NCTCOG hired Price WaterhouseCooper as "independent auditor" on SH121 knowing they were on Cintra payroll

Cintra's auditor assessed 121 bids

Price Waterhouse's ties to firm it endorsed for toll road not disclosed
Cintra's auditor assessed 121 bids
Price Waterhouse's ties to firm it endorsed for toll road not disclosed
By MICHAEL A. LINDENBERGER and JAKE BATSELL - The Dallas Morning News - - Saturday, June 16, 2007

An accounting firm's evaluation of rival bids to build and operate the lucrative State Highway 121 toll road may not have been as independent as first billed, according to some public officials who will vote on the bids.

Corporate records show that Price Waterhouse Coopers, which was hired to evaluate the bids, has served as outside auditor to the Spanish firm Cintra since 2003. Cintra also paid the accounting firm $100,000 to develop financial models for the controversial Trans-Texas Corridor highway project in 2004.
Mike Eastland, executive director of the North Central Texas Council of Governments, defended his agency's hiring of Price Waterhouse. He said many council members knew about Price Waterhouse's work as Cintra's auditor but acknowledged that he or his staff should have informed the 39-member Regional Transportation Council about the accounting firm's work with Cintra on the Trans-Texas Corridor.
"We did fail, apparently, to convey that to the board, and I'll take responsibility for that," Mr. Eastland said. "It's an oversight on our part. I can see nothing in the [Price Waterhouse] analysis or their way of presenting it that would say we're trying to slant this one way or the other." Executives at the North Texas Tollway Authority, Cintra's rival for the Highway 121 contract, said Price Waterhouse's assessment, delivered to the transportation council on Thursday, was biased.

"Our point is incredibly obvious," NTTA board chairman Paul Wageman said. "The judge of a competition should not be in business with one of the contestants. How can Price Waterhouse Coopers possibly be unbiased and fair in evaluating its partner's proposal against a competitor's?"

"What the NTTA, the RTC members and the region didn't know is that Price Waterhouse Coopers is part of Cintra's team on a [Trans-Texas Corridor] project worth billions of dollars," Mr. Wageman said.

"That's sour grapes," said Cintra's Jose Lopez, president of the company's North American operations.

Cintra's proposal came out looking better simply because it is, Mr. Lopez said. He said Cintra's partnership with Price Waterhouse on the Trans-Texas Corridor was minor and concluded in 2005.

The council of governments paid Price Waterhouse about $200,000 for its report, which was highly critical of NTTA's proposal.
Many members of the Regional Transportation Council had considered the report's conclusions essential. It was to be their only chance to have an independent firm assess the bidders' billion-dollar claims.
By Friday, however, word of the potential conflict had circulated among council members who had gathered in Arlington for an annual luncheon. Some members said they were aware of at least some of Price Waterhouse's ties to Cintra. Others said they learned about them only Friday.

"I just found it out as we were sitting down to lunch here today," said John Murphy, a Richardson City Council member who sits on the RTC. "I'm very disappointed, quite frankly, that we did not have that disclosure made to us, because it does change the perception, and it may change our feelings regarding what is the right picture of the Cintra and NTTA bids."

Given Price Waterhouse's business relationship with Cintra, it's hard to believe the firm could render an objective analysis of the two bids, Mr. Murphy said.

The discussion about Cintra's business relationships with Price Waterhouse comes at a critical time.

The Regional Transportation Council is scheduled to vote Monday on whether to endorse Cintra or NTTA. The Texas Transportation Commission, which sets policy for Texas highways, will meet on June 28 in Austin and is scheduled to make a final decision on the Highway 121 project.


Limited choices

Mr. Eastland said the North Central Texas Council of Governments selected the best accounting firm it could on short notice. The job entailed reviewing highly complex proposals that are hundreds of pages long. The firm had about two weeks to complete its review.

"The fact was we weren't going to get anybody that didn't have a conflict that was capable of doing the work. And then it got down to degree of conflicts. Do we do the study, or do we not do it? ... Were we better off not to have any analysis work done?" Mr. Eastland said. "Or do we take the best that we can get, the most distant from the process?"

Council of Governments transportation director Michael Morris said in an interview earlier this week that the agency had difficulty finding qualified bidders for the analysis the RTC wanted done. Mr. Morris said seven of the nine accounting firms invited to bid on the work declined.

But Barry J. Epstein, an expert in accounting standards of conduct and a lawyer specializing in cases about accounting practices, said Price Waterhouse should never have bid on the contract since it is Cintra's auditor.

"This is beyond the pale," Mr. Epstein said. "They should not have bid for the job, given that one of their clients was a candidate [for the road contract]."

