The Next Wave in Superhighways, or A Big, Fat Texas Boondoggle?

The fight is on over a plan to build vast corridors for cars, trucks, trains — and almost everything else By CATHY BOOTH; THOMAS HUTTO

To see the future of transportation in Texas, you have to drive out to the prairie north of Austin, past the sprawling plants of Dell and Samsung, to the farthest suburbs, where wild grass and cornfields nuzzle up to McMansions with their perfect green lawns. There, giant earthmovers, their wheels taller than a Texan in his boots, are ripping up the gummy, black soil to lay a 49-mile stretch of concrete tollway. State Highway 130, at a cost of $1.5 billion, is the biggest highway project under way in the U.S. today. It is also the first test in concrete for the Trans-Texas Corridor (TTC)--a radical rethinking of the nation's Eisenhower-era roadways.

The brainchild of Texas' Republican Governor, Rick Perry, the TTC would, if built, completely transform the state's highways over the next 50 years, creating a 4,000-mile network of multimodal corridors for transporting goods and people by car, truck, rail and utility line. Each corridor would have six lanes for cars, four additional lanes for 18-wheel trucks, half a dozen rail lines and a utility zone for moving oil and water, gas and electricity, even broadband data. The corridors could measure up to a quarter of a mile across. The projected cost, at least $183 billion, is more than the original price tag for the entire U.S. interstate system. But Texas, going it alone, is seeking private companies to take on the mammoth job of constructing, financing, operating and maintaining the network. To pay for the roads, developers will rely on a familiar but long-neglected method of financing: tollbooths.

Depending on whom you talk to, the Trans-Texas Corridor is either an innovative solution to the U.S.'s overcrowded highway system or a Texas-size boondoggle. Backers claim that such corridors are needed to divert road and rail traffic — NAFTA truckers driving up from Mexico, railcars of Chinese goods from Western ports, hazardous cargoes of all kinds — from congested urban areas. Buying land for the system now, decades before it's needed, would cut acquisition costs and might entice businesses to relocate inside the corridors. T. Boone Pickens could ship his West Texas water across the state in pipelines through the corridors; oil and gas could be shipped north from Mexico; even high-speed passenger rail lines could become reality. "The Trans-Texas Corridor is not just a road, not just asphalt," says Perry. "It's a vision."

Opponents of the corridor range from environmentalists (the Sierra Club has called it "evil") to the Texas Republican Party, which has urged the legislature to repeal it. Texas, which is losing more land to sprawl than any other state, would need more than 9,000 sq. mi. of right-of-way for the corridors, affecting critical wetlands and pristine prairie lands. The Big Thicket National Preserve, considered "the biological crossroads of North America" for its mix of habitats, was put on the list of most-endangered parks by the National Parks Conservation Association this year, in part because of the threat from the Perry plan.

Environmentalists have found an unlikely ally in traditionally conservative landowners worried about property rights. David Langford, an activist for the Texas Wildlife Association, is organizing farmers and ranchers whose land could be cut in half or condemned by the Trans-Texas Corridor. An early plan for central Texas showed a corridor passing near the homestead Langford's family settled in 1851. With the state's new "quick claim" ability — granted under TTC legislation — his family homestead could be gone in 90 days, he says, transferred to private investors operating the corridor. Though he would be compensated financially, he's still steamed. "I can't believe Rick Perry's grandfather would want his house and ranch taken and turned over to Paris Hilton's family to build a hotel on one of these roads," he says.

Local politicians are mobilizing too. The TTC legislation, passed after eight hours of debate, in June 2003, drew little attention until Republican activist David Stall, a former city manager of Columbus, in East Texas, discovered a notice for hearings buried in the ads for gravel and road-material bids. He was "horrified" to discover that the corridor, as a limited-access turnpike, would steal business his town gets from travelers. Today public officials from six counties along the corridor route have joined his grass-roots group, CorridorWatch, to oppose the TTC. "There is no legislative oversight, no elected officials overseeing the contracts to build and operate these toll roads," Stall complains.

