Saturday, June 23, 2007

"In our post-Kelo world, the vocabulary of economic development takings may have changed, but in many states the substance will not."

The 'Blight' Excuse

June 23, 2007

Wall Street Journal
Copyright 2007

In Brandon, Ore. there lives a one-armed man named Scott Cook who owns income-producing timberland. The state revoked his license to drive a truck on account of his having only one arm. Then the government decided it wasn't quite through with him: Now his land is being taken by the town by eminent domain, so his neighbor's golf resort can be expanded. The town likes the resort because it supplies jobs. Mr. Cook feels certain he will never get what his land is worth. He is outraged that his town would take land from one man to give to another.

This is called an "economic development" taking, and two years ago -- June 23, 2005 -- the nation was up in arms over this sort of thing. On that day the Supreme Court decided Kelo v. New London, and said that it is constitutional for the government to take your property and give it to someone else if doing so will rake in greater taxes for your town.

Americans were instantly united in bipartisan fury. The U.S. Congress swiftly passed a resolution condemning Kelo, and the House and Senate introduced a slew of bills, to curb what so many perceived as the power of eminent domain run amok. More than a hundred bills were introduced in state legislatures to accomplish the same end, and two states passed moratoriums on economic development takings. Pundits spilled ink declaring that the Founding Fathers were spinning in their graves. Spittle flew as politicians grabbed the nearest mike, rushing to condemn Kelo as the unquestioned death knell of American property rights.

But how is it we still have someone like the soon-to-be-timberless Mr. Cook? Well, a year went by and the moratoriums were lifted. Congress never did pass any of the bills. Reform was left to the states. Some states, such as Oregon (hence Mr. Cook's bad luck), California, New York and New Jersey passed no meaningful reforms. The latter three are among the most active in these kinds of takings.

Some 28 states have passed substantive eminent domain reform since Kelo. Many enacted laws that prohibited private-to-private transfers for purposes of economic development. Sounds grand, right? But there's a loophole: blight.

Armed with a blight exception, private property in nearly all of the loophole states may still be condemned and ultimately used for economic development. Put another way, once a finding of blight is made, it's anchors away to build whatever the city or a private developer fancies. This leaves property owners vulnerable to unholy alliances between municipalities and developers, with condemnation processes that can lack transparency and due process.

In 1954, Supreme Court Justice William O. Douglas unleashed municipalities with the ruling in Berman v. Parker: The liberal court at its apex unanimously agreed with the notion that the elimination of blight is a "public use" under the takings clause of the Constitution. But what is blight? A half-century of experience has demonstrated only that it is in the eye of the beholder, or perhaps more to the point, in the eye of the power holder.

Blight standards are notoriously subjective; it just isn't that hard to find when one goes looking for it. And Congress conveniently passed statutes that rewarded municipalities with federal dough for slum clearance. Bingo! Cities found ever more blight to remove, often and not coincidentally in neighborhoods inhabited by blacks and Latinos.

Now, even in the backlash against Kelo, eliminating blight as a ground for eminent domain has proven to be close to impossible. The importance of this problem must not be underestimated if we are to understand why takings for economic development have been so hard to stop. Even when common sense would dictate that a project is economic in purpose, it can still be pursued under an urban renewal plan, i.e., to eliminate "blight." In our post-Kelo world, the vocabulary of economic development takings may have changed, but in many states the substance will not, especially as towns learn to teach to the test.

Only Utah and Florida passed statutes that eliminated the blight loophole -- stating plainly, no economic development takings, ever. The relief in Utah was short-lived. On March 20, 2007, Utah reversed course. Gov. Jon Huntsman signed a bill that restores blight to the table and allows the taking of private property for private development so long as 80% of one's neighbors concur -- a democratic scenario one homeowner called "mob rule."

Florida's law was passed under the white-hot intensity of the Riviera Beach controversy, a massive project that gained national media attention right after Kelo. This development was the brainchild of former Mayor Michael Brown, who wanted to "save" his mostly black city by ejecting some 1,000 homeowners from their modest seaside bungalows that sit on valuable land not far from Palm Beach. Then a great condo and yacht marina complex could be built on this formerly "blighted" land.

The post-Kelo media wave, with support from then Republican Gov. Jeb Bush, helped push Florida's reform bill through and oust the Riviera Beach council, thus killing the project. It remains to be seen how long condo and yacht club developers, big box retailers and the lawmakers they lobby will wait in the wings before obtaining changes in Florida's law.

Fellow legislators wonder too. Ohio conducted a year-long, post-Kelo dog-and-pony show of hearings by an eminent domain task force. It issued a lengthy report -- but the legislature has passed no laws. One member of the task force, unable to envision a world without eminent domain bulldozers, commented to me about Florida's law: "I don't know how they plan to renovate their barrios down there."

At the other end of the spectrum from Utah and Florida there is New Jersey, which has seemingly never met an eminent domain project it didn't like. Events in the Garden State are an object lesson in how post-Kelo politics can devolve. New Jersey Public Advocate Ronald Chen, appointed by Gov. John Corzine, has championed the cause of basic reforms such as giving homeowners notice before condemning their property, improving compensation, and putting the burden on powerful developers to justify a taking by showing that the property is blighted.

As a result, Mr. Chen has found himself mired in the down and dirty muck one finds at the intersection of real estate and money in New Jersey politics.

State senators have publicly excoriated him in a legislative hearing for something as ordinary as daring to file amicus briefs in eminent domain cases.

Meanwhile, change has come at an excruciatingly slow pace. Reform bills have been introduced, but none has passed. Working class octogenarians in Long Branch continue their fight to keep their small oceanfront homes -- now valuable -- from the grasp of condo builders; trailer park residents in Lodi have to litigate to hold on in a town that wants to upgrade its residents. In Paulsboro, the taking of empty warehouses and vacant land was challenged; the New Jersey Supreme Court held it does not pass muster to say a property is blighted simply because it is "not fully productive."

The decision was hailed, though it did not invalidate the redevelopment law that spawns such takings. Still, it's a faint light in a very dark tunnel, and similar to a decision by Ohio's Supreme Court, Gamble v. Norwood, in which a working class neighborhood was slated for urban renewal, not because it was deteriorated, but because it was "deteriorating." The court struck the term down as unconstitutionally vague.

In the summer of 2005, even as impassioned speeches to protect private property rights were made to the media on state house steps around the country, resistance was brought to bear inside by interest groups. The result is a national landscape that continues to include barely fettered economic development takings under the blight umbrella.

With each Kelo anniversary, the politics will become more partisan as we forget our initial outrage. While the reforms can improve due process, such as those Mr. Chen recommends, many have aimed at narrowing -- but not eliminating -- blight exceptions. We need to take care. Developers will always look for eminent domain bargains, and towns for ways to raise revenue or rid themselves of undesirable populations. It is not hard to imagine a time when they will set their sights on the surest bets -- the poor and minorities -- resetting eminent domain on its most pernicious historical path.

Ms. Main is the author of the forthcoming "Bulldozed: 'Kelo,' Eminent Domain and the American Lust for Land" (Encounter Books).