Rigorous protocols

Price Waterhouse defended its decision to evaluate the bids for the RTC, insisting that the Spanish office that audits Cintra's books is separate from the U.S. firm.

"The Spanish audit relationship was fully disclosed to the North Central Texas Council of Governments," said Steven Silber, a spokesman for Price Waterhouse in New York. "In accordance with our independence standards, at no time was there any sharing, or mutuality, of personnel or project information between the teams conducting the bid analysis in Texas and the team auditing Cintra."

Mr. Silber also said the firm rigorously evaluated its relationships with Cintra before submitting its bid.

Some NCTCOG members who agreed to hire Price Waterhouse without knowing about its work in Texas for Cintra said Friday that they might have hired the firm anyway.

"What decision would we have made had we known about the advisory services? I don't know," Tarrant County Judge Glen Whitley said. "That's water under the bridge. I can't tell you what we would have done at that point."

Mr. Whitley said the fact that Price Waterhouse audits Cintra doesn't concern him.

"When you talk about the separateness of that office in Madrid versus this office in this particular area, I do not think that would in any way cause there to be that conflict. The size of the fee that we're talking about here, Price Waterhouse is not going to risk their reputation over a couple hundred thousand dollars' worth of fees."

Mr. Wageman said Thursday's meeting left him and the NTTA "concerned" about the likelihood of getting a fair vote on Monday.

80-Plus Toll Road Projects OK'd

By JIM VERTUNO - Associated Press Writer - © 2007 The Associated Press - June 14, 2007

AUSTIN — Transportation officials on Thursday approved more than 80 toll road projects across the state, many of which probably would use some private financing.

State lawmakers recently passed a two-year moratorium on some private toll road contracts. The law still allows local and state planners to move on the new toll projects _ with a price range of more than $50 billion _ although the rules have changed.
...
"The message we got was toll roads are OK, but we don't want privately owned roads," said Ric Williamson, chairman of the Texas Transportation Commission, which approved the projects.

The projects touch most of the state's largest cities. Williamson said they need to be built as toll roads because traditional state funding won't cover the cost.

"They will be almost 100 percent private sector financing," Williamson predicted.

According to state officials, the agency's $16.6 billion budget the next two years is only a 2 percent increase that won't cover the double-digit inflation in recent years of road costs. Gas tax collections will not even cover road maintenance, let alone support building new roads.
"These are projects local officials have said are needed to reduce congestion but are waiting in line for funding," Williamson said.

Toll roads and the state's aggressive policies regarding the controversial Trans Texas Corridor were among the major issues of the recently completed legislative session.

Legislators from rural areas were concerned about private property rights. Those from urban districts complained of toll roads financed and owned by foreign companies.

"We were moving faster than most government agencies move and it spooked some people," Williamson said.

Lawmakers originally considered a two-year ban on private toll road contracts. Gov. Rick Perry said it would kill jobs, shut down road construction and prevent access to federal highway money.

The compromise bill signed into law by Perry last week freezes some of the kinds of private funding contracts the state had been using, but also carved out about a dozen exemptions for those projects that were far into the planning stages.

It also created new rules for projects like those approved Thursday, giving local governments more authority to build toll roads.

The compromise bill also imposes limits on comprehensive development agreements, used in contracts for private-public road building. It also set up a process to determine a road's market value.

Comprehensive development agreements, or CDAs, are a relatively new tool meant to let the Texas Department of Transportation complete road-building projects more quickly and cheaply by using a single contract for design and construction.
Those agreements have attracted the attention of multinational consortiums willing to pay large sums up front for the right to operate roads and pocket the tolls for decades to come.

That startled some residents and lawmakers who said drivers will become hostages to the private companies, forced to pay increasingly hefty tolls.

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Diminshed Access addressed in eminent domain bill vetoed by Perry

Fort Bend County claimed road projects to cost more if law passed
State Sen. Glenn Hegar disagrees with critics who want governor to veto legislation
By ZEN T. C. ZHENG - Copyright 2007 Houston Chronicle - June 14, 2007

Citing potential higher cost in condemning private property for road projects, Fort Bend leaders are pushing to kill a Texas House bill that would obligate governments to pay property owners for decreased access to their land resulting from eminent domain.

A resolution passed by [Fort Bend] Commissioners Court urges Gov. Rick Perry to veto House Bill 2006, which was sponsored by Sen. Kyle Janek, R-Houston, and sent to Perry for his signature on May 29.

