Macquarie: "We basically view [Indiana and San Diego] as worthless."

Easing traffic is bad news for toll road operator

April 18, 2009

Vanda Carson
Sydney Morning Herald (Australia)
Copyright 2009

MACQUARIE Infrastructure Group suffered another fall in traffic on its European and US roads in the past three months as the global economy continued to slow.
The worst performers were the Indiana Toll Road in the United States, followed by Britain's M6, the South Bay Expressway in San Diego and the Dulles Greenway in Virginia. The Indiana road suffered both the largest decline in traffic of any of the toll roads owned by the group and one of its worst quarters on record.

The average number of cars and trucks using it each day in the three months to March fell by 12 per cent compared with the same period a year ago, to 80,277. The group blamed the slowing American economy and harsh winter conditions in January for the falling traffic numbers in Indiana.

The second worst performer was the M6 toll road, on which average daily traffic usage fell 11 per cent compared with the same three months last year, to 33,990.

The Austock infrastructure analyst Andrew Chambers said that while offshore traffic volumes continued to fall, the company was able to ensure average revenues were flat or positive by "ratcheting up" tolls across the board.
While Indiana and San Diego had performed poorly, this had been expected.

Mr Chambers said he was most disappointed with the performance of the toll road in the Canadian city of Toronto, which is MIG's largest investment and represents more than half the group's value.
"While traffic volumes were in line with our expectations, we were surprised that revenue didn't grow due to the rise in the toll," he said.

The road produced $US119.7 million ($166 million) in revenue, flat on last year.

Lower revenue than expected was due to a fall in the number of trucks and commercial traffic in the past three months and a rise in the amount of off-peak traffic.

In Indiana the increasing rate of the deterioration of revenue was a concern, but Mr Chambers was hopeful the slide had been halted.

"We may have seen the worst of the rate of decline," he said, referring to monthly revenue figures that showed that January income had been "terrible" but had improved by March.
He said there was no longer much value left in the Indiana and San Diego roads. MIG has invested more than $200 million in Indiana alone.
"We basically view [Indiana and San Diego] as worthless," the analyst said.

In San Diego, daily toll-road traffic was down 9 per cent to 23,997 vehicles in the three months to March, but revenue was up by 8 per cent, owing to a rise in the toll introduced at the end of January.

In Virginia a toll rise from the start of the year saw revenue on the Dulles Greenway rise 11.5 per cent in the three months to March, compared with a year ago, but traffic was down 8 per cent to an average of 47,490 cars and trucks a day.

Mr Chambers said the Dulles road and Sydney's M7 had "performed better than we thought". He said the M6 in Britain "didn't do too bad" considering the extremely low expectations for the toll road amid the worsening British economic downturn.

Shares in the company closed down 9c, or 6 per cent, at $1.35.

© 2009 Sydney Morning Herald: smh.com.au

Higher tolls cushion Macquarie Infrastructure

April 18, 2009

Australian Associated Press
Copyright 2009

MACQUARIE Infrastructure Group says traffic on many of its toll roads has fallen in the March quarter as a result of the global economic slowdown.

Higher tolls, however, have lifted revenue for the quarter on some roads, and most show an increase in revenue for the year to date.

"Revenue increases across a number of roads within the portfolio reflect the positive impact of toll increases," MIG said.

"Traffic continued to demonstrate weakness as the global slowdown in economic activity negatively impacted goods and services traffic and employment rates." Traffic for the quarter fell on MIG's roads in Canada, the US, Britain and Europe (no statistics were released for the Autoroutes Paris-Rhine-Rhone in France due to listing requirements in France).

Traffic on Sydney's Westlink M7, in which MIG has a 25 per cent stake, was up 4.9 per cent for the March quarter and up 5.7 per cent for the year to date.

Average daily revenue for the quarter on Westlink M7 increased 9.7 per cent to $503,201 and was up 10.4 per cent for the year to date.

In Canada, where it has 30 per cent equity in 407 International Inc, owner of the concession for the 407 ETR toll road in Toronto, MIG said vehicle kilometres travelled fell 4.6 per cent for the quarter, and quarterly revenue was down 0.3 per cent to $C119.7 million ($137 million).

In the US, MIG has stakes in Virginia's Dulles Greenway, Chicago's Skyway, the Indiana Toll Road and the South Bay Expressway in San Diego.

On the Dulles Greenway, average daily traffic fell 7.7 per cent for the quarter, but average daily revenue was up 11.5 per cent at $US167,453 ($232,400).

Chicago Skyway average daily traffic for the quarter was down 2 per cent, and average daily revenue for the quarter fell 2.8 per cent to $US147,871.

Within the quarter, March was the first month of growth in traffic since August 2007, with the daily average up 1.6 per cent.

On the Indiana Toll Road, average daily revenue for the March quarter was down 2.1 per cent to $US332,884.

Average daily traffic for the March quarter declined for both the ticket and barrier system as a result of toll increases in April 2008, the economic slowdown and harsh winter conditions in January.

For the South Bay Expressway, average daily revenue rose 8.1 per cent to $US59,042 in the March quarter.

Average daily traffic was down 9.2 per cent as a result of toll increases, the weak regional housing market and a decline in Mexican border crossings.

In Britain, where MIG has the concession for the M6 Toll in Birmingham, average daily revenue fell 5.3 per cent in the March quarter to pound stg. 141,443 ($291,000), because of the weak British economy.

Average daily traffic was 10.7 per cent lower as a result of toll increases, adverse weather conditions in February, and Easter occurring in late March last year.

On the Warnow Tunnel in Germany, average daily revenue for the quarter rose 1.2 per cent to E16,076 ($29,000), and average daily traffic dropped 3.1 per cent.

© 2009 AAP: www.theaustralian.news.com.au

To search TTC News Archives click HERE

To view the Trans-Texas Corridor Blog click HERE

"When I hear Gov. 39%, I hear arrogance and phoniness. Will the rest of the country hear that?"

Rick Perry Talks Secession

National Media Goes Gaga

Rick Perry: Tea Party 'darling' and Mad Toll Taxer

Gov. 39% is NOT for the citizen against big government--he's on big government's side

4/16/09

Susan Rigdway Garry
Anti-Corridor/Rail Expansion (ACRE)
Copyright 2009

Hard to know whether to laugh or cry, seeing all the coverage that Gov. 39% has gotten as being a small-government conservative (whether or not this is viewed favorably) because of his remarks at April 15 Tea Parties, resulting in appearances on national radio and TV and favorable comments on widely read blogs. He has been a major story, “Rick Perry: Tea party darling,” with a picture, no less, on politico.com.