© 2007 Dow Jones & Company, Inc. :

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Eminent Domain Reform: Opposition comes from city and state governments.

Kelo's Consequences

June 23, 2007

Wall Street Journal
Copyright 2007

Today marks the second anniversary of Kelo v. New London, the Supreme Court ruling that gave governments the authority to seize property on behalf of private developers. Since the 5-4 ruling, many state governments have taken some sort of action to limit these "takings." But in areas that legislators have failed to protect -- which usually turn out to be where low-income minorities reside -- citizens are still exposed to eminent domain abuse.

A recent study by the Institute for Justice compared the demographic characteristics of 184 areas targeted by eminent domain to the surrounding communities. The report shows
that eminent domain disproportionately affects poor, ethnic minorities with lower levels of education.

Minorities comprised 58% of the population in areas targeted by eminent domain, compared to 45% in the surrounding communities. The median income of residents targeted by eminent domain is less than $19,000 per year, compared to more than $23,000 elsewhere. And 25% live at or below the poverty line, versus only 16% elsewhere.

New Jersey resident Jim Keelen doesn't need statistics to define eminent-domain abuse. His home and business, located one block away from the Atlantic Ocean, have been slated for seizure by local government officials. His business, J&M Keelen Transportation Co., runs special-education transportation for public schools in two local counties.

If the government is successful in seizing his property, Mr. Keelen and his 85 employees -- most of them low-income minorities -- will be forced to vacate their office, a restored historical building, so that private developers can tear it down and put up condominiums in its place. His home, located next door, would be torn down as well.

New Jersey is one of 41 states that have enacted some kind of eminent domain reform. Florida and a couple of other states have done the most to limit eminent domain for private development, but others, such as New Jersey, still allow a loophole based on the definition of "blight." In effect, these laws form a patchwork of property rights that can leave many Americans vulnerable to politicians and local officials allied with rich private developers. (See Carla Main's feature.)

Congress is full of proposals to enact federal protections against eminent domain abuse, but so far no measure has gained political traction.

Public support for legislative reform remains strong, however, with an overwhelming majority of Americans favoring some kind of limits on government takings.

Opposition comes from city and state governments.

If the consequences of Kelo seem surprising, they were anticipated. In her powerful dissent in the case, Justice Sandra Day O'Connor wrote that "fallout from this decision will not be random." She predicted that "the government now has license to transfer property from those with fewer resources to those with more."

Two years later, her predictions are coming true, and short of a Supreme Court reversal, more legislative protection for property rights is needed.

© 2007 Dow Jones & Company, Inc. :

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Friday, June 22, 2007

"Eminent domain gone wild in Texas."

Perry Flips on Private Property Rights


Austin Chronicle
Copyright 2007

Among the 49 bills Gov. Rick Perry vetoed last Friday was an expansive eminent domain bill that would have required more government accountability in condemning private property for public use.

Perry blamed his decision on the $1 billion price tag and on what he said were two cost-prohibitive amendments added late in the session. The provisions would have given landowners greater legal standing in seeking fair compensation and other damages through the courts.

Perry said taxpayers would bear the brunt of the legislation's costs while a small number of eminent domain lawyers would clean up at the courthouse.

What he didn't say was that the bill would have put a crimp in his pet toll-road projects and halted so-called public-use projects (Downtown condos, hotels, etc.) that are largely driven by private developers.

The governor's spin went this way: "Taxpayers should not have to bear the burden of legislation designed so that condemnation lawyers can exploit a new category of damages for their own personal gain."

Put another way, the veto leaves in place a government's ability to kick people out of their homes so that private companies and joint ventures from here to Spain can continue to reap the rewards of taxpayer-funded projects. Lucky stiffs.

Perry said officials from nearly every major municipality in Texas had asked him to veto House Bill 2006, which passed by wide margins in both chambers, because it would hinder road projects needed to meet transportation demands in high-growth areas. Limiting eminent domain authority at the local level would also throw a wrench into routine infrastructure improvements and school construction projects, he said.

It's true that good-faith arguments can be made for cities and counties to pursue condemnation proceedings – theoretically as a last resort. But Perry's controversial Trans-Texas Corridor Project, overseen by a Spanish company, and a curious downtown revitalization plan in El Paso, which would displace hundreds of families and small-business owners, are two high-profile examples of eminent domain gone wild in Texas.

The irony of Perry's veto is not lost on those who remember the governor's land-rights stance in 2005 as he was preparing to run for another term. The issue of property rights, he said at the time, "is a very important issue to Texans who want assurances their private property won't be taken from them to advance someone else's private interests."

© 2007 Austin Chronicle:

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"Many government entities in the business of taking private property from citizens celebrated the Kelo decision...They are celebrating again today."

Furor erupts over eminent domain reform veto


by Christine DeLoma
Volume 11, Issue 43
The Lone Star Report
Copyright 2007

Angering and possibly alienating rural conservative groups that supported him in the past, Gov. Rick Perry vetoed June 15 a bipartisan eminent domain reform bill.

Perry said the bill would cost the government too much money to compensate property owners whose land has been taken from them.

"The property owners of Texas are dumbfounded that a governor from Paint Creek, Tex., could veto the most important property rights legislation in more than a decade, said Texas Farm Bureau president Kenneth Dierschke. " When the Texas Farm Bureau Board of directors met with him earlier in the session, the governor agreed that eminent domain needed to be fixed.

In his veto message, Perry said although HB 2006 by Rep. Beverly Woolley (R-Houston) contained many noteworthy provisions; one provision in particular went too far. It was an amendment added by Sen. Glenn Hegar (R-Katy) that would have allowed private property owners to receive compensation based on the diminished access to their property.

The Texas Department of Transportation (TxDOT) had argued strenuously against the bill, saying it would cost the state at least $1 billion annually. Perry agreed.

"The state and local government would be over-paying to acquire land through eminent domain in order to enrich a finite number of condemnation lawyers at the expense of Texas taxpayers," Perry said. "This bill will slow down and shut down needed construction projects through the creation of a new category of damages that are beyond the pale of reason."

While Perry may be concerned about 'trial lawyers,' the Texas Farm Bureau's members are concerned over the prospect of the Trans-Texas Corridor cutting across their farmlands, making access harder.

In some cases, farmers would have to drive up to 20 miles to the nearest overpass to get to the other side of the highway to access their property. It's an inconvenience many farmers believe they should be compensated for.

Under current law, a property owner can be compensated for his severed land from eminent domain assuming he is not left with reasonable access to his remaining property or is left with material and substantial impairment of access to his property.

Some argue the term "reasonable" is different for different people. HB 2006 would have allowed property owners to submit the market value of diminished access as evidence in an eminent domain proceeding.

The day before Perry's veto, LSR spoke to Texas Transportation Commission chairman Ric Williamson about HB 2006. Willliamson had argued that the term "diminished access" to a property owner's land really meant "diminished income." Williamson worried that businesses would sue the agency over diminished income if affected by road construction designed to enhance public safety.

"We think it's pretty egregious," Williamson said.