The bill, which was adopted by both the House and Senate last month, aims to reform an existing state law on eminent domain to further protect private-property rights by requiring a comprehensive set of factors — including "diminished access" — to be taken into consideration in the land-taking and compensation process.
Eminent domain, commonly known as condemnation, is the practice in which a government legally seizes private property for public use while paying the owner for the "fair market value" of the land.

Failure to reach an agreement between land owners and the government often leads to condemnation.


'Diminished access?'
The notion of "fair market value" has been of much debate and propelled Sen. Glenn Hegar, R-Katy, to amend the House bill, which specifically obligates local or state government to compensate private land owners for "any diminished access" along state highways or toll road projects.

The amendment was Hegar's second effort to address the issue during the 80th Legislature after Senate Bill 1711, which he authored and was adopted by the Senate, died at the House.

"The current law doesn't take diminished access into account in considering the value of property. That's why I added the amendment to the bill," Hegar said. "If you lose a point of entrance to your property because a road is coming through, that affects the market value of the property."

In protesting the bill, county officials contend that often alternative "reasonable access" to the property remains while a normal access is eliminated because of condemnation and circumstances don't warrant compensation.

They also argue that "diminished access" is a subjective notion open to different interpretations, hence giving rise to potential dispute and litigation.

"The proposed changes in the bill to the government code, the local government code and the property code would result in significant cost increases for local government across the state of Texas," the resolution states.

Hegar dismissed the claim that the term "diminished access" is subjective.

He argued that land valuation can also be a subjective process, which often occurs when government entities resort to condemnation.

"What is the value of your property for the large part depends on the person who does the valuation on it," Hegar said.

Higher legal costs?
County Commissioner Andy Meyers said the bill would fatten the pockets of attorneys representing property owners. County Judge Bob Hebert agreed.
...
Hegar said if an alternative access remains as an equal access without causing problem for the property owner, then it would not be regarded as "diminished access" and would be a nonissue.

"It's no different than your house. If all the doors are boarded up except for your window, you can still come into the house crossing the window. You still have access to your house, but it's diminished," he said. "That's the problem the bill is trying to address."
Commissioner Tom Stavinoha said Hegar's effort was in response to requests from farmers groups, who Stavinoha said were not informed about the impact of the bill.

Hegar said he was approached by Texas Farm Bureau and Texas and Southwestern Cattle Raisers Association, whose members are concerned about possible condemnation of their land by the state Trans-Texas Corridor project, which is on hold due to a two-year legislative moratorium.
"It's a very real issue, more so in rural areas, such as Fort Bend," Hegar said. "I'm a pro-property rights individual. And I don't understand why private property rights are such a bad thing."
In urging Perry to veto the bill, the county resolution states that the bill would have "detrimental financial impact on local governments trying to improve mobility within their communities."

Hegar said the claim is "not supported by facts."

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Eminent domain bill among 49 Perry vetoed

Hundreds of new laws take effect at end of August
By JANET ELLIOTT - Copyright 2007 Houston Chronicle Austin Bureau - June 16, 2007

AUSTIN — An eminent domain bill that opponents said could shut down road construction was among 49 bills vetoed Friday by Gov. Rick Perry.

Perry also struck bills involving ex-convicts' right to possess firearms, increasing the early release of prisoners and prohibiting school buses from idling near campuses.

Although the governor has until Sunday to review legislation, he completed his bill signings and vetoes on Friday night. Most of the hundreds of bills that he has signed into law will go into effect by the end of August.

Major legislation approved by Perry will add up to 130,000 more children to the Children's Health Insurance Program by allowing many working parents to enroll their youngsters annually instead of every six months.

The governor also signed "Jessica's Law," a major priority of Lt. Gov. David Dewhurst, to hike penalties for pedophiles, including expanding the death penalty to those who twice commit the most heinous forms of child rape.

Also becoming law with Perry's signature was legislation requiring insurance companies to pay for treatment of children with autism. The Texas Association of Business had urged Perry to veto the bill because of the group's standing opposition to mandates on employers.

But advocates said the measure requiring companies to cover treatment for 3- to-5-year-old children with autism, would give families hope, save some from bankruptcy and reduce long-term costs for taxpayers.

The eminent domain bill, HB 2006, had enjoyed Perry's support until an amendment was added late in the session that state and local officials said could cost taxpayers billions of dollars. The amendment would have allowed property owners to sue for "diminished access" to their property because of new roads or road construction. Current law requires property owners to show "material or substantial damages" before seeking compensation.

Another provision would have allowed the recovery of damages for changes in traffic patterns and visibility of the property from the road. Texas courts have long disallowed this practice because it would make some public projects too expensive to build, Perry said.