But the worst ruckus broke out in Austin last summer, when commuters realized that the "innovative" financing authorized by the Trans-Texas legislation meant they would start paying tolls. Traditionally, highways have been financed by gasoline-tax revenues. But that money now barely covers road maintenance, much less new construction, and raising gas taxes is as politically unpalatable in Texas as it is everywhere else. The state, for the first time, can go into debt by issuing bonds for new roads. Although those bonds can be paid back by a number of possible revenue sources (such as steeper fines for drunken driving), Texas policy now is to look first at tolling for all new highway projects.

What's more, the TTC legislation allows existing roads, not just new ones, to be converted to tollways. "They can take any highway anywhere, anytime, and put a tollbooth there," says Sal Costello, whose group, AustinTollParty, argues that putting tollbooths on roads already paid for with gas taxes amounts to "double taxation" of commuters. The political outcry is having an effect. After Austin approved eight new toll projects for roads and bridges, a recall campaign was launched against the Democratic mayor and two city councilmen. "It's been a true grass prairie fire," says Brewster McCracken, one of the city councilmen targeted. He's now against conversions.

Congress in the 1950s expressly rejected tolls as a way of financing the nation's interstate highways. But the Bush Administration, faced with an aging freeway system and a lack of money for building and maintenance, is rethinking the idea. Mary E. Peters, head of the Federal Highway Administration, has called Perry's TTC plan a "bold concept." President Bush has threatened to veto any increase in the nation's 18.4¢ gasoline tax and has expressed support for tolls on interstate highways. Other states, such as California, Missouri and Minnesota, are closely watching the Texas toll experiment.

Perry, a farm boy from West Texas who studied animal science at Texas A&M University, sees the Trans-Texas Corridor as a way to make his mark by tackling the state's growing congestion. Urban rush-hour drivers were stuck in traffic for an average of 46 hr. in 2002, nearly triple the time in 1982, according to a study conducted by the Texas Transportation Institute. Increasingly, tolls are seen as a way to reduce traffic. "We simply can't afford to build our way out of traffic congestion, so we have to better manage it," says Michael Replogle, transportation director of Environmental Defense, a nonprofit group that advocates "time-of-day tolling": tolls that would take effect during rush hours to discourage driving at peak times.

The Trans-Texas Corridor has won accolades from conservatives like Wendell Cox, transportation guru at the Texas Public Policy Foundation, who hails it as "the first serious innovative thinking in transportation in a half-century." Texas economist Ray Perryman estimates that the TTC could generate $135 billion in annual personal income for Texans and nearly 2.2 million jobs. But not everyone accepts his projection of $13 billion a year in revenues from the corridors. Kara Kockelman at the University of Texas' Center for Transportation Research warns that NAFTA-generated trade could decline and unforeseen crises, like the terrorist attacks in 2001, could affect travel. The state has had to buy back its first private toll road — promoted by a former Democratic candidate for Governor, Tony Sanchez — for $20 million.

None of that has stopped an array of private companies from trying to get a piece of the new Texas road-building boom. Sometime in December, the Texas Transportation Commission, a five-member board appointed by the Governor, will award a $24 billion contract to develop proposals for the TTC's first multimodal corridor — a 600-mile stretch from Mexico to Oklahoma needed for NAFTA trucking and rail. In the running are three consortiums, one headed by the California-based Fluor Corp., another that includes Halliburton's Kellogg Brown & Root subsidiary and a third headed by the Spanish tollway operator Cintra. Fluor got into the game early. It submitted an unsolicited bid for work on the Trans-Texas Corridor in early 2002, before there was even an approved state plan. "Our work on SH 130 is considered the TTC's precursor," says Fluor vice president Steve Dobbs.

The toll issue could come back to haunt the Governor, who is up for re-election in 2006. Perry's hefty donations from construction firms have been noted by public watchdogs. Since 1997, he has received more than $1 million from highway interests, according to reports filed with the Texas ethics commission. Two Republican rivals — Senator Kay Bailey Hutchison and state comptroller Carole Keeton Strayhorn — have opposed the tolling of existing roads. Perry now says he, too, is against conversions, but notes that those decisions are up to local authorities.