The Texas and Southwestern Cattle Raisers Association (TSCRA) said in a statement it was "shocked" that Perry vetoed the eminent domain reform legislation.

"Gov. Perry has sent the message loud and clear that he does not support private property rights," said Jon Means, TSCRA president.

TSCRA has argued that it is not an undue burden for the state to pay landowners for what is taken away from them. "Prior to the 1993 decision by the Texas Supreme Court in Schmidt v. State, landowners were compensated for diminished access," said Ed Small, legal counsel for TSCRA. The state treasury didn't go bankrupt prior to 1993 because of this, and it wouldn't go bankrupt if this bill were to become law."

In State v. Schmidt, the court ruled that the state may exclude certain factors in determining the "fair market value" of compensation to land owners in condemnation proceedings.

At the time, the state was expanding Highway 183 in Austin. The Schmidt in question -- a business owner -- sued TxDOT for inadequate compensation, saying he was not compensated for all damages incurred to his business.

Schmidt was paid for the physical property taken, but not for the loss of his business. The court held that property owners are not entitled to compensation for diminished access due to diversion of traffic, lessened visibility, and inconvenience of construction.

In an op-ed to the Houston Chronicle June 18, Woolley, the bill's sponsor, called the governor's veto a "grave injustice" to property owners. She branded as "simply disingenuous" Perry's charge that the bill would shut down needed construction projects.

"Contrary to the governor's declaration, [HB 2006] would not have provided a financial windfall for condemnation lawyers at taxpayers' expense," Woolley wrote. "Indeed, the protections contained in the bill would preclude the necessity of any lawyers at all because landowners would be treated fairly from the outset, allowing for a fair, negotiated price for land at no known cost according to the comptroller of public accounts, the attorney general and the Legislative Budget Board."

Since the U.S. Supreme Court ruling in Kelo v New London solidified governments' power to use eminent domain for economic development purposes, 31 states, including Texas, have moved to limit eminent domain powers in some form or another.

In 2005, Texas passed SB 7 prohibiting the public taking of private property for economic development under certain circumstances. Yet lawmakers failed to provide a definition of "public use." HB 2006 would have closed this loophole by providing a clear definition that "allows the state, a political subdivision of the state, or the general public of the state to possess, occupy, and enjoy the property."

The bill would have also required condemning authorities to make a legitimate, bona fide offer to purchase a private property owner's land before proceeding with eminent domain. And a government entity that wishes to condemn a parcel of land would have had to take a record vote before proceeding.

Despite its strong support of the vetoed bill, the Texas Public Policy Foundation, a prominent conservative study group, promised to work with Perry and lawmakers in devising a solution to the problem of eminent domain abuse.

"Unfortunately, this veto exposes property owners from Freeport to El Paso to the very real threat of eminent domain," said TPPF's Bill Peacock. "Although the public outcry against Kelo was overwhelming, many government entities that are in the business of taking private property from its citizens celebrated the Kelo decision for making their job easier. They are celebrating again today." O

© 2007 The Lone Star Report:

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TxDOT's 'Border Crossing Travel Time Study Team' studies traffic congestion at Mexican border

Group to study traffic congestion at border crossings

June 22, 2007

KVIA-TV-ABC (El Paso, TX/Las Cruces, NM,/Juarez, Mexico)
Copyright 2007

EL PASO, TX - A new study by the Texas Department of Transportation (TxDOT) looks to evaluate travel time for passenger and freight flows at 26 Texas-Mexico border crossings.

TxDOT's study comes as expansion at the Paso del Norte bridge in downtown El Paso is making the morning commute tough for some. However the study is not about bridge traffic, rather the back up motorist encounter once they enter the US.

The Border Crossing Travel Time Study Team will be visiting 26 crossings in the El Paso, Laredo and Pharr districts to collect information and identify problems, as well as possible short-term improvements.

Along with this fieldwork the team also plans to meet with local agency representatives including Department of Public Safety, city and county reps and homeland security in all three districts to get feedback from them on their concerns.

This study will run through January 31st, 2008. There is also a hotline that interested members of the community can call for more information on how or if this study will affect residents.

The number to call 1-877-800-6680.

© 2007 WorldNow and KVIA:

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"HB 2006 would not have enriched eminent domain attorneys."

Texas Farm Bureau Responds, Clarifies HB 2006 Veto


Comments: Billy Howe,Texas Farm Bureau State Legislative Director

Eye on Williamson County
Copyright 2007

To an outside observer, it would seem that the Hegar amendment was the cause of Governor Perry’s veto. However, it was not. The Texas Farm Bureau legislative team worked closely with Representative Woolley and Senator Janek throughout the session. Therefore, we were privy to the “blow by blow” events.

When HB 2006 passed the House to the Senate, it included language that “any factor” a willing buyer and seller would consider could be used in determining compensation. One of those factors could have been compensation for diminished access to your property.

Of course, diminished access is the reason given for the veto. The condemning authorities went to Senator Janek and convinced him to change the language. The changes basically put everything in HB 2006 back to current law, so then, what would have been the point to passing a bill that did nothing to help property owners?

Texas Farm Bureau and others went to Senator Janek and explained the impact of the changes. Senator Janek asked us to work on new language to fix the problem. He then took the new language, which is know now as the “Janek amendment” to TXDOT and the Governor’s staff. TXDOT immediately objected claiming it would cost $100 million more a year because they would have pay for diminshed access.

Which by the way is the same issue the Hegar Amendment addressed.

So, even though the governor and TXDOT want to focus everyone on the Hegar amendment, they were making the same claims on the Janek amendement a week before anyone ever saw the Hegar amendment. If you go back and read the veto proclamation you will notice that it speaks of two amendments, the other amendment was the Janek Amendment.

Senator Janek and Duncan met with stakeholders from both sides Saturday and Sunday before HB 2006 came to the Senate floor for a vote. During those meetings, they requested numbers to substantiate the $100 million cost claims. Of course, now that cost claim has risen to a $1 billion. Those numbers were never produced, which is why Senator Janek moved forward with his amendment.

Fast forward to Representative Woolley and the House.

Obviously, TXDOT and the Governor’s office was not pleased the Janek and Hegar amendments were added to HB 2006. It was at this point the first threat of veto was made.

Representative Woolley told them to provide her language to fix their concerns, but she was not interested in any language that did not compensate the landowner for the devaluation of their property. She felt strongly that the landowner should be paid for the “injuries” suffered from the condemnation.

One of the oldest tricks in the book to kill a bill is to “slow play.” You negotiate it to death by dragging it out until there is no time left. Therefore, Representative Woolley gave TXDOT and the Governor’s office a deadline, and they did not meet it. Representative Woolley refused to let them kill her bill by running out the clock.

The bottomline is that had Representative Woolley agreed to strike the Hegar Amendment, there still would not have been a deal because they also opposed the Janek Amendment.

