Kolkhorst seeks eminent domain discussion

AUSTIN -- State Rep. Lois W. Kolkhorst (R-Brenham) is among lawmakers calling on Gov. Rick Perry to add eminent domain issues to the current special session.

Kolkhorst joined fellow lawmaker Rep. Frank Corte (R-San Antonio) in filing House Joint Resolution 19, which is a proposed amendment to the state constitution intended to limit a governmental entity's power of eminent domain.

Perry would have to add consideration of the amendment to the special session. It would then be passed by the House and Senate before being placed on a statewide ballot.

Unlike a regular session, the agenda for a special session is left up to the sole discretion of the governor.

If approved by Texas voters, the amendment would prevent local governments from using the power of eminent domain to condemn private property for economic development projects. The measure is in response a Supreme Court ruling issued last week.

"Like many others, I was personally shocked at the Supreme Court decision," Kolkhorst said. "The power of eminent domain was never intended to be used for purely financial gain or increased property values.

"Land ownership is a sacred thing, especially in Texas. This ruling overturned 800 years of common law and common sense. It reminds me of before the Magna Carta, when the local lords decided what you could and could not do with the king's property and land."

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

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

Already, based on the court ruling, it is reported that officials in the beach front town of Freeport, south of Houston, plan to move aggressively to condemn property owned by two seafood companies to clear the way for an $8 million private marina.

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

"We emphasize that nothing in our opinion precludes any state from placing further restrictions on its exercise of the takings power," Justice John Paul Stevens wrote in the decision.

State and federal governments already have eminent domain powers, and political subdivisions, such as city or county governments, still could exercise their eminent domain powers so long as economic development was not the primary reason.

"This resolution is a good start, but I hope public support will push it even further in terms of clarification," Kolkhorst said. "We need to ensure that the federal government, the state or any local governmental entity can't still simply label something an economic development project and then take someone's land.

"If it's wrong for a city or county to do this, we should be clear that it's also wrong for state or federal government entities as well."

In February, Kolkhorst filed similar legislation in order to curtail the authority of the planned Trans-Texas Corridor.

That bill would have prohibited land from being taken out of the private sector and then developed and sold to a single franchising partner with TxDOT along the roadway.

The bill gained statewide attention, and the bipartisan support of many legislators, but ultimately did not pass during regular session.

"People should own property without living in fear that the government can take it and turn it over to private developers in the name of higher property values," Kolkhorst said. "Hopefully, the resolution will slam the door on this land-grabbing concept in Texas."

From Corridor Watch:

CINTRA-TxDOT PLAN STUNS S.A. (07.01.05)

CorridorWatch.org MEMBER BULLETIN - July 1, 2005

TxDOT CAN'T SPELL "LOCAL CONTROL"

"Surprised and concerned leaders from San Antonio could only stand on the sidelines Thursday as state officials agreed to pursue a private bid to build and operate toll roads in Bexar County," that's the opening line a story by Patrick Driscoll that appears in today's San Antonio Express-News.

Even Bill Thornton, the Governor appointed Chairman of the Alamo Regional Mobility Authority (RMA) was shut out of the process. Shockingly the Transportation Commission didn't have the common courtesy to notify Thornton that the deal for privately built and operated toll roads in Bexar County would be on the Commission's agenda yesterday.

Toll roads in Houston generate $50 million dollars a year in revenue that is reinvested in Harris County transportation projects. But toll roads in San Antonio may instead generate billions in revenue for TxDOT's private monopoly road operator over the next half-century, denying Bexar County the same degree of benefit that Harris County enjoys.

Not surprisingly, the private bid to build and operate Bexar County toll roads comes from Cintra Zachry, the same group selected by the Commission last December to plan and build TTC-35. Of course the deal is secret, again. Most things involving money, monopolies, and unexplained transportation projects by TxDOT today are secret. Gone is government transparency, accountability and open government. No longer is the public permitted to participate in, or even observe, the planning, negotiation, or details of government contracts involving billions of dollars of public infrastructure and the expenditure of millions upon millions of our tax dollars.

http://www.mysanantonio.com/news/metro/stories/MYSA070105.1B.toll_roads.2492f76b.html

=======
CorridorWatch.org - Now with members in 167 Texas Counties!