Meanwhile, in the town of Hutto, north of Austin, the construction on State Highway 130 is a sign of things to come. Farmers no longer gather at the cotton gin, but the town's first national chain, Home Depot, has moved in. Mayor Mike Ackerman drives by the construction site every day on his way to work and is sanguine about the changing face of his town. "Anything we can do to get traffic moving north and south, we need to do," he says. The question is whether the rest of Texas agrees with him.

Road to the Future? THE VISION: Cars, trucks, and rail and utility lines will travel along the same intrastate corridors, up to a quarter-mile in width. The cost: at least $183 billion, financed primarily by tolls.

THE CASE FOR: A way to move NAFTA traffic and dangerous cargo away from urban areas, relieving congestion. Buying swaths of land now is cheaper in the long run. And with gas taxes unable to support new roads, tolls are needed.

THE OBJECTIONS: The roads will gobble up too much land, may harm the environment and will take business away from the bypassed towns. As for the return of tollbooths — no way!

Private Property Rights

"The number of courts authorized to hear eminent domain cases should be expanded"
– Coby Chase, TxDOT Legislative Affairs Director (November 18, 2004) [more]

Turns private land into State land.

The Trans-Texas Corridor project authorizes the Commission to take private land away from its current owner to lease it for any commercial, industrial or agricultural purpose. More than one-half million acres will become government property used not only for transportation but as State owned rental property in direct competition with private business. [more]

The Commission may acquire, in the name of the state, public or private real property as they determine to be necessary or convenient for the construction, enlargement or operation of the Trans Texas Corridor.

The Commission can lease or sell part of the property, for any purpose, including placing on the adjoining right-of-way a gas station, garage, store, hotel, restaurant, parking facility, railroad track, or billboard under terms they set. They can even lease it back to the original owner or any other public or private entity for unrelated commercial or industrial purposes.

"Property may be leased or a franchise or license granted for any purpose, including use as a facility and use for unrelated commercial, industrial, or agricultural purposes." [Sec. 227.082(d)]

According to the plan the Trans-Texas Corridor will consume 584,000 acres of land. 146 acres will be required per corridor mile. That equates to one acre every 36-feet.

Will not increase nearby property values.

By design the Trans-Texas Corridor will not provide easy, if any, access to the communities it passes by. It will not spur commercial development along its frontage like our Interstate Highways. There will be no frontage. There will be no opportunity for the owners of property it abuts to develop new or expanded businesses with access to the Corridor. Moreover, it has provisions in the plan and the law to place all possible traveler services on the corridor itself thereby denying adjacent property owners of any opportunity to capitalize on the new corridor.

Dividing the State.

This Corridor project is a very wide, very flat, extremely limited access, mostly toll, highway-rail-utility corridor. To cross the Corridor at any point will require a quarter-mile long overpass. These near one-quarter mile wide corridors will cut Texas up into pieces like the Great Wall of China, making it more difficult to get from one place to another. Many landowners will find that they have the choice of keeping land they can no longer access or sell it to the state.

"With a right-of-way approximately 1,200-feet-wide, the proposed corridor
could change the face of agriculture in Texas forever as it
swallows up thousands of production acres of farmland."
— Juliet Briskin, Country World News (November 4, 2004)

"...the commission has the same powers and duties relating to the condemnation and acquisition of real property for a facility of the Trans-Texas Corridor that the commission and the department have relating to the condemnation or purchase of real property..." [Sec. 227.041(a)]

Texas Transportation Commission Legislative Affairs Director
discusses legislative priorities for the next session
-
November 18, 2004 Transportation Commission Meeting

During the last few meetings of the Texas Transportation Commission TxDOT Legislative Affairs Director Coby Chase has appeared on the agenda to discuss the Commission's legislative goals (changes to state laws that affect transportation).

One item that has repeatedly appeared in the draft report of priorities for the upcoming 79th Legislature (starting January 2005), is an expansion of the number of courts that have jurisdiction over eminent domain (land taking) cases.