And, let’s not forget that they tried to get Senator Janek to strike the original compensation language in the bill as well. Without those amendments, property owners would not have received one more dime in compensation than what they can get today under current law. And, that is exactly what the opposition wanted. Howevever, Represenative Woolley had been clear from day one when she filed HB 2006 that the bill must provide fair compensation to property owners. She did not intend to pass legislation leaving the status quo. In our opinion, her unwillingness to bow to political pressure and gut her bill showed great leadership.

The part of the veto proclamation addressing the Janek amendment was the
first amendment mentioned. The excerpt below addresses the Hegar Amendment, but let me reiterate that these two amendments have the same effect. The Hegar amendment was just more specific.

With regards to the rural issue with diminished access, it has a huge impact. As the TTC and other toll roads are envisioned, they are limited access roads. They will not have access roads, and they “dead-end” existing state highways, FM roads, and county roads unless the entity building the road finds that the road is “significant” enough to build an overpass. So, rural landowners may find themselves on an FM that stops at the TTC or toll road.

As far as being left with the “status quo” perhaps I need to clarify a little. HB 2006 had some good provisions on bona fide offers and public use. However, a landowner can rectify that situation under current law by hiring an attorney.

I know that no one really wants to hire an attorney, but even had HB 2006 passed, condemning entities would have still bet on this aversion to hiring an attorney. It is their standard operating procedure. They know that a small percentage of landowners will fight. As a result, the bad actors would still have made low offers and taken property for questionable purposes. Even if HB 2006 had passed the landowner’s only true recourse to ensure the law is applied is to take the condemning entity to court. Sad, but true.

With regards to public use, we already have a strong conservative definition due to a Texas Supreme Court case in 1905. The problem is that the condemning entity buys off the property owner before the case gets far enough along in the court system to strike down the condemnation. So, its not that condemning entities can take property illegally, they just make the landowner an offer they can’t refuse to keep the case from the Appeals or Supreme Court.

So, even if HB 2006 would have passed with the definition of public use, you don’t stop the
condemnation unless you are willing to fight it to the Texas Supreme Court. We would love to find a landowner willing to make such a fight. Believe me.

So, had HB 2006 passed without the new compensation language, landowners would still be under the status quo. The bill would not have really changed how condemning entities operate.

We completely agree that next session the strategy is to pass the bill early. Representative Woolley has indicated to us this week that she is committed to doing just that next session. Since all the negotiations that took so long on the House side are now done, hopefully the bill canmove very quickly next session.

Oh, one last thing that should be cleared up. HB 2006 would not have enriched eminent domain attorneys. They work on a contingency basis. They typically receive 30% of what they get the property owner above the offer made by the condemning entity.

Had HB 2006 worked as we hoped, fewer cases would have gone to court, and there would have been less of
a difference between the offer and the condemnation award. The result would have been that eminent domain attorneys would have received less income, not more.

It is the condemning entities that force condemnations to court that are enriching eminent domain attorneys. It
is interesting that they vilify attorneys who are trying to help property owners protect their property right to fair and just compensation.

Shouldn’t the entities taking private property without making the property owner whole be the ones vilified?

© 2007 Eye on Williamson County:

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"After voting for peak-hour pricing, court members became concerned that doubling fees would force some drivers onto just-as-congested nearby roads."

Westpark tolls won't be doubled

Officials listen to irate public but warn congestion will continue


Houston Chronicle
Copyright 2007

Top county officials announced Thursday that they will rescind a decision to double fees during peak hours on the Westpark Tollway but warned drivers that traffic backups likely will continue without "congestion pricing."

"The realistic answer is 'yes,' " Commissioner Steve Radack said. "There will be congestion on the Westpark Tollway."

Commissioners Court voted unanimously Tuesday to double fees during peak hours as a way to reduce congestion, but agreed two days later to rescind that decision after it was assailed by many tollway drivers and area residents.

"We will cancel the Westpark (peak-hours) increase" at the next Commissioners Court meeting, County Judge Ed Emmett said.

Court members, especially Radack, have received phone calls and e-mail from users angry that Westpark fees would increase from $1 to $2.50 per transaction during peak hours.

The decision to rescind the rate hike "was certainly influenced by the public's reaction," Emmett said.

Congestion pricing was intended to reduce gridlock on the tollway during the morning and evening commutes. But after voting for peak-hour pricing, court members became concerned that doubling the fees would force some drivers onto just-as-congested nearby roads.

The court also voted Tuesday to raise tolls on all Harris County Toll Road Authority roads 25 cents, and that price hike will still occur, Emmett said. Toll-road officials said that increase will go into effect in September.

The 25-cent hike will increase Westpark transactions from $1 to $1.25.

Some Westpark Tollway drivers had said they would stop using the road when peak-hour pricing went into effect from

6 a.m. to 9 a.m. for inbound traffic and 4 p.m. to 7 p.m. for outbound traffic.

It now costs $2.35 to drive the 14-mile length of the tollway in Harris County. The court's vote Tuesday would have raised that price to $5.50 during peak hours.

Kyle Bigelow, an Alief resident who drives the tollway, said he and his friends already call the toll roads "Lexus Lanes," and the peak-hour fees would have only furthered that elitist image of the tollway.

Lower- and middle-class residents would have been forced to use secondary roads, he said. Bigelow said he couldn't have afforded to pay $10 or $11 a day commuting to and from his job in the Galleria area.

Radack's comment
On Tuesday, Radack said of drivers who couldn't afford peak-hour fees, "Let them go down Richmond Road. Or they can use Westpark," a secondary road near the tollway. His comment especially angered commuters.

But Emmett said Radack's comment may have been useful because many residents phoned or e-mailed to say that Richmond also is congested and is not a viable alternative.

Emmett said he and other court members reviewed alternatives to the tollway and decided that it is unwise to force some drivers onto backed-up secondary streets and highways where construction is under way, such as Interstate 10.

"The truth of the matter is, we and the consultants hadn't factored in the construction on the other highways," Emmett said. "You can't have congestion pricing if you don't have a place for people to go to avoid congestion."

Chuck Wagner, via e-mail, wondered why the court didn't realize before Tuesday's vote that alternate roads were congested. "Apparently, it didn't occur to those incompetent boobs on the Commissioners Court that the reason the tollway is flooded with cars is that the Katy Freeway has become essentially unusable to people in Katy due to the ongoing construction fiasco," Wagner wrote.

Emmett said the county will look at other ways to reduce gridlock on the tollway. Some possible options include partnering with Metro to allow Metro buses to use the tollway without charge, encouraging carpooling and improving alternate routes.

The toll road authority expected to make $65 million more annually from the 25-cent increase and the peak-hour fees on the tollway, said Peter Key, toll road authority deputy director.

Plans for revenue
The money was needed to maintain good financial standing, pay for maintenance and build six toll segments estimated to cost $4.4 billion.

Emmett said the authority will bring in less money by not imposing peak-hour fees but enough new revenue to start work on the six segments. He was unsure how much would be lost by not imposing impact fees.

The hike will in part pay for extending the Hardy Toll Road to downtown and the Sam Houston Tollway into northeast Harris County, turning the Hempstead Highway into a toll road, carrying out the second phase of the Fort Bend Parkway, adding toll lanes on Texas 288 and building the Fairmont Parkway.