Texans know that mentioning “secession”—in jest or seriously--is not that rare in the Lone Star State, given our unique journey from sovereign nation to statehood and the discussion over the rights given to Texas in exchange for becoming a state—whether Texas can just up and leave or can divide into several states.

However, the rest of the country evidently has never heard about this, so Perry really got their attention by mentioning the “s” word. Unfortunately, the rest of the country has not paid that much attention to the details of Perry’s governance, so took him at his word when he said things like, “shrink the government; reread the Constitution.”

They have never heard of Perry’s “vision” as he says, and “nightmare” as residents say, of the Trans-Texas Corridor (TTC), a network of quarter-mile wide road lanes, rail lines, and utility-pipeline zones. The TTC would wrest 600,000 acres from Texas landowners through eminent domain and turn their private property over to Cintra, a Spanish corporation. Perry rammed his TTC authorization through the Legislature in 2003 before legislators had time to read it.

When Perry says, ungrammatically, “But Texas is a very unique place, and we’re a pretty independent lot to boot,” and when he decries government “intrusion into the lives of our citizens,” the rest of the country doesn’t know that HE has been the enemy of Texas landowners—trying to take over citizens’ land unnecessarily to benefit the road lobby and foreign corporations. HE hasn’t been fighting for Texans; Texans have been fighting HIM. In fact, the TTC/toll issue has become a defining difference in the 2010 gubernatorial race between Perry and Sen. Kay Bailey Hutchison, who has asked, “Are you concerned that our state government ignores private property rights and property owners in a quest to cover our state with massive toll roads?” Up until now, KBH has led Perry in most polls. This is at least one reason that Perry tried to perform the old trick—and apparently somewhat successfully—of seeing the Tea Party parade starting and running around to get in front of it.

Additionally, this became another opportunity for Perry to test the national waters, as he has done from time to time. His camp probably realizes that the country is not ready yet for another president from Texas, but they may think that if he starts rising now through the ranks of possible presidential candidates, he may be prominent in 2012 and be positioned for 2016.

When I hear Gov. 39%, I hear arrogance (“Why don't you let us get on down the road,” “Mofo,” etc.) and phoniness. Will the rest of the country hear that?

Perry is not an advocate for the small businesses, the farm and ranch families—the people who are the backbone of the nation. He is an advocate for the corporative state where large private concerns are able to take over and use the power of government to oppress the individual and take his private property. Will the rest of the country realize that?

© 2009 ACRE: www.acretexas.blogspot.com

To search TTC News Archives click HERE

To view the Trans-Texas Corridor Blog click HERE

"There is a massive war going on in this country between the pro-privatization special interest groups and freedom-loving Americans. "

Texas for Sale

TURF Founder, Terri Hall's, address at the San Antonio Tea Party

4/15/09

Terri Hall
Texans Uniting for Reform and Freedom
Copyright 2009

I think the words of a patriot of the past, Thomas Paine, that were uttered in 1776, reflect where we find ourselves again today in America.

He said:
“THESE are the times that try men’s souls. The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country; but he that stands by it now, deserves the love and thanks of man and woman.

Tyranny, like hell, is not easily conquered; yet we have this consolation with us, that the harder the conflict, the more glorious the triumph. What we obtain too cheap, we esteem too lightly: it is dearness only that gives every thing its value.”

Is that not so true today? Fellow Patriots, the Trans Texas Corridor and the widespread proliferation of toll roads, particularly the use of public private partnerships to exploit the eminent domain powers of govt and join it with the financial self-interest of private corporations, is nothing more than an all-out assault on our freedom: the freedom to travel, the freedom to own private property, and the freedom from oppressive taxation and overbearing government. And that, my friends, is tyranny! Though not easily conquered, it can and must be crushed.

The NAFTA Superhighway, known as the Trans Texas Corridor (or TTC for short) to Texans and called a myth by those trying to silence the truth, is very real and even has some segments already under construction. It’s a 4,000 mile, multi-modal network of toll roads, rail lines, utilities, telecommunications, and pipelines of all sorts. It will be up to 1,200 feet wide (4 football fields wide) and will take a total of 580,000 of private land. Two foreign companies partnering with an American company have been given the rights to develop the TTC, which includes the right to build the most lucrative segments without being subjected to competitive bidding, leaving the taxpayers to subsidize the parts that aren’t toll viable.

The TTC will literally bisect whole cities and towns slicing them in two, giving residents, farmers, and schoolchildren no access to the other side of this 1,200 foot wide tollway. In fact, the law states the private operator only has to build overpasses where the corridor intersects state hwys and interstates. So on TTC-35 there are only 5 exits in the entire state of Texas!

So make no mistake, this nightmare called the TTC is alive and well. We’ve personally attended most all of the nearly one hundred TTC hearings since 2006. When more than 40,000 Texans have gone on record against it, politicians take notice. But instead of KILL this nightmare; they try to find new ways to put lipstick on their pig.

Last year, there was an announcement disguised as a victory, where the Texas Department of Transportation, or TxDOT, said it would now expand existing highways (primarily Hwy 59) to build TTC-69, instead of building a massive new corridor through rural Texas. But guess what? There’s always a catch when billions of dollars are to be made, and when multi-national corporations are chomping at the bit to get their cheap Chinese goods into the U.S. exploiting cheaper Mexican ports, trucks, and labor.

Let me read to you what the winning bidder, ACS of Spain, said was the purpose of this corridor:

“The TTC-69 will connect the Mexican border with the Gulf of Mexico coastline, Houston and major industrial and logistics centres in Texas with the north of the country.

…ACS (and its partner) the Texan concessionaire Zachry American Infrastructure, have become the successful bidders for the design, planning and development, as strategic partners of…TxDOT, of the TTC-69 infrastructure corridor for the next 50 years.”

The purpose for these corridors is international trade, not congestion relief as our politicians claim, and they have no intention of killing their plans to build these trade routes at Texans’ expense.

Oh they’ll tell you your free lanes will still be there, but they’re fixin’ to do to freeways here in San Antonio (281 &1604) and that is, toll the existing freeway lanes and make the only free lanes, frontage roads. Calling it highway robbery is no exaggeration!

