December 17, 2009

Snyder Praises Mayor's Leadership

By Sonya Campbell, Managing Editor
The Cameron Herald

[The City Council] heard from Ralph Snyder of the Eastern Central Texas Sub-Regional Planning Commission, who commented on the demise of the planned Trans-Texas Corridor.

Saying he wanted to dispel myths, Snyder noted the Texas Department of Transportation killed the project, not due to the public’s concerns but because the proposed route traveled through Blackland prairie — federally protected farmland.

“This black gumbo we live in saved us,” Snyder said.

He cautioned, however, that the project could be resurrected in another form.

Before concluding his comments, Snyder praised the efforts of the planning commission and its members.

He presented the mayor with a “Spirit of Liberty Award” from the American Stewards of Liberty, a national group founded in the early 1990s that has about 6,000 members.

The award is presented to someone in the U.S. once a year, Snyder said.

This year, plaques were given to all of the sub-regional planning commission members for their efforts to halt the corridor project.

“Thank you for joining and supporting the planning commission,” Snyder said.

He also commended the mayor on his leadership abilities, saying, “He deserves a lot of credit.”

© 2009 The Cameron Herald:

December 9, 2009

LCRA to Upgrade and Expand Electric Line through Mason

Texas Hill Country Heritage Association

Mason County News

LCRA has notified landowners along the Mason to Pittsburg electric transmission line, a 69 kv line generally paralleling Highway 29 E towards Llano, of their intent to expand and upgrade the existing line.

Construction is to begin in the fall of 2010, but LCRA TSC crews are already surveying the right-of-way, originally built by West Texas Utilities and now operated by American Electric Power Texas North Company (AEP TNC).

The Texas Hill County Heritage Association strongly recommends any landowner affected by this line to seek immediate legal advice concerning these old right-of-way documents. LCRA TSC is going to upgrade the existing line by replacing all deteriorating poles, cross arms and x-braces, and upgrade the transmission line to 138 kilovolts.

LCRA is already driving their equipment over this easement and are having a difficult time staying on the existing right-of-way. Many landowners have reported to the THCHA of crews and equipment trespassing on their private property causing damage.

THCHA will be requesting the directors of the newly formed Mason Sub-Regional Planning Commission (MSRPC) to begin coordination meetings with the LCRA TSC regarding this project. Landowners in Mason County have concerns that must be addressed and LCRA TSC is required by law to coordinate any and all plans within the county with the planning commission.

If you have any questions or comments, please send them to our attention and we will make sure the MSRPC addresses your concerns.

© 2009 Mason County News:

November 5, 2009

City one step closer to forming sub-regional planning commission

By Bill Crist
The Cameron Herald

The Cameron City Council heard the first reading of an ordinance that will create the Little River Basin Sub-Regional Planning Commission at its meeting Monday night.

The benefits of forming a commission were presented to the council by Ralph Snyder, Dan Byfield and Gene Linn. They told the council that a sub-regional commission has the same "stature" as a council of governments, but can focus its attention at a much more local level.

According to Cameron City Manager Ricky Tow, the commission will be an agreement between two or more cities, and could include the county and local school boards - although none of those details have been addressed.

Tow said the East Central Texas Sub Regional Planning Commission played an instrumental role in raising concerns and slowing down the Trans Texas Corridor, as well as raising flags about the path of proposed power lines.

"It can be a huge tool," Tow said.

The second reading of the ordinance is expected to be on the council's agenda at its next meeting.

© 2009 Cameron Herald:

October 28, 2009

Planning Commission Formed to fight Transmission Line

Mason County News

Mason, Texas – In an unprecedented move, the City and County Commissioners have both formally adopted separate resolutions to create the Mason Sub-Regional Planning Commission in response to the proposed LCRA TSC 345 KV transmission line.

This new planning commission is allowed under state statute 391 of the Local Government Code as a way for cities and counties to band together and work to protect and improve the health, safety, and general welfare of their residents.

“Since Mason County has been thrust into this fight over the LCRA transmission line, we felt we needed more than comments, letters, and protests to the Public Utility Commission and the Lower Colorado River Authority,” stated Mason County Judge Jerry Bearden. Bearden will serve as the county’s representative on the newly created commission board, along with Mayor Brent Hinckley representing the city.

“When we learned we could form this commission to protect our citizens, there was no hesitation on our city commission’s part,” exclaimed Mayor Brent Hinckley. There are over a dozen such planning commissions statewide that are fighting the Trans-Texas Corridor and TXDOT.

Under the 391 statute, state agencies, like the PUC and LCRA, are required by law to coordinate their plans and policies with local planning commissions at the regional level. This means any plans LCRA and/or the PUC have to construct electric lines through the jurisdiction of this new planning commission must be discussed in government-to-government meetings before any lines can be constructed through the county. This is outside the regulatory process of the PUC.

“We’ll be sending a letter to both the PUC and LCRA requesting they come to Mason, Texas to begin the coordination process with our planning commission,” explained Bearden. “And, they will have to figure out how to comply with our electric transmission policy,” added Hinckley.
Advertisement • Your Ad Here

“This is local control at its finest,” said Mike Dail, chairman of the public relations committee of the newly formed non-profit Texas Hill Country Heritage Association (THCHA). THCHA was also formed in response to the electric transmission line and will be working closely with the new planning commission. In fact, Mike Dail has been named as the third member of the commission board to serve with Judge Bearden and Mayor Hinckley.

Under the 391 statute, a planning commission can develop policies and plans for practically any purpose to benefit the citizens of the region. A commission may plan for development of a region and make recommendations concerning transportation, public utilities, health, education, recreation, agriculture, business, industry, historical and cultural sites, land use, water supply, sanitation facilities, drainage, public buildings, economic, and other items of general purpose.

© 2009 Mason County News:

October 8, 2009

Coordination Defeats I-35 Trans Texas Corridor Project (TTC-35)

American Stewards of Liberty
Copyright 2009

On October 7th, 2009 we had one of our most resounding victories for coordination that not only affects Texas, but the nation. It is a victory for private property rights proving that when a few good Americans decide something is wrong and are willing to take a stand, they can win against incredible odds.

