Private Toll Roads & Eminent Domain

[Boggette]

With the recent Supreme Court ruling allowing local governments to take people’s land and give it to developers, I wonder how this new effort by Congress will play out.

(link on supreme court ruling http://news.yahoo.com/news?tmpl=story&u=/ap/20050623/ap_on_go_su_co/scotus_seizing_property_2)

Seems there is legislation in the works to allow Private companies to build, maintain, and charge a toll for, new roads.

(Link on proposed law to Privatize toll roads http://news.yahoo.com/s/nm/20050630/ts_nm/bizhighways_dc)

Does anyone else see the combination of these two as a serious threat? If a private company can talk the local government into taking your land, then they can build a toll road there, and charge you later to cross what was once your own land! Or am I just being alarmist?

[Renob]

@Boggette

If a private company can talk the local government into taking your land, then they can build a toll road there, and charge you later to cross what was once your own land! Or am I just being alarmist?

That’s exactly what this means. It’s already playing out – a city can condemn your house, give it to a company, that company builds condos on it, and then charges you to live on the land that was once yours.

[Frank]

Colorado has long had laws to allow this. The first roads into the mountains were primarily toll roads to serve mining communities.

[Boggette]

@This Year's Model

Colorado has long had laws to allow this. The first roads into the mountains were primarily toll roads to serve mining communities.

So can you tell us how it worked out for Colorado? Good? Bad? Indifferent?

[CalMeacham]

But the trend in this country has bbeen away from toll roads – the Connecticut Turnpike no longer is a toll road, and they keep making noises about getting rid of the tolls on the Mass Pike. This would be a big step in the other direction.

What’s more, if you read the linked article you find that the big companies are not US companies, which would put these roasds in the control of people who aren’t local (yet who would get tax breaks for building the roads). This seems to me to be a Bad Idea. Why not give tax breaks to local companies and control them here, where you’re accountable?

[Frank]

@Boggette

So can you tell us how it worked out for Colorado? Good? Bad? Indifferent?

I think it worked out well. The roads were eventually taken over by the state, and they did provide an infrastructure in the mountains that would have taken many more years to develop otherwise.

There is some movement to update the laws right now, due to a plan to build a six-lane toll road east of I-25 all the way from Pueblo to Fort Collins.

[Boggette]

@CalMeacham

What’s more, if you read the linked article you find that the big companies are not US companies, which would put these roasds in the control of people who aren’t local (yet who would get tax breaks for building the roads). This seems to me to be a Bad Idea. Why not give tax breaks to local companies and control them here, where you’re accountable?

Excellent point. It also got me thinking about who does the building. The actual workers, I mean. Will these companies bring in people from out-of-area, effectively pissing off the locals that are out of work? Are private companies required to contract Union for this work, or can they use non-union? (note I am not expressing any opinion on the validity of unions!) Just a couple more thoughts triggered by your comment.

[Billdo]

Actually, eminent domain has always been available for private toll roads (and more significantly to our country’s development, railroads). In Justice O’Connor’s dissent in Keslo (PDF file) she recognized that existing jurisprudence allowed eminent domain to take property to transfer to private companies for use by the public:

@Justice O'Connor (at page 5 of her dissent)-citations omitted

Our cases have generally identified three categories of takings that comply with the public use requirement, though it is in the nature of things that the boundaries between these categories are not always firm. Two are relatively straightforward and uncontroversial. First, the sovereign may transfer private property to public ownership —such as for a road, a hospital, or a military base. Second, the sovereign may transfer private property to private parties,often common carriers, who make the property available for the public’s use — such as with a railroad, a public utility, or a stadium. But “public ownership ” and “use-by-the-public ” are sometimes too constricting and impractical ways to define the scope of the Public Use Clause. Thus we have allowed that,in certain circumstances and to meet certain exigencies, takings that serve a public purpose also satisfy the Constitution even if the property is destined for subsequent private use.

Taking land by eminent domain and transferring it to a private toll road company would be, legally be just like taking land and transferring it to a private railroad or electric utility, both of which are universally recongized as Constitutional.