© 2007 Houston Chronicle:

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"When push came to powerful shove against business interests, Perry sided against landowners."

Perry should back up eminent domain talk


By Chris Greene
The Brazosport Facts
Copyright 2007

Gov. Rick Perry’s veto this week of an eminent domain bill designed to protect landowners left a lot of Texans scratching their heads, and you can lump us in with those feeling dumbfounded.

Perry — who was among those making political hay when the U.S. Supreme Court ruled in 2005 that cities can seize homes under eminent domain for use by private developers and made the issue an emergency item in a special session that same year — had a chance to back his tough talk and posturing on property rights with action. But when push came to powerful shove against business interests, Perry sided against landowners.

Even though the Supreme Court ruled on the side of developers in the 2005 case, it also said states can craft laws that limit eminent domain. That’s what the Texas House — by a vote of 125-25 — and Senate — in a unanimous vote — did in the bill sent to Perry.

Many feel the Trans-Texas Corridor, a project championed by Perry, will bring about mass evictions of Texans from their homes, farms and ranches. The proposal involves more than 4,000 miles of tollways and railways and cuts through many Texans’ private land.

Farmers and the Texas Farm Bureau were especially upset with the veto. Perry, who touts his farming background, is a former state agriculture commissioner.

“The taking of private property has become far too easy in this state,” Kenneth Dierschke, president of the Bureau, said in a statement. “Obviously, there are many powerful interests that prefer it stay that way."

Perry cited opposition to the bill from fast-growing cities and counties who claimed cost of construction projects would rise. His office’s press release also pointed to how the bill expanded damages a landowner could recover from diminished access to roads and changes in traffic patterns and property visibility.

But certainly those factors were weighed by the Legislature, which overwhelmingly acted on the people’s call for protection from eminent domain.

Perry’s acquiescence to big business is no surprise. He talked tough on border security during his re-election campaign, then dramatically changed his tone after the election when talking to business leaders who rely on immigrant labor. And sadly, eminent domain has no doubt been filed in the same place as true property tax relief for Texas homeowners.

One also has to wonder if Perry’s veto is simply payback to legislators who overturned his executive order on mandatory cervical cancer vaccines and spurned other Perry agenda items. If so, it’s just one more black mark for his less-than-inspiring governorship.

© 2007 The Brazosport Facts:

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Thursday, June 21, 2007

"After hearing plenty of outrage from the public some commissioners are taking a step back..."

Westpark congested pricing nixed

June 21, 2007

By Alex Sanz
KHOU-TV 11 News (Houston)
Copyright 2007

The Harris County Commissioners Court Thursday decided not to implement congested pricing on the Westpark Toll Road, but this will still take effect in other areas.

Initially the idea was to raise rates on the Westpark Tollway from $1 to $2.50.

An official ruling will be made next week.

Although the increase on the Westpark Toll was nixed, the plan to raise toll road fees in other areas will still take effect.

When asked directly about who will decide the implementation of the plan and it’s timeline authority deputy director Peter Key was clear commissioners court.

But after hearing plenty of outrage from the public some commissioners are taking a step back now suggesting they will reconsider the rates before approving an implementation date.
Commissioners Court contacts

(713) 755-4000 County Judge Ed Emmett
(713) 755-6111 Commissioner, Precinct 1 El Franco Lee
(713) 755-6220 Commissioner, Precinct 2 Sylvia R. Garcia
(713) 755-6306 Precinct 3 Steve Radack
(713)755-6444 Precinct 4 Jerry Eversole

There is a nationwide trend toward congestion pricing, whereby toll rates hike when traffic is heaviest.

In a poll only nine-percent of responders said the hike of tolls was a good plan. Eighty percent said no way, and 11 percent said they already avoid the toll roads.

© 2007 KHOU-TV:

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Chain Reaction

Fort Bend weighs toll fee impact


By Bob Haenel
Fort Bend Herald-Coaster
Copyright 2007

Officials with the Fort Bend County Toll Road Authority are trying to weigh the impact of a rate increase approved by the Harris County Commissioners Court on Fort Bend's toll roads.

Mike Stone, a consultant with the Fort Bend County Toll Road Authority, said any rate decision by Harris County has a potential impact on Fort Bend's two toll roads, the extension of Westpark Tollway and Fort Bend Parkway.

Harris County Commissioners Court Tuesday voted to increase the toll on Westpark Tollway to $2.50 during peak hours in hopes of reducing the traffic flow on the route, but it was reported this morning on the Houston Chronicle Web site that County Judge Ed Emmett announced the cancellation of the Westpark increase.

The court did approve raising fees on all Harris County toll roads by 25 cents. They will take effect in September.

Stone said the Fort Bend County rates are set by Fort Bend officials, and they are behind.

"We don't go up in small percentage increments," Stone said Thursday. "Right before we opened the Fort Bend Parkway, the Harris County Toll Road Authority raised its rates (several years ago) and we kept ours, so we were kind of behind to start.

Stone said peak hour pricing has always been a consideration to control traffic flow rates.

"Congestion pricing has always been a consideration," he said.

But Stone said the increase in Harris County's charges would "discourage people from riding on our roads, too. If you discourage riders, it will have an impact on our revenue."

Stone said he believes the Harris County leaders will adjust the times in order to push motorists to earlier or later times that can still be workable for commuters.

He noted that when Westpark Tollway was extended, the main lanes for FM 1093 were also improved and widened.

Stone said it might have been easier to test the pricing change and hours before full implementation.

Even in a shorter test period, perhaps a couple of months, "you'd be able to tell if it was working."

"Everybody on the road will know if it's working because they wouldn't be stuck in traffic," he said.

© 2007 Fort Bend Herald-Coaster:

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The best 'democracy in transportation' money can buy.

Paying for VIP Treatment in a Traffic Jam

More Cities Give Drivers Access To Express Lanes -- for a Fee; A Privilege for the Lexus Set?

June 21, 2007

The Wall Street Journal
Copyright 2007

Ann Johnson used to have no idea how long it would take to get to work in downtown Minneapolis on clogged Interstate 394. "I felt like a prisoner of the highways," she says.

That changed when state officials started in 2005 letting drivers pay tolls to use lanes previously limited to carpools, buses and motorcycles. The catch: Tolls range from 25 cents to $8, varying with the amount of congestion in order to keep drivers zipping along at close to 55 miles an hour.

As a result, the daily commuting grind for Ms. Johnson, a civil engineering instructor, lasts just about 12 minutes each way, compared with as long as an hour each way before. While she used to drive free on the regular lanes, tolls now cost her $40 a month, but she can work later and still get home in time to take care of her two kids. "The cost is minimal compared with the benefits," she says.

High-occupancy toll, or HOT, lanes -- which allow single drivers to pay to use the car-pool lane -- have been around for about a decade, starting on nightmarish roads in Southern California and Houston. Now the idea is picking up speed across the U.S., with plans under way in more than a dozen cities and states. If all of the express lanes are built, millions of American commuters could face less driving misery every day.