"The number of courts authorized to hear eminent domain cases
should be expanded" – Coby Chase, TxDOT Legislative Affairs Director

Hear Chase's Remark
31KB - MP3 - 0:15

Mr. Chase explains that because of the large number of projects underway, or in development, it would be more efficient to allow state district courts, in addition to county courts, to hear eminent domain cases.

As we look at a project which plans to consume 584,000 acres of mostly private land, it is chilling to know that TxDOT is anticipating so many eminent domain cases (land takings) that they believe long standing state law should be amended to make that process "more efficient."

The final legislative priorities report will be presented for the Commission's review and approval on December 16, 2004.

Download Complete Discussion Item
5.25MB - MP3 - 45:57

EXCERPTS FROM HOUSE BILL 3588
annotated by CorridorWatch.org

"...the commission has the same powers and duties relating to the condemnation and acquisition of real property for a facility of the Trans-Texas Corridor that the commission and the department have relating to the condemnation or purchase of real property..." [Sec. 227.041(a)] A facility includes a turnpike project. The commission is empowered to take land whenever the owner refuses to sell or they cannot agree on a price for the property.

The law allows the department to acquire real property for a turnpike project and to "provide a location for an ancillary facility that generates revenue for use in the construction, maintenance, or operation of a turnpike project, including a gas station, garage, store, hotel, or restaurant." [Sec. 361.132(d)(5)] While five typical turnpike type businesses are listed, the law does not limit the acquisition to those specific businesses. In fact, other language provides a virtually limitless definition of what enterprises can be accommodated on the Trans-Texas Corridor. "Property may be leased or a franchise or license granted for any purpose, including use as a facility and use for unrelated commercial, industrial, or agricultural purposes." [Sec. 227.082(d)] There is no apparent limit on how much land may be acquired or taken not only for the transportation elements of the Trans-Texas Corridor, but also for the utility zone and for any other ancillary facility. Any venture that has the potential to generate revenue, including private enterprises operating on that land under lease or franchise, is authorized.

The 'quick take' provision of the law provides that the department may file a declaration of taking with the clerk of the court, immediately serve a copy of the declaration on each person possessing an interest in the condemned property, file evidence of the service with the clerk of the court, and may thereupon take possession of the property pending the litigation. [Sec. 361.137(a)] If the condemned property is a homestead or a portion of a homestead the department may take possession of the property on the 91st day after the date of service. [Sec. 361.137(b)] The 'quick take' provision effectively eliminates the traditional opportunity for reconsideration of condemnation. A concessionaire who has a contract in hand and is ready to start construction will move ahead immediately upon the state taking possession. A concessionaire will not be subject to the same political pressures that serve to ensure a reasonable application of the condemnation powers.

The commission has the power to acquire real property (land) located in or contiguous to an existing or planned segment of the Trans-Texas Corridor by any method, including purchase and condemnation. Primary purposes of land necessary for the Trans-Texas Corridor include, "...generating revenue, directly or indirectly, for use in constructing or operating the Trans-Texas Corridor from or for ancillary facilities that directly benefit users of the Trans-Texas Corridor." [Sec. 227.041(b)(5)] Land could be purchased or condemned for virtually any revenue generating purpose. This includes leasing property located in or contiguous to the corridor for commercial, industrial or agriculture purpose unrelated to the construction, maintenance, or operation of the corridor. There is no apparent limit on how much land may be acquired or taken not only for the transportation elements of the Trans-Texas Corridor, but also for the utility zone and for any other ancillary facility. Any venture that has the potential to generate revenue, including private enterprises operating on that land under lease or franchise, is authorized.

The commission has the power to approve the condemnation of real property that it determines, "necessary or convenient to mitigate an environmental effect that directly results from the construction, operation, or maintenance of a turnpike project." [Sec. 361.135(b)(2)] "The department may acquire, maintain, hold, restore, enhance, develop, or redevelop property for the purpose of mitigating a past, present, or future adverse environmental effect arising from the construction or operation of any part of the Trans-Texas Corridor without regard to whether the need for mitigation is established for a particular project." [Sec. 227.028(a)] The department may contract with a governmental or private entity to accomplish environmental mitigation. [Sec. 227.028(b)] The department is authorized to undertake a program of mitigation land banking. Given that the corridor plan identifies the project area to be approximately 580,000 acres, the resulting amount of land that could be subject to condemnation for environmental mitigation is enormous. With the department authorized to acquire such land to mitigate future adverse impacts, mitigation land could be acquired immediately.