In a press conference in Austin, Texas, Amadeo Saenz, executive director of the Texas Department of Transportation (TXDOT), announced on behalf of Texas Governor Rick Perry, that the Trans-Texas Corridor, I-35 Segment is dead. TXDOT will be recommending the “No Build” option to the Federal Highway Administration.

You read it right – the key leg of the NAFTA Superhighway is dead and every member of American Stewards of Liberty played a key role in making this happen.

It is hard to place into words the magnitude of this coordination victory.

In August of 2007, four unpaid mayors and their school districts in eastern Bell County, Texas stepped forward and asserted their coordination authority for the first time in Texas history.

They demanded an equal seat at the table with TXDOT and held their first meeting with the agency on the I-35 super corridor October 22, 2007. It was during this meeting that the environmental study director informed them the Final DEIS (Draft Environmental Impact Statement) would be submitted to the Federal Highway Administration (FHA) by January, 2008.

The next step would be condemnation of the 146 acres per mile to build the super highway.

The newly formed Eastern Central Texas Sub-Regional Planning Commission (ECTSRPC) went to work laying out in government-to-government meetings the flaws in TXDOT’s study and violations of law being committed by the agency.

They met two more times with the Transportation agency filing two lengthy petitions with the Federal Highway Administration, the latest one being sent in June, 2009 calling on the FHA to reject the study in its entirety. The ECTSRPC set forth 27 pages of violations of federal law being carried out by FHA’s agent, TXDOT that no one had pointed out before.

TXDOT and FHA have been in discussions on the final DEIS for most of this year. We have no doubt that the last petition caused the FHA to suggest TXDOT present another option. Today we learn that option is “NO BUILD.”

The coordination strategy utilized by these courageous Texans, developed by Fred Kelly Grant, president of American Stewards, stopped the I-35 Trans-Texas Corridor.

How big is this coordination victory for local government? Here is what we were up against:
  • The Trans-Texas Corridor was a keystone project for Governor Perry;
  • It was fully supported by President George W. Bush;
  • It had the funding of the Spanish Corporation, Cintra-Zachry;
  • The people of Texas tried to repeal the TTC project during three legislative sessions, but were thwarted each time by the governor and road lobby;
  • The State of Texas spent $16 million on environmental and planning documents;
  • $3.5 million were made in political contributions to candidates from TTC Contractors;
  • $6.1 million was spent by TTC Contractors for paid lobbyist to get the project through.
We’ve won the battle on the I-35 Corridor by using the coordination strategy because of the generous support and commitment of the members of American Stewards of Liberty.

If you are not a member of American Stewards, we invite you to join us. Click Here to sign up.

If you would like to learn more about the coordination strategy used to stop the I-35 Trans Texas Corridor, make plans to attend our annual conference, November 5-7 in Denver, Colorado where we will spend two-and-a-half days teaching you how you too can bring home local control. Click Here to learn about the conference.

Click Here to read the press release.

Click Here to read the petition to the FHA.

Click Here to read more about Texas coordination.

© 2009 American Stewards of Liberty:
Cintra: Texas Recommends Dropping TTC-35 Highway Project

By Jason Sinclair
Dow Jones Newswires

MADRID--Spanish toll-road company Cintra Concesiones de Infraestructuras SA (CIN.MC) said Thursday that the Texas Department of Transportation had recommended against going forward with the Trans-Texas Corridor-35 highway.

In a filing to the Spanish market regulator, Cintra said the Texas state government made the decision after the U.S. Federal Highway Administration raised questions about the environmental impact of the planned highway.

In 2004, a Cintra-led consortium was chosen to design and plan the TTC-35 highway.

Cintra is already building another Texas highway called the SH 130, which won't be affected by the decision, the company said.

Cintra has won a number of projects in Texas as the state looks to build new roads and privatize existing ones through public-private partnerships.

Company Web site:

91 395 8127;

© 2009 Dow Jones Newswires:

October 7, 2009

Mayors Defeat Trans-Texas Corridor (TTC-35) and TxDOT

Contact: Mae Smith, President/Mayor, 254-657-2460

Eastern Central Texas Sub-Regional Planning Commission

Holland, Texas - Five local mayors took a stand 27 months ago and formed the state's first sub-regional planning commission to stand up against and stop once and for all the governor's massive land grab known as the Trans-Texas Corridor. No one thought they could.

Today, the Texas Department of Transportation and the governor announced that the State of Texas has officially killed the project by selecting the "No Build" option under the environmental impact statement study. Selecting that option was exactly what the Eastern Central Texas Sub-Regional Planning Commission (ECTSRPC) forced the Texas Department of Transportation (TxDOT) into choosing.

"Believe me, it wasn't what they wanted to do, it's what we forced them to do," stated Mae Smith, Mayor of Holland and president of the ECTSRPC. The planning commission began a series of what is called coordination meetings in the fall of 2007, by utilizing a little known state statute that forced the behemoth agency to come to Holland, Texas.

TxDOT came to Holland on three different occasions where they were asked to explain why they were going to destroy five towns and their school districts with a 1,200 foot-wide, 146 acre per mile toll road. "Through coordination, we forced them to our table and then we used the federal NEPA (National Environmental Policy Act) statute to box them in a legal corner out of which they could not escape," stated Ralph Snyder, a local Holland businessman and board member of the ECTSRPC. "That's what forced TxDOT to recommend 'No Build' to the Federal Highway Administration because we had shown how TxDOT, as the agent of the federal government, had violated the federal statute in at least 29 ways," Snyder continued.

Fred Grant, president of American Stewards of Liberty, is the originator of the coordination strategy that brought TxDOT to their knees. "Had we not had five courageous mayors who represent a total of 6,000 people stand up to the governor and his rogue state agency, the Trans-Texas Corridor would have destroyed hundreds of thousands of private acres of prime and unique farmland, as well as, the economies of every community it dissected," stated Grant.

The TTC-35 is just one of the 4,000 miles of toll roads that nine state planning commissions are fighting.

"TxDOT can still continue to build 130, TTC-69, and the Ports-to-Plains toll roads, but defeating the TTC-35 is a major victory for the rural people of Texas."

To obtain a copy of the petition filed by the ECTSRPC showing the federal violations of TxDOT, please contact American Stewards of Liberty at 512-365-2699.