He said he had alerted legislators who handled the bill to his concerns. But House author Rep. Beverly Woolley, R-Houston, said she feared there wasn't time in the last days of the session to work out compromise language.

The bill was strongly supported by Republicans as a response to a controversial decision by the U.S. Supreme Court on private property rights.

But Perry said he had received letters from many fast-growth cities and counties asking him to veto it because the cost of constructing projects will increase by more than $1 billion.

Sen. Glenn Hegar, R-Katy, who offered the amendment that Perry opposed, said he was stunned by the reaction from local officials. He said the amendment was identical to a failed bill he carried but that "no one testified against it, no one came to visit me, no fiscal implication (was added to it)."

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Board members and conflict of interest ethics violations

Several members of the NCTCOG RTC are probably in violation of Chapter 176 of the Local Government Code which reads:

(4) describe each affiliation or business
relationship with a corporation or other business entity with
respect to which a local government officer of the local
governmental entity:
(A) serves as an officer or director; or
(B) holds an ownership interest of 10 percent or
more;
(5) describe each affiliation or business
relationship with an employee or contractor of the local
governmental entity who makes recommendations to a local government
officer of the local governmental entity with respect to the
expenditure of money;
(6) describe each affiliation or business
relationship with a person who:
(A) is a local government officer; and
(B) appoints or employs a local government
officer of the local governmental entity that is the subject of the
questionnaire; and
(7) describe any other affiliation or business
relationship that might cause a conflict of interest.
(d) A person described by Subsection (a) shall file an
updated completed questionnaire with the appropriate records
administrator not later than:
(1) September 1 of each year in which an activity
described by Subsection (a) is pending; and
(2) the seventh business day after the date of an event
that would make a statement in the questionnaire incomplete or
inaccurate.

Refer to the Chapter 176 Local Government Code

The By Laws of the RTC cites adherence to Chapter 171 of the Local Government Code which has a more narrow interpretion of Conflict of Interest.

At the June 14 RTC Meeting of the NCTCOG, a member inquired about possible conflicts of interest by RTC members specifically in relation to the upcoming vote on awarding the lucrative SH121 contract at the Monday, June 18th RTC meeting. A specific question was asked about members of the RTC who are TxDOT officials refraining from voting. A NCTCOG official replied that it would be left to the members, including NTTA Board Member Dallas Mayor Lauri Miller to decide whether they have a conflict of interest.

In a February phone call to NCTCOG Executive Director Mike Eastland, he stated that "We (the NCTCOG) do not usually attempt to enforce ethics conflict of interest rules on members of committees who are appointed by member governments." When questioned about a specific member with alliances which created at the very least, the impression of a conflict of interest, Eastland replied: "You'll have to go to the District Attorney in the county where the member lives to file a complaint of ethics violations." Concern was expressed to Mr. Eastland that the NCTCOG did not attempt to monitor ethical conduct of members serving on their boards and commissions in regard to actions in relation to their service on NCTCOG Boards and Commissions.

Application of ethics rules by Councils of Governments varies:
in March 2007, the Executive Director of the East Texas Council of Governments said: "We take very seriously the actions of members of boards and commissions as well as staff in service to the COG. Our attorney explains very clearly to all our members that they are to avoid conflicts of interest and the perception of conflicts of interest." He said that they "monitor and try to avoid possible violations," rather than referring them to the home county of the members. This statement was made in a telephone call within days of NCTCOG Executive Director Mike Eastland's explanation that at the NCTCOG they leave it to each member to determine if they have a conflict of interest.

At the RTC June Public Meeting in Arlington, concern was expressed that three members of the RTC serve on the Board of Directors of NASCO CORRIDOR, an organization with a mission statement to influence local, regional, state and federal governments to enact laws and fund improvements and construction of multi state tranportation corridors to priotize the shipment of international cargo over passenger transportation solutions. NCTCOG Transportation Director Mike Morris stated he saw no conflict of interest in three NASCO CORRIDOR Board Members (Tarrant County Judge Glen Whitley, RTC Chairwoman Denton County Commissioner Cynthia White and RTC member Denton Mayor Pro-tem Tex Kamp) serving on the Regional Transportation Committee, where they set policies for this region and vote awarding contracts for construction projects.

Thursday June 14 at the RTC meeting was the first time since these queries earlier in the Spring to Executive Director Mike Eastland, that RTC members have openly discusses possible conflicts of interest of RTC members. Those members who voiced the subject are to be commended. Commissioner Maurine Dickey of Dallas asked how the NCTCOG RTC bylaws address conflict of interest. Staff replied that they 'were not sure' but would research it and post the bylaws on the RTC website before the Monday meeting.

