MPO votes to toll 281, 1604 in violation of its own bylaws

Monday, Texans Uniting for Reform and Freedom (TURF) scored a small victory for open government, since the San Antonio-Bexar County Metropolitan Planning Organization (MPO) agenda included more specificity about its proposed action for toll projects on US 281 and Loop 1604 as required by the Texas Open Meetings Act. TURF sent a demand letter threatening to sue the MPO on July 20, for its violation of the Texas Open Meetings Act at the June 25 policy board meeting due an extremely vague agenda that merely read: “Action on additional federal and state funding opportunities.”

But the victory didn’t last long.

When the board took action to amend its short-range (TIP) and long-range plans (MTP) at its August 27 meeting, it not only failed to abide by its own bylaws in so doing, it once again failed to properly notice the public about its proposal to toll US 281 and Loop 1604 in Bexar County. The MPO's bylaws require a two-step process, which includes a 30-day public comment period, and an even greater level of disclosure on its agenda before any action can take place.

While TURF welcomed the board's compliance with the Open Meetings Act, open government still demands the MPO follow its bylaws for proper public disclosure when making changes to the short and long-range plans.

Elected officials who voted to toll?
State Senator Jeff Wentworth
Bexar County Commissioner Tommy Adkisson
Bexar County Commissioner Kevin Wolff
Councilman Ray Lopez
Councilman Rey Saldana
Councilman Carlton Soules
Councilman Cris Medina
Leon Valley Mayor Chris Riley
(Two TxDOT staff and two Via Board members voted to give themselves money by adopting the toll plan. Plus, there were two votes from county and city public works staff, and an AACOG staffer to round out the 15-0 unanimous vote to increase taxes without our consent)

Changes to the TIP and MTP are more permanent than merely adopting a proposal, and the bylaws rightly require that when the scope of a project or pots of money change, that the public is properly notified and given 30 days to submit public comment before any final decisions are made.

Policy 6 of the MPO bylaws state: "Amendments to the TIP require a two-step process. To permit adequate public review and comment, amendments to the TIP will be presented at a Transportation Policy Board meeting with action on the amendment occurring at the following Transportation Policy Board meeting (approximately 30 days after initial presentation)...amendments to delete a project or significantly change the scope of work of a project will be explicitly listed on both the presentation and action agendas for the Transportation Policy Board meetings."

Monday's agenda did not specifically list the changes in scope of the toll projects nor did the agenda at its last meeting on June 25, as is required by its two-step process. The June 25 agenda also failed to notify the public of a 30 day comment period or where to even submit comments. Though the board can vote to bypass the two-step process in emergencies, they would have to call a special public meeting during its board meeting specifically to solicit public comment on the proposed changes to the TIP, and this special meeting must be posted on the agenda, which it was not.

For instance, the scope of the project on Loop 1604 changed from adding 4 new lanes (which was previously in the TIP as all-tolled, now those will be non-toll) to adding 8 new lanes (4 non-toll, 4 toll). On US 281, the scope from Loop 1604 to Stone Oak Parkway (roughly 3 miles) changed from the current TIP which would add two new toll lanes and convert all the existing main lanes into toll lanes, to a new plan that will not add any new highway lanes, and will shrink existing free highway capacity by converting the center main lanes into dedicated bus-HOV-toll lanes and keep the remaining four main lanes free.

This new plan on 281 will not handle the projected traffic levels for the corridor based on the MPO's own traffic data, since it doesn't add any new highway capacity, nor does this new amendment (or the original toll plan) comply with federal law that prohibits the conversion of free lanes to toll lanes. The Texas Department of Transportation (TxDOT) tries to say the existing main lanes function as a frontage road due to the stop lights, so replacing the existing freeway lanes with frontage roads, they claim doesn’t violate the law.

However, both federal and state lawmakers disagree with that interpretation. Watch Texas lawmakers contend with former TxDOT Executive Director Amadeo Saenz about TxDOT’s erroneous interpretation of the law prohibiting tolls on existing lanes here and here.