© 2009 ECTSRPC:

October 6, 2009

Perry pulls plug on Trans Texas Corridor...but another lives on

Terri Hall
San Antonio Express-News

If you believe Rick Perry, today he's finally conceded the death of the initial Trans Texas Corridor foreign-owned toll road, land-grabbing superhighway that would have paralleled I-35, called TTC-35. However, there's LOTS more to this story.

Perry would have us believe the announcement was because of the lack of political support, but since when does he care a flip about whether his toll road policies have political support? Look no further than his veto of eminent domain reform legislation, HB 2006, and the private toll moratorium bill, HB 1892, passed by a supermajority of the Texas Legislature in 2007 for proof.

There's never been grassroots support for his hefty toll tax increases nor the Trans Texas Corridor. The REAL reason Perry's highway department, the Texas Department of Transportation (TXDOT), put the nail in the coffin of TTC-35 was because it was under the threat of a federal lawsuit by a local government commission, the Eastern Central Texas Sub-Regional Planning Commission, which was formed to stop TTC-35 dead in its tracks.

There's nothing that puts more fear in a politician up for re-election than a messy, well-publicized federal lawsuit against one of his most controversial, polarizing policies. So rather than risk certain death at the polls, Perry opted for the death of his beloved special interest TTC-35. Of course, the Texas Farm Bureau's endorsement of Senator Kay Bailey Hutchison for governor played a role in the timing of the announcement.

Hutchison said in a statement today: "The Trans-Texas Corridor will not be officially dead until Rick Perry is no longer governor and his political appointees are no longer running TxDOT. Texans can't trust Rick Perry when it comes to protecting their land from the government, ceding to lease our highways to foreign companies or ending the Trans-Texas Corridor."

I couldn't agree more.

Trans Texas Corridor #2 still alive & well

To demonstrate the point that Texas isn't safe from Perry's policies until he's kicked out of office, the Trans Texas Corridor plan #2, known as TTC-69/I-69 in the hands of Spanish company ACS, is still on the table.

"Officials said that project (69), which unlike the I-35 plan would mainly involve expanding existing highways, remains alive," according to the Austin American Statesman on October 6, 2009.

When over 28,000 Texans went on the record AGAINST TTC-69, it goes to show Perry's same ol' stubborn indifference to the people of Texas in regards to the Trans Texas Corridor.

He throws the public a bone over here (saying the "TTC-35 is dead") in order to distract from an equally controversial debacle over there (TTC-69) that threatens to damage the environment, private property rights, and the economic prosperity of thousands of Texans.

Bottom line: Texans can't trust Rick Perry to keep his word or to truly KILL his destructive, detested toll road agenda. The only sure way to keep Texas safe is to give Perry the boot!

© 2009 San Antonio Express-News:

September 15, 2009

Super Highway Standstill

Executive Editors: Dan and Margaret Byfield
Standing Ground

We now have gone through three full legislative sessions in Texas since 2003, when the Legislature created the Trans-Texas Corridor, the quarter-of-a-mile wide superhighway designed to connect Mexican ports to Canada by creating an international highway through America.

Once again, in 2009, nothing has been done by the Texas Legislature to stop the largest land grab in American history.

In fact, the Texas Department of Transportation (TXDOT), the lead agency for the project, was up for sunset, a review process that determines whether the agency remains in existence, and if so, whether the agency is restructured. Although the Sunset Committee proposed several changes to the governance of the department, none of the changes were enacted. Instead, the Texas Legislature extended TXDOT for two more years and made a $2 billion appropriation for the state agency.

Although opponents of the TTC would have liked to have seen the superhighway killed by the legislative body, so too would the governor and TXDOT have liked to have enacted some necessary authorizations to continue the project, but neither happened. The 2009 Session was a critical stalemate for the TTC, providing some welcomed opportunities for local governments using coordination to stop the international highway.

The Session began with an announcement by Amadeo Saenz, the executive director of TXDOT, that the Trans-Texas Corridor was “dead.” The reality is that these projects were just renamed to the “Innovative Connectivity in Texas/Vision 2009” and are to move forward segment by segment.

Even Governor Rick Perry announced that “the days of the Trans-Texas Corridor are over,” but later said, “We really don’t care what name they attach to building infrastructure in the state of Texas. The key is we have to go forward and build it.” A significant number of road builders and businesses betting on the corridor have contributed to his campaign, so it is easy to understand why his comments indicate that the change is not much more than a public relations campaign. The TTC is alive and well.

As the 2009 Regular Session opened, controversial transportation legislation was filed and the battle began in earnest. The one bill introduced by David Leibowitz from San Antonio that actually killed the TTC was buried in committee. HB 300 became the vehicle upon which every amendment and wish list for the transportation department was attached.

In one overnight session, the bill ballooned to over 1,000 pages and was attempted to be voted on within 24 hours. Fortunately, it died on the last day of the Regular Session when the grassroots and rural folks opposed the effort.

In reality, nothing changed regarding TXDOT or the Trans-Texas Corridor. All the work and effort to kill it died on the floor of the House and Senate, but that also meant that everything TXDOT and the governor wanted died as well.

Remember, TXDOT was up for sunset. In other words, they had to be reauthorized statutorily by the Legislature or they would be extinguished. For several hours, many hoped TXDOT was gone, but the governor called a special session to deal specifically with transportation and approximately 20 other state agencies that remained unauthorized at the end of the Regular Session.

Special Session Gets Interesting

What occurred during the Special Session was nothing short of miraculous. Several bills were filed. SB 2 reauthorized TXDOT and all the other state agencies. The governor attempted to reauthorize TXDOT for four years, but the grassroots opposition were able to hold the legislators to only two years. TXDOT will once again be sunset in 2011 and the Legislature will again have to consider how to restructure TXDOT.

The other bill was HB 1, relating to funding of highways and transportation projects in Texas. It passed, allowing $2 billion worth of bonds to pay for highway con- struction and improvements, but removed any ability of TXDOT to use the funds for conversion of existing highways to toll roads and to build any new toll roads. So, that was a miraculous victory that no one expected. It showed how, when the only issue was transportation, the legislators weren’t willing to stick their necks out on such a controversial issue as toll roads.

The most interesting battle during the Special Session came from SB 3 and HB 4, filed at the governor’s and TXDOT’s request to reauthorize Comprehensive Development Agreements (CDAs) that would allow public/private partnerships (foreign companies) the ability to contract with the state to build toll roads.