But some critics derisively refer to the express lanes as "Lexus lanes" that allow drivers with deeper pockets to buy special treatment on highways built using fuel taxes collected from everyone. "It would do more good for more people if those lanes were available to every motorist at all times," complains Dawn Duffy, a spokeswoman at AAA Minneapolis.

The trend is a sign that increasingly choked highways and tight road-building budgets are forcing transportation planners to try some bold ideas. In New York City, Mayor Michael Bloomberg wants to discourage drivers from entering parts of Manhattan by charging them $8 a day, with proceeds used to improve subways and buses. Ports in Los Angeles and Long Beach, Calif., are giving cars more room during rush hours by charging trucks $100 extra for each cargo container picked up or delivered at the docks Monday through Friday between 8 a.m. and 6 p.m.

In Georgia, where lanes on Interstates 75 and 85 through downtown Atlanta were narrowed to squeeze through more cars, state officials announced last month that new lanes or roads must include some type of pay-to-drive pricing scheme. Public response so far has been encouraging, a spokeswoman says.

Many of the nine cities competing for $1.1 billion in federal aid to fight congestion have proposed charging tolls that rise and fall based on traffic volume. Winners will be announced by mid-August.

"The congestion problem is bad and getting worse, and we aren't in the position where we can dismiss possible solutions that involve changing the way we pay for travel," says Tim Lomax, research engineer at the Texas Transportation Institute of Texas A&M University in College Station. Charging extra to use special lanes "is democracy in transportation. You get to vote every day with your pocketbook."

Supporters say HOT lanes are a way to improve on carpool lanes, which failed to catch on as much as hoped. Piggybacking a HOT lane onto a traditional high-occupancy vehicle lane can cost just a few million dollars, with toll revenue typically covering the expense. Under federal rules, single-occupant vehicles may use HOV lanes as long as tolls are charged.

Meanwhile, the economic principle of price elasticity that determines when tolls rise and fall for HOT lanes sometimes doesn't work when every-man-for-himself gridlock-survival instincts kick in. John Doan, former program director of the Minneapolis express lanes, says one commuter told him she moved into the lanes whenever tolls were at their highest. The reason: If so many drivers were using them, then it must be a good idea.

HOT lanes work like this: Sensors in the pavement track the number of cars and their driving speed. When traffic slows, computers increase the toll to discourage other cars from entering the lanes. Toll amounts are displayed on huge digital signs and debited from an electronic smart card inside the driver's vehicle. At the height of rush hour, drivers can pay around $3 to $5. Carpoolers, buses and motorcycles still use the lane with no toll.

"I'm removed from the hectic merging, converging and stop-and-go traffic in the regular lanes," brags Karen Stuart, the mayor of Broomfield, Colo., and a consultant for an engineering firm in Denver. She uses HOT lanes that opened last year on I-25 to zip through traffic jams, making her feel safer and giving her an extra 30 minutes at work. To help offset the cost, she skips her usual $3.50 Starbucks Grande Caffe Latte.

About 200 miles of express lanes are being planned for some of the worst-moving highways, estimates Peter Samuel, editor of Toll Roads Newsletter. San Diego is spending $1.7 billion to expand the length and width of its existing HOT lanes.

The routes most frequently adapted for special toll lanes usually carry 100,000 to 250,000 vehicles a day. While only a small percentage of drivers use the HOT lanes, those cars leave more capacity for cars in regular lanes.

In Minnesota, tolls increase when traffic in the express lanes is moving slower than 50 mph. Drivers pay whatever is shown on the overhead sign just before they enter the lane, even if the price climbs after that. Solo drivers who use HOT lanes without paying -- by driving in the lane without an electronic tag in their car -- can be fined $142 or more.

Linda Koblick, a Hennepin County, Minn., commissioner who helped state transportation officials develop the I-394 project, worried at first that express lanes would cater mostly to drivers "paying an extra $5 just to get there faster, because they have the money and they can," she says. Her mind was changed after a visit to Southern California, where she saw "housewives in minivans having to pick their kids up from day care."

Barb Green, an accounts-payable employee for a food concession at the Hubert H. Humphrey Metrodome in Minneapolis, has paid as much as $6 to use the express lane when traffic was particularly brutal. Paying extra is worth it, she says, getting her home sooner to her disabled husband. She's also discovered another benefit: she burns about a quarter of a tank of gas a week, down from a half-tank in the slower-moving regular lanes.

Write to Daniel Machalaba at

© 2007 The Wall Street Journal:

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TxDOT District Engineer waves the old FHA threat-o-gram at NTTA

$300-million hitch may be on horizon for NTTA’s 121 bid


By Josh Hixson, Staff Writer
McKinney Courier-Gazette
Copyright 2007

North Texas could owe the federal government nearly $300 million if the North Texas Tollway Authority is given approval to begin construction and tolling of the State Highway 121 project, according to Texas Department of Transportation (TxDOT) and regional transportation officials.

Bill Hale, Dallas district engineer for TxDOT, said Wednesday that Federal Highway Administration officials expressed their concerns to TxDOT about the process by which Cintra and the NTTA were allowed to submit bids.

“If we do it the way it looks like we are, we may have to reimburse the feds for the money already in 121,” Hale said. “It is something (the Texas Transportation Commission) will consider because it has an impact on the amount of money in the project. TxDOT could hold the (North Texas) region responsible for the federal funds.”

Hale estimated $300 million in federal funds had already been invested in current construction of the SH 121 toll project.

Federal Highway Administration officials wrote TxDOT letters on April 24 and May 10, spelling out their worry that federal regulations were violated when the NTTA was allowed to submit a bid well after TxDOT had chosen Cintra.

“We are concerned that TxDOT’s actions could lead to violations of Federal law and regulations regarding competition in the procurement process. This could jeopardize TxDOT’s ability to use TIFIA (Transportation Infrastructure Finance and Innovation Act) funds on the SH 121 project,” stated the Federal Highway Administration in an April 26 letter. Michael Morris, director of transportation for the Regional Transportation Council (RTC), said he and RTC members were aware of the issue when the group voted to recommend the NTTA.

“I wanted to make sure the RTC had full knowledge of the federal government’s position,” Morris said. “The federal government is concerned that the state went ahead and properly procured a private-sector vendor. Then, sometime afterward, the public-sector vendor looked at the report and then competed.”

“We did not quantify the financial implications of that. There is a large range of potential implications,” Morris said.

Expecting the Texas Transportation Commission to approve the NTTA’s bid for 121 June 28 isn’t as simple as it sounds, Hale said.

“It isn’t as easy as saying ‘RTC wants to do this, so let’s go forward and do this,’” Hale said. “The (Texas Transportation Commission) wants everybody to have their eyes wide open during the process.”

Paul Wageman, chairman of the NTTA’s board of directors, said regardless of the federal government’s qualms, he expects the transportation commission to approve the NTTA’s bid.

“The (Texas Transportation Commission) may have some things they need to address. Mr. Hale mentioned the Federal Highway issue. But that is (TxDOT’s) issue,” Wageman said. “It is the region’s expectation that in the meeting (on June 28), a final decision will be made by the commission granting the project to the NTTA.”