Examining the bylaws today revealed that the bylaws address adnerence to Chapter 171 of the Texas Local Government Code. It is recommended that the NCTCOG instruct its members and vendors that they must also adhere to Chapter 176, which addresses Members of Board of Directors as having conflicts of interest in addition to those who own 10% financial interest in a business or investment.

City of Arlington June 19th Agenda includes Transportation

By Faith Chatham - June 13, 2007

Arlington City Council has two transportation items on the Agenda for the Tuesday afternoon, June 19th, 2:30 p.m. meeting.
1. Discussion of informal staff reports regarding Commuter Bus Service to Intermodal Facility.
2. Discussion of miscellaneous items - Transportation issues.

Other topics on the agenda include media reports, appointments to boards and commisions, and city construction projects.

The Arlington City Council's June 19th 6:30 p.m. Evening Meeting Agenda includes appointments to boards and commissions, and two items regarding bridges at IH 30.

Resolution:
1. Three Bridges at Interstate Highway 30 Project, Phase II-J.D. Higgins Co., Inc.:
A resolution authorizing the settlement of negotiations relative to the acquisition of a fee simple property rights in, over and through land being a portion of Tract A, Panhandle Park Subdivision, 1610 Industrial Court, City of Arlington, Tarrant County, Texas.
and
2. Three Bridges at Interstate Highway 30 Project, Phase II-Shurgard Texas
Limited Partnership
A resolution determining a public necessity to acquire certain property interests
rights required for the construction of the Three Bridges at Interstate Highway 30
project, Phase II; giving notice of an official determination to acquire property for
the project; establishing procedures for the acquisition of property; appropriating funds; declaring the necessity to acquire drainage and temporary construction
easement interests in land being a portion of Lot E-1, Block 3-B, Parkway Central
Addition, 500 E. Lamar Blvd, City of Arlington, Tarrant County, Texas, through
condemnation, for the purpose of constructing the project, and, if necessary,
ordering the condemnation of said property interests to proceed.

Other agenda items pertain to acquisition of Right of Way:

3. Pleasant Ridge Road/Glen Springs to Bowen Road - Brooks; Project No.
ST91-11
A resolution determining the necessity of acquiring right-of-way easement rights
in, over and through land being a portion of Lot 1, Block 3, Glen Ridge Addition;
4200 Annies Lane, City of Arlington, Tarrant County, Texas.
4. Pleasant Ridge Road/Glen Springs to Bowen Road - Torre; Project No.
ST91-11
A resolution determining the necessity of acquiring right-of-way and intersection
visibility easement rights in, over and through land being a portion of Lot 1, Block
4, Glen Springs Drive, City of Arlington, Tarrant
County, Texas.

POLITICAL MONEY AND THE TRANS TEXAS CORRIDOR

POLITICAL MONEY AND THE TRANS TEXAS CORRIDOR

One of the many “shadow figures” that seem to be emerging concerning the TTC is Paul A. Yarossi, president of HNTB Holdings, Ltd., based in New York City.

First, HNTB is locally associated in the Dallas Fort Worth Region with three main projects. Major design and contractor in both the Dallas “High Five” interchange and Terminal D at DFW International Airport, and as a special consultant for the Regional Transportation Commission of the North Central Texas Council of Governments -- in fact, HNTB even designed the website for the RTC.

The third item is what is of most interest since the RTC is helping to decide a system of Toll Roads that the TTC must have for success. Dallas and Fort Worth sit atop the major NAFTA corridor, Interstate 35.

It may be no coincidence that HNTB also operates Tolls Roads and constructs bridges and railways.

But back to Yarossi. He seems to understand the relation between “political contributions” and successfully getting contracts inked.

Consider, for example, he contributed $3,000 to Texans for Rick Perry in 2004. Or that he contributed $2,000 to Michael Krusee, Chair of the Transportation Committee, Texas House District 52. in 2006.


Perhaps these Republicans should not be smug. Yarossi also contributed to Hillary Clinton $2,000 in 2006 and has contributed to both Political Parties in New Jersey for years. He does, primarily, seem to contribute to Republican causes outside of New Jersey though.

But why single out Yarossi? Perhaps because he also co-chairs the American Road & Transportation Builders Association’s “SAFETEA-LU Reauthorization Task Force.” They are to offer their suggestions for Federal Legislative Actions by 2009. Meanwhile he also co-chairs ARTBA’s Grassroots Strike Force, about 30 national firms.

National firms equal “Grassroots?” WHAT?

