I need a clarification. In the State of Texas, does a road that is
used by the Public have to be constructed on publically owned
right-of-way? I have been told that the NEPA process requires that it
be built on government owned right-of-way. However, I have also been
told that the Camino Columbia was built on private property as a
private toll road.

Now It may be true that if the private road crosses public
right-of-way, then the entire road is subject to the NEPA process and
therefore the entire right-of-way would have to owned by the
Government.

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Request for Question Clarification by pafalafa-ga on 26 May 2005 20:38 PDT

Hello powhatan-ga,

It's me again, and first off, my apologies for never completing your
other question about farm to market roads -- I just ran out of
information on the topic and wasn't able to answer all the questions
you raised.

As for your current question, I just wanted to say that I'm pretty
familiar with NEPA, but I'm certainly not aware of any requirement
under the act that would affect roads in the way you mentioned.

There may be requirements imposed by other federal or state laws, but
I don't think NEPA would come into play in that regard.

Hope that helps you or a researcher as they look into this some more.

pafalafa-ga

Hello -

I spoke to a representative at the Right of Way Division of the Texas
Department of Transportation, in addition to a representative at the
State Law Library, both of whom confirmed: the state has "emiment
domain" over private property for the purpose of building publicly
travelled roads.

According to article 1, section 17 of the Texas Constitution, "no
person's property shall be taken, damaged or destroyed for or applied
to public use without adequate compensation being made" -- the
implication being that this is allowable with adequate compensation.
See:

The Texas Constitution
http://www.capitol.state.tx.us/txconst/sections/cn000100-001700.html

This section in the Texas Statutes Property Code has more information
on "eminent domain":

http://www.capitol.state.tx.us/statutes/docs/PR/content/htm/pr.004.00.000021.00.htm

If you require any additional clarification or information, please
don't hesitate to ask.

Thank you,

jbf777


Search strategy:
 texas transportation

Contacts:
 Texas Transportation Code 
 Right of Way Division
 512-416-2920 / Randy

State Law Library
 512-463-1722 / Gregory Harper

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Request for Answer Clarification by powhatan-ga on 29 May 2005 18:58 PDT

Thank you for the information you provided, but I think I need a
little more in depth detail. Certainly, the State must compensate a
land owner upon whom the State invoked their right of eminent domain.
But here is a more specific example. If a private entity purchased
property from several private landowners for the purpose of creating
transporattion infrastructure and those landowners did so willingly
without imposition of any State rights et al. Why couldn't those
landowners simply sell the right-of-way to a developer who would then
build the transportation infrastructure? Certainly this was the way it
was when, for example, the first roads were built and maintained by
private owners. As I mentioned this is what I understand occurred with
the Camino Columbia in Laredo, Texas.

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Clarification of Answer by jbf777-ga on 31 May 2005 07:54 PDT

powhatan -

Thank you for your clarification request.

Public roads do not have to be built on private property, and in most
cases they aren't.  In those instances where they aren't, a property
owner may look to sell the portion of the property to the state if the
state is interested in buying it for the purpose of developing
transportation infrastructure.  If there is some intermediate party --
"The Developer" -- it will be directed by the state.  If the property
owner has property that he DOESN'T want to sell, and the state wants
to use this property to build roads, it has eminent domain and may
choose to acquire the property anyway, with due compensation to the
owner.  If the private property ALREADY has a road on it, the same
things apply: the property owner may look to sell it to the state, or
the state may exercise eminent domain over it.

Does this answer your question?  If not, please clarify in more detail
exactly what you're looking for.

Thanks,

jbf777

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Clarification of Answer by jbf777-ga on 31 May 2005 07:57 PDT

correction: that second sentence should read:
"In those cases where they ARE, a property owner may look..."

Powhatan,

Are you asking about the Public Private Partnership road construction in Texas?

http://texas.construction.com/features/archive/0505_cover.asp

If Camino Columbia is a private toll road, although one used by the
public just as it would use a state-owned toll road, then it could
still be a private road and not subject to ownership of the land by
the government, but this is nonetheless probably the case, though
maybe the land could subsequently have been deeded over to the private
developer (which I doubt, however).

JBF777-ga's answer addresses this side of the question:  State,
county, city rights of eminent domain in order to build roads.  This
does not require, however, that all roads open to the public have to
be on land acquired by the government.  For major roads, the
government would almost certainly have to exercise its right of
eminent domain, since a private entity would have to bid up the price
of the land, and still wouldn't succeed, the last owners holding out
for even more.