"Property may be leased or a franchise or license granted for any purpose, including use as a facility and use for unrelated commercial, industrial, or agricultural purposes." [Sec. 227.082(d)] Leases and franchises may be granted for a period of up to 50 years. [Sec. 227.082] As state owned property such land use will not be subject to any form of local control or regulation. Further, "Covenants, conditions, restrictions, or limitations affecting property acquired in any manner by the department are not binding against the department and do not impair the department's ability to use the property for a purpose authorized by this chapter." [Sec. 361.142] Revenue generation is the driving force. Concessionaires who are authorized to negotiate or otherwise participate in leases or franchises will not be subject to the same political pressures that serve to ensure a reasonable accommodation of abutting property owners and the communities. Landowners in the proximity of the corridor will lose all protections they presently have afforded them by city ordinances, county regulations, private covenants, and deed restrictions.

"...contract with a person for the use of part of a transportation project, or lease or sell part of a transportation project, including the right-of-way adjoining the portion used to transport people and property, for any purpose, including placing on the adjoining right-of-way a gas station, garage, store, hotel, restaurant, parking facility, railroad track, billboard, livestock pasturage, telephone line or facility, telecommunication line or facility, data transmission line or facility, or electric line or facility, under terms set by the authority." [Sec. 370.172(a)(2)] This provision effectively authorized the purchase and taking of private land by the state and the subsequent lease or sale of land to private commercial enterprises.

"An authority is exempt from payment of development fees, utility connection fees, assessments, and service fees imposed or assessed by any governmental entity or any property owners' or homeowners' association." [Sec. 370.175(b)] The fees and assessments made uncollectible by this provision will result in those associated costs being placed back on local taxpayers, utility customers and property owners.

"...the department may require a person, including a governmental or private entity, to pay a fee as a condition of using any part of the Trans-Texas Corridor." [Sec. 227.081(a)] Municipal and other publicly owned utilities present cross over and under state highways without paying a use fee. Application of this provision will result in an ongoing charge to the local taxpayer owned utilities that cross the Trans-Texas Corridor. Where that fee may be paid to a concessionaire it will not be subject to the supervision or regulation by the state.

"Tolls, fees, fares, or other usage charges are not subject to supervision or regulation by any agency of this state or another governmental entity." [Sec. 370.172(d)] This provision provides the opportunity for the concessionaire to have absolute control over all tolls, fees, fares and usage charges within their segment of the corridor. A concessionaire will not be subject to the same political pressures that serve to ensure reasonable tolls, fees and charges.

"The commission by order may convert a segment of the free state highway system to a turnpike project and transfer that segment to an authority, or may transfer an existing turnpike project that is part of the state highway system, whether previously tolled or not..." [Sec. 370.035(a)]

"An authority may impose a toll for transit over an existing free road, street, or public highway transferred to the authority under this chapter." [Sec. 370.176(a)]

"...an authority may not pay compensation for public real property, parkways, streets, highways, alleys, or reservations it takes..." [Sec. 370.169(a)] With the exception a park, playground, designated environmental preserve property, or property owned by or on behalf of this state that under law requires compensation to this state for the use or acquisition of the property, no compensation will be paid for the taking of public real property. Accordingly, every city, county, water district, school district and state agency that owns land not protected by the few exceptions is at risk of taking without compensation. Local taxpayers will bear the expense of replacing needed land lost to the corridor (at the rate of one acre every 36-feet).

"An authority has full easements and rights-of-way through, across, under, and over any property owned by the state or any local government that are necessary or convenient to construct, acquire, or efficiently operate a transportation project or system..." [Sec. 370.169(c)]

[read the entire text - House Bill 3588 at: http://www.corridorwatch.com

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