It’s a DOUBLE TAX to charge us again for what we’ve already built and paid for. Concerned citizens through TURF have also been on the front lines fighting the use of stimulus money to build toll roads in yet another DOUBLE TAX scheme. The Transportation Commission voted to use 70% of the federal stimulus funds to build toll roads, yet you’ll have to pay another tax, a toll tax, to drive on them!

Within TWO weeks of TxDOT’s announcement that it’ll use existing roads for TTC-69, TxDOT signed the public private partnership contract with ACS of Spain and Zachry of San Antonio that gives them 12% guaranteed annual profits, a no-bid right to cherry-pick the most lucrative segments to profit from, and they’re not even bringing their own money to the table since 3/4 to 100% of the construction cost will be paid for with YOUR MONEY…that’s right, Texas lawmakers are stealing gas taxes, and public bonds and loans to build the NAFTA superhighway but they’ll charge you again and again to drive on it and give all the profits to Zachry and ACS of Spain!

On January 6 of this year, TxDOT also announced that its renaming the TTC, “Innovative Connectivity” Plan, because 40,000 Texans stood-up against the Trans Texas Corridor. Now they try to fool us by giving this detested project another fancy name, which in reality is just more lipstick for their pig!

We’ve been brow beat with a pack of empty talking points by think tanks and government alike, that these public-private toll deals are free market, and the silver bullet to funding infrastructure without having to raise taxes, because the private partners bring all the money to the table, not cash-strapped govt, and it’s the private partner, not the taxpayers, who carry the financial risk, they’ll say.

Well, all you have to do is dig into any one of the 5 contracts in TX and those in other states (Indiana, Illinois, Florida, and Virginia) to know that not one of those things is true. First of all, a toll is a tax, and, in the case of public-private partnerships, it’s a tax in the hands of corporations, not elected officials! Try 75 cents a mile on for size. That’s the published toll rate Cintra, also based in Spain, will charge on two projects inked just weeks ago in Dallas Ft. Worth.

Second, there is no risk to the private operator when the taxpayers are subsidizing these projects with HEAPS of public money, including gas taxes, and when the state grants investors a non-compete agreement that prohibits the expansion and construction of free roads that “compete” with their tollways, they can guarantee congestion on the free lanes for a half century or more.

When these sweetheart deals fail, like we’ve seen with the mortgage crisis and the subsequent global financial meltdown, it’s the taxpayers on the hook for the debt, not these global corporations.

One contract even gives TxDOT a financial incentive to lower the speed limit on the competing “free” interstate, I-35, to drive more traffic to the high speed Trans Texas Corridor,

Our government has become the puppet of private industry and they’ve figured out how to team-up to make billions off the public’s roadways. These highways belong to WE THE PEOPLE, not the government, not the road lobby.

They have NO right to steal our land in the name of “public use” when it’s really about private gain and big government profiteering that will relegate those who cannot afford the tolls to second class citizens. Eminent domain has always been used for roads, but now for the first time, the government can literally steal your land, pay you next to nothing for it, and give it to a private company for private profit. It’s the Kelo vs. New London case wrapped up in a different colored bow applied to roads.

In Texas, they even passed a law, called quick take, that allows the govt to vacate the landowner within 90 days of notice of condemnation whether or not your case is settled. This almost guarantees the landowner will have to take the state’s offer, because who can re-locate hundreds of head of cattle in 90 days without compensation?

There is a massive war going on in this country between the pro-privatization special interest groups and freedom-loving Americans. The laws have already been dramatically altered to allow these public-private partnerships, and politicians have orchestrated a shift away from an affordable, gas tax funded freeway system to a new policy of prolific and oppressive toll taxation. They’re planning to toll the living daylights out of urban commuters in order to give their cronies government-sanctioned monopolies over YOUR roads that you depend for daily living.

We experienced uncharted territory when gas hit $4 a gallon last year, above the inflation-adjusted high of 1980. We’re back up to $2.00 a gallon right now. The mentality inside the beltway and in Austin is that no matter what they decide to charge us in new toll taxes, that motorists will pay it. They know we have to get to work. We won’t have real alternatives.

This is oppressive taxation on top of skyrocketing fuel costs. There’s only so much money in the family budget that can go to transportation before it takes money away from the necessities. We already see the dramatic decline of the standard of living in America in a very short period of time. It’s only going to get worse, they tell us, in order to condition us into accepting the globalists’ agenda.

Toll roads ultimately chop up our public freeways into a two-tiered highway system; one for those who can afford thousands a year in new toll taxes, and another one those who can’t. And those who can’t afford the toll roads will become second class citizens stuck in congestion while still paying gas taxes, and will also face the reality of having their freeways downgraded to access roads. This is not only UN-Texan, it’s UN-American!

So isn’t this what we’re conditioned to accept in government? We’re endlessly being asked to tighten OUR belts, while both our state and federal governments siphon-off our gas taxes for diversions that don’t even pertain to roads, and squander the rest on frivolous earmarks, like the bridge to nowhere?

How about TxDOT spending $9 million of taxpayer money to wage an ad campaign to advocate tolls roads and the Trans Texas Corridor? TURF filed a complaint with the Travis County District Attorney’s office immediately upon learning of this illegal use of taxpayer money. The DA’s office did nothing. So we filed a lawsuit in civil court to stop TxDOT from spending anymore of our money on taxpayer-funded lobbying.

• Through our lawsuit we’ve discovered that indeed TxDOT has been engaging in illegal lobbying. They can’t say they’re not lobbying when invoices show they’ve hired 5 registered lobbyists to the tune of $100,000 a month to lobby elected officials in Texas and in Washington, particularly targeting local elected officials in the path of the Trans Texas Corridor.

• We found documents that show the purpose of the ad campaign is to “neutralize” toll and TTC opponents and to target counties opposed to the TTC in order to turn the tide of opposition.

• PR firm stated: “The political environment needs to be changed to make it less hostile to the TTC.” The goal of the campaign is to define the benefits of the TTC to the majority of Texans and help inoculate it from negative attacks."

• They’ve conducted push polls on the taxpayers’ dime to garner support for the TTC.

• The testimony from someone in the State Auditor’s office found TxDOT knowingly ginned-up bogus funding shortfalls in order to push toll roads!

