While the politicians argued that eminent domain would only be used as a last resort, that’s just the club the Texas Turnpike Corporation’s CEO John Crew needs to beat landowners into submission to sign over their land in so-called negotiated settlements. We’ve seen it used prolifically — sign on the dotted line for the amount we’re offering or we’ll take it with eminent domain and pay you even less.
By Terri Hall l March 27, 2017
In a stunning betrayal of open government, the Cibolo City Council voted 6-0 to approve a 50 year development agreement with Texas Turnpike Corporation (TTC) granting it the exclusive right to build, operate and maintain what’s been dubbed the Cibolo Parkway — a tollway linking I-35 to I-10 through mostly rural farmland northeast of San Antonio. The agreement was negotiated behind closed doors and was kept secret from the public until it was approved last night.
Even worse, the city council gave TTC the rights to develop a project the taxpayers have already paid for, the expansion of FM 1103, the city’s primary connection to I-35. By doing so, they’ve granted a private corporation a virtual monopoly over the existing non-toll competitor to its private toll road. TTC can intentionally slow down the free option to force more cars onto its for-profit toll road by manipulating speed limits, access points, and stop lights. It’s a developer’s dream and a commuter’s worst nightmare.
The city tried to reassure residents there is no non-compete clause, prohibiting or penalizing the city from building any competing free roads. The agreement may still bind the Texas Department of Transportation (TxDOT) and the county from expanding free roads. But who knows since no member of the public could see it before the council voted on it? So while the city touts it’s protected taxpayers from a non-compete provision, it handed TTC control of the adjacent competing free lanes of FM 1103, achieving a form of a non-compete out the gate.
The agreement offers no way out for the city, except an eventual buy out opportunity after the road gets built. But those buy out agreements are just as thorny as these complex development contracts. Most private toll road developers require the public entity to pay them for any future loss in toll revenue, often making it more expensive to buy them out than the original cost to build it.
One has to wonder how any elected official could green light approval of a project before a toll feasibility study has been performed, the environmental review complete, or final route selected. It’s worse than putting the cart before the horse, it’s putting special interests above the public interest. The company insisted on having an irrevocable agreement in place with the city before it invested $10-$12 million for the feasibility study. Nice work if you can get it, but what about the taxpayer?
No formal pubic hearings were hosted by TxDOT to notify residents of the proposed project, so unless you happen to look at the city council agenda every two weeks, a resident had no way of knowing what just happened, much less have the ability to stop it since the majority of it was done behind closed doors with a private entity.
Throwing landowners under the bus
Cibolo has become a bedroom community of San Antonio, but before homes stacked the landscape, Cibolo’s roots were decidedly agricultural with farming and ranching dating back to Texas’ days as a republic. The mayor and council weren’t afraid to show their intentions when public discussion about this possible private toll road began to surface last year. Their primary interest is in economic development, which is code for flipping farmland into a commercial tax base. The city acted so desperate for new economic development, it signaled to TTC that it would sell out its current residents for the promise of a higher tax base from its new ones.
The southern boundary of the city that was most recently annexed occurred over the objection of many landowners. Now their worst fears have been realized as a private developer who cozied up to the mayor and council got himself an iron clad contract to mow them over and change their way of life. Roads are disruptive to the native landscape and often split farms in half. Many will not be able to continue farming or even have the ability to access the other side of their property without an overpass (built at the developer’s expense, which isn’t going to happen in most cases). That’s the city’s intent – to drive out the farmers and welcome in big box stores generating lots of sales tax for it to spend. New residents, more traffic, and, they hope, more riders for the toll road.
Eminent domain for private gain
The city has agreed to use eminent domain to take land from its residents and confer it to a private entity for private gain, not for a legitimate public use. While the road is open to the public (so is a mall or restaurant) if they pay a toll, this arrangement is for a private toll road whose corporation will use the city’s police force to become its private toll collector and speed enforcer.
While the politicians argued that eminent domain would only be used as a last resort, that’s the club the TTC’s CEO John Crew needs to beat landowners into submission to sign over their land in so-called negotiated settlements. We’ve seen it used prolifically — sign on the dotted line for the amount we’re offering or we’ll take it with eminent domain and pay you even less.
Numbers don’t add up
In a town of just 25,000 residents, it’s hard to conceive of how any toll road could be profitable. The city must be banking on literally hundreds of thousands of new residents to make the numbers work. Cities with populations over a million and lots of urban congestion have toll roads that can’t pay for themselves. It just doesn’t add up that this little city of Cibolo will provide enough users to pay back $125 million plus interest, plus profit over 50 years. No elected official has any control over the eventual toll rates that will be charged. So, there is no cap or limit. While the consultants tried to say the free market would keep rates in check, roads by their very nature are a monopoly. Just ask the residents in Ft. Worth and Dallas who are paying a private Spanish firm in excess of $20/day in tolls to get to work if they think that’s market rate or reasonable.
But numbers and data don’t matter. The city council seems to think they’re getting something for nothing — even if the toll road goes bankrupt, they get it back at a fire sale price. But the private company knows how to make money even when a toll road goes bankrupt. They put in very little of their own money and borrow the rest. The developer makes their money on the front end so that when it goes south, it’s the bond holders who are at risk, not the developer. If the road goes into bankruptcy, the road will remain operational, but control then gets handed to the bond investors in bankruptcy court where a bunch of the debt gets written down and off the books and the investors hire another operator, starting the process all over again. Control does not revert back to the public or the city. Only if the city exercises its buy out option would the residents get it back under public control.
Taxpayer money in play
The city manager and its lawyers bragged the city had no financial risk in the deal, yet, ironically, the city had to hire extra legal and engineering consultants to review the agreement, which is, of course, at taxpayer expense. There’s more to come since next up is negotiating the formal operating agreement. Policing of this private toll road will also be done by city police. While the developer is supposedly responsible for paying to hire the extra personnel, who is responsible for those public employees’ pensions, benefits, etc.? I’d bet money it’s the taxpayers. Who will collect the tolls and what enforcement does the private company have access to? If it’s anything like the SH 130 tollway, TxDOT does the toll collection and state law allows a user’s vehicle registration to be blocked for failure to play tolls, even when it’s for a private toll road.
The city, like TxDOT, loves to claim the road and right of way is still technically owned by the city and hence the public, but that’s only so the private toll company can use the public’s policing and enforcement powers for its for-profit toll enterprises. For tax purposes, these corporations show ownership and depreciate it like an asset.
Then there’s the tax money it would take to buy out the private developer at some point in the future. No matter how you slice it, Cibolo residents just got sold out by their elected officials. They’ve lost control of FM 1103, the ability to determine the toll rates, the route, the exits, the overpasses, the toll collection procedures, and a whole bunch more. Taxpayers will be paying for extra consultants and legal haggling for the foreseeable future. Accountability at the ballot box will now be your only recourse. Sadly, there are no remaining pain-free options.
Terri Hall is the founder of Texans Uniting for Reform and Freedom (TURF), which defends against eminent domain abuse and promotes non-toll transportation solutions. She’s a home school mother of ten turned citizen activist. Ms. Hall is also a contributor to SFPPR News & Analysis of the conservative-online-journalism center at the Washington-based Selous Foundation for Public Policy Research.