks doing the Razzle Dazzle," he said.

Under the radar

For almost 100 years, the Tarrant Regional Water District and its predecessors have operated below the surface.

Board members typically served for long periods. The current president, Vic Henderson, has been on the water district board for 21 years, and Sparks was first elected 18 years ago. Brancato became the first woman board member when she was appointed in 2003. She later lost her seat but was reappointed.

For years, the district's tax rate was zero, and the board has not asked for an increase from its current 2-cent tax rate for six years. About 300,000 voters live within the district's convoluted boundaries, but in 2002, only 984 votes were cast in a board election.

"It's been an under-the-radar-screen type of board, so it's been a pleasure to not attract a lot of lightning-rod attention like we are now," Sparks said.

Part of the reason the board has not attracted a lot of attention is that its core mission is far from eye-catching.

The district's primary function over the years has been to provide water and flood control in its areas, to enhance recreational benefits for residents, and to preserve and protect the environment.

It sells raw, untreated water to the Trinity River Authority and about 40 cities including Arlington, Fort Worth and Mansfield, which in turn sell the water to other municipalities. The district owns four reservoirs -- Cedar Creek, Eagle Mountain Lake, Lake Bridgeport and Richland-Chambers -- and pumps water in and out of Lake Worth, Benbrook Lake and Lake Arlington.

The district serves 10 counties in a 5,300-square-mile area that stretches from Jack County in the northwest to Freestone County in the southeast. By 2060, its customer base is expected to exceed 4 million people.

The district is also looking for future water supplies. One option is the Toledo Bend Reservoir 175 miles away on the Texas-Louisiana border. Another possibility is the proposed $2.15 billion Marvin Nichols Reservoir that would be built near Mount Pleasant. Officials are also considering bringing water from Oklahoma.

The five-member water district board -- typically made up of engineers, lawyers and those with a personal interest in water resources -- oversees the district's business by sifting through reports at subcommittee and board meetings.

Over the years, the district has quietly done it all on modest budgets with a relatively small staff. Currently, it has an $84 million budget and 160 full-time employees. By comparison, the Fort Worth Water Department has a budget of about $269 million and about 800 employees.

"There has been a lot of light shown on Trinity Uptown lately, and it's certainly not an insignificant project, but we've had many projects larger than Trinity Uptown," said Henderson, the board president. "Our part of Trinity Uptown is a lot smaller."

Bill Meadows, a former Fort Worth councilman and member of the Texas Water Development Board, said far more is at stake than the Trinity Uptown project.

"It is going to take a very talented person to be on the board," Meadows said. "This is an extraordinarily important election, and it is extraordinarily important that this should not be a referendum on the Trinity River Vision."

"Anybody who does is incredibly shortsighted. It is about future water supply for our region."
Max B. Baker, (817) 390-7714 maxbaker@star-telegram.com


© 2006 Fort Worth Star-Telegram: www.dfw.com