From the Waco Tribune-Herald:

Business owners mostly thumbs-up on corridor

Local business and community leaders heard a strong pitch about the need for the Trans-Texas Corridor Tuesday from a member of the Texas Transportation Commission. Held at the Brazos Belle restaurant, the meeting was one of the friendlier venues transportation officials have had locally to tout the corridor, which would build a tolled transportation network of highways, railways and utility infrastructure from Oklahoma to the Mexico border.

Some Central Texans oppose the plan, especially those living in rural areas. With a width of up to 1,200 feet, critics fear the corridor would destroy agricultural pursuits and unfairly take land from people whose property falls along the chosen route.

Tuesday's meeting, however, was aimed at a different crowd. It was hosted by Downtown Waco Inc. as part of the organization's ongoing effort to bring in speakers who are making an impact on the state or national economy. Attending were numerous city and education officials, as well as several dozen business people.

State transportation commissioner Robert Nichols said state officials believe the project is necessary because Interstate 35 is overcrowded. About half of the state's population lives along the interstate, he said.

When the interstate was built 50 years ago, he said, it was meant to accommodate only 30 years of growth.

Even if another lane is added to the interstate, it would still be at capacity with no room for growth, Nichols said. That's a problem, he said, because over the next 20 years the state is expected to grow by 9 million people.

"You will have absolute gridlock out there," he said. "Something has to be done."

Nichols also stressed that if the state is going to build the corridor, it should do it right and include plenty of space not only for the highway but rail lines and utilities. If leaders had thought about such things when the interstate was designed half a century ago, it wouldn't be in its current predicament, he said.

The commissioner also addressed the concerns of some local residents by saying he thinks the corridor will run fairly close to Waco. He said he could not imagine its being 30 to 40 miles away, as some have suggested.

Many at Tuesday's meeting voiced faith in the project, including local businessman F.M. Young, a developer who once owned Young Brothers Contractors. He said he had been keeping up with the corridor debate but had not made up his mind before the meeting.

"I hadn't heard the whole thing as I did today," he said. "The way he put it really convinced me we've got to do something."

Charles Wiley, president of Time Manufacturing in Waco, said he thought Nichols outlined the problem well and clarified some of the issues, such as the need to make the corridor wide enough accommodate utilities.

"You have to have meetings like this," he said. "There are a lot of myths out there."

Scott Felton, president of Wells Fargo in Waco, said he appreciated Nichols speaking in terms the average taxpayer could understand. However, he lives in a rural area that may be chosen for the corridor and said he has not yet made up his mind about the proposal.

"I think it will be positive for economic development for the city," he said. "But I live east of Waco about 12 miles, so I need more information."

CorridorWatch.org Member UPDATE (06.28.05)

CorridorWatch.org, Representing Members in 164 Counties!

IN THIS ISSUE -

> KEEPING SECRETS: GOOD THING WE DIDN'T HOLD OUR BREATH

> GOVERNOR YOUR PANTS ARE ON FIRE

> THE NEWEST OXIMORNON: PRIVATE PROPERTY RIGHTS

> CALL TO ACTION * * * * URGENT * * * * ACT TODAY

=+=+=+=+=

KEEPING SECRETS: GOOD THING WE DIDN'T HOLD OUR BREATH

On the last day of May the Texas Attorney General’s office ruled that TxDOT must release hundreds of pages of the Comprehensive Development Agreement (CDA) kept secret in their deal with Cintra Zachry to develop Trans Texas Corridor TTC-35. Immediately CorridorWatch.org predicted that TxDOT and Cintra Zachry would not be responsive to the Attorney General's ruling and provide that public information in response to an open records request made by the Houston Chronicle. We said we expected stonewalling and a protracted legal battle despite TxDOT's initial statement that they would not contest the Attorney General's ruling.

Yesterday the Houston Chronicle reported that on June 24, 2005, Cintra Zachry and TxDOT filed a lawsuit in Austin against the Attorney General in a legal effort to block the release of approximately 200 pages of development and financing plans contained in their CDA and still being withheld from public disclosure.