The five Texas Transportation Commissioners, including chairman Ric Williamson, were unavailable for immediate comment Wednesday.

Commissioners Ted Houghton and Hope Andrade told The Dallas Morning News Tuesday they were wary of awarding the NTTA with a contract.

Randall Dillard, a spokesperson for TxDOT, said Wednesday that comments from Houghton and Adrade did not signal a shift by the commission in Cintra’s favor.

“I am a little bit disappointed that there is a projection that there is going to be a showdown here (in Austin) on the 28th. That implies a little more controversy than there actually is,” Dillard said. “My guess is that the commissioners haven’t even talked to (TxDOT) staff about the RTC meeting. The commissioners are not going to want to go on record and say this is what is going to happen on the 28th.”

Hale said TxDOT is working to reach an answer as to whether or not there will be any financial repercussions for North Texas before the Texas Transportation Commission meets next week.

Contact Josh Hixson at

© 2007 McKinney Courier-Gazette:

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Wednesday, June 20, 2007

"Apparently the Bush DOT chose to thumb its nose at the Congress and at the will of the American people by pursuing its global economic agenda.”

Truckers say DOT deserves failing grade on safety and security of highways


Press Release
Owner-Operator Independent Drivers Association
Copyright 2007

(Grain Valley, MO) – According to the Owner-Operator Independent Drivers Association (OOIDA), the Department of Transportation gets an “F” for its performance when it comes to the safety and security of our nation’s highways. The Association stood alongside safety advocate groups at a press conference in Washington, D.C. today as they issued a “report card” and research study detailing how the Bush administration is defying Congress with the U.S. DOT’s attempt to open the border to trucks from Mexico.

The OOIDA believes the U.S. Department of Transportation has failed to comply with the requirements outlined and signed into law regarding the Mexico cross border program, disregarding the safety and security of U.S. highways. The Association has protested against the pilot program for several months. (Call to Action – Cross Border Program)

“Secretary Peters claims truckers from Mexico will be subject to the same regulations as U.S. drivers, yet she has never said how this will be done,” states OOIDA Executive Vice President Todd Spencer. “These regulations don’t exist in Mexico. Enforcement of stringent hours of service regulations are meaningless if a Mexican driver has been awake for a week straight when he reaches the U.S. border,” he adds.

Safety and security as a priority was indeed recognized by the U.S. House of Representatives last month when it passed the Safe American Roads Act. This legislation laid out specific safety and security measures that must be in place before the border could open. It passed by an overwhelming 411-3 margin.

“However, apparently the Bush DOT chose to thumb its nose at the Congress and at the will of the American people by pursuing its global economic agenda,” added Spencer.

A new poll by the Lake Research Partners research firm reveals strong opinions on the idea of allowing trucks from Mexico to travel beyond the current commercial zones, extending 20 to 30 miles along the U.S.-Mexico border. One thousand adult, American citizens were polled and it was found that a majority (56 percent) believes the Bush administration’s plan to allow Mexico-domiciled trucks to travel throughout the United States is dangerous.

The “report card” announced at the conference also pointed out legal provisions that the FMCSA has not complied with, including: failure to provide sufficient opportunity for public notice and comments; failure to provide the public with information about the pilot project; failure to comply with the requirements of §350 of the FY2002 DOT Appropriations Act on the safety of cross-border trucking; failure to comply with requirements of the pilot program law to test innovative approaches and alternative regulations under 49 USC §31315(c); failure of FMCSA to keep its promise to check every truck every time for compliance; and failure to establish criteria that are subject to monitoring during the pilot program.

“How can this administration possibly rationalize asking thousands of young men and women in uniform to make the ultimate sacrifice for our nation’s safety and security thousands of miles from home --- and at the same time make our southern border even more porous than it already is?” asks Spencer.

The Owner-Operator Independent Drivers Association (OOIDA) is the national trade association representing the interests of small-business trucking professionals and professional truck drivers. OOIDA was established in 1973 and is headquartered in the greater Kansas City, Mo. area. The Association currently has more than 153,000 members from all 50 states and Canada.

© 2007 All Rights Reserved by OOIDA, Inc.:

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"What's going on in Houston will be a model for what people around the state can look forward to."

Harris leaders rethink plan to double tollway fees

June 20, 2007

Houston Chronicle
Copyright 2007

Harris County leaders said Wednesday they might reconsider their decision to double peak hour fees on the Westpark Tollway, but the review might not lead to a reduction in toll rates.

Commissioners Court, instead, might focus on whether the peak periods could be shortened.

Several Commissioners Court members received phone calls and e-mails criticizing their decision Tuesday to double tollway fees during peak hours.

"My initial thought was to implement these changes and then review them," said County Judge Ed Emmett. "But my view may be changing on that."

But unless the court revisits the issue, the Harris County Toll Road Authority plans to move forward with the new fee schedule in September, said Peter Key, the authority's deputy director. The authority would study whether the peak-hour fees should be lower or higher after they go into effect, he said.

The toll road authority pushed for so-called congestion pricing during peak hours, hoping to reduce traffic on the tollway and allow it to begin moving at a 50 mph-60 mph rate again, Key said.

Commissioner Steve Radack said he wants the court to discuss congestion pricing further — and possibly reducing the hours during which the higher tolls are charged — at an upcoming meeting.

The court authorized the toll road authority to set peak-hour pricing from 6-9 a.m. for inbound traffic and 4-7 p.m. for outbound traffic.

Toll transactions along the main part of the tollway now cost $1. That fee will rise to $1.25 per transaction during non-peak hours. And the rate during peak hours will be $2.50 per transaction.

"I don't think we need three hours in the morning and three hours in the afternoon," Radack said.

Radack on Tuesday said of drivers unhappy about peak-hour pricing, "Let them go down Richmond Road. Or they can use Westpark," a secondary road near the tollway. His office received a slew of phone calls and e-mails from residents critical of his comment, he said.

Commissioner El Franco Lee said of the Westpark peak-hour pricing, "Nothing is so ironclad that you can't make it better and more palatable for the public."

Toll road prices will go up 25 cents throughout the toll road system in September, Key said.

Traffic experts concluded that traffic can move at 50 mph-60 mph on the tollway when there are 3,600 vehicles passing a given area hourly, Key said. About 4,200 cars an hour now pass through key areas of the tollway during peak hours, causing backups, he said.

A traffic consultant hired by the authority concluded that a peak-hour fee of $2.50 will drive off enough customers to reduce traffic to 3,600 vehicles an hour, Key said.

"If you're paying a toll and you're not going anywhere, there isn't any value to the tollway," he said.

It now costs about $2.35 to drive the 14-mile length of the tollway in Harris County, counting exit ramp fees. The court's vote on Tuesday called for that price to rise to $5.50 during peak hours, Key said. Tolls wouldn't change along the Fort Bend County portion of Westpark.

Kyle Bigelow, an Alief resident who works as a systems analyst in the Galleria area, said he will stop using the tollway if peak hour pricing goes into effect.