During the Regular Session, no future CDAs were authorized, which were necessary for TXDOT to build the individual segments of the Trans-Texas Corridor, as well as other toll projects. Senator John Carona, Chairman of the Senate Transportation Committee, had also tried to pass legislation in the Regular Session that allowed local authorities to place on local ballots a referendum to raise taxes for highway construction.

That one amendment turned most legislators against HB 300, killing the bill in the Regular Session. When Governor Perry called the Special Session, he did not place Carona’s local tax bill on the Call. Senator Carona was furious, and he took out his revenge on the governor during the special session seeing to it that the Governor’s bills, SB 3 & HB 4, were killed. Carona wouldn’t allow SB 3 out of the Senate unless the governor placed his pet bill for taxes on the Call.

The dispute became a classic political standoff where members of the same party devoured their own. The end result: no additional CDAs were authorized, paving the way for the argument to be made that the Texas Legislature did not authorize the necessary segment contracts that would allow the building of the Trans-Texas Corridor. Therefore, whether deliberate or not, they in essence denied the continuation of the TTC project.

A Return To Local Control

The fight that took place in the Regular and Special Sessions and the reason TXDOT has not yet begun to build the Trans-Texas Corridor can be traced back to the stand taken at the local level by five 391 sub-regional planning commissions. Two years ago, American Stewards helped form the first 391 commission, which began requiring TXDOT to coordinate with local governments.

Since the beginning of these efforts, TXDOT has had to change their top down management approach to the project. When we first notified them they were required to coordinate with the Eastern Central Texas Sub-Regional Planning Commission (ECTSRPC), they quickly changed their internal rules to include “coordinating” with local units of government.

Then, they formed Regional Advisory Segments and Councils where they appointed their own “local” people to “advise and coordinate” with the state on transportation issues. They then began forming Rural Planning Organizations (RPOs) in conjunction with Councils of Government and told them funding would come during the 2009 Legislative Session to finance the effort. It all failed when HB 300 died, but the point is, they formed these RPO’s specifically to combat the 391 commissions that over time sprang up in nine locations across the state. They needed a similar group to claim that “local” people wanted their vision of transportation, not the 391 version.

Then, the first announcement came in the summer of 2008 that one of the two major new corridor TTC routes planned, TTC-69, was dead and instead they would be using existing roads as the path for the superhighway. Several months later, and strategically timed immediately before the start of the 2009 Legislative Session, TXDOT’s executive director made his famous announcement that the entire Trans-Texas Corridor project was dead (renamed “Innovative Connectivity”). Both claims are absolutely false, but politically calculated to soften the opposition going into the legislative session.

The 391 commissions continue to press forward, ensuring the project, by any name, is coordinated at the local level. Last June, at the end of the regular session, the ECTSRPC again raised the issue before the Federal Highway Administration (FHA), filing a second petition, this time requesting the entire environmental study be rejected.
The 27-page petition illustrates why TXDOT has lost all credibility to prepare a valid environmental study, that the time has expired for them to complete the study under the Texas Administrative Code, that the Texas Legislature specifically denied passing authorization for segment building contracts (CDAs) for the TTC, and that the entire project, by their own admission, has changed significantly making the current TTC environmental study obsolete.

The FHA responded to the commission [ECTSRPC] with a letter, giving the local government petition the same weight as a public comment. In response, the commission [ECTSRPC] immediately sent a short, pointed letter to Janice Brown, FHA Administrator for the Texas Division, copied to the Department of Justice, as well as the Secretary of Transportation, Ray LaHood, stating:

“We will not have our complaints, based on fact and law, passed off as though they were mere comments. Our issues and the issues of thousands of Texans are with you and your agency within your federal obligation of oversight of TXDOT.
Mr. Jackson’s letter will be exhibit 1 in whatever action we take, as an admission of your continued complicity with an agency which the Texas legislature again rejected in the Special Session. We could not believe that the “brush off” as a mere public comment was sent with your knowledge and understanding of the consequences which we made clear in our Petition. This is your chance to tell us whether you intend to answer the questions posed in behalf of the citizens of this Planning Commission, or whether you desire to be the defendant in one or more of the above actions for refusal to even consider the merits of valid complaints based on factual legal violations of federal law.”

The letter was sent June 16, and the commission is waiting for Federal Highway’s response while preparing for the next step. In the interim, the environmental studies for the two TTC segments have not been finalized. In a coordination meeting held in October 2007, TXDOT informed the ECTSRPC that the I-35 study would be finalized in January 2008. That still has not taken place, and the only reasonable conclusion is that local governments initiated coordination on the project whereby they have brought to the agencies attention issues that should have been addressed in the study, and can be challenged in a court of law.

Through this process, local governments have met with not only TXDOT, but also other state and federal agencies connected with the project. In these government-to-government meetings, and through follow up letters, the commission has pointed out numerous violations of law made by TXDOT. They have also received commitments and omissions from the agencies that would be damaging to TXDOT if the issue moved to a court of law.

Local governments, through coordination, have been the only viable opposition to the once fast-tracked project. It’s now at a standstill as TXDOT and the Federal Highway Administration determine which direction to head, given the illegalities of the environmental study. Another key element of this decision will be the importance the new President places on the NAFTA trade corridor, of which the TTC is the first leg.

Delay of the project was the commission’s first goal, hoping that over time the financiers behind the superhighway would lose interest while the devastation of the agenda to America became more public.

Now, it seems, that may be occurring. Cintra, the Spanish-owned Corporation in line to build the TTC, if approved, is also a major investor in an Indiana toll road that cost $4.8 billion to build and is now estimated to be worth a fraction of that expense at $405 million. Toll roads everywhere are proving to be a bad investment. One could hope that good business sense will take hold, and not a political agenda, when deciding whether to move forward with the Trans-Texas Corridor.

Finally, A Rural Transportation Plan

In tandem with fighting the illegalities of the environmental study, the ECTSRPC has also been developing a transportation plan for the area covering their jurisdiction, the eastern half of Bell County and western half of Milam County. The Bartlett-to-Buckholts Rural Transportation Plan was finalized this spring and is the first transportation plan in the state prepared entirely from the rural perspective. A copy was sent to all the affected state and local agencies, including TXDOT, as well as, the Commissioners of Bell and Milam Counties.

