TURF sues SAMPO for unconstitutional composition & actions

Posted on October 22, 2007 by Terri Hall

IMMEDIATE RELEASE

Contact: David Van Os, Attorney at Law representing TURF, (210) 821-1700

View press conference on You Tube here.

TURF to sue transportation board for equal protection

MPO Board composition violates First and 14th Amendments to U.S. Constitution

San Antonio, TX, Monday, October 22, 2007 – In what could change the way toll roads are decided and approved in Bexar County, TURF filed a NEW lawsuit in FEDERAL COURT to put the power over transportation decisions back in the hands of the PEOPLE. TURF recently scored a victory in STATE COURT in a different lawsuit (read it here) against members of the Texas Transportation Department and Transportation Commission.

A lawsuit has been brought against the San Antonio Metropolitan Planning Organization (SAMPO) Transportation Policy Board that allocates tax dollars to transportation projects and approves toll rates and toll projects and San Antonio Councilwoman and MPO Chair Sheila McNeil. The lawsuit alleges that the composition of the SAMPO Board is unconstitutional and Chairwoman McNeil has been a party to denying the First Amendment right of free speech to the constituents of elected MPO Board members like State Representative David Leibowitz by blocking an agenda item and any debate on an issue brought up at his request. This novel lawsuit cuts to the heart of how toll roads are approved.

It’s based upon the First and Fourteenth Amendments to the United States Constitution, 28 U.S.C. §1331, and 28 U.S.C. §§1343(3) and (4). The section of the post-Civil War civil rights enactments codified as 42 U.S.C. §1983 provides the Plaintiff’s enabling cause of action. A faction of governmental officials with the help of unelected board members have shut citizens and voters who oppose toll roads out of equal participation in the political process. The case will also argue that actions like Chairwoman McNeil’s removal of an agenda item asking for the funds TxDOT is spending on the Keep Texas Moving ad campaign be returned to building roads.

By way of recent example, in a SAMPO Transportation Policy Board meeting of September 24, 2007, Defendant McNeil, using the badge of authority of Chairmanship of the Board, arbitrarily removed from the meeting agenda a motion by State Representative and MPO Board member David Leibowitz calling for SAMPO to object to certain expenditures of public money by TXDOT promoting toll roads, which expenditures Representative Leibowitz believed to be inappropriate.

Defendant McNeil, acting under color of law, removed Representative Leibowitz’s motion from the meeting agenda even though Representative Leibowitz had properly and legitimately placed it on the meeting agenda and SAMPO had included it in the public posting of the agenda pursuant to the Texas Open Meetings Act. Defendant McNeil, acting under color of law, refused to permit Representative Leibowitz to present his motion because of her disfavor of his attempt to provide a voice for his constituents who oppose turning free public highways into toll roads.

TURF will be asking for both a temporary and permanent injunction to suspend ALL activities of the MPO until the case is decided and the Board’s composition is changed to reflect proper Constitutional representation allowing equal protection under the law per the 14th Amendment.

The unconstitutional MPO has blocked agenda items, voted against an independent review of toll plans that would bring accountability to the gross misuse of taxpayer money in these toll plans, voted against restoring the gas tax funded overpasses on 281 (281 in particular DOES NOT NEED TO BE TOLLED, what’s needed are overpasses and they’ve been paid for since 2003, the money is STILL there, they could do it tomorrow, but this un-Constitutional Board persists in preventing the simple solution that’s already paid for!

The MPO Board has also delayed votes, blocked the succession of the next Chair, and changed the bylaws to allow yet more illegal representation on the Board.

“The people of Texas are FED-UP with out-of-control abusive government. We’ve done everything in our power to exert the political pressure to change this unconstitutional Board, but when the deck is stacked and a powerful unelected voting block is allowed to persist unchecked, we have no choice but go to court to address our grievances. This is taxation without representation and we cannot and will not allow it to continue,” says Terri Hall, Founder and Director of TURF.

For a history of the efforts of the pro-toll faction blocking citizens from equal representation:
Click here and scroll to bottom for links to each action.

Chairwoman McNeil strips agenda item requested by State Representative David Leibowitz on expenditures for toll roads (click here.)

