Traffic projections for Trinity Toll Road can be kept secret, says AG

Link to article here.

We've been trying to get this data made public ever since Rick Perry made it secret in 2007. We MUST have openess and transparanecy with this data - the pulci has a right to know if a toll road will be financially solvent BEFORE decisions are made, bond debt issued, or other public money committed.

Trinity Parkway traffic and toll estimates can be withheld, AG says
By BRANDON FORMBY This email address is being protected from spambots. You need JavaScript enabled to view it.
Transportation Writer
Published: 26 January 2015

The North Texas Tollway Authority has spent 15 years and more than $1.7 million estimating the traffic impact and revenue potential of the proposed Trinity Parkway.

The agency collected the habits of Dallas drivers, the effect of various access points and how the toll road would affect nearby land usage.

That information could bolster or undercut arguments surrounding the project. It could also give a deeper understanding of the project’s potential risks and payoffs.

But the NTTA doesn’t have to share any of the information with the public.

The Texas attorney general’s office this month ruled that NTTA can withhold several studies that The Dallas Morning News requested under the state’s public information act.

NTTA told the attorney general that its board will eventually use the information in concert with a future study to decide whether the project is financially feasible. That essentially makes the existing studies preliminary, the agency successfully argued.

In Texas, government agencies do not have to release some records considered to be preliminary documents. Records can be considered such if they are meant to advise governing bodies on policy-making decisions and will be released publicly in the future. NTTA’s assistant director of general counsel indicated to state officials that the planned future study will be used to determine feasibility and will be publicly released.

NTTA is under contract with Dallas to determine whether the project is feasible. Agency officials described existing studies as “sketch-level” estimates that could be rolled into the final “investment-grade” study.

That final study won’t be commissioned until after the Federal Highway Administration clears the project as planned or gives the go-ahead contingent on some changes. The federal agency’s ruling isn’t expected until March. City Council elections are in May. The council that is seated will probably decide how and whether to move forward on the project, which is facing a large financial shortfall.

NTTA officials have long said that toll revenue alone probably won’t be enough to finance the 9-mile road that would connect northwest Dallas and Irving to South Dallas.

North Central Texas Council of Governments transportation director Michael Morris said last year that NTTA will likely be able to secure $240 million in bonds for the project. With other funding sources considered, that leaves a shortfall of more than $900 million on a $1.5 billion project.

Much of the latest controversy surrounding the project stems from how much traffic relief the the road would give other downtown highways and how the road would affect nearby development. According to its contracts for studies since 1999, NTTA has looked at both issues.

When asked whether NTTA feels an obligation to publicly shed further light on the project by releasing the information, spokesman Michael Rey said the decision was based on the agency’s legal obligation.

“I don’t really have a comment regarding that, other than we’ve chosen to follow the legal path,” he said.

Dallas City Council member Scott Griggs, who opposes the project, said NTTA should release the information because public money paid for it. He also said it would answer questions residents have about the project and its feasibility.

“But then when it comes down to see how the money has been spent, you get resistance on the reports being released,” Griggs said.

Contract specifics
In addition to the studies, The News also requested the contracts NTTA signed with the companies it hired to do the work since 1999. NTTA released those agreements. Among the information NTTA has commissioned but was allowed to withhold:
Socioeconomic and land-use forecasting in 2008
Survey of drivers’ routes, perceived transportation tradeoffs and income levels in 2008
Traffic counts, speed and travel delays on parallel routes in 2008
Traffic impact on Interstate 45 in 2008
Relationship between toll rates and roadway demand in 2012
Traffic estimates and operations analysis in 2013.

Supporters of the project, including Mayor Mike Rawlings, have said that the road is needed to relieve congestion on Interstates 30 and 35E near downtown. They say that it will spur economic development on land near the road and into southern Dallas. They also say that it would better connect southern Dallas residents with their jobs north of I-30.

Former City Council member Angela Hunt, who led an unsuccessful referendum to kill the road in 2007, said the studies NTTA has commissioned could prove several of those assertions to be true. She said NTTA’s withholding of the information, though, raises doubts about supporters’ claims.

“I would imagine they would be waving around those documents at meetings if those documents supported their argument for a toll road,” she said.

A spokeswoman for Rawlings did not respond to requests for comment.

Morris, a vocal project supporter, said he has not seen the studies. He said state lawmakers have “weighed in” on what government documents should be considered public.

“NTTA is a transparent agency, and we expect they will make the information available at the appropriate time,” Morris said.

When asked if the data has influenced how Dallas officials are approaching the project, Assistant City Manager Jill Jordan said she wasn’t familiar with specific studies The News referenced.