Two of the Bell County Commissioners met with the ECTSRPC at their regular monthly meeting in June. The meeting was another coordination success for the commission. A key issue addressed in the plan was the numerous roads that remain unpaved, resulting in increased wear and tear on the five school district’s buses. The Commissioners agreed to increase the miles allotted for paving these roads and agreed to prioritize those roads identified by the school districts.

Another positive response to the plan came directly from TXDOT’s executive director, Amadeo Saenz, in a letter dated June 12, 2009: “Thank you for providing the Texas Department of Transportation with a copy of the Bartlett-to-Buckholts Rural Transportation Plan. I appreciate your research and coordination efforts related to the factors affecting the complex movement of people and goods in central Texas. We will use this information as we go forward with our planning efforts. We also look forward to continued coordination with your commission, along with the many partners that are involved in transportation-related issues in Williamson, Milam and Bell counties.”

It’s no secret that in the beginning the agency and certainly the governor did not relish the idea of coordinating with the now five unpaid mayors and their school districts that make up the ECTSRPC Commission. They did so and continue to do so because refusing would place them in violation of the law. Two years into the process, they appear to be honoring that commitment, not only to the ECTSRPC, but to the five other working Commissions in the state as well.

The ultimate conclusion to the TTC project is still unknown. But what is known is that the superhighway would have been half paved by now and over 500,000 private acres of land would be in line for condemnation proceedings if these courageous local leaders had passed up the opportunity to use the coordination process available to all local governments.

Instead, they took a critical stand and today continue to carve out a path for local governments to follow.

No longer does the TTC buck stop at the Texas Governor’s office. It stops in eastern Bell County.

© 2009 Standing Ground:

August 27, 2009

Cities partner to address 281/1604 project together

By Christine Stanley - Contributing Writer/North Central News
San Antonio Express-News

Hill Country Village is joining forces with Hollywood Park to form a sub-regional planning commission that would tackle the U.S. 281/Loop 1604 interchange revamp — and any other state or federal project that may affect the two cities.

Hollywood Park City Councilman Bob Sartor got the green light from his colleagues to start work on the commission last month. Hill Country Village council members approved the move Aug. 20.

State and federal law allows for at least two governing agencies — at the city or county level, or both — to form a sub-regional planning commission to promote the coordinated development of a particular region.

Such a commission can do that in a number of ways, including recommendations to higher governmental authorities on how to proceed with a particular project.

In this case, the sub-regional planning commission would focus on Alamo Regional Mobility Authority's proposed $140 million plan for the 281/1604 interchange.

ARMA plans to build four elevated “direct connectors” between the two highways that would connect travelers on 281 north to the east and west sides of 1604, and two more connectors would take travelers from both sides of the loop to 281 south.

Construction could begin as early as next year.

ARMA is reaching out to Hollywood Park, Hill Country Village and surrounding cities through its own citizen advisory groups and public meetings, but Sartor reminded Hollywood Park residents last month that the agency has no legal obligation to meet with any community.

By law, ARMA would have to meet with the sub-regional planning commission and take any of its recommendations into consideration before making a final decision on the connector project.

Hollywood Park council members have expressed concern about negative impacts to their constituents during and after construction.

Hill Country Village Mayor Kirk Francis said he is worried about ARMA's true intentions. He reminded his colleagues that ARMA was originally created by the state Legislature as a tolling authority.

“So I'm kind of curious why ARMA is hosting all these meetings that have to do with what's supposed to be a TxDOT project,” Francis said Aug. 20.

ARMA has stressed on its Web site and in recent public meetings that the 281/1604 interchange will not be tolled.

Francis said the two cities will work out bylaws for the sub-regional planning commission during the next few weeks. It appears the commission will include Francis and Hollywood Park Mayor Richard McIlveen, a council member from each city and a resident designee appointed by each mayor.

“Right now, (ARMA) can tell us after the fact, they can invite us to meetings — that's their form of communication,” Francis said.

He said the panel would also bring both cities closer in addressing health and safety issues of mutual interest.

Hill Country Village council members also approved a contract with Acadian Ambulance Service Aug. 20.

Francis was the tiebreaker in a vote to sever ties with San Antonio EMS last month. He broke a tie between council members Gabriel Durand-Hollis and Margaret Mayberry, who were in favor of sticking with San Antonio EMS, and Register and Elizabeth Worley, who wanted to switch to Acadian.

The ambulance provider would incorporate Hill Country Village into its coverage area for free, saving the city about $35,000 each year.

© 2009 San Antonio Express-News:

August 11, 2009

Perry dodges question on the Trans Texas Corridor

Terri Hall
San Antonio Express-News

The Victoria Advocate asked a simple question of Rick Perry August 6, but this video shows a long-winded "dodge" to the reporter's question (because he's still pushing the Trans Texas Corridor, or TTC, and knows it's political suicide to admit it).

In fact, he intentionally misleads the public into thinking the Texas Legislature killed the TTC last session when, in fact, it did not.
  • The TTC-35 contract was signed in 2005 and has not been revoked or bought out.
  • The entire TTC-69 was excepted out of the moratorium so segments of it can go under contract with foreign entities through 2011.
  • The bill to repeal the Trans Texas Corridor (introduced by Rep. David Leibowitz) never made it out of committee, and it was later attached to a bill that died.
© 2009 San Antonio Express-News:

July 28, 2009

Grass roots group remains concerned about highway planning

By Donna McCollum

NACOGDOCHES, TX - Thursday night a half a million dollars was approved by the U.S. House for I-69 Texas. The funds will be used to expedite the U.S. Transportation's environmental review to advance I-69. Today the I-69 Alliance publicly praised the legislation. The funding level for I-69 FY 2010 will be determined later this fall when the Senate spending bill is determined.

Meanwhile, the issue remains a topic in national, state and local politics. Tuesday night in Nacogdoches, another group is talking transportation issues with State Representative Jim McReynolds. The Piney Woods Sub-Regional Planning Commission (PWSRPC) is keeping a close watch on future transportation issues, includiing a loop by-pass around Nacogdoches, Lufkin and as far south as Diboll.