I’m afraid this doesn’t stop in Texas. Just last summer, a new lobby group called Transportation Transformation or T2 announced that not only TxDOT, but 3 other state DOTs have officially teamed up with the bond investors and private toll road and corridor interests to directly lobby Congress in Washington for more public private partnerships and toll roads.

TURF has actively worked to effect change through the Texas Legislature for the last two sessions. I was appalled at the level of corruption and outright contempt for the average citizen in Austin. When we go to testify for and against bills, we are literally the only ordinary citizens in the room. In fact, these hearing rooms are packed with lobbyists and even 3 & 4 rows deep of standing room only in the back.

Do you want to know why your phone calls and comments aren’t heeded in Austin?

Because special interests and lobbyists run our government from the shadows. I like to call them the shadow government. We never elect them, and we have no influence over them at the ballot box. They exist solely for their own self-interest; to exploit you and I, the taxpayers, in order to increase our tax burden for their own benefit. It’s a feeding frenzy at the public trough.

In a book by a friend and member of TURF’s Advisory Committee, Dr. Pat Choate called Dangerous Business, the Risks of Globalization for America, he includes an entire section that lists page after page of elected officials turned lobbyists now making six figure + incomes lobbying their former colleagues in Congress for money, lots of it. And this is from just the last two Administrations. That’s why they don’t listen to us any longer, even if we are successful at booting them from office, they know that they and their families will be taken care of by the big money for the rest of their lives. It’s abundantly clear that our elected officials no longer represent us.

We have volunteers handing out an important flyer to you today that gives you a list of bills currently before the Texas Legislature, which is just a taste of the taxation free for all happening in Austin this very hour. Last session, the Legislature placed a moratorium on these public private partnership toll road contracts, but it was a counterfeit moratorium since at least a dozen of the contracts were taken out of the moratorium as evidenced in the two just signed and given to Cintra who will charge us 75 cents a mile to get to work!

The Texas Senate just passed two horrific bills last week: one to re-authorize the private toll contracts that sell our highways to the highest bidder, and the other to allow counties to levy a litany of local taxes on everything that moves like:

• an impact fee for new residents

• a tax on passenger vehicles

• a vehicle registration tax

• a vehicle sales tax

• a sales tax

• a local gas tax increase

• a tax on every mile driven (with no limit)

• a congestion tax for "high congestion areas during peak hours" (in addition to their plan to toll those areas!)

• a driver's license tax

• an emissions tax and even

• a tax on a parking space.

And that’s not counting other transportation taxing zones that come after your property taxes, too! These are just two of over 400 transportation bills, dwarfed by the grand total of 7,000 bills working their way through the Legislature. One would create an entire state agency that does nothing but write these public private partnership contracts! We cannot afford to bury our heads in the sand or simply wish it all goes away. We need your help to stop this runaway taxation and threat to our freedom to travel!

WE MUST TAKE OUR GOVERNMENT BACK! We need to fight for elected representatives who are public SERVANTS and statesmen, not self-absorbed politicians who exploit those they are elected represent. That means some of you need to be willing to run for public office. All of us need to support candidates who value the Constitution more than winning re-election, and we all MUST get involved in the political process in some way in order to preserve our precious Republic for future generations. We need leaders who take an oath to always put the public interest above special interests, principle over Party, and values over what’s politically expedient.

It all starts with educating ourselves and our children on the Founders, their lives, and the principles and they fought and died for in order to establish a country based on self-governance, set apart from those before her and after her that still stands as a City on a Hill today, like in this book, For You They Signed, by Marilyn Boyer, that has character studies on the lives of the signers of the Declaration of Independence.

We need a new generation of patriots willing to mutually pledge our lives, our fortunes, and our sacred honor to once again establish a free Republic for OUR posterity! We must demand fundamental reform to ensure checks and balances and to put the power back in the hands of the PEOPLE as the 10th Amendment to the U.S. Constitution guarantees a free people. If we don’t, our government is on track to bankrupt us and future generations.

So I ask you, have we had enough? I cannot help but be inspired by the resolve of another patriot, Patrick Henry, who said in his famous speech that sparked a revolution:

“Is life so dear or peace so sweet as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take, but as for me, give me liberty or give me death!”

We need to ask ourselves, will we allow our government to shackle us with oppressive taxation just to get to work and go about daily living? Will we allow our government to carve a 1,200 ft wide swath through the heartland of America and sacrifice private property rights in the name of foreign trade and commerce? Or will we continue to fight a new revolution, a taxpayer revolt, a political movement to stop the sale of America’s freeways to the highest bidder on Wall Street, to stop tolls across Texas and America, protect our right to own property without fear of government abuses, and preserve our way of life and our precious freedoms bought with a price from those who came before us?

They, those who have sold out American freedom in favor of the almighty dollar and the intoxication of power, aren’t counting on you and me and this freedom movement taking our government back. But as for me, and I think all of you here today and the hundreds of thousands who couldn’t be with us, the resounding answer is: give us liberty!

May this event spark a movement of ordinary citizens from all walks of life and all political stripes who have had enough of abusive, overbearing government and who see the dire necessity to change course. We stand at a crossroads, and may this day, April 15, 2009 mark a turning point back to Constitutionally-restrained government, and one that’s OF THE PEOPLE, BY THE PEOPLE, and FOR THE PEOPLE!

We invite you to get involved and join us on the frontlines of a taxpayer revolt to preserve our freedom to travel by visiting our table right next to the KSLR and WOAI booths to the right of the stage or going to the Texas TURF.org web site. No one else can do it for us; we MUST do this ourselves. Government certainly doesn’t fix itself. We often feel like Peter, the little Dutch boy who had his finger in the crack of the dike and held back certain disaster for his homeland. We need more people in this fight. It will take a Texas-sized tax revolt to stop the assault on our freedom and prosperity.

But most importantly, never give up, do not falter, and NEVER waver in the cause of liberty. If this one homeschool mom can start a movement that spread across this state to influence the Texas Legislature, all the way to Washington D.C., and recently even to Denmark, so can each and every one of you. Thank you and may God bless and preserve what our Founders’ inherently knew was a fragile Republic, the United States of America!

© 2009 TURF: www.texasturf.org

To search TTC News Archives click HERE

To view the Trans-Texas Corridor Blog click HERE

"We must now decide if we will allow anarchy and tyranny to commence."