-30-

TURF sues SAMPO for unconstitutional composition & actions

Posted on October 22, 2007 by Terri Hall

IMMEDIATE RELEASE

Contact: David Van Os, Attorney at Law representing TURF, (210) 821-1700

View press conference on You Tube here.

TURF to sue transportation board for equal protection

MPO Board composition violates First and 14th Amendments to U.S. Constitution

The MPO Board has also delayed votes, blocked the succession of the next Chair, and changed the bylaws to allow yet more illegal representation on the Board.

For a history of the efforts of the pro-toll faction blocking citizens from equal representation:
Click here and scroll to bottom for links to each action.

Chairwoman McNeil strips agenda item requested by State Representative David Leibowitz on expenditures for toll roads (click here.)

-30-

TxDOT to lower speed on I-35 to force more traffic on SH 130 TOLL ROAD

Posted on October 19, 2007 by Terri Hall

Link to article here. And who will get this toll revenue? Cintra, a Spanish company, and its minority partner, Zachry. So a PUBLIC agency is expressly manipulating our interstate speeds to line the pockets of a private, foreign company!

Texas: Speed Limit May be Lowered to Boost Toll Revenue
Toll road contract in Texas allows state to lower speed limits on nearby interstate freeway to avoid paying penalties to a private company.
October 19, 2007

SH130 route map The Texas Department of Transportation (TxDOT) has agreed to consider lowering the maximum speed limit on a stretch of interstate highway that competes with a planned toll road. Cintra-Zachary, a joint Spanish-US venture, paid TxDOT $1.3 billion for the right to collect tolls on 40-miles of State Highway 130 set for construction beginning in 2009. Although TxDOT suggested that free market competition was part of the goal of using a public-private partnerships to construct and operate roads, the contract it signed on March 22 to construct this portion of SH130 was specifically designed to limit the desirability of alternate, free routes.

“The compensation amount owing from TxDOT to Developer on account of the competing facility shall be equal to the loss of toll revenues, if any, attributable to the competing facility,” the contract states. (11.3.2.1)

The provision ensures no improvements can be made to nearby roads unless the agency issues payment to the Spanish-US private consortium with taxpayer funds. TxDOT can reduce the amount of compensation owed, however, if it agrees to increase toll revenue by imposing a “decrease in the maximum daytime posted speed limit for passenger vehicles on all or a substantial portion of I-35 where it runs generally parallel to the Facility.” This means that TxDOT can recover money generated by additional tolls as motorists abandon I-35 because of the lowered limit and increased congestion.

The net effect of the clause is to dissuade, without prohibiting, any improvements on competing roads. TxDOT has argued that it is strapped for cash and therefore has no alternative but to turn to private sector tolling to fund new roads. Future improvements to free lanes would become less likely when the agency must pay not only the cost of labor and materials, but a compensation to nearby toll road operators as well.

In the past, so-called “non-compete” language in tolling contracts resulted in a blanket prohibition on the construction of new roads or engineering improvements intended to ease congestion. Non-compete clauses raised public anger in the case of the SR91 Express Lanes in Orange County, California. More recent agreements have tended to focus on introducing “traffic calming” measures on competing roads intended to drive traffic off of pay roads and onto toll roads, as was seen last year in Sydney, Australia’s Cross City Tunnel (view parliamentary report on the tunnel).

TxDOT has also reserved the right to add contract language that would limit improvements to free roads near the planned Trans Texas Corridor toll road.

“The foregoing rights shall be subject to any covenant regarding competing facilities that may be entered into in connection with the development and operation of a Facility,” the agency’s TTC-35 Comprehensive Development Agreement states. (18.2)

Excerpts from the competition portion of the SH130 contract are available in a 351k PDF file at the source link below.

Source: Facility Concession Agreement, SH130 Segments 5 and 6 (Texas Department of Transportation, 3/22/2007)

Only 60% of federal gas taxes go to roads…

Posted on October 19, 2007 by Terri Hall

Repairing Bridges without Raising Gas Taxes
By Heidi Sommer and H. Sterling Burnett
NCPA
Published: 10-18-07

In the wake of the August 1, 2007, Minneapolis bridge collapse, Rep. Jim Oberstar (D-Minn.), chairman of the House Transportation and Infrastructure Committee, proposed a 5-cents-per-gallon increase in the federal excise tax on gasoline.