It's a good idea for moving people quickly, but could be a bad one if the route hampers accessibility to other roadways and towns. "Say on South Street, here in Nacogdoches, where you've already got a lot of businesses and you've got a lot of hotels," Nacogdoches County Judge Joe English began. "Are they going to try to move it (roadway) over a little bit either one side to the left or the right because they don't want the expense of having to replace all those businesses?," the judge questioned. "And so when they start moving it we've got the same issues we had before and that's taking the grass roots mom and pop property."

Sub-regional planning commissions remain in existence along the I-69 route despite recent legislative efforts to disband them. Members are determined to have their voices heard before the Texas Department of Transportation. "We want them to know that we're still looking at it and we're still addressing it and when the planning and the meetings are put together we want to be a part of them," English said.

The commission is gathering information for a rural transportation plan. Members have gatherings planned in Garrison and Chireno. "We'll develop a plan for each community and what their needs and concerns are for transportation in their community," Jan Tracy, a PWSRPC volunteer explained. "And then we'll come back and compile all that together and present that to TxDOT."

Another concern is the financing method chosen. The group questions toll roads and who will own the toll money.

It's a grass roots mission that remains even after the state says the Trans Texas Corridor has gone away.

© 2009 WorldNow and KTRE:

July 9, 2009

I-35 Segment 4 Kick off meeting

Kathy Palmer, President
South Central Texas Sub-Regional Planning Commission

(For the full President's report click: [HERE])

Well this was certainly an interesting meeting.

It was held at the TxDOT District office in San Antonio and we had a variety of attendees from Laredo through to Seguin, including members of the San Antonio and Seguin Chambers of Commerce, a Frio County 911 Coordinator, City of St. Hedwig, City of Seguin and City of Laredo Planning and Zoning Commissioners, a Guadalupe County resident and a Guadalupe County Texas Farm Bureau representative.

Kudos to Judge Marvin Quinney, as he was the ONLY elected County official to attend.

Commissioners and Judges from Bexar County, Atascosa County, Medina County, Zapata County, and LaSalle County although invited, were nowhere to be seen. Being that the intent of this Segment Committee is to make sure your folks in your Counties are given yet another avenue to make their concerns, comments and considerations heard relating to the expansion of the Alternate I35 Corridor, one would think at least an alternate from those Counties would have been present.

It appeared by the input given at the start of the meeting approximately ¾ of the folks in attendance are very pro Commerce however it has to happen, while those in the rural areas are pro property rights and use of existing right of way.

There was lively debate as to the differences in the definition of “economic viability” as those in the city see the definition as commercial businesses all up and down the main roads and successful movement of commerce in those areas, while those in the rural areas see the definition as commercial business is good as long as it is not forcefully taking over the properties of residences along the roadways and building such roadways to bring trucks and freight through their once quiet farmland.

The Segment Committee members have been tasked in each of their individual areas to:
  • Identify transportation needs, Examine Existing and Planned Facilities
  • Identify areas where new location facilities may be needed
  • Prioritize the individual needs into a Master Plan
  • Finalize the Corridor Development Plan
While TxDOT is adamant that they want to “make sure we are getting the most out of the current facilities”, it is the Segment Committee members responsibility to hold them accountable to that expectation.

As members of the SCTSRPC, St. Hedwig and Wilson County as well as a portion of the representation of Guadaulpe County are all continuing with the original input of unfettered use of existing right of way on I10 and SH1604. Existing and future SH130 is a major part of this IH35 alternate plan, which directly affects Guadalupe County (Marion and Seguin via IH10), St. Hedwig (IH10 and SH1604), and Wilson County (SH 123 and expansion of SH1604).

The Committee’s main goal is to make sure that when a final recommendation is made of the Alternate to I35, that it indeed solves the true problem in the areas it will affect. That is the challenge that confronts each and every member as they will all be vying in the beginning for their individual areas while at the end will be tasked with prioritizing each issue brought to the table into a final Master Plan.

Eventually, the Segment 4 Master Plan will then be merged into the Segment 1-3 Master Plan therefore creating the “new”, specific, alternate route to I35 from the Texas/OK boarder to the Texas/Mexico border. As you can see the TTC 35 has not gone away, it has simply been broken down into smaller chunks to be analyzed and then reconstructed. TxDOT is looking for a “cohesive transportation system for the I35 Corridor with interstate multimodal transportation solutions”.

It is imperative that the public give competent, factual input to each of the Committee members as this runs its course. Following the NIMBY approach will not work. In order for the Committee member to be able to give it’s input as a reason to keep their issue at the top of the list, factual information from an environmental, historical and/or economical aspect must accompany the issue.

Meetings are open to the general public and you are encouraged to attend. This is an important issue that will affect each and every citizen in the East Bexar County, Guadalupe County and Wilson County area whether you think it will or not.

Please contribute and help the Committee members in your area as they strive to make sure their area is not left behind or worse yet, paved over.

© 2009 SCTSRPC:
Senator Robert Nichols and Toll Roads

(For video click [HERE])

By Roger Gray
KYTX (East Texas)

In the last legislative session, the future of toll roads was on the line.

But one area state senator was more involved than most. In fact some critics say the fix was in.

"You can't do toll roads in rural Texas. It won't work," says State Senator Kevin Eltife.

Yes, the original Trans Texas Corridors were huge, and controversial.

Whitehouse rancher and toll road critic Hank Gilbert called it, "the largest land grab in the history of the U.S."

Senator Eltife agreed. "It's a total property right's mess."

Gilbert added, "I don't think the people of Texas, rural and urban, are going to allow that to happen."

And Austin seemed to get the message.

"I think there's no question, the Trans Texas corridor is dead," Eltife concluded.

But some advocates clung to the idea of foreign companies building and running toll roads as private enterprises. Eltife is an opponent. "They should never be owned by a private company, ever. That's a gold mine for the state." As is Gilbert, of Texans United for Reform and Freedom. "Comprehensive Development Agreements that would allow private investors to come in, plan, build, operate, maintain, the whole nine yards."

Eltife agreed, "The state ought to own them. They ought to be a small piece of the puzzle." State Senator Robert Nichols "seemed" to agree when we spoke to him by phone during the session. "The people of East Texas are clear," he said. "They do not want the East Texas Corridor. But they do want to develop Interstate 69."

But did Sen. Nichols want to insure that private toll road contracts were a part of that I-69 development? He added an amendment to his transportation bill that seems to guarantee a contractor couldn't lose money.