EMINENT DOMAIN

ANARCHY vs. COMMON SENSE



4/15/09

By: Trey Duhon and Don Garrett
Citizens for a Better Waller County
Copyright 2009

One of our founding fathers and the second president of the United States, John Adams, once stated, “Property must be secured or liberty can not exist.” Adams understood perfectly well that property rights were the heart of the necessary liberties that would form the basis of our democracy. As Adams also stated, “The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence.” Private property rights were the cornerstone of the liberties which were essential to the success of our new society. For this reason, the founding fathers created the Fifth Amendment of the U.S. Constitution, which provides that “private property [shall not] be taken for public use, without just compensation.”

So you can imagine the surprise and shock of property owners across the country when the U.S. Supreme Court in 2005 dropped a bombshell on private property rights in America. In a 5-4 split decision in Kelo v. the City of New London (now known as the Kelo case), the U.S. Supreme Court ruled that a governmental entity can give the power of eminent domain to private entities for those entities to use in the name of “economic development”.

The case originated in 1998 when pharmaceutical company Pfizer built a facility next to Fort Trumbull and the City of New London determined that someone else could make better use of the land than the Fort Trumbull residents. The city handed over its power of eminent domain (which is the ability to take private property for public use) to the New London Development Corporation, a private entity, to condemn the entire neighborhood for private development. As the Fort Trumbull property owners discovered, when a private entity can wield government’s power of eminent domain and can justify taking property under the guise of “economic development,” all private property owners are in trouble.

Justice O’Connor wrote the dissent, which was joined by Chief Justice Rehnquist, Justice Scalia, and Justice Thomas. Justice O’Connor found that the majority had confused “public use” with “public purpose” as that term is used in the Fifth Amendment. In interpreting the Fifth Amendment, O’Connor wrote, “we have read the Fifth Amendment to impose two distinct conditions on the exercise of eminent domain: “the taking must be for a ‘public use’ and ‘just compensation’ must be paid to the owner. These two limitations serve to protect “the security of Property,” which Alexander Hamilton described to the Philadelphia Convention as one of the “great objects of Government.” Although the public may “use” the property after it is transferred and developed, that “use” is not a “public use” such as a road, a hospital, or a military base.

O’Connor recognized that the courts are ill-equipped to pass judgment on whether or not the public will be better off after the transfer of property. She succinctly summed it up by stating, “The specter of condemnation hangs over all property. Nothing is to prevent the State fromreplacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”

Sadly, Justice O’Connor was correct.

After Kelo, the neighborhood was condemned, the houses were bulldozed, and the developer subsequently failed to obtain financing, and today the land sits barren, a blight on the community and a substantial blow to the tax base of the city.

How can anyone say that the current state of the barren land is a “public use” or even a benefit to the public for that matter? So, how do we protect private property rights in Texas in a post-Kelo world? Especially with the Obama administration promising billions of dollars in infrastructure funds to states and local governments, all private property owners have cause to be concerned about whether they will be protected.

Since Kelo, 42 states have enacted legislation to restrict the use of eminent domain for economic development. The Texas legislature quickly responded by passing Senate Bill 7.

SB 7 prohibited the use of eminent domain for economic development, but left huge loopholes for things such as the Trans Texas Corridor, sports stadiums, or instances in which a city sought to “eliminate an existing harm on society from slum or blighted areas.” In addition, without a constitutional amendment to the Texas constitution, there is no guarantee that SB 7 will withstand a court test. Lastly, SB 7 did nothing to correct past problems with Texas eminent domain law.

What kind of problems were there with Texas eminent domain law?

Believe it or not, the attack on private property rights in Texas actually began long before the Kelo case. In 2004, the Texas Supreme Court’s decision in Hubenak vs. San Jacinto Gas Transmission Company further eroded property rights by making eminent domain easier for governments. Although previous law had required government to make a “good faith offer” in the initial stage of a condemnation, Hubenak changed that.

State law, according to the Hubenak ruling, authorizes the initiation of condemnation proceedings only if the two parties are "unable to agree" on a purchase price, and the Court found that any offer at all by a political subdivision satisfied the law's intent. Therefore, the government could make an offer on property for an absurdly low amount, and then initiate court proceedings once the owner rejected that offer. By removing the requirement for good faith negotiations with its Hubenak decision, the Texas Supreme Court tipped the balance further away from property owners to the benefit of the state. This ruling forces property owners to fight condemnation in court where the property owner is at a severe disadvantage, due to the fact that even if the property owner is successful in court, he is unable to recover attorney fees or expert witness fees (appraiser fees). Such a disadvantage forces most landowners to settle in order to avoid the high cost of litigation, which only serves to erode the damages a property owner will eventually receive.

HB 2006 sought to address the Hubenak case and the Kelo aftermath by 1) defining “public use”, 2) removing the legal presumption that any condemnation by a government entity is for “public use” by requiring proof of public use by the condemnor, 3) changing court rules so that a “bona fide offer” must be made initially, 4) allowing successful property owners to recover reasonable attorney fees in litigation, and 5) allowing landowners to recover compensation for “diminished access” that may result from a partial condemnation to a property.

As the Texas Public Policy Foundation determined, “HB 2006 is essential to reversing [the substantial erosion of private property in the last 50 years] and restoring the property rights of all Texans.” The Texas legislature agreed, passing HB 2006 by overwhelming margins in 2007.

Unfortunately, there was one person who disagreed – Governor Rick Perry, who vetoed HB 2006 without giving the Legislature an opportunity to override the veto.

Perry made unsubstantiated claims that the diminished access provisions would substantially raise the cost of condemnation for local governmental entities. The Texas Public Policy Foundation correctly concluded, however, that the cost of paying these damages would have been less than what Perry alleged, and such cost was pale in comparison to the cost to property owners in having HB 2006 fail to become law.

Where do we go from here?

First, it is essential that the Texas legislature immediately pass a bill similar to HB 2006, providing the protections already referenced above, including 1)restoring the definition of “public use” to its traditional meaning, 2) eliminating the blight/slum loophole from SB 7, 3) place the burden of proof on the condemning entity to prove “public use and necessity”, and 4) That if a condemning entity does not use condemned property for the purpose for which it was initially condemned within five years of the date it was taken, then the property should be offered back to the original property owner at the price for which it was taken.