Meanwhile, Perry shows a pattern. For example, after a pharmaceutical corporation gave him a few thousand dollars, he issued an executive order that all public school girls must receive a vaccine from that corporation by the age of 12 (the order was revoked by the Texas Legislature and Public Opinion.). Now, he gets a few thousand dollars, and HNTB rolls onward.

Paul A. Yarossi seems to understand the effect of “political contributions” and success in business contracts paid for by taxpayers.

Paul Adrian reports three out of four gallons of water may go to gas exploration

Tonight (Tuesday, June 12th) at 9 on Fox4 KDFW-TV DFW - Paul Adrain will air an investigative journalism video titled "GAS DRILLING BOOM BRINGS WATER WORRIES">

Adrian reports:

Making a gas well productive requires the use of a tremendous amount of water. How much? Well, lets just say, predictions for one county in coming years show three-out-every-four gallons used in the county will likely go to the natural gas industry.

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Criticism jeopardizes Trans-Texas Corridor

By Bob Campbell - Staff Writer -Midland Reporter-Telegram - June 12, 2007

The proposed Trans-Texas Corridor system of "super highways" has become so controversial it may be discarded, a spokesman for the Texas Public Policy Foundation in Austin said Monday.

Addressing 100 people at a Petroleum Club luncheon, Research Fellow Talmadge Heflin said scathing criticism led the 80th Legislature to put a two-year moratorium on projects like the corridor that entail contracts with private companies.

Answering a question from local foundation supporter J. Evetts Haley Jr., Heflin said, "If the waves over Texas about the corridor continue, it will probably meet its demise."

Lawmakers said they were dubious about the corridor's private property impingements and probable high profits for consortium leaders Zachry Construction of San Antonio and the Cintra Corp. of Madrid, Spain.

Heflin, a former 22-year Houston state representative who was chairman of the House Appropriations Committee, praised legislators for ending the session May 28 with a $7 billion surplus.

He also commended them for thwarting North Texas representatives controlled by the Dallas Area Rapid Transit Authority who tried to increase the city sales tax ceiling to 10 percent. "We need to keep the sales taxes where they are," said Heflin.

Foundation board member Ernie Angelo opened the event by saying the group's experts not only write good policy but also maximize their influence by disseminating their analyses to the Legislature. "These folks have an impact," Angelo said.
...
Foundation President and Vice President Brooke Rollins and Mary Katherine Stout noted their organization is largely supported by private donations. Its other Midland board member is Tim Dunn, who said it is effective because "facts and truth have an impact."

Dunn said lawmakers should have dedicated the surplus to a property tax reduction above the school tax cuts enacted last year.

Wagon Wheel Ranch owner Odis Holiman of Midkiff said mineral rights owners do not adequately compensate surface rights owners for damages done during oil production. "They don't have to negotiate and they don't," he said.

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Perry signs legislation to halt private toll roads

But the moratorium excludes virtually all North Texas projects
By CHRISTY HOPPE and JAKE BATSELL - The Dallas Morning News - Monday, June 11, 2007

AUSTIN – Gov. Rick Perry signed a new transportation law (SB792) Monday that
eases some of the fears over runaway toll roads and gives local
authorities more control over road projects.

The bill was a compromise hammered out in the final days of the
legislative session between the governor, who has championed private
toll roads as a way to quickly build highways without raising taxes, and
lawmakers, who have felt the wrath of rural landowners and skeptical
urban commuters.

Legislators revisited a 2003 law that many felt had hidden consequences,
such as allowing private firms to take over large swaths of the state
highway system, stripping property owners of their land and discouraging
public entities from competing for toll projects."Texas was becoming the test tube for private equity plans," said Rep.

Lois Kolkhorst, R-Brenham, who pushed for a two-year moratorium on
private toll deals.

Lawmakers initially – and overwhelmingly – passed a bill that would have
placed more restrictions on the governor's efforts to privatize roads.

Mr. Perry vetoed that bill.

The bill he signed Monday has a partial moratorium in place. But the
two-year freeze was dubbed the "Swiss cheese moratorium" because it's
riddled with exemptions, including virtually all North Texas toll roads
already in the works.

"I am proud to sign this legislation because it will help Texas build
the roads we need to manage our state's tremendous population growth,"
Mr. Perry said.

The bill halts at least one project in San Antonio. And Texas
Transportation Commission members have said the moratorium, despite all
its exemptions, still sends a chilling effect to private investors.

"A seemingly innocuous moratorium is, in effect, a freezing of the
entire program," said Ric Williamson, the commission's chairman, in an
earlier interview.

Mr. Williamson acknowledged that the past five months were humbling for
the Transportation Department.