Unfortunately this behavior is very predictable. The entire Trans Texas Corridor project has developed and grown well out of public view, and certainly without public participation. TxDOT often touts the hundreds of public meetings they've hosted to discuss the TTC. CorridorWatch.org points out that every single one of those TxDOT meetings have been required by state or federal law. And, none of those meetings were held before the TTC Plan was officially adopted by the Transportation Commission. In fact, the vast majority of those meetings were held after TxDOT issued the RFPQ for TTC-35 in July of 2003.

There's a stark difference between seeking public input on a project under consideration and working to sell the public on a project already in place. But even that pales when they go a giant step further and spend taxpayer money to keep the public from knowing the most important details of a 50-year contract that will affect most of us for the rest of our lives.

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GOVERNOR YOUR PANTS ARE ON FIRE: PRIVATE INVESTMENT, NO TAXPAYER MONEY

Once again the Governor's Office and TxDOT have demonstrated their willingness to play word games with the citizens of Texas. It's yet another abuse of the public trust.

Certainly tax dollars are already being spent on the TTC. How about the $2.4 million to be pay proposers for their efforts. What about that $3 million plus made available to Cintra to write their own contract? Who is paying for the countless environmental impact study meetings and all those TxDOT engineers and contract engineers who are trying to convince attendees that the TTC is a good idea? Cintra? Of course not, you and I are picking up that tab with our tax dollars.

Now we learn that Cintra wants a low-interest federal loan. Hey, that's our tax money too. If we loan it to Cintra we certainly can't use it on something else can we? Tax dollars are tax dollars. We all pay them, it's not free money.

One of the oft asked questions about the TTC is what happens in the case of financial default. The Governor's Office, Transportation Commissioners and TxDOT officials are all quick to say only private money is at risk. They tell us that the private investors shoulder all the risk. I guess they forgot about that federal loan even though TxDOT says it was part of the plan all along. Well which is, all private money or not? NOT!

How about the tremendous investment we've already made. How about the $800,000 we paid even the losing proposes. Never mind the $3 million we are paying Cintra to write the next Comprehensive Development Agreement.

The state will own the corridor and be responsible for whatever is left on the ground if the Cintra or any of the other future concessionaires default. And, if this is really infrastructure the state needs to have, then the state will need to spend whatever it takes to make it whole. And that will be your tax dollars too.

=+=+=+=+=

THE NEWEST OXYMORON: PRIVATE PROPERTY RIGHTS

Last week, the U.S. Supreme Court greased the wheels of the Trans Texas Corridor.

The Court has abandoned a long-held, basic limitation on government power and ruled that government can seize your property for economic development.

Scott Bullock, senior attorney for the Institute for Justice says, "With today's ruling, the poor and middle class will be most vulnerable to eminent domain abuse by government and its corporate allies." In the dissenting opinion Justice Sandra Day O'Connor wrote, "The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms."

"Any property may now be taken for the benefit of another private party . . ." — Justice O'Connor

Nowhere in America is the threat greater today than in Texas. The massive 584,000 acre Trans Texas Corridor is the poster child of government and corporate greed. The Court's ruling keeps the green light on for TxDOT to seize hundreds of thousands of acres of private land to generate revenues through concession agreements with private toll road, rail road, and utility operators who will reap billions in profits from Texas and hard working Texans for the next 50 to 70 years.

Yesterday Representative Frank Corte of San Antonio filed a Joint Resolution (HJR 19) described as, "a State Constitutional Amendment limiting a local governmental entity's power of eminent domain, preventing them from using this power for primarily economic development projects." If passed this would put the issue of amending the State Constitution on the ballot in November.

Here is the actual language proposed: "Sec. 17A. A political subdivision of this state may not take private property through the use of the power of eminent domain if a primary purpose of the taking is for economic development."

HOG WASH! Representative Corte’s Resolution only restricts political subdivisions of the state (cities, counties, special districts, etc.), not the state itself. Clearly it has been drafted to exempt and exclude state agencies such as TxDOT from such limitations of eminent domain abuse. Why? Why is it okay for the state? Is it the famous Except Me Rule?

Last week Representative Corte issued a release saying, "The right to own and use property is inherent to a free society. When a government decides they know how to use private property better than the individual, private property rights cease to exist." CorridorWatch.org agrees. And so why exempt TxDOT? If it's wrong for a city, if it's wrong for a county, it is equally wrong for the state AND THAT'S WHAT THE CONSTITUTIONAL AMENDMENT SHOULD SAY.