In the event of a gubernatorial veto, the Texas legislature must be prepared to immediately override it. It is also vital that the Legislature and Texans pass a constitutional amendment making it clear that property shall not be condemned for economic development, so that SB 7 and HB 2006 can withstand any constitutional challenge in court.

What is interesting is that Gov. Perry, who will be running for re-election next year and will likely face a strong challenge from Texas Senator Kay Bailey Hutchinson, has suddenly come to the realization that a constitutional amendment is needed as soon as possible to “protect private property rights” of Texans, as he announced with much fanfare on January 22, 2009, that he would be working for a constitutional amendment to protect Texans from the Kelo decision, something he clearly did not do in the 2007 legislative session.

Eminent domain is an ugly word to any property owner. Unfortunately, it is a necessary tool for the public good if it is for a true public purpose, and subject to public control. Nobody can deny that our state is experiencing unparalleled growth, as it is estimated that Texas’ population by the year 2030 will increase by 10 million citizens and the demand on our infrastructure will increase proportionally along with the need for goods and services. Transportation will be a key component to accommodating this growth.

Perhaps the inherent problem in eminent domain is the failure to recognize that for many property owners, receiving fair market value is not truly adequate compensation for their land. Awarding fair market value obviously ignores intangibles such as sentimental value, historical family significance, and the simple fact that some property owners don’t want to sell their property, regardless of the price, for various reasons. Therefore it is time that government re-examine its position on eminent domain and instead of offering incentives to private developers and public private partnerships, perhaps the government should offer them to the property owner at both the state and federal level.

Additional incentives could be given to the property owner in the form of tax abatements, credits, deferment, and in special cases mitigation in the event there is the use of eminent domain and condemnations proceedings. The notion of providing additional benefits to citizens that have made sacrifices for the betterment of our state or country is not a new one. For example, one of the many ways we recognize the sacrifice made by our military veterans is by providing benefits such as home loans at reasonable rates through the Veterans’ Administration.

Why not recognize the sacrifice of private property owners that have no choice in giving up their land for the greater good? Something must be done to recognize the intrinsic fact that fair market value is not always adequate compensation. There are several opportunities for providing this recognition. Property owners having their property taken under the law of eminent domain for local, state, and or federal use should be exempt from federal capital gains and state income tax on the proceeds from the actual land and/or improved property taken. Since the property owners did not ask that their property be taken, is it fair that they be further penalized by having to reduce their net proceeds on their unwanted gain by capital gains, state income tax, or franchise tax obligations?

Should there be an agriculture exemption on the property at the time of taking then the remaining contiguous tracts or remaining parcels shall not be subject to roll back taxes in the event it is sold to a third party or the current owners wished to change the status of the exemption to something that is more suitable to the adjoining condemnation, such as new roads, parks, and other instances where it would be conducive to change the use of the land.

Therefore the property owner should be allowed to position himself without future penalty. In the event the remaining acreage is less than sufficient to qualify for an agriculture exemption by not meeting the gross acreage requirements, the parcel shall remain exempt. The status should remain until the property is conveyed to a third party that is not immediately legally related (by blood and or partnership structure) to the property owner and/or its use status changes. A transfer or sale to an immediate family member such as a wife, a sibling, spouse, child and/or grandchild should not change the status of the exemption.

Additionally, on rural and residential property the owner could be given a lifetime exemption on the remaining tract where the property value is frozen for the duration of their ownership similar to an age exemption after age 65, as long as the property is used as a primary residence. The property and/or parcel shall be defined by its dimension in a recorded lot, plat, or a legally described tract by the local appraisal district.

In the event that the taking subjects the property to negative conditions, the owner should be compensated not only for fair market value of the land taken, but also receive additional compensation on the remaining property for economic obsolescence. Excessive noises, pollution, congestion, and restricted access due to traffic patterns are examples that contribute to economic obsolescence. Economic or external obsolescence is defined by the American Institute of Real Estate Appraisers as “an element of accrued depreciation; a defect, usually incurable, cause by negative influences outside a site”. The difference in value is the loss attributed to this type of obsolescence.

Not all roads, easements, and other uses through eminent domain have a positive affect on real estate. A small business and/or rural farm where the actual taking totally consumes or destroys the owner’s ability to function should be offered the choice of mitigation or the elimination of acapital gains tax on their proceeds.

In the near future we will see more attempts to legitimize public private partnerships as an alternative method of financing public infrastructure projects. In the event a public private partnership is properly underwritten, property owners should be allowed to participate if they so choose. Unlike the Kelo situation where they were simply removed off of their property and compensated unwillingly, they should be offered the opportunity to participate in the economic profits of the project. The fair market value of their land could be treated as capital or equity contributed to the equity pool with guarantees that it be treated as the primary investor in the transaction (first in, first out).

Historically, the fight over property rights has always been a grass roots struggle, going back to when our forefathers chose to breakaway from King George. This struggle must continue today with the same vigor and passion lest we find ourselves with a Constitution being pushed into an abyss of irrelevance by self-serving interests and an indifferent government. We have a choice to make to restore parity in our legal system in regard to our diminishing property rights or sit idle and watch them become meaningless. Fair compensation and the legal process go hand in hand in restoring these rights to our property owners. As property rights deteriorate, so does the basis of our democracy and our American way of life. We must now decide if we will allow anarchy and tyranny to commence.

About the authors

Carbett “Trey” J. Duhon III
Trey Duhon is an attorney with a private practice in Waller, Texas, licensed since 1995. He currently serves as the president of the Waller Area Chamber of Commerce, in addition to serving as a director of the Waller County Toll Road Authority and as a director and vice president of Citizens for a Better Waller County. He was recently appointed to the Transportation Commission's citizen's Advisory Committee on the TTC-69. Trey graduated from Texas A&M University cum laude in 1992 and the University of Houston Law Center in 1995. He currently lives in the Fieldstore area just south of the Waller/Grimes County line with his wife, Jennifer.

Don M. Garrett
Don Garrett is a real estate broker, private investor, and consultant in Waller County, Texas. He has been a real estate professional for over 30 years and is a licensed real estate broker in Texas, Nebraska, North Carolina, and Georgia. During the ‘80’s he was responsible for liquidating a major bank portfolio in Houston, TX during the Savings & Loan Crisis. He is a board member and trustee of the Waller County Economic Development Partnership, president of Citizens for a Better Waller County, and was recently appointed as a director for the Waller County Sub-Regional Planning Commission. Don received his BS from Lamar University in 1970 and his M. Ed. from the University of Arizona in 1973. He and his wife Brenda live on their working farm near Hockley, TX.

