Transit clarity

Bill would keep RTD in the rail, not development, business

Rocky Mountain News

Friday, March 28, 2008

State House members have fine-tuned and improved legislation that would prevent the Regional Transportation District from using its eminent-domain powers to assist developers in acquiring prime real estate for commercial ventures.

Current law bars RTD from condemning private property for uses that are not strictly related to transit. But the transit district's leadership has been acting as if the law is ambiguous, making the passage of House Bill 1278 an essential task.

HB 1278 could reach the House floor for a vote today. It arose from concerns that as RTD acquired property for the massive FasTracks expansion, the agency might try to cut costs by placing commercial ventures on land it had obtained through condemnation.

Under one scenario, RTD might sell or lease the bottom floors of a parking garage to retail establishments or restaurants. RTD Executive Director Cal Marsella defended the idea in a February letter to the Rocky, noting that such a move would not require more property than was needed for the parking structure, and that revenues from the commercial developer would reduce the agency's total construction costs.

Such "savings," however, would allow one landowner to benefit at the expense of another - with the government (RTD) as the middle man, enabling the transaction. Current landowners who would lose their property through condemnation are rightly incensed at the prospect.

As now written, HB 1278 would protect landowners from such condemnations. RTD could still use eminent domain to get land for rail lines and bus facilities. It could also take private property for maintenance buildings, utility infrastructure and parking structures; these are legitimate transit purposes. And transit facilities could still include a coffee kiosk or newsstand primarily serving rail users, so long as it did not encourage automobile traffic from nontransit users.

Meanwhile, the legislation makes clear that the transit agency may not use property it has obtained through condemnation for broader commercial or residential purposes.

Critics of the bill, including developers and advocates for low-income housing, have tried to build opposition by raising some bogus concerns. For instance, one claim is that the bill would block the construction of affordable housing near transit stations.

But private landowners with holdings adjacent to RTD facilities can build any type of housing now, so long as the property is zoned for that purpose. Nothing's stopping them. The question is whether RTD could condemn land and then turn it over to a housing developer, or design a residential project on its own.

HB 1278 definitively says no. This should calm some worries of property owners along the FasTracks corridors.

RTD could continue negotiating with outside parties to acquire land from willing sellers. The agency would still be able to use land it has obtained through voluntary transactions for a multitude of purposes; it would, however, have to abide by the bill's strict definition of transit-related use when building projects on land it has acquired through eminent domain.

Two years ago, state legislation eliminated economic development as a justification for public agencies to take private property. HB 1278 will make sure that RTD cannot go beyond the boundaries set by that earlier law, and clearly defines the limits of transit-related uses.