Lawmakers repeatedly criticized what they described as the agency's (TxDOT)
rogue and arrogant tactics in awarding toll road deals."The whole process has been inalterably changed," he said. "We know
clearly what [lawmakers'] concerns are, what they want us to do, what
they don't want us to do. And we will change our behavior accordingly."

The bill gives local entities such as the North Texas Tollway Authority
the first option to build toll projects, limits private toll contracts
to 50 years and establishes a new process to determine a road's market
value.
On Thursday, transportation commissioners will consider a list of
possible projects to develop under the new legislation, which takes
effect immediately.
...
As lawmakers sought to curb private toll roads, they also thwarted bids
to raise the state gas tax to keep up with inflation and to expand
transit systems through voter-approved sales-tax hikes. They even toyed
with suspending the gas tax for the summer.
...
"What people seem to forget in this whole debate about roads is that the
citizens always pay for the roads," said Sen. Robert Nichols,
R-Jacksonville, a former transportation commissioner and a leading
backer of the moratorium. "The question is, how do you want to collect
the money?"

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ACTION ALERT - Tarrant County Commissioners Court and Eminent Domain

by Faith Chatham - June 11, 2007

Tarrant County Commissioner to vote on sending letter
Urging Governor to veto HB 2006 at Regular meeting
Tarrant County Commissioners Court - 10 a.m., Tues., June 12

Linda Lancaster addressed the court last week and urged them not so sign the Letter Judge Glen (supercorridor at public expense) Whitley wants them to send to Governor Perry urging him to veto HB 2006 - the eminent domain bill.
The bill, which restores some of the protections the NASCO Corridor group pushed to get enacted. (Whitley and RTC chairwoman Cynthia White and Denton Mayor Pro-tem and RTC member Tex Kamp - serve on the NASCO Corridor Board of Directors) NASCO lobbied to get propert rights stripped from property owners through passage of legislation legalizing use of private public partnerships for construction interstate (international) super transportation corridors funded by gasoline tax money, public bonds and tolls on existing and future state and federal highways. NASCO'S MISSION STATEMENT includes:

To be a strong advocacy and lobby group for transportation and related issues and interests of the jurisdictions along the corridor.

We urge all Tarrant County Citizens to appear at the Tarrant County Commissioner's Court meeting tomorrow (Tuesday, June 12 -10:00 a.m.) and speak out against the Commissioners Court sending this letter urging Governor Perry to veto this eminent domain bill.
To gain federal, provincial/state, and municipal government support in all three NAFTA countries.

To gain and maintain tri-lateral private sector membership support for NASCO’s vision and goals.

To push for, facilitate and support any Corridor related projects or initiatives that focus on enhancing the security, safety and efficiency of transportation, trade processing and logistics systems along the corridor

All state representatives and state senators from this 16 county North Central Texas Region voted for the bill, yet Tarrant County Judge Glen Whitley is pushing hard to get the Governor to veto it! Citizens of Tarrant County testified at the TxDOT hearing, expressing outrage and anger that the eminent domain laws had been changed to accomodate the special interests of big monied backers of the TTC -- many of whom are financial backers of NASCO).

Anyone who attempt to persuade the public to believe that it is necessary to veto this bill in order to acquire property at a fair price through the exercise of eminent domain is lying. This bill does not prevent the exercise of eminent domain for legitimate uses which are in the public good. This bill defines legitimate use of eminent domain:

A governmental or private entity may not take private property through the use of eminent domain if the taking:
(1) confers a private benefit on a particular private party through the use of the property;
(2) is for a public use that is merely a pretext to confer a private benefit on a particular private party; [or]
(3) is for economic development purposes, unless the economic development is a secondary purpose resulting from municipal community development or municipal urban renewal activities to eliminate an existing affirmative harm on society from slum or blighted areas under:

While restoring some protection to the citizen-property owner, this bill does not prevent exercise of eminent domain for legitimate projects for the public good.

(c) This section does not affect the authority of an entity authorized by law to take private property through the use of eminent domain for:
(1) transportation projects, including, but not limited to, railroads, airports, or public roads or highways;
(2) entities authorized under Section 59, Article XVI, Texas Constitution, including:
(A) port authorities;
(B) navigation districts; and
(C) any other conservation or reclamation districts that act as ports;
(3) water supply, wastewater, flood control, and drainage projects;
(4) public buildings, hospitals, and parks;
(5) the provision of utility services;
(6) a sports and community venue project approved by voters at an election held on or before December 1, 2005, under Chapter 334 or 335, Local Government Code;
(7) the operations of:
(A) a common carrier pipeline [subject to Chapter 111, Natural Resources Code, and Section B(3)(b), Article 2.01, Texas Business Corporation Act]; or
(B) an energy transporter, as that term is defined by Section 186.051, Utilities Code;
(8) a purpose authorized by Chapter 181, Utilities Code;
(9) underground storage operations subject to Chapter 91, Natural Resources Code;
(10) a waste disposal project; or
(11) a library, museum, or related facility and any infrastructure related to the facility.