He now spends $1,200 a year commuting on the tollway and can't afford to spend $2,400-$3,000 on annual commuting costs.

"I'm still working at paying off my student loans," said Bigelow, 26. "The middle and lower classes can't afford this. They're basically reserving the tollway for the upper class. I don't find that fair."

Bonnie Scott, in an e-mail, said, "I spend $150 a month on that toll road and now with this new increase you can bet I will go down Richmond. Maybe (Radack) has deep pockets, but I am just a 57-year-old taxpayer."

Congestion pricing is used elsewhere in the country to keep traffic flowing on gridlock-prone highways. It hasn't been tried before in Texas, but the future Katy Freeway toll lanes are expected to have peak-hour pricing.

"What's going on in Houston will be a model for what people around the state can look forward to," said Christopher Poe, director of the Center on Tolling Research at Texas Transportation Institute at Texas A&M University.

The peak hour prices on the tollway would raise the toll rate during regular hours from about 18 cents per mile to about 20 cents. The peak hour rate would be about 42 cents.

Rates can be much higher in other parts of the country.

During peak hours on Friday afternoons, motorists on State Route 91 in the Los Angeles area pay nearly $1 per mile and $9.50 for a 10-mile trip.

"The idea is not to discourage use," Poe said. "It's to get people to change their schedules to reduce the demand at peak hours."

Jim McGrath spokesman for a group that wants District Clerk Charles Bacarisse to run for county judge, criticized the court for raising toll fees 25 cents throughout the system and imposing peak-hour fees on the Westpark Tollway. McGrath said Bacarisse agrees with the court that a bond package should be put before voters in November.

© 2007 Houston Chronicle:

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"It's regrettable that Perry cast aside two years' hard work and the will of the people with a single stroke of his veto pen."


Woolley: Perry's veto endangers Texans' property rights

June 20, 2007

Austin American-Statesman
Copyright 2007

Gov. Rick Perry's veto of House Bill 2006, eminent domain legislation, does a grave injustice to every private property owner in Texas. The governor's statement that the bill would slow down and shut down needed construction projects at the expense of taxpayers was disingenuous.

HB 2006 sought not to forestall the march of progress but to protect the rights of private property owners from being trampled by predatory entities seeking to build roads or other public-use projects without fairly compensating them.

The genesis of HB 2006 was the United States Supreme Court's unconscionable ruling in a lawsuit challenging eminent domain abuse in New London, Conn.

In Kelo v. City of New London, the court upheld a private development corporation's right to exercise the power of eminent domain by taking an entire neighborhood for private development.

In her dissent, Justice Sandra Day O'Connor said, "The specter of condemnation [now] hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory."

For many years, the courts have been chipping away at private property rights. HB 2006 would have restored many of those rights, providing important protections for private property owners faced with the threat of having their land taken through the power of eminent domain.

The bill narrowed the definition of "public use" to ensure that a taking of private property is only for traditional public uses — not for building a condo project or a shopping mall, as was the case in New London.

The measure required a condemning entity to make a bona fide offer to a property owner and required good-faith dealings, and fair compensation and treatment of property owners in eminent domain negotiations.

HB 2006 made it mandatory for a governmental entity to take a public vote authorizing the exercise of the power of eminent domain, allowing for public scrutiny.

Contrary to the governor's declaration, it would not have provided a financial windfall for condemnation lawyers at taxpayers' expense. Indeed, the protections contained in the bill would preclude the necessity of lawyers because landowners would be treated fairly from the outset, allowing for a fair, negotiated price for land at no known cost, according to the comptroller of public accounts, the attorney general and the Legislative Budget Board.

As the citizens of New London found out, when the government or private entities representing it are allowed to brandish the far-reaching power of eminent domain — and can justify taking private property for the vague purpose of "economic development" — all private property owners are in trouble.

An overwhelming majority of members of the Texas House and Senate agreed with the bill's merits. It's regrettable that Perry cast aside two years' hard work and the will of the people with a single stroke of his veto pen.

Woolley served as co-chairwoman of the 2005 Joint Interim Committee on the Power of Eminent Domain.

© 2007 Austin American-Statesman:

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"Now the government is in the business of telling the people what’s best for them — whether the public thinks so or not."

Commentary column

Perry sold out the rural areas

June 20, 2007

The Palestine Herald-Press
Copyright 2007

Once upon a time in some history class long ago it seems like we heard somebody from this nation’s past say something that government of the people, by the people, for the people, shall not perish from this earth.

These words by Abraham Lincoln in his Gettysburg Address were meant to reflect the subservient role of government to the public.

A lot has definitely changed over the past 150 years. Now the government is in the business of telling the people what’s best for them — whether the public thinks so or not.

This post-modern precept can be seen by Texas Governor Rick Perry’s veto of the state’s eminent domain bill.

The Texas House passed an eminent domain measure that would have made it harder for the government to obtain private land by a 125-to-25 margin while the same bill passed unanimously in the Texas Senate.

The Legislature pushed the bill through because of a largely grassroots response from Texas landowners in the path of the Trans Texas Corridor, the proposed transportation and broadband infrastructure leading from the border with Mexico north through the middle of the state to Oklahoma.

With the eminent domain bill in place, the process of stealing hundreds of thousands of acres of privately held land much harder to do, but now he has vetoed that pesky impediment to his and his financial backers' plans.

In an Associated Press story, which appeared here in the Herald-Press, it was pointed out that after the Legislature passed the measure the governor's office began hearing phone calls from, "fast-growing cities and counties asking him to veto the bill."

The AP story also stated that having to change the direction of some of the proposed projects because of eminent domain issues would cost the state an extra $1 billion.

What all of this means is that Perry sold out the rural areas of the state for the population centers.

It doesn't matter if a piece of property has been in a family for over 150 years, if the state wants it then the state is going to get it.

It is no secret that politicians hold all voters in contempt, but it seems rural voters are having less of a say in government than ever before.

Politicians always like to claim they have the public's best interest at heart. Here is a quote from Perry on his official Web site concerning the veto.

"The state and local government would be over-paying to acquire land through eminent domain in order to enrich a finite number of condemnation lawyers at the expense of Texas taxpayers," Perry said. "This bill will slow down and shut down needed construction projects through the creation of a new category of damages that are beyond the pale of reason."

What is beyond the pale of reason is that property owners have no say if the government decides it wants to steal a piece of land.

There were two specific issues cited in the governor's veto, one had to do with compensation when land access is changed; and the other concerned monetary compensation due to change in traffic flows resulting in decreased exposure for their property or business.

Now I don't know a lot about politics, but I have been able to keep up with a lot of rural issues over the past couple of years and the idea of somebody taking land for any reason doesn't sit well with most folks.

One of the most valuable rights we have are property rights and those shouldn't be given up for the sake of progress.

I urge everybody to call their local legislator and let them know this issue needs to be resolved during the next legislative session in 2009. Let them know your intentions, because trust me, their “good intentions” do not match yours.


Wayne Stewart may be contacted via e-mail at

© 2007 Palestine Herald-Press:

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