Oberstar believes the hike would raise $25 billion over three years for critical bridge repairs across the United States. But his proposal flies in the face of growing public concern over sustained high gas prices. For instance, a 2006 CNN–ABC News poll found that 70 percent of respondents felt that gasoline price hikes had caused them personal hardship, and 59 percent believed gas prices had reduced their standard of living.

While there are legitimate concerns about the safety of the nation’s infrastructure, increasing the federal gas tax is unnecessary and will ultimately hurt America’s poor and low-income citizens. Fortunately, Congress can better ensure the soundness of the nation’s bridges and overpasses without raising taxes, simply by shifting existing funds within the transportation budget.Current Gas Taxes. The gas tax is an excise tax. Like the taxes on cigarettes and beer, it is paid only by those who purchase the product. The 1956 Federal-Aid Highway Act established the Highway Trust Fund and stipulated that 100 percent of the gas tax be deposited into this fund. The trust fund financed highway building and maintenance across the nation. Currently:

• The federal government imposes a gasoline tax of 18.4 cents per gallon.
• States levy additional gas taxes at rates ranging from a low of 8 cents per gallon in Alaska to a high of 44.4 cents per gallon in California.
• Combined federal and state gas taxes now average about 45 cents per gallon.
However, a substantial portion of the federal gas tax is diverted to nonhighway projects.

Who Pays the Gas Tax? Proponents of the tax increase insist that the hike would be barely noticeable. But the reality is that a 5-cents-per-gallon jump would cost American motorists an estimated $25 billion over the next three years. With this tax increase, most motorists would pay more than $7.50 in taxes alone for an average fill-up.A recent study by the Federal Reserve Bank of Chicago reported that households in the top one- fourth of earners devoted 3.3 percent of their total income to gasoline, while households in the bottom quarter spent 3.8 percent. The same study found that families earning $24,000 per year spent almost 5 percent of their income on gas, while families earning $132,000 per year spent less than 2 percent. Thus, a gas tax hike would have the most dramatic effect on the working poor, who spend a higher proportion of their income on gasoline than any other group.

Diverting Gas Taxes. According to the U.S. Department of Transportation (DOT), 12 percent of the 597,340 bridges in the United States are structurally deficient — requiring significant maintenance, rehabilitation or replacement.

Despite past debate on the poor condition of the nation’s bridges, the situation was largely ignored before the recent Minneapolis bridge collapse. As they have for decades, Congress diverted Highway Trust Fund dollars away from potentially life-saving construction and repair to pork-barrel and earmarked projects. Earmarks are projects requested by individual members of Congress for their constituencies. The majority of these bypass normal state and federal review and selection processes. Although labeled “high-priority,” these projects only benefit certain constituent groups; the rest of the country would likely prefer funding for more immediate needs.

For instance, the 2005 highway bill contained $2 billion annually for bridge reconstruction. The House Transportation Committee considered increasing that figure to $3 billion a year, but instead Congress stuffed the bill with nearly 6,500 pork-barrel projects costing more than $24 billion. This is about the same amount Rep. Oberstar’s proposed tax increase would raise. “High-priority” transportation projects in the 2005 legislation included:

• $315 million for the infamous “Bridge to Nowhere” intended to replace a 7-minute ferry ride to the Ketchikan Airport in Alaska;
• $5 million to improve air quality in the Sacramento region of California;
• $4 million for bike paths and public parks near New River in Calexico, Calif.; and
• $4 million for streetscape, pedestrian improvements in Clarkson, Ga.The 2008 transportation appropriations bill seems likely to continue this trend, with more than $2.2 billion in earmarks. Indeed, many billions of dollars have been diverted from highway funding to other programs. As the figure shows, according to Transportation Secretary Mary Peters:

• Only 60 percent of federal gas taxes goes to the construction and maintenance of highways and bridges.

• Thirty percent goes to subsidize construction and maintenance of public transit facilities, such as bus terminals, light rail and subway systems.

• The remaining 10 percent is diverted to other projects — currently 6,000 projects — including bike paths, museums, nature trails, historic building repairs and so forth.

This is especially unfortunate since passenger rail lines, for instance, cost two-and-one-half to five times as much per mile to construct as a highway, though the only rail line in the nation that carries as much passenger traffic as a single lane of freeway is in New York City, and only six urban rail lines in the country carry as much as 3 percent of all travelers in the area they serve.“Only 60 percent of federal gas taxes are spent on highways.”