It seeks to clarify and restore balance and fairness to the process, by stating that

the governmental entity must authorize the initiation of the condemnation proceedings at a public meeting by a record vote.

It stipulates that the public use for which the property is condemned must be stated in the motion.
If the property is not used for that use in ten years, the land owner is allowed to repurchase the land for the same amount the governmental entities paid them for it.

The bill stipulates that governmental entities seeking property through eminent domain condemnation process must negotiate with the landowner fairly.

BONA FIDE OFFER REQUIRED. An entity with eminent domain authority that wants to acquire real property for a public use must make a bona fide offer to acquire the property from the property owner voluntarily. A bona fide offer is an offer that is not arbitrary or capricious and is based on a reasonably thorough investigation and honest assessment of the amount of the just compensation due to the landowner as a result of the taking.

It stipulates that citizens must be informed of their right to repurchase the property.

DISCLOSURE OF INFORMATION REQUIRED AT TIME OF ACQUISITION. A governmental entity shall disclose in writing to the property owner, at the time of acquisition of the property through eminent domain, that:
(1) the owner or the owner's heirs, successors, or assigns are entitled to repurchase the property if the public use for which the property was acquired through eminent domain is canceled before the 10th anniversary of the date of acquisition; and
(2) the repurchase price is the price paid to the owner by the governmental entity at the time the governmental entity acquired the property through eminent domain.

It requires that the governmental body must submit evidence of fair market value before the property is condemned.

EVIDENCE. (a) For the purposes of this section, market value is the price a property will bring when offered for sale by a person who desires to sell the property, but is not obliged to sell the property, and is bought by a person who desires to buy the property, but is not under a necessity to buy the property.
(b) As the basis for assessing actual damages to a property owner from a condemnation, the special commissioners shall, subject to the Texas Rules of Evidence, admit evidence on:
(1) the market value, before the condemnation, of the property being condemned;
being condemned;
(2) subject to Section 21.042, the net change to the market value of the property owner's remaining property, considering both injury and benefit to the property owner; and
(3) [(4)] the use of the property for the purpose of the condemnation.

It also attempts to address loss of value and access issues:

(e) If a portion of a tract or parcel of real property is condemned for the use, construction, operation, or maintenance of the state highway system or of a county toll project described by Chapter 284, Transportation Code, that is eligible for designation as part of the state highway system, the special commissioners shall consider any diminished access to the highway and to or from the remaining property to the extent that it affects the present market value of the real property, including any factors considered when determining actual fair market value of property for ad valorem tax purposes.

It provides some relocation compensation.

(a) A department, agency, instrumentality, or political subdivision of this state shall [may] provide a relocation advisory service for an individual, a family, a business concern, a farming or ranching operation, or a nonprofit organization that [if the service] is compatible with the Federal Uniform Relocation Assistance Advisory Program, 23 U.S.C.A. 501, et seq.
(b) This state or a political subdivision of this state shall [may], as a cost of acquiring real property, pay moving expenses and rental supplements, make relocation payments, provide financial assistance to acquire replacement housing, and compensate for expenses incidental to the transfer of the property if an individual, a family, the personal property of a business, a farming or ranching operation, or a nonprofit organization is displaced in connection with the acquisition.

If the courts find that govenmental entites do not make bona fide good faith offers to land owners based on fair market value, this bill stipulates that the landowner/citizens legal fees will be paid by the governmental entity.

(d) If a court hearing a suit under this chapter determines that a condemning entity did not make a bona fide offer to acquire the property from the property owner voluntarily as required by Section 21.0112, the court shall abate the suit and order the condemnor to make a bona fide offer. If the court finds that by filing a petition under Section 21.012 or by filing any other motion or pleading in the proceeding initiated by the filing of that petition the condemnor violated Chapter 10, Civil Practice and Remedies Code, the court shall order the condemnor to pay:
(1) all costs as provided by Subsection (a); and
(2) any reasonable attorney's fees incurred by the owner that are directly related to the violation.

This bill is about fairness.

Judge Whitley is not serving the good of the citizens of Texas and of Tarrant County in pushing for a veto of this bill.