“I know that along the way they hired consultants to help prepare the data that went into [federal approval documents] for the parkway,” she said. “Over the years, they also hired consultants to look at traffic forecasts, but I don’t recall ever receiving copies of that work.”
Here’s the article mentioned in the Dallas Observer regarding the non-compete clauses. But adopting a Minute Order is NOT the same thing as having protection from non-competes in statute.

Texas commission adopts hostile policy on toll concessions
May 30, 2008
By Peter Samuel

Transportation Commission (TTC) adopted a hostile policy to toll concessions at their monthly meeting today. The state's policymaking body unanimously passed a Minute Order (111358 May 29 2008) of Guiding Principles for Toll Projects and the Trans-Texas Corridor which contains a complete prohibition on non-compete clauses in toll concession projects, generally termed Comprehensive Development Agreements or CDAs in Texas. Officials say compensation for unanticipated competing free capacity will also be barred.

Further TxDOT will have the right to buy out concessions "at any time" on terms left unspecified.

See copy of the Minute Order and Guiding Principles (2 pages pdf).

No concession contract "will include any limitations or prohibitions on improvements needed to existing or future highways," the Guiding Principles document says. Affirmatively it states that TxDOT and other government entities may construct, reconstruct or improve any highway regardless of any nearby or adjacent toll project.

However TxDOT officials left some confusion about whether the Guiding Principles rule out compensation for concessionaires if extra free capacity detracts from toll revenues.

In this morning's major newspapers in Austin and Fort Worth TXDOT's two top senior officers are both quoted as saying the new policy provides for the right of TxDOT or regional governments to build extra capacity

unfettered and also without having to pay compensation. The Fort Worth Star Telegram quotes TxDOT executive-director Amadeo Saenz: " The state will also no longer include language in contracts to compensate developers for revenue lost because of construction of new roads, said Amadeo Saenz, executive director of the Transportation Department."

Steven E Simmons TxDOT deputy executive director is reported in the Austin American-Statesman: "At a briefing with transportation reporters today, TxDOT deputy executive director Steve Simmons said the intent of the language is that 'we have the right to build any facility.' With no compensation? 'No compensation,' Simmons said."

Yet the Guiding Principles adopted by the TTC contain no mention of whether or not it is policy to allow provision for compensation in new toll concession contracts (CDAs).
Link to article here.

Schutze is right, they're keeping the info secret because they KNOW it isn't toll viable and would crush any reminaing support for the toll road.

Tollway Authority Won't Share Studies on Trinity Road. That Would Spoil the Trick.
By Jim Schutze Wed., Jan. 28 2015
Dallas Observer

Great story in The Dallas Morning News yesterday by Brandon Formby revealing that the toll road agency in our area has been sitting on $1.7 million worth of traffic studies for the one they want to build along the Trinity River through downtown. The North Texas Tollway Authority just won a legal ruling saying they don't have to show the results to the public.

What's so big about that? Well, look, we've only been arguing about his unbuilt toll road for almost 20 years.

When you dig through all of the insane hype that people on both sides proffer, pro and con, the traffic studies are the truth. Letting us in on the traffic studies would be like a magician showing us how the trick is done.

It's so easy to say, as the mayor has, that if we built the toll road, people could use it to drive from Pleasant Grove to Parkland Hospital. Well, yeah. But compared to what?

I offered you an example yesterday. The mayor has also been saying that if we built the toll road, black people could use it. So true, so true. His argument is that the toll road might help commuters from poor black neighborhoods reach jobs in the Stemmons Corridor. City Council member Vonciel Hill has even backed the mayor up by saying that, since black people could use the toll road, not building it would be racist.

But I told you yesterday about a guy named Robbie Good, a graphics designer and community activist, who looked on Google maps and saw that the street grid in much of black South Dallas is all chopped up already by highways and rail lines. He proposed a quick simple fix, linking S.M. Wright Freeway with Riverfront Boulevard.

He guessed that would cost $10 to $20 million. I have no idea how a graphics designer (or a newspaper columnist) would know the price on something like that. But hooking two existing roads together with a short link has to be enormously cheaper than the $1.8 billion which was the last official estimate I saw years ago for the cost of the toll road.

See. People can say all kinds of things. If we built the toll road, nuns could use it. Are you anti-nun? But that's not the question. Yeah, nuns could use it for $1.8 billion. But is there a way to get the nuns around for way less than that without the dire opportunity costs?

That's what that $1.7 million in traffic studies is all about. And let me tell you more specifically why they want to sit on that information. What it's really about is competing roadways.