Doesn’t pass the smell test
During public comment, several citizens noted that tax money was being used to convert existing free main lanes on US 281 into dedicated bus-HOV-toll lanes. TURF enlarged and presented Google Earth photos of the US 281 corridor as it exists today along with TxDOT’s new toll proposal in order to demonstrate there are 6 main lanes currently open to traffic, and when this new proposal is implemented, there will still be only 6 main lanes -- except 2 of them will now be tolled which is a conversion of free lanes to toll lanes. So no NEW added highway capacity is being constructed, yet the MPO voted to spend $228 million on the plan.

Since the two existing main lanes in question are already paid for with gas tax money, tax money -- in this case Texas Mobility Funds (TMF) -- will be used to turn them into toll lanes, and then motorists will be charged another tax -- a toll -- to access the lanes they drive on today for free, the new toll plan is a triple tax rip-off.

By contrast, Loop 1604 W from Potranco to Bandera Rd. (approximately 10 miles) will get 4 new non-toll lanes for $168 million. That’s a cost of $16 million per mile on 1604 versus $37 million per mile on 281 for just the non-toll elements of each plan.

Where’s the moxy?
On March 26, this same MPO board adopted a resolution to add non-toll main lane capacity as well as frontage roads to these segments of 281 and 1604 once TxDOT announced it had discovered $2 billion in previously unidentified funds. Bexar County’s allocation of the $2 billion was $146 million that was combined with $100 million local Advanced Transportation District (ATD) sales tax funds (which satisfies the so-called ‘leveraging’ requirement TxDOT tries to impose on local MPOs in order to force toll roads) were supposed to fix these freeways without the need for tolling as well as free up TMF funds to be used to extend the non-toll freeway.

Yet within three months, the MPO reversed itself and caved to TxDOT’s insistence the plan still include tolls -- including building the toll elements with TMF tax money instead of using that tax money to expand and extend the non-toll freeway fix (particularly on 281 where only 3 miles is being addressed versus 10 miles on 1604). Content to accept crumbs from the master’s table rather than uphold its own resolution to protect taxpayers from double and triple taxation, the board proceeded without so much as a whimper despite public opposition.

Leon Valley Mayor Chris Riley, representative of the suburban cities on the MPO, was the only board member to ask any question on behalf of taxpayers, but ultimately accepted all the TxDOT and staff explanations as sufficient, despite factual evidence to the contrary, and joined the rest of the board members who voted for the toll plan, including building toll roads with tax money.

For example, Mayor Riley asked why TxDOT proceeded with a hybrid plan (including toll lanes with the non-toll lanes) instead of following the board’s direction to add strictly non-toll capacity, and TxDOT and MPO Executive Director Sid Martinez answered that the projects were not fiscally constrained for the entire corridor without tolls being included, even in segments where improvements are already paid for with non-toll funds.

But the MPO called a special meeting to hear directly from the Federal Highway Administration (FHWA) on June 15 to answer that very question -- if the projects could meet the fiscal constraint requirements by doing them in phases -- since TxDOT keeps insisting any plan must show funding for the entire corridor all at once and that phasing cannot pass muster and still comply with federal financial constraint rules.  The FHWA said a project could be done in phases, doing them without tolls in the segments they can pay for with tax money first, and use tolls as a placeholder for the later phases. If non-toll funds become available to complete the corridors without tolls, then the tolls for those later phases could also eliminated.

Apparently, the MPO suffers from amnesia since it accepted the TxDOT and MPO staff answer as the new gospel, despite their superiors telling the MPO otherwise just prior to its last meeting. The truth doesn’t matter, the MPO adopted a hybrid plan anyway. All the TxDOT explanations and the back and forth Q & A is essentially just window dressing and serves as political cover for the politicos to vote against the taxpayers in order to raid our wallets and make driving so expensive to try to force us out of our cars and presumably into a carpool or mass transit.