Despite these facts, Rep. Oberstar told the Rochester Post-Bulletin, “If you’re not prepared to invest another five cents in bridge reconstruction and road reconstruction, then God help you.” Ironically, Oberstar recently boasted that he had “secured more than $12 million in funding” for his state in a recent federal transportation and housing bill, none of which went for bridge repair. Instead, the funding Obserstar secured included $10 million for a commuter rail line, $250,000 for a bike and hike trail, $200,000 for bus services in Duluth and $150,000 for the Mesabi Academy of Kidspeace in Buhl.

Conclusion. Fifty years ago, the federal government played an important role in creating a national transportation system. The federal gasoline tax financed this effort, ensuring that drivers paid for the system. The Highway Trust Fund should be dedicated to building and maintaining roads and bridges. If trust fund spending were properly prioritized, bridge repairs could be funded by current national and state fuel taxes.

To protect poorer American citizens as they struggle to make ends meet, Congress should end pork-barrel projects and earmarks, and devote the monies in the Highway Trust Fund to critical infrastructure repair and expansion. If bike paths and public transit are worthwhile priorities, an excise tax could be levied on bicycles and jogging shoes, and fees for public transit could be raised.

Heidi Sommer is a policy intern and H. Sterling Burnett is a senior fellow with the National Center for Policy Analysis.

See the Austin, Houston report on TURF’s win in court

Posted on October 19, 2007 by Terri Hall

See Austin TV story on You Tube here. See Houston Chronicle coverage below, too.

KXAN News 8 Story
Anti-toll road activist continues case against TxDOT
10/19/2007
By: News 8 Austin Staff

An anti-toll road activist won a three-month continuance in her lawsuit against the Texas Department of Transportation.

Terri Hall of Texans Uniting for Reform and Freedom (TURF) now has some more time to develop her case against TxDOT, which claims that it uses public funding to promote toll roads.

TURF says TxDOT’s $9 million ”Keep Texas Moving” campaign amounts to illegal use of funds for political advertising.

“What TxDOT is doing goes way beyond anything than what the Texas Legislature intended. If the Legislature did intend that, then the legislation is unconstitutional,” attorney David van Os said.

TxDOT claims the campaign is informational and legal. They asked Judge Orlinda Naranjo to dismiss the case.

TURF says it has uncovered internal memos showing otherwise. They cite an Aug. 13 memo that TxDOT intends to spend public money to influence upcoming public hearings for the Trans-Texas Corridor.

”We want to be able to ask the people who wrote those memos what exactly they’re talking about when they say ‘we’re going to target this area to try to change people’s minds. We’re going to try to discredit the adversary.’ That’s political,” TURF attorney Charles Riley said.

TURF also wants to block transportation officials from lobbying Congress to allow more tolling.

A court date is set for January.
____________________________________
Houston & Texas News

Oct. 18, 2007
Group gets more time to build case against TxDOT

Link to story here.

AUSTIN — Activists targeting a Texas Department of Transportation toll-road campaign got some extra time to develop their case from a state judge Thursday.

The state attorney general’s office, representing TxDOT, wanted state District Judge Orlinda Naranjo of Travis County to dismiss the case, which seeks to stop state spending on the Keep Texas Moving campaign and on any toll-road lobbying efforts by the agency.

Keep Texas Moving is an effort by TxDOT to solve the state’s transportation issues.

Terri Hall of Texans Uniting for Reform and Freedom, which brought the case, contends the campaign violates a state prohibition on state officers or employees using their authority for political purposes.

The state says it is acting legally, that Hall doesn’t have standing to bring the lawsuit, and that work is completed on the campaign’s current phase anyway, so the lawsuit is moot.

Naranjo agreed to a 90-day continuance sought by the group, which wants to gather more documents and possibly take depositions from officials, according to TURF lawyer Charles Riley. Former candidate for attorney general David Van Os also signed on to represent the group.

“This is a good day for Texas taxpayers,” Hall said.

In fighting a three-month delay, Assistant Attorney General Kristina W. Silcocks said, “State employees do not need to have this hanging over their head.”

See the Austin, Houston report on TURF's win in court