Gilbert explained, "You have one of our own East Texas Republican senators is offering an amendment to his own bill which would guarantee a profit. To me that kind of goes against capitalism."

Nichols, though, disagreed. "There is language related to buy backs, but there is absolutely no guarantee whatever that anybody will ever get any of their debt back."

But, we have a copy of an e-mail sent out by toll road lobbyist Gary Bushell, and it says,

"...we have reached an agreement with Senator Nichols on a buyout provision...that provides protection of their position in the event they find themselves upside down on their debt to fair market value...I want to thank Senator Robert Nichols and his chief of staff Steven Albright for making this outcome possible."

Nichols doesn't think that's what he did. "Well, it's incorrect, because that's not true."

Gilbert concluded, "That's not very free market."

So, according to one lobbyist, Senator Robert Nichols went to bat for private toll road contractors.

"That's crazy," he protested. "No. I don't know who told you that, but that's nuts."

I responded, "Well, I've got an email from a lobbyist who says that's exactly what you did."

Nichols again disagreed, "Well, it's incorrect, because that's not true."

"So this lobbyist is wrong," I replied.

"If that's your interpretation of what he says," Nichols responded. "I'm not looking at whatever it is you're reading."

"I read you exactly what he said, " I said. "that provides protection of their position in the event they find themselves upside down on their debt to fair market value.'"

"Ok, I did not write that." He concluded.

Toll road critic Hank Gilbert is skeptical.

"At any point in time, this developer comes to the realization that they're not getting the return on investment they anticipated from this road, they can sell it back to the state at that time and with this amendment, they're guaranteed not to lose money."

Nichols again protested, "If you're saying the State of Texas or any entity is going to guarantee an investor his money back, no. Not correct."

But we have a copy of the amendment and it says.

".the fair market value of the private entity's not less than the (entity's) outstanding debt at that time plus other reasonable costs."

In short, they get out at least what they've put in.

So why would Nichols continue beating the toll road drum? The explanation may lie in his contributor list.

His top donor by far, James Pitcock of Williams Brothers Construction of Houston, the second largest TxDOT contractor for toll roads and they only gave money to one candidate in 2008, Robert Nichols.

But Nichols still insists toll roads aren't a certainty.

"So, it's your contention that even though these CDA's, comprehensive development agreements are in HB300," I asked, "we're not talking toll roads for East Texas."

"Well, now, that's a different question." He replied. "You have toll roads in Tyler."

And Robert Nichol's tried to push these CDA's again in the special session last week. He didn't succeed.

Apparently, as long as the political money is there, toll road advocates will keep pitching.

© 2009 KYTX:

July 6, 2009

In spotlight, toll roads too hot to handle

During special session, it's safety first for lawmakers.

by Ben Wear
Austin American-Statesman

It's intriguing how a spotlight can change a politician's perspective. Or in the case of the special session just past, a whole bunch of politicians' perspectives.

Way back in the spring of 2009 (OK, about three months ago), the Texas Senate overwhelmingly passed Senate Bill 404 and Senate Bill 17. The House Transportation Committee later passed both bills. And the Senate even passed them again, this time while they were taking a ride on the Texas Department of Transportation sunset bill that later died.

In fact, all of these bills died in the House late in the session. But it had nothing to do with the content of SB 404 and SB 17, which occasioned little debate during the regular session.

Then, last week, members of the House and Senate turned their noses up at both bills and declined to even vote on them.

To refresh your memory, SB 404 would have extended by several years the authority of TxDOT and regional mobility authorities to sign long-term toll road leases with private companies. Its companion bill, SB 17, would have mandated that such contracts protect the state's and residents' interests by making it easier to build nearby free roads and setting prices now for the state to buy back a private toll road if it ever wanted to.

Those two bills were combined, for the special session, into a single bill. Neither could get a vote in the House Transportation Committee or the Senate Finance Committee. The House Transportation Committee chairman, Joseph Pickett of El Paso, said members did not consider it a "safe vote." Meaning, it was a vote that could turn a legislator into a former legislator.

Remember, this same committee voted for the same changes to the law about seven weeks ago.

Why was it a safe vote in May and a dangerous vote in July?

Back then there were thousands of bills up for consideration, and thus the attention of the public and the press was fragmented. Transportation insiders, anti-toll activists and the few transportation writers for major dailies were paying attention to this. But most people weren't.

Now, with only three subjects on the special session call, and no controversy on two of them, that left the entire focus on this one bill. On legislators voting to allow private toll roads, potentially operated by (and sending profits eventually to) foreign companies like Spanish toll road builder Cintra. On lawmakers in effect undoing a moratorium on most such contracts that they voted for in 2007.

So, why not just bring it up and vote against it? Well, that could then be used against lawmakers later by an opponent saying they'd voted against badly needed roads. And it would be a vote against Gov. Rick Perry, who wanted to extend the authority for private toll roads. A vote against Perry, who has enthusiastically wielded his veto pen through the years.

Of course, presumably somewhere amid all this there is the "right" position to take on this issue — even if what is deemed right might vary from lawmaker to lawmaker — rather than the "safe" position. But Jefferson Smith went to Washington, not Austin.

And he was a fictional character.

© 2009 Austin American-Statesman:

July 5, 2009

TxDOT: After all the outcry, no changes in law

By Peggy Fikac
San Antonio Express-News
Copyright 2009

AUSTIN — More than a year after the Texas Department of Transportation was labeled an out-of-control agency in need of reining in, lawmakers made their decision: No TxDOT reforms were put into state law.

That means no alteration in the makeup of its governing commission, which is appointed by Gov. Rick Perry and in the past was accused of pushing his ideas without heeding lawmakers leery of such things as privately run toll roads. No special legislative oversight committee. No changes except for those TxDOT carries out on its own.

That's the upshot after a reform bill failed in the regular session and lawmakers meeting in a quickie special session simply continued the agency as is until they reconvene in 2011.

“Certainly I think this is a missed opportunity,” said Rep. Ruth Jones McClendon, D-San Antonio, a House Transportation member who pushed for such changes as an elected commissioner.

The good news: McClendon and some other lawmakers said TxDOT is working to change. Among actions they like is a new contract for a thorough review of agency operations.