Many private roads exist, often within subdivisions, and the matter of
their being turned over to the county is discussed in these two sites:

http://216.239.59.104/search?q=cache:hD41n32BHw4J:www.oag.state.tx.us/opinions/requests_ga/RQ0316GA.pdf+private+road+OR+roadway+texas&hl=de&client=firefox-a

http://www.capitol.state.tx.us/statutes/tn.toc.htm

You may have to "joggle" the first one to open it.  It is an opinion
about owners of a private road turning it over to the county.

The second site has a couple of headings about the three ways
ownership of a private road can be transferred.  You have to scroll
down a ways.

IN practice, the subdivider has to provide access roads, which in one
form or another become the property of the parcel owners, along with
the obligation to maintain the road.  So they paid for it and it#s
theirs, but just a source of future expenses, hence the desire to let
the county have this "lovely" bit of real estate.

I hope this added something towards an answer to your question.
Myoarin

If I may join in again, Powhatan-ga and Jbf777-ga,
Powhatan's clarification:
It is a matter of motivation and price. If I am starting a subdivision
or am buying a lot in a subdivision, I am willing to accept that other
people - even the general public - have a right of way over part of my
property that is dedicated to being a road.  I still own the land,
they have and easement.  No problem, that was the deal I planned or
bought into.  Private roads usually have maintenance agreements about
sharing the costs (I have one on my desk here for a little road in
Cal.), because I don't want people complaining that the potholes in my
land should be repaired by me, when they are actually caused by the
people driving past my lot.
If the road becomes more public, rather than just being a sort of
common driveway, this kind of agreement becomes onerous.  There is no
real estate value in the land dedicate to the road, so the parties to
the maintenance agreement couldn't be happier, if they can give it to
the town or county, something a couple of the sites above mention.

HOWEVER, a landowner usually feels quite different when someone wants
to plan a road that is going to go over his land after he has bought
it.  If I have a couple of hundred acres of land that will become much
more accessable (for my new subdivision or to sell parcels to roadside
development), I may be pleased to  let the government or anyone else
put in the road and not argue too much about the price for the land or
an easement.
But if I know that this road is a big, serious project, for example,
that it is part of the overall city planning or an extension of an
Interstate highway, greedy little me will hold out and hope to drive
the price up.
(This is what happens in private city development when in NYC, say, a
developer wants to buy all the properties in one block to put in a big
building.  The last holdout gets the highest price  - or does not. 
The owner of a corner of the block with the Macy's building refused to
sell so long, that they built around him.)
But that is not possible with a road, so private development will not
be successful, the state has to step in and exercise its right of
eminent domain, and old legal expression, which suggests that the
problem has been around for a long time.
With this right, the state (city, county) can buy the property at a
"fair price" (and that leads to enough court cases) from everyone.

Maybe the Camino Columbia in Laredo was a case of everyone recognizing
the advantages for himself, I don't know.

This has been pretty wordy, I hope that it was "in depth", as you asked.

Please don't hesitate to ask for more explanation, or criticize this,
so Jbf777 can add a clarification to his/her answer.

Myoarin

Thank you both very much. This has been fascinating to me because your
points of view are relative to subdivision development. So now I'll
put this "on steroids." I love that you both seem to be strong
advocates of the rights of private property owners. You have also
began to note the matter of cost associated with the risk of
constructing and maintaining a road when you cannot control who uses
it. Additionally, you have brought the idea that ony the Government
can take the responsibility of maintaining the road, with of course
your and my tax dollars. So tell me what you think based on what you
know about the following.

Let's say that I want to build, operate and maintain a toll road with
no public money. And I get all landowners through mutually acceptable
financial arrangements to sell/lease the right-of-way across their
land for my toll road. Could I charge the public a user fee (toll) to
use this road? Or do I still have to have the Government's permission?
I think you have already commented on this when you spoke of a
developer developing hundreds of acres. But just in case, what do you
think? Have I stepped out of bounds?

Powhatan,
Thanks for the nice remarks, especially appreciated by commenters, who
sometimes wonder why we do this.

To the question in your comment:  If you could buy the land (or get
easements from all the landowners to allow anyone - the "public" -
access  AND for you to put in a road, which I suspect would have to be
defined in the easement), then I see know reason you could not operate
it as a toll road.

But I am no legal expert, and - as you know - nothing here is legal or
professional advice.

If you bought the land from all the owners, barring zoning codes or
other existing government restrictions (and there could be some) - 
you could do whatever you wanted, again providing that you road me the
standards specified by the authority responsible.
BUT, I think it is still hypothetical.  

Myoarin