© 2008 Citizens for a Better Waller County, P. O. Box 1802 Waller, TX. 77484: www.wallercountycitizens.org

More "Innovative Disconnectivity": TxDOT Throttles Public Input on Cintra toll road with Court Reporters

Shh! No Speaking at Toll Road Public Hearing TxDOT holds hearing on first private toll road in North Texas




4/15/09

By SCOTT GORDON
NBC 5 TV (Dallas / Ft. Worth
Copyright 2009


The North Texas Express could make traveling along Loop 820 a lot better.

A public hearing Tuesday night into the first privately funded toll road in North Texas included no opportunity for members of the public to speak.

The hearing into the North Tarrant Express, a 13-mile toll road along northeast Loop 820 and Airport Freeway, was organized by the Texas Department of Transportation. It was held at the North Fort Worth Baptist Church.

Often, microphones are set up at public hearings so people can make public comments. But at Tuesday’s hearing, people instead were invited to make comments to three court reporters who would transcribe their comments.

Only one man chose to do so. But a TxDOT spokesman defended the meeting’s format.

"The input we get from the public will be important," Michael Peters said. "It will be on the record. We will respond."

State officials will summarize the transcribed comments and respond to them later on the Internet, he said.

The controversial toll road is being funded by private investors known as the NTE Mobility Partners. The group is led by a Spanish company.

Critics said Texas should build its own roads and that private companies shouldn’t profit from them.

"We can do it. We always have done it,” said Beverly Branham, of Fort Worth.

The toll road will charge a sliding toll based on the amount of traffic. The busier the traffic is, the higher the toll will be. Tolls for the entire 13-mile stretch will top out at $6.89 the first year and go up in future years.

Discounts will be offered for HOV drivers. Drivers will also have the choice of using existing free lanes.

The contract between the state and the investors was also released Tuesday and showed how the $2 billion project will be funded.

NTE Mobility Partners will leverage $458 million with $570 million in gas tax dollars plus $1 billion in financing, according to the contract.

© 2009 NBC Universal, Inc.: www.nbcdfw.com

Public Muted At Public Hearing On Toll Road

KJDL News Radio (Lubbock, Texas)
Copyright 2009

(North Richland Hills, TX) -- People who were expecting to talk to TXDOT about the proposed North Texas Express toll road on Tuesday say they found only a group of court reporters ready to listen.

TXDOT officials did not provide public microphones for a public hearing on the planned expansion of a 13-mile expansion of part of Highway 183 and Northeast Loop 820 in Tarrant County.

Instead, three court reporters were on hand to transcribe the public's input. TXDOT spokesman Michael Peters says the agency's intent was to transcribe public comments and have TXDOT officials post their replies on a web site.

Only one person decided to give their comments to the court reporters during the hearing.

© 2009 Walker Communications: www.newsradio1420.com

To search TTC News Archives click HERE

To view the Trans-Texas Corridor Blog click HERE

TURF Headlines San Antonio 'Tea Party'

10,000 Strong 'Tea Party' Planned for Texas



Local Tea Parties Spread Across the Country

4/15/09

By Mark Anderson
American Free Press
Copyright 2009

San Antonio Toll Party (SATP) founder Terri Hall, a leading activist against the Trans-Texas Corridor and the tolling of Texas freeways, is planning to lead a 10,000-strong San Antonio “Tea Party” on April 15.

This largest-known "Tea Party," among many taking place across the country on April 15 against oppressive government, also includes Michigan rock legend Ted Nugent, who is to address the crowd along with Ms. Hall in front of the legendary Alamo downtown.

National TV commentator Glenn Beck was to do his show in front of the Alamo from 4-5 p.m. local time on April 15 just before the rally, which was to set run at least until 8 p.m.

Live remote radio broadcasts also [will] spread the word in San Antonio, where Ms. Hall’s organization, Texans Uniting for Reform and Freedom, as well as the SATP, meets and plans its strategies to keep freeways free and keep the TTC portion of the NAFTA Superhighway from ever becoming a reality.

Click here for a link to find Tea Parties nationwide (just click on your state for a list).

TURF’s web link can be found. here.

© 2009 American Free Press: www.americanfreepress.net

To search TTC News Archives click HERE

To view the Trans-Texas Corridor Blog click HERE

Stimulus money lays groundwork for TTC/I-69 "NAFTA Superhighway" in South Texas

Interactive map shows where TxDOT will spend stimulus funds

4/13/09

By Jennifer Peebles
The Texas Watchdog
Copyright 2009

You won’t see Interstate 69 – planned to run from Mexico to Canada — mentioned anywhere on the list of projects that the state transportation commission has approved for federal stimulus money.

But $100 million of the stimulus will help lay the groundwork in rural south Texas for possible construction of the north-south route some have called the “NAFTA Superhighway.”

That’s one of the interesting finds from Texas Watchdog’s analysis of stimulus spending approved by the state transportation agency. Texas Watchdog is publishing an interactive map today showing per-person stimulus spending in each of Texas’ 254 counties and detailing each county’s largest TxDOT-approved stimulus project. The map is complemented by a searchable database that lists every TxDOT-approved stimulus project in every county, including new construction, maintenance of existing roads, and off-road “enhancements” like bike trails.

TxDOT has approved $77.9 million for improvements to the main highway in rural Brooks County, U.S. 281, to bring it up to interstate grade – something that not only will help with the extra traffic, but also will help it potentially be used as part of the I-69 corridor.

Just north of Brooks County, $13 million will to go to build an overpass on U.S. 281 in the tiny town of Ben Bolt. And another $21.6 of stimulus money will go toward improvements on U.S. 281 and U.S. 59 in Live Oak County.

With a population of about 8,000 folks, Brooks County is rural. It’s about 90 minutes’ drive west of Laredo, about 80 minutes east of Corpus Christi and about 75 minutes north of McAllen on the border.

Its county seat of Falfurrias, population 5,300, was once Texas’ unofficial butter capital. And the sheriff’s department, which has eight deputies, ran out of money last month and had to get a loan from the county to meet payroll.