This is a recurring problem with toll roads. Where do you get the money for a toll road? You go to the bond market and borrow it. The people who buy the bonds and lend you the money want to be sure they're going to get their money back plus a return on investment. So they ask for a few kinds of traffic studies.

The first, the simplest one, asks, "How many sick people from Pleasant Grove, black people, nuns, Hittites and dubsteppers will use this road and pay tolls regularly enough to guarantee the kind of income needed to pay off the bonds?"

Fair enough, right? If you are the bondholder, you what to know somebody is going to use the road and pay you back. But then there's an entire second range of questions that have to do with competition. What if the bonds are sold, the money borrowed and the toll road built, but the voters press City Hall to carry out other road improvements as well?

There was a Texas Department of Transportation study going around 10 years ago - long since deep-sixed and impossible to find now -- that said straightening out the existing freeway interchanges downtown would move more traffic through downtown more cheaply than building the toll road. That project, by the way, originally called Pegasus, now more modestly dubbed Horseshoe, is underway in bits and pieces as we speak.

So if Project Horseshoe works and if driving gets noticeably easier on the existing freeways, why would anybody drive out of the way and pay a toll on the new road? Wouldn't a lot of the toll road's target market leak away to the older roads and make paying off the bonds more difficult?

What if we just did Robbie Good's fix? All of that South Dallas traffic the mayor and Councilperson Hill have promised to the bondholders could be gone overnight.

For this reason, toll road promoters in the past have sought non-compete contracts with client governments: the Maine Turnpike in 1947, the Garden State Parkway, New Jersey Turnpike, Massachusetts Turnpike, New York State Thruway, Kennedy Highway in Maryland, Ohio Turnpike, Indiana Toll Road, Illinois Tollways, Florida Turnpike, Kansas Turnpike, Oklahoma turnpikes, turnpikes in Connecticut and New Hampshire, and toll roads in Virginia and Texas, all were financed with non-compete agreements.

A non-compete agreement can take many forms. The most common is a straight-up prohibition on building free highways or expanding or substantially improving existing highways that might draw traffic away from the toll road. Or the agreement might allow local government to build competing capacity if it pays the toll road company back for any revenue it loses as a result.

The non-compete agreement Governor Rick Perry wanted us to sign to get a Spanish company to build his Trans Texas Corridor project would have forbidden Texas from doing any of the reconstruction that's going on right now on Interstate 35 between Dallas and Austin. I-35, already a horror of narrow cracked lanes and junk car caravans on their way to Mexico, would have disintegrated even more until we all had no choice but to pay whatever toll the Spaniards wanted to charge us.

In 2008, after Perry's Trans Texas Corridor was shot down, stabbed, throat-slit, boot-stomped and unspeakably defiled by the Legislature, Texas lawmakers also passed new laws making it much more difficult if not impossible for the state itself to enter into any non-compete agreement over roads.

But the question of what local governments are free to do or can be bamboozled into doing (same thing) is a gray area. In the debate over the Blacklands Toll Road from Dallas to somewhere in East Texas , there was a lot of conversation about possible non-compete agreements.

The specific case of Dallas and the Trinity toll road ought to be plenty scary for investors. Suffice it to say that a ton of people in Dallas have grown to hate this project by now and would continue to hate it, probably hate it even worse, if it ever got built. And the ability to kill it won't stop when it's built. If anything, killing it might be even easier once it's up and running.

Robbie Good's idea. Project Horseshoe. How many projects would it take to drain enough revenue away from that sucker to put it belly-up? If I'm an investor, I'm going to be worried about the considerable constituency of people out there who despise this thing and would welcome any chance to put it six feet under.

That's what they've spent their $1.7 million on: 1) What's the market for it? 2) What are the competitive threats to it? 3) If I buy bonds, how do I know I'll get paid?

In Formby's piece in the News yesterday, he quoted former City Council person Angela Hunt, who said if the news were good from the studies, if the studies showed the toll road with a bulletproof market and little to no vulnerability from competition, that news would have been all over the blogs, Page One and TV long ago:
"I would imagine they would be waving around those documents at meetings if those documents supported their argument for a toll road," Hunt said.

So is the determination of the toll road agency to conceal the reports a reason for toll road opponents to rejoice? Does it mean the toll road is toast?

No. It means they have big problems, and they need big solutions, including some kind of non-compete agreement that gets around the state prohibition. It means they are working furiously behind the scenes to put together agreements for all of that, and we won't see a word of it until they think the trick is perfect. That's just how they roll. Magic is not our friend here.