=+=+=+=+=

CALL TO ACTION * * * * URGENT * * * * ACT TODAY

Please contact (write, call, fax, e-mail) your Representative and Senator today.

Ask them to support private property rights and help Texans protect them with a Constitutional amendment.

Ask that the protection apply to any eminent domain taking, not just that of local government.

Ask that they support a State Constitutional amendment to add: "Sec. 17A. Private property shall not be taken through the use of the power of eminent domain if a primary purpose of the taking is for economic development."

A failure to include protection from state taking for economic development is tantamount to granting permission.

=+=+=+=+=

CorridorWatch.org

From Star-Telegram.com:

Staying busy in Austin (06/27/2005)

Keeping things moving in Texas

By Todd Staples
Special to the Star-Telegram

This year, the Texas Legislature successfully addressed two emotional and sometimes controversial issues: the Trans-Texas Corridor and toll roads.

Thanks to House Bill 2702, just signed into law, Texas has stronger protections for private property and water rights, local tax revenue and road access, and business development opportunities along the Trans-Texas Corridor.

The Legislature listened to all sides, including the Texas Farm Bureau, the Texas and Southwestern Cattle Raisers and other agricultural groups, and addressed concerns about the new Trans-Texas Corridor road project.

We protected the rights of local residents against converting existing roads into toll roads. For urban and suburban drivers, we ensured that toll revenues will be spent in the area where they are collected. And we created a blueprint for improving railroad safety and efficiency.

The Trans-Texas Corridor allows needed roads to be completed and opened years sooner, without massive new state spending or higher gasoline taxes for consumers.

In previous generations, the farm-to-market road and federal interstate highway systems sparked stiff and emotional opposition. Today, the Trans-Texas Corridor is generating significant controversy -- some justified, some not. HB 2702 addresses the criticism, especially issues of concern to rural Texas.

Legislators protected local tax rolls, safety regulations, and access and development rights.

HB 2702 requires private Trans-Texas Corridor operators of commercial facilities to pay local property taxes and abide by local zoning and building regulations.

Private contractors may not develop commercial businesses, such as hotels or restaurants, in the corridor right of way. Local landowners do have the specific right to develop property and businesses adjacent to the corridor and within the corridor in cases in which developmental rights have been retained.

Easy access on and off the Trans-Texas Corridor is important to local communities. Texas law now requires each segment of the Trans-Texas Corridor to provide ready on and off ramps for federal and state highways and consideration of access to major farm-to-market, county and local roads where feasible and with the input of local officials.

The final corridor route has not been determined. But for private property owners along the eventual route, the state will be required to pay the fair market value for acquired property and any damaged property.

Property owners can choose to sell their property outright or receive royalty payments from revenues attributable to a segment of a toll project. This innovative solution treats land along the corridor like oil and gas lands, allowing property owners to receive ongoing royalty payments for the use of their land.

State officials will remain accountable and in charge of toll rates and collections. We mandated that the state, not private operators, will oversee toll rates, plans for collection, penalties and any changes to rates and policies.

HB 2702 helps end the controversy over converting existing non-tolled roads into toll roads. State law now prohibits converting existing roadways to toll roads unless local county commissioners and voters approve. The construction of additional tolled lanes along existing roadways is allowed, so long as motorists have access to the same or greater number of non-tolled lanes after a project is completed.

We strengthened the environmental review process for the Trans-Texas Corridor and ensured that federal and state governments maintain complete environmental oversight.

Once federal environmental approval is granted, the Texas Department of Transportation must post the final environmental impact statement on its Web site and provide notice to each state legislator and county commissioner representing an impacted area.

The protection of water rights and quality is always a priority in Texas.

Any Trans-Texas Corridor proposal involving the transporting of ground water must provide written notice to local county commissioners and water districts. Pumping ground water from the corridor right of way for private purposes is strictly prohibited.

HB 2702 also responds to the rash of railroad accidents in Texas and the need for improving freight rail systems. The state Transportation Department now has the authority to acquire, finance, construct, maintain and operate freight or passenger rail and administer most federal rail dollars coming into Texas. This move allows rail relocations and safety improvements to be planned and implemented by a single state agency.

The one thing on which everyone can agree is that Texas needs new roads and transportation solutions.