TxDOT says it has acted on last year's Sunset Advisory Commission staff recommendations, including an update of its complaint receipt and tracking process. Senate Transportation and Homeland Security Chairman John Carona, R-Dallas, said most Sunset changes are under way.

Among items not addressed is the Transportation Commission makeup. But Carona, who opposes an elected panel as too political, said members are listening to lawmakers' concerns.

McClendon and House Transportation Chairman Joe Pickett, D-El Paso, say there's a need to change the agency “culture.” Pickett said that without a legislative overhaul, “I think they'll try to paint the trim on the ... building, but it's not going to make any real significant difference.”

Lawmakers said even without a new oversight committee, they'll keep close tabs on TxDOT between now and 2011.

“We recognize that TxDOT has been a troubled agency,” Carona said, “and it needs significant attention from the Legislature.”

As some lawmakers fruitlessly urged Perry to add a bill to expand the Children's Health Insurance Program to the special-session agenda, U.S. Sen. Kay Bailey Hutchison's camp still wouldn't say if she supported the measure. Her spokesman, Hans Klingler, said she will be detailing a plan for children's health care and make the issue “a centerpiece” of her expected tough campaign against Perry for the GOP nod for governor.

Perry spokesman Mark Miner said, “Once again, she doesn't have any details to discuss.” He noted Perry's stand that the focus should be on children who already qualify for CHIP but aren't enrolled, adding that Hutchison supported a CHIP expansion in D.C.

Lt. Gov. David Dewhurst, who married Houston lawyer Tricia Bivins just over a week ago, got to spend part of his honeymoon at the Capitol. Session over, he said they plan to go to Colorado or California. His take on his marriage: “Even a blind squirrel sometimes finds a beautiful acorn.

© 2009 San Antonio Express-News:

June 19, 2009

Texas Mayors Petition Federal Highway Administration to Reject the Trans Texas Corridor

Five Texas Mayor's and their school districts have filed a formal request with the Federal Highway Administration to reject the environmental study for the Trans Texas Corridor, the superhighway championed by Governor Rick Perry. The corridor is an internationally funded toll road designed to connect Mexico to Canada that will take 146 acres per mile of private property from Texas citizens. These five Mayor's have taken a courageous stand placing a 30 mile wide gap in the massive project.

Press Release
Eastern Central Texas Sub-Regional Planning Commission

Holland, TX -- The Eastern Central Texas Sub-Regional Planning Commission (ECTSRPC) has filed a petition with the Federal Highway Administration (FHWA) demanding they reject the Draft Environmental Impact Statement (DEIS) for the Trans-Texas Corridor I-35 project.

The Trans-Texas Corridor (TTC) is a quarter mile-wide transportation system championed by Governor Rick Perry as the first leg of an internationally funded toll road designed to connect Canada to Mexico for international trade. The Texas Legislature authorized the TTC in 2003, and Texan's have been fighting the massive project ever since.

However, it wasn't until August of 2007 that a group of five mayors and their city's school districts representing a total of 6,000 citizens banded together, that they found a way to slow down the massive project. They formed the ECTSRPC under Chapter 391 of the Local Government Code which gave them the ability to require the Texas Department of Transportation (TXDOT) to coordinate the project with the Commission. They, in effect, created a thirty-mile gap in the middle of the TTC I-35 corridor route.

During the first meeting with TXDOT in October of 2007, the agency stated that the DEIS, the environmental study necessary to move the project forward, would be sent to the FHWA for final approval by January 2008. However, Commission members raised objections and cited critical concerns all stemming from TXDOT's refusal to study the direct impact on the local communities and their economies.

Last year, they even called on the FHWA to require the agency to conduct a supplemental study. It has been 20 months since the first meeting, and TXDOT has yet to file for final approval.

The corridor will take 146 acres per mile. The total length of the Texas I-35 corridor spans approximately 550 miles directly affecting more than 81,000 acres of private property and hundreds of small, rural communities. This direct impact, such as the division of award-winning school districts and cutting citizens off from emergency services, was never considered in the DEIS.

Also, barely mentioned in the DEIS is the critical farmland known as the Blacklands Prairie. TXDOT's preferred route will destroy thousands of acres of the Blacklands, which is the heart of the local economies represented by the ECTSRPC. The Blacklands are considered to be some of the most productive and unique farmlands in the nation. They produce bountiful crops annually without irrigation making it a prized resource in modern America where water conservation is a key concern.

"The TTC destroys our farmlands and threatens our ability to feed our nation," commented local businessman and ECTSRPC director, Ralph Snyder, "yet TXDOT did not think it was worth mentioning in their environmental study."

In response, the mayors and school districts took a stand, right in the middle of the proposed superhighway. Now, they are calling on the Federal Highway Administration to reject the study in its entirety and begin anew, this time taking the local concerns into account. According to the Texas Administrative Code, the three year window to complete the study expired as of April 4, 2009, giving rise to the petition to reject the current study. "Significant changes have occurred since TXDOT started the original DEIS, and by law, they must begin a new one," stated Mae Smith, Mayor of Holland, Texas and president of the ECTSRPC. "Texans have lost confidence in this department so we are calling on the FHWA to delegate a new agent or conduct a new study themselves," Smith continued.

This past Legislative Session did not go well for TXDOT, which was up for reauthorization. The Legislature failed to pass legislation that would have continued the state agency. In addition, the Legislature failed to authorize Comprehensive Development Agreements necessary to continue the TTC I-35 project. And, prior to the 2009 Legislative Session, TXDOT launched a campaign renaming the TTC and promising the public significant changes to the original concept.

"All of these changes require the FHWA to begin a new study," claims Fred Grant, a consulting attorney with the commission. Grant believes that since the Legislature failed to reauthorize TXDOT, none of the provisions allowing construction of the Trans-Texas Corridor survived, which in turn left no authority for TXDOT to proceed with plans to construct TTC I-35.

"What these five un-paid mayor's and their school districts have done is remarkable," commented Margaret Byfield, executive director of Stewards of the Range, which helped the Commission organize. "They have taken on one of the nation's largest state agencies, a national agenda to build a road from Mexico to Canada, and international financiers looking to make millions from Texas drivers by exercising their local control authority."

The ECTSRPC filed the 27-page petition with FHWA on Thursday, June 18, 2009.

For a copy of the petition and more information go to

© 2009 ECTSRPC:

April 15, 2009



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: