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]

 

 

This Page Last Updated: Thursday December 14, 2006

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