Twenty-two million people live here, and another 13 million are expected by 2040. The number of vehicles traveling our roads is up 61 percent since 1980 and growing.

New roads and toll roads have always been controversial. HB 2702 shows that reasonable rural, urban and suburban residents can work together to protect local and private property rights and get needed transportation infrastructure built years sooner.

Better transportation is on the way, and that's good news for public safety, commuter convenience and economic opportunity in every region of our state.

--------------------------------------------------------------------------------
State Sen. Todd Staples, R-Palestine, represents Texas Senate District 3. He is chairman of the Committee on Transportation and Homeland Security and sponsored HB 2702 in the Senate.

Glad to see someone post on HJR19, I've been hitting it on Free Republic for the last couple of days. We need letters to the committee. Here is the info again fron Rep. Corte office.

A hearing has been scheduled for HJR 19 Tuesday July 5th at 1:00 pm or upon final adjournment of the House in the committee on Land and Resource Management in room E1.014. Please see the attached press release THE PUBLIC IS WELCOME TO COME TESTIFY ON THIS LEGISLATION!! All you have to do is show up and fill out a witness form. If you can't make it to Austin on Tuesday but would like to submit something in writing, you can mail your letters to: Committee on Land and Resource Management Chair Anna Mowery P.O. Box 2910 Austin TX 78768 and cc the letter to the members of the committee on Land and Resource Management who can be found at the site below, send to the same address. http://www.house.state.tx.us/committees/360.htm Please feel free to pass the word along to others who might be interested. Thank you for all your work and for taking interest in the extremely important issue. Best wishes, Stephanie Cerami Texas House of Representatives Office of Rep. Frank J. Corte, Jr Administrative Assistant (512) 463-0646 PHONE (512) 463-0893 FAX If you have not seen the bill: 79S10330 DRH-D By: Corte H.J.R. No. 19 A JOINT RESOLUTION proposing a constitutional amendment to prohibit a political subdivision from taking private property for the primary purpose of economic development. BE IT RESOLVED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION . Article I, Texas Constitution, is amended by adding Section 17A to read as follows: Sec. 17A. A political subdivision of this state may not take private property through the use of the power of eminent domain if a primary purpose of the taking is for economic development. SECTION . This proposed constitutional amendment shall be submitted to the voters at an election to be held November 8, 2005. The ballot shall be printed to permit voting for or against the proposition: "The constitutional amendment to prohibit a political subdivision from taking private property for the primary purpose of economic development."

Thanks fo your post. Bump.

It is great to see Americans so aware of, & energized in defense of, private property rights by addressing threats, this terrible precedent (Kelo v. New London), and becoming aware of the downside of activist Judges. I have been concerned with both of these related issues for about a decade. I even had brief, separate, conversational encounters with two of the "good" Justices (Scalia & Thomas) in the Kelo case about 6 or 7 years ago re: "The Takings Clause" of the 5th Amendment designed to protect private property from arbitrary seizures, but providing for Eminent Domain for certain "public use" (NOT "public purpose") . It was clear they were anxious to see some good cases walk toward them. I doubt if they would have predicted the bizarre outcome in Kelo, though.

For those of us who are deeply concerned with protection of Private Property from improper application of Eminent Domain in contravention of the Original Intent of the Founders in the 5th Amendment's Takings Clause, I am registering a warning or a concern:

I think AG (& potential USSC Nominee) Alberto Gonzales is very weak on Private Property Rights and lacks an understanding of orignainl intent of the 5th Amendment's Takings Clause (Eminent Domain) based both upon some cases when he ws at the texas Supreme Ct. (e.g., FM Properties Operating Co. v. City of Austin, 22 S.W.3d 868 (Tex. 2000))

and, more recently and significantly, upon his NOT having joined in the Kelo case on the side of property owner. My understanding ws that he had sided with the League of Cities against Kelo while WH Counsel.

As some have frequently observed, he certainly believes in a "Living Constitution" and is NOT a strict constructionist or an Originalist, but rather tends toward the Activist side, per National Review Online and others.

He has been sharply critical of Priscilla Owen in some Texas Supreme Ct. decisions when they were both on that Ct. as Justices, and he has been quoted as being sharply criticial fo Janice Rogers Brown, including being quoted by People for the American Way in their ultra-leftist propaganda.

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