Documents contradict claims of toll road 'bait and switch'

11:56 PM CDT on Saturday, August 11, 2007
By BRUCE TOMASO / The Dallas Morning News
btomaso@dallasnews.com

Opponents of the Trinity River toll road say city leaders pulled a fast one nine years ago, promising Dallas voters a beautiful downtown park and delivering a hideous highway instead.

They accuse the city of a "bait-and-switch," contending that when voters approved a 1998 bond issue for Trinity River improvements, they thought they were voting for a "parkway," a sort of Turtle Creek Boulevard by the river – while what's being planned instead is a multi-lane, high-speed freeway, something closer in concept to the Dallas North Tollway.

But a review of city and state documents, court records, news coverage and campaign materials put out by both sides in the months before the 1998 bond vote shows clearly that the city intended to build a tollway inside the levees.

Those records, thousands of pages of them, show that city officials and state transportation planners thought a major reliever route was needed to alleviate traffic congestion downtown and along Stemmons Freeway.

"I can tell you unequivocally and emphatically that we never, ever misrepresented the nature of what was being proposed. We were proposing a highway," said former Mayor Ron Kirk, who pushed hard for passage of the Trinity bonds in 1998.

"In everything we communicated, we made that clear to voters. And the opponents of this project know that. If they're saying otherwise, it's totally disingenuous."

But Dallas City Council member Angela Hunt, the driving force behind a November referendum to kill the toll road, said if anyone's being disingenuous, it's Mr. Kirk and his allies. She points again and again to the language on the May 2, 1998, ballot, which described the project only as the "Trinity Parkway and related street improvements."

"If the people who support this road are so certain that everyone understood that what was being proposed was a huge, high-speed toll road with no direct access to the park, then why in the heck wasn't that on the ballot?" Ms Hunt said.

"If what you intend to build is a high-speed toll road, to describe that to voters as a 'parkway' – there's something purposefully deceptive in that."

A lawsuit brought by environmentalists in 2000 unsuccessfully sought to halt the Trinity project on those very grounds. The suit argued that city leaders had altered the project substantially after voters approved the 1998 bond issue.

"Bait-and-switch is a perfect description," James Blackburn, the Houston lawyer who represented the environmentalists, said last week. "They called it a 'parkway' for a reason. If they had called it a toll road, it might never have been approved."

The environmentalists lost that argument, however. On Sept. 18, 2001, state District Judge Anne Ashby ruled in the city's favor, saying the bond proposition "constitutes a valid contract with the voters."

The Court of Appeals in Dallas upheld the city's position on June 6, 2002. The appellate court ruled that there was no reason a "Trinity Parkway" couldn't be a multi-lane, high-speed tollway, if that's what the City Council wanted to build.

"There is nothing in the language of the proposition that defines the specific number of lanes, speed limit, or configuration," the appellate court wrote. "Rather, specific parameters are not included, most likely so that the city would have the needed discretion to define the specific roadway as all the component parts come together."

In addition to the road, the $246 million bond package called for construction of a downtown park with lakes; flood-control improvements; acquisition of hardwood bottomlands south of downtown in the Great Trinity Forest; and other recreational amenities.

Ms. Hunt said that today, as she goes around talking to voters, "when I say, 'Do you know they're building a toll road where we're supposed to have our downtown park?' they look at me in disbelief. They look at me and say, 'What are you talking about? That's the dumbest idea I've ever heard.' "

Voters may indeed decide this fall that building the Trinity toll road is a dumb idea. And many of them thought it was a dumb idea nine years ago.

The Trinity bonds were narrowly approved – by fewer than 2,400 votes. Ten other bond proposals – for things like parks and playgrounds, a new police headquarters, a fire station, libraries and an animal shelter – won overwhelming public support.

"One of the major points of public debate back in 1998 was the toll road," said Craig Holcomb, the former Dallas City Council member who supported the bond issue and who now leads the group opposing Ms. Hunt's referendum.

"People who voted against the Trinity bonds weren't opposed to the Great Trinity Forest. They weren't opposed to an equestrian center. The controversy was about the toll road."

