Above: before an after at Fannin South. METRO extended the Main Street light rail line just south of 610 so it would be able to build the yard and shop on undeveloped land it was able to buy without using eminent domain and without displacing homes or businesses.

If you’ve been to a METRO meeting recently, you’ve probably been handed a flyer warning you of METRO’s eminent domain powers. An article in the Houston Business Journal again raises the same issues. Eminent domain has been a major political issue since the Kelo v. New London case in 2005, and anti-rail campaigners have been raising the issue of METRO’s powers since at least 2003. Should we be alarmed? Let’s consider:

• First of all, a definition: Eminent Domain is the power most governmental agencies have to force a landowner to sell them land. It is a specifically defined process includes legal protections so that agencies must justify their use of this power and to make sure the landowners are paid for the fair value of their land; if the agency and the landowner don’t agree on a value the proceeding goes before a court. Eminent Domain is not uncommon, but by it is not used for most governmental land purchases: agencies can (and frequently do) buy land on the open market as any private company would.
• METRO, like virtually all public agencies, has the power of eminent domain to acquire land it needs to build transit. This is the same process used to widen streets or build freeways. METRO has every incentive to avoid using eminent domain (by using public land or by buying private land from a willing seller), and it has used these powers sparingly. The Main Street line, for example, required only small amounts of private land — the yard and shop south of 610, the block between Wheeler and Blodgett, and a few small lots of substations — and most of it was bought in negotiations with landowners.
• In 2005, METRO contracted Todd Mason, a real estate broker, as its Vice President of Real Estate Services. His charge is to do joint development projects at transit facilities. The first two are a “town square” retail center at a new park-and-ride lot on 290 and a retail/office/hotel/condo development above the Texas Medical Center Transit Center. Both projects are structured as leases: METRO is not acting as a developer and will not be the landlord for the occupant; it’s merely leasing land and air rights to a developer. After those, METRO intends to do another project at the Wheeler station, where the light rail line cuts diagonally across a large block (that has to wait on the design of the Universities line, which will connect here).
  
  In all three of these projects METRO is making use of land it is already using for transit purposes. This kind of double use is nothing new: in the 1910s and 20s, New York’s Park Avenue was developed by the New York Central railroad above the tracks approaching Grand Central Station. It’s an efficient use of space, a good investment for the agency, and often a benefit to transit riders.
• METRO has the authority under a 1978 law to use eminent domain to acquire properties within 1500 feet of a “station or terminal complex” for economic development purposes (that is, for the construction of something other than transit facilities). That provision was clearly intended to create a tool with which METRO and the City of Houston could implement redevelopment.
  

  Barry Goodman, who was the first Executive Director of the Metropolitan Transit Authority of Harris County (Metro), honed in on the region’s transportation agencies and plans, saying that Metro has significant capability to promote more urbanity in Houston. Metro was established with some of the strongest land use controls in the nation, he said. They have the ability to condemn land within 1500 feet of transit stops, but Goodman noted they’ve never done so.

  Note a key phrase in the quote above — “they’ve never done so.” METRO has had this power for almost 30 years and has never used it, even though they have had facilities like park-and-rides and transit centers that qualified as “stations and terminal facilities.” And they have given no indication that they plan to use it now. The people who championed this legislation are long out of power. The current METRO management and board did not ask for this power. And until last year, cities and counties had this power as well.
  

• METRO has allegedly talked to landowners along the Universities line about development projects. I don’t know any details here. But I would find it surprising if METRO hadn’t had such meetings. For example, say METRO needs some additional land for a station, and there’s a landowner along the line who is planning a project. If METRO agrees to put its station on his block rather than a few blocks down in return for him selling them the required land, it’s a win-win: METRO gets the land they need, the development gets more foot traffic, and nearby landowners don’t need to give up any of their property.
• Developers, urban planners, and transit agencies talk about transit oriented development. “TOD” has become a loaded phrase — some people love the idea, others find it scary. But it’s really a much more general and more innocuous concept than one might imagine. I’d say TOD is any development — retail, office, residential, commercial — that is built near a transit facility and designed to make it easy for its patrons to use transit. When we say TOD recent big developments like Dallas’ Mockingbird Station come to mind. But TOD can come in any scale, and it’s been around for a long time. Houston has TOD already, ranging from towers like 1000 Main and the Memorial Hermann Medical Plaza to small projects like the 5-unit Byrd’s Lofts. In fact, we’ve had TOD for a long time — the Heights and Neartown were both built around streetcar lines. Some of those converted houses with “anti-TOD” signs on Richmond are in fact TOD from 80 years ago. As these examples prove, TOD does not mean destroying neighborhoods — the towers both displaced parking lots, and the lofts were built in a vacant historic building. And TOD doesn’t mean we don’t let people drive — all three projects include parking. Most importantly, perhaps, TOD does not imply government subsidies or central planning — most TOD is built by developers who simply realize that they will make more money if they address everyone, not just people in cars.

Does all this add up into a big picture? Well, yes. All transportation is inextricably linked with development, because transportation projects serve the homes and businesses we’ve already built, and people and businesses will move to where they have easy access to transportation.

But other than that, each of these developments is independent. We can have TOD without METRO. We can have air rights development without eminent domain. And we can have METRO talking to landowners without any of the above. Rail opponents will tell you it means that METRO wants to work with private developers to condemn vast swaths of the city and build new super-dense developments. Frankly, METRO has its hands full just trying to build some transit. I am highly amused at this vision of an all-powerful transit agency. The history of METRO — 27 years of rail planning that resulted in only 7.5 miles of line — is full of proof that METRO’s ability to impose its will are limited. All of METRO’s board members are appointed by politicians, and all of those politicians care what the public think. Were METRO to try the kind of massive condemnation campaign that its critics envision (“half of downtown!”) there would be massive public outcry, and Bill White would tell them to stop. METRO’s track record — minimizing use of eminent domain, talking to people who own property along proposed rail lines, and finding ways to make additional use of land it uses for transit — gives no indication this agency is trying to rebuild the city.

It’s obvious why eminent domain upsets people. It is one of those powers — like arrest and taxation — that we reluctantly grant government because we feel it is necessary and useful. It should be done deliberately and fairly and infrequently. But without this power numerous transportation projects would be blocked because a single landowner won’t sell. As I see it, METRO needs to have the power of eminent domain to buy land that will be occupied by tracks, stations, bus bays, and other transit facilities, but it must be careful in using that power.

Personally, I dislike the idea of government redevelopment projects in general and the use of eminent domain to acquire land for them specifically. The redevelopment that works best is the kind that’s implemented lot by lot, not across many blocks at a time. Neighborhoods with mixed ownership are generally more resilient than those with one owner. And the scale of megadevelopment tends to result in less interesting places. The government has a role to play in the public right of way — in streets and sidewalks and transit — and in crafting regulations on issues like parking, setbacks, and curb cuts to permit appropriate development. But I don’t think the government should be rebuilding out city itself. I’d be happy to see METRO lose its powers of eminent domain for economic development (it’s possible it already has). And while CTC hasn’t taken a stand on this, I would imagine most of our members would agree with me.

But it makes no sense whatsoever to deal with our concerns about eminent domain by not building transit. Are we going to limit our transportation options out of fear of a 28 year old law that hasn’t been used? That’s like throwing the baby out with the bathwater. And of course, that’s what the people handing out those flyers want: they’re against transit, and this is another means to that end.

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