But with the stimulus money, it’s coming out ahead of the game. Brooks County is on track to get more federal stimulus money from TxDOT per resident than any other county in Texas, according to a Texas Watchdog analysis of stimulus data. (To see how much your county is getting in stimulus projects from TxDOT, click here to see our interactive county map, and click here to search our database listing all the TxDOT stimulus projects in every county.)

The $77.9 million U.S. 281 project works out to $9,766 for every man, woman and child in Brooks County.

“We’re the toast of Texas,” said Brooks County Judge Raul Ramirez. He doesn’t mean to brag, he said, but he can’t hide that he’s ecstatic that the long-awaited project, including a handful of new overpasses, will soon be reality.

(Click here or on the map below to see it in an interactive format.)

The work on U.S. 281 in Live Oak County, which includes reworking a spot where the road now crosses railroad tracks at ground level –- reworking it so that one will cross the other on an overpass –- is a $21.6 million project that works out to $1,754.80 for every person in the county, Texas Watchdog found.

Up in the Panhandle, far from the proposed route of I-69, rural Armstrong County also came out pretty well in TxDOT stimulus funding. The state Transportation Commission has approved an $11.7 million maintenance project to repair a 9-mile stretch of U.S. 287 just southeast of Amarillo. For a county with just 2,148 residents, that math comes out to more than $5,400 per person.

By comparison, the state’s most populous county, Harris, has been approved for $300 million in TxDOT stimulus. That’s $88 per person.

For its analysis, Texas Watchdog created a database of all the TxDOT stimulus projects that have been approved by the state transportation commission. That’s three lists — one for new projects, one for maintenance and rehabilitation projects, and a third for “enhancement” projects like bike trails and greenways. (To see the complete database of federal stimulus projects approved by TxDOT, click this link.)

There’s also a fourth list of approved TxDOT stimulus projects, for public transportation — but those are coming out of a separate pot of stimulus money, Lippincott said, so Texas Watchdog did not include them in the calculations. (We are, however, making that list available with this story — it’s on the same page as our searchable database. Click this link to see it.)

The total cost of all the approved TxDOT projects does not add up to $2.2 billion, Lippincott said, because roughly $670 million of Texas’ stimulus money for transportation is being given directly to the metropolitan planning organizations around the state, and is not coming through TxDOT.

Readers should take note that the major stimulus projects in Texas Watchdog’s analysis include two that involved multiple counties: The $10.6 million widening of part of Farm Road 60 in Brazos and Burleson counties, in the Bryan/College Station area, and the $14 million project to upgrade the South Orient Railroad line in several West Texas counties.

To take that the FM 60 project into account so we could map it, Texas Watchdog divided the cost figure in half and assigned $5.3 million in stimulus spending to each county. (Searching our database will show an item for both counties showing $5.3 million in spending on FM 60.)

For the South Orient Railroad — which the San Angelo Standard-Times dubbed “the railroad that refuses to die” — we assigned all $14 million of that project to Tom Green County, but readers should take note that the rail line runs through numerous counties in West Texas.

Click here to search the database.

Want to read more about where federal stimulus money is going, or see some of the sites we linked-to in this story? It’s easy if you’re on the delicious.com social-bookmarking site — we’ve tagged our stimulus-related bookmarks for this story as “stimulusmap.” And you can see even more about the stimulus under the tag of “stimulus.” Our username is texaswatchdog — add us to your network!

© 2009 Texas Watchdog: www.texaswatchdog.org

To search TTC News Archives click HERE

To view the Trans-Texas Corridor Blog click HERE

"Flushing out the reclusive funding fairy might be our only hope."

Lege is missing a road fairy

With lawmakers wary of both tolls and taxes but wanting roads, magic might be the only option.

4/13/09

Ben Wear
Austin American-Statesman
Copyright 2009

The Texas Road Fairy surfaced again last week.

Well, not the actual fairy himself (or herself). Rather, what popped up were more mentions of the apparently timid creature. The fairy, to my knowledge, has never been spotted in the flesh, or whatever it is that covers fairies.

In fact, the salient characteristic of the road fairy seems to be doubt about its existence. As in, "There's no road fairy, so we have to build toll roads." Or, for those on the other side of the debate, "Unless you believe there's a road fairy somewhere out there, we need to increase the gas tax." Or for the truly confident and ecumenical: "There's no road fairy to save us. We need to build tollways and raise gas taxes."

State Sen. Jeff Wentworth, R-San Antonio, was the latest to cite the highway sprite, this time during a debate last week over legislation to allow localities to raise the gas tax or fees to pay for transportation projects. Wentworth supports the idea. But some conservatives, you see, don't like the bill because it would allow the public to vote to tax itself. The Legislature for 18 years has resisted raising the state's 20-cent-a-gallon gas tax.

Recall that last session, a majority of lawmakers rebelled over private toll road leases. And toll roads in general are not real popular across the state. But then again, neither is sitting in traffic going nowhere, spewing out pollution and stewing over missed appointments. So: Don't toll me, don't tax me, but by God build me some roads and rail lines.

That leaves us with the engineering elf.

All of which made me wonder: What exactly does the Texas Road Fairy look like?

There's the gender question first of all. I'm guessing male, given that highway design and construction is still dominated by men. Maybe with an impish two- or three-day growth of beard.

Costume? Most of us associate fairies with Tinker Bell, of course, she of the toga-like, clingy micro-mini. No way our manly road fairy would be caught in that get-up. No, we're talking coveralls in that neon-orange hue for safety, a traffic cone for a hat and steel-toed Redwings rather than those little slippers with puff balls most fairies wear. The coveralls must have deep pockets, to carry billions of dollars in cash.

Might be hard to elevate, given that load. But this is a Lone Star pixie, after all, with a Texas-size wingspan and special dust straight from Willie Nelson's tour bus. He'll get 'er done.

With the Legislature edging away from both taxes and tolls, that leaves magical thinking. Flushing out the reclusive funding fairy might be our only hope. I'll keep my eye out for a glowing light bouncing off the Capitol walls in the session's closing weeks.

Getting There appears Mondays. For questions, tips or story ideas, contact Getting There at 445-3698 or bwear@statesman.com.

© 2009 Austin American-Statesman: www.statesman.com

To search TTC News Archives click HERE

To view the Trans-Texas Corridor Blog click HERE