The list of documents that identified the Trinity Parkway as a planned toll road before the May bond vote is a lengthy one:

•The city printed 20,000 booklets (5,000 in Spanish, 15,000 in English) to distribute to voters in advance of the election. The 18-page booklet summarized all the propositions on the ballot. The summary of Proposition 11, the one to authorize the Trinity bonds, described the proposed Trinity Parkway as "a 6-8 lane reliever route" and said: "This project is under consideration by the North Texas Tollway Authority for development as a toll facility."

•On Nov. 5, 1997, the City Council was briefed on "Trinity Corridor Transportation Improvements." Printed materials for that briefing discussed options for speeding up construction of the Trinity Parkway by building it "as a toll facility."

•In the weeks leading up to the election, supporters of the bond issue mailed out slick color brochures to about 75,000 households, urging voters to approve the bonds. The brochures could not have portrayed the Trinity project in more glowing terms. They included watercolor drawings of sailboats on the downtown lake, a bubbling fountain, bicyclists, street vendors, a couple in a canoe. (There is nothing in the drawings that looks anything like a highway.) The brochures likened the Trinity project to "San Antonio's bustling Riverwalk ... New York's beautiful Central Park ... Austin's scenic Town Lake."

Yet, even this exuberantly flattering brochure made it clear to anyone who read the text that "a system of tollroads" was part of the deal.

•A political ad purchased by opponents of the Trinity project was published in The Dallas Morning News on April 28, 1998, four days before the bond vote. The ad urged voters to reject the bond proposition. One reason: "Proposed eight-lane tollway inside the levee would increase pollution."

•In the 10 months preceding the 1998 bond election, there were at least 27 news stories, four editorials, two letters to the editor and two "op-ed" commentaries in The News that described the road as a toll road.

Both commentaries were written by environmentalists who opposed the Trinity project. One called the project the "mayor's exorbitant scheme" and said it included "costly, dangerous, polluting toll roads inside the levees." The other said, "The construction of an eight-lane tollway within the levee system ... isn't economically or environmentally sensible."

•Jim Schutze, a columnist for the Dallas Observer, wrote a lengthy story denouncing the Trinity project on Jan. 22, 1998 – 14 weeks before the election. Today, Mr. Schutze echoes the line of Ms. Hunt's group, TrinityVote, that what happened back in 1998 was a bait-and-switch – a phrase he used in an Aug. 2 appearance on KERA-FM (90.1). "This was presented to people as a park and lakes and sailboats," he told KERA's listeners.

But his 1998 story made it clear that he, at least, was aware that the Trinity bond proposal called for a toll road. In it, he referred to the role of the North Texas Tollway Authority ("a bunch of road hucksters hungry for work"). He described the toll road's route and how it would be built using fill dirt excavated from the riverbed. And he talked about how financing for the transportation aspect of the Trinity project was critical to the project's overall completion.

"Without the road money," he wrote, "the river plan doesn't work financially."

Mr. Schutze did not return telephone calls or e-mail messages seeking his comment for this story.

•Elsewhere, the Observer, on April 23, 1998, described the Trinity project as "a fetid, mosquito-infested lake in a treeless park bounded by expressways – all paid for with taxes."

Former Mayor Laura Miller, who succeeded Mr. Kirk in office, was running for the City Council for the first time in that same May 1998 election. (She would win and go on to represent an Oak Cliff district.)

As a candidate, she opposed the Trinity bond project.

That's because she didn't like the toll road, she said last week.

"We all knew there was a highway in the river bottom," she said. "And I didn't like anything about it, and I said so loud and clear."

In 2003, as mayor, she led an effort to revamp the toll road design, making it more environmentally sensitive. The new design, unanimously adopted by the City Council that December, reduced the number of lanes and shifted them all to the downtown side of the river, providing unfettered access to the river park from the Oak Cliff side.

Ms. Miller, now a strong supporter of the Trinity project, said she is "frustrated and dismayed" by the current efforts of Ms. Hunt and her supporters to undo that work.

Those who accuse the city of a bait-and-switch often point to a March 1998 study by the Texas Department of Transportation, the "Trinity Parkway Corridor Major Transportation Investment Study." That thick document offers a comprehensive look at the city's downtown traffic woes and transportation needs.

That study does describe the proposed Trinity Parkway as something akin to what Ms. Hunt's group has in mind – "a lower speed parkway design rather than a freeway design," with a posted speed limit of 45 mph. (Her referendum would limit any road inside the levees to two lanes in each direction and a speed limit of 35 mph.)

However, on the next page, the study said: "Some or all of the Trinity Parkway reliever route could be constructed using toll funding" – a decision, in fact, that the city had already made by March 1998.

And if that happened, the study said, "some design changes could be necessary," meaning the road would have to be built as a high-speed, multi-lane freeway, to move more cars more quickly.

"No one is going to pay a toll to drive 35 miles an hour," Paul Wageman, chairman of the North Texas Tollway Authority, said in an interview last week.

Ms. Hunt, however, reiterated that if the city wanted to build a high-speed toll road providing little access to the park, it should have just said so.

"If that was the case, then that can be stated on the ballot," she said. "Why not be honest with people?"

Ray Hutchison, who represented the city in the 2000 lawsuit brought by Mr. Blackburn, said general, even vague, language is common in bond proposals. (Mr. Hutchison's firm, Vinson & Elkins, also employs Mr. Kirk, the former mayor.)

"You've got a lot of discretion in the issuance of bonds in how you frame the proposition," said Mr. Hutchison, a nationally recognized expert in public finance law.

"But once you frame the proposition, you're stuck with it."

He said, for example, that if the City Council issued bonds "for the improvement of Main Street between Harwood and Ervay, it couldn't turn around and use the money for repairs on Elm Street."

But if the proposition just said, "for downtown street improvements," the council would have the leeway to use the money where it saw fit.

In the case of the Trinity Parkway, he said, the proposition intentionally said nothing about what sort of road should be built. "That is a matter for the City Council to decide."

Planning for what would become the Trinity River project began in 1996. In the summer of that year, Mr. Kirk hosted a summit of state, local and federal officials to discuss improvements within the river corridor. The city established a Trinity River Corridor Project Management Office. Its first director was appointed in January 1997.

By mid-1997, the city was evaluating a comprehensive, $1 billion plan, devised by the Texas Department of Transportation, to address downtown traffic woes.

One element of that plan: the nine- to 10-mile-long Trinity Parkway.

As early as that summer, there were public discussions of building that parkway as a toll road.

The main advantage of that approach, Dallas city officials were told, was that a toll road could get financed much more quickly, shaving years off the completion schedule.

With conventional funding, collected in the form of gasoline taxes and dribbled out annually by the state, design and construction of the road was expected to take at least 13 years – and probably longer. Dallas would stand in line, along with other Texas cities, for a share of that highway money.

But as a toll road, where the tolls paid by motorists help pay back construction costs, the Trinity parkway could be built in as little as eight to 10 years, state officials said.

"We're going to have to look at a toll road. It may be the key to getting things going along the Trinity," Alan Walne, then a Dallas City Council member, said at a council meeting on Aug. 20, 1997. Three weeks later, the council unanimously endorsed the state plan, including the Trinity toll road.

Although a formal contract between the city and the North Texas Tollway Authority regarding financing of the road wasn't finalized until January 1999, in principle, the City Council had agreed by the fall of 1997: The Trinity Parkway would be a toll road. That would necessarily mean a higher speed, and more lanes, and less direct access to the park than what many environmentalists wanted.

From then on, a high-speed toll road "was always intended to be a key, integral piece" of the downtown traffic solution, said Timothy Nesbitt, a project manager in the Dallas district of the Texas Department of Transportation.

"To claim, 'We didn't know about it, you disguised it' – it was never disguised."

Courtesy of the Dallas Morning News, Sunday, August 12th 2007 Edition
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