Bexar County Judge Nelson Wolff, father of MPO member and County Commissioner Kevin Wolff who orchestrated the original MPO resolution and called for the plan to include bus-HOV-toll lanes, said it himself, “If someone chooses to not carpool, chooses to ride by themselves, chooses to waste their gas, choose to do all those things, then damn it, they probably ought to pay...if they can't get on a bus or can't carpool, well then, don't get in the toll lane.”

This bus-HOV toll plan is government social engineering of the worst kind that has NEVER worked anywhere it’s been tried. A recent Weekly Standard article and WOAI radio news report note that studies show HOV lanes do not work to manipulate people out of their cars and into a carpool -- they waste taxpayer money on building underutilized lanes and tend to make air quality and congestion worse by not expanding freeways open to all cars.

The MPO’s adoption of this proposal is like pouring salt in the wound of 281 commuters where the non-toll fix to this freeway was previously fully funded with gas taxes (according to testimony from former San Antonio District Engineer David Casteel in 2007) and should have broken ground in 2003. The MPO’s bylaws require a project that had its funding yanked to be the first in line to get it restored, and yet the board continues to give priority to 1604 (and Wurzbach & I-10, that received Prop 12, Prop 14, and stimulus money ahead of 281 despite the fact 281 is tied for first place as the most congested road in Bexar County according to the Texas Transportation Institute’s Commuter Stress Index). The politicians representing the 281 corridor, all of whom claim to be fiscal conservatives, are either wholly ineffective or complicit in allowing their constituents to be double and triple taxed without their consent.

Legal hot water
TURF asked the board to nullify its action on June 25 and to re-post the proposed action in a manner that complied with the Texas Open Meetings Act. TURF informed the MPO that it would seek an injunction to halt any further action on the proposal and a court order declaring the action void unless the MPO voided the action it took at its June meeting.

Watch the MPO's actions unfold in this video.

“Complying fully with the Texas Open Meetings Act and noticing agenda items with the requisite specificity ensures the public's business is conducted in public," notes Arif Panju, at attorney with the Austin law firm Cantilo & Bennett, L.L.P. which represents TURF.  Panju also sits on the Board of Directors of the Freedom of Information Foundation of Texas.

"The Texas Supreme Court has held that governmental bodies are responsible for properly notifying the public, and anything less than full disclosure of agenda items is not substantial compliance," says Panju.

Members of the public and even the media felt June 25 meeting warranted legal action because it so flagrantly sought to keep the public in the dark about what the MPO was adopting. Not only did the agenda item fail to mention the names of the two highways involved, but it involved a proposal seeking to convert an existing free lane into a toll lane on US 281, taking money from US 281 and giving it to Loop 1604, and turning the middle toll lanes on US 281 into dedicated bus-HOV toll lanes.

The plan also takes the power to toll away from the Alamo Regional Mobility Authority (the toll authority) and allows the ATD Board the discretion to determine who operates the toll road (and hence collect the tolls), including itself. This effectively grants the ATD board the right to raid the toll revenues to pay for mass transit projects, like the controversial downtown streetcar. None of these specifics has ever appeared on an MPO agenda, even its August 27 meeting notice.

Not only was the agenda item vague, but changes to the proposal were made after the agenda was posted and the board's meeting packet distributed -- changes that weren't posted or ever discussed until the MPO walked in the door for its meeting on June 25 (see the documents here). Though significant changes were made over the weekend, the board took action on the proposal at the meeting.

State Representative Joe Farias, an MPO board member and the only dissenting vote June 25, asked how the MPO could vote on such a measure when he only found out about the changes by "reading about it in the newspaper over the weekend."

The MPO has consistently gotten away with violating the Open Meetings Act and the principles of open government in its own bylaws. It’s done everything possible to hide what it’s doing from the taxpaying public until after the deal is done. As long as they can operate in generalities and never get into specifics, it can get away with obscuring the details of double and triple taxation, runaway tolls in the hands of unelected boards, and controversial government social engineering.

Though the MPO’s meeting notice improved somewhat on August 27, it still has a long way to go to restore the people’s trust that it’s operating in the public’s best interest and in a transparent and accountable way.

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