The Shell, the Pea and We

Jim Blackburn, the Houston lawyer representing the Sensible Priorities folks, tried to prove the city welshed on its Trinity river promises.
Peter Calvin

Let's say, for the sake of argument, that there isn't one thing wrong with the proposal to bring the Olympic games here in 2012. The Olympics boosters are still stuck with the fact that people don't trust Dallas City Hall. And why should we?

You won't even believe what the city just got away with arguing this week in its defense of a lawsuit against the Trinity River project. In fact, you probably haven't been paying attention, because of the way The Dallas Morning News has misrepresented the suit. At least on its editorial page, the News has painted the lawsuit as a bunch of goggle-eyed enviro-nuts trying to nitpick City Hall to its knees.

Hardly! This isn't even an environmental lawsuit. It's a taxpayer lawsuit to protect the public purse. It's all about tax money, not the environment.

A group called Taxpayers for Sensible Priorities filed suit nine months ago arguing that the city's Trinity River public-works program is a fraudulent violation of the agreement voters made with the city when they approved a bond program for the river in 1998.

See if you think these changes in the Trinity River project sound significant:

The Trinity River bond package, as presented to the voters in 1998, included $30 million for a levee along the Elm Fork of the river. The city has decided to scale that project down to $5 million and just use the extra $25 million for other stuff.

The Trinity River bond package, as presented to the voters, included $31.5 million for construction of a "chain of lakes" downtown. The city has decided that the $31.5 million is really just for "Phase I"--one lake-ette. For the rest of the chain, the voters will need to pony up an additional $70 million that the city forgot to mention in 1998.

The Trinity River bond package, as presented to the voters, included $7.4 million to buy and preserve 2,700 acres of bottomland hardwood forest and turn it into a park, to be called "The Great Trinity Forest." The city has decided not to spend any money on the forest and not to have a park.

Wait until you hear what the city now says about these changes in court. But, first, the really big change:

The Trinity River bond package, as presented to the voters, included a 45 to 50 mph "parkway" along the river, with easy access into the adjoining public areas. Now the city wants to build a major eight-lane toll road up the river, connecting the airport with a bunch of very speculative real estate in the Seagoville area, probably tied to a proposed NAFTA-related freeport in the vicinity. The parkway, which was supposed to cost $394 million with the city's share capped at $84 million, is now up to $1.2 billion and counting, with the city's share unknown.

In order to squeeze this gigantic pollution-spewing truck route into the river bed, the city has had to radically change the design of the bridges, a process it continues to misrepresent as a way of making the bridges more artistic. (What must they think of us?) In a deposition this summer in the Sensible Priorities lawsuit, Assistant City Manager Jill Jordan conceded that turning the bridges into "Calatrava signature bridges," named for the architect, will double or triple the cost per bridge, raising the cost of the road by a figure between $90 million and $180 million.

The additional cost of building a freeway that no one voted for, when added to the hidden cost of building the lakes that people did vote for, raises the total price tag for the Trinity River project by a number somewhere between $160 million and $250 million. That's almost double. With no forest park.

So here is what your city just told a state court judge. It's unbelievable, and you need to remember this when it promises to do right by the Olympics deal:

The city had filed a brief arguing that the official pamphlet it published bearing the official city seal and handed out to voters during the campaign to get the bond package passed was not truly, completely, technically, legally binding, "...nor any other representation made by the city staff or individual officials."

They told you to your face at a town hall meeting? Tough. Doesn't count. Had their fingers crossed. Only thing that counts is the language on the ballot, which was vague.

"As the city will demonstrate at trial," the city's brief stated, "its 'contract' with the voters is the Bond Proposition, not the brochure, and the city has been faithful to that contract."

So, the bond proposition--the thing that was printed on the ballot where you punch a hole or color in a dot for either YES or NO--was a single paragraph of legalese that described the project only in very general terms and didn't go into detail. Obviously, they weren't going to include a picture of the damn sailboat on the ballot with a little note saying, "boat must have red hull with light-blue sail and real pretty African-American woman, to be not younger than 22 nor older than 28 years, wearing bikini and sitting at tiller with engaging smile."  

We have to trust them a little bit on this stuff. That's our problem.

In fact that's their gotcha. It didn't say on the ballot itself that they had to give the money back if they didn't build the Elm Fork levee. And it maybe said some stuff about "lakes, waterways and open space," but it didn't say how much or when. And, yes, it mentioned a Trinity River Parkway. So they've got a parkway: an eight-lane limited-access toll road expressway. If you don't like it, park.

It's the kind of reasoning you get when you call Seattle to ask why your five-year or 50,000-mile extended drive chain warranty that you paid $500 for, which says on the cover of the brochure "covers any and all failures of the drive chain," doesn't cover your drive chain. And they tell you, "The sales people who made those representations to you no longer work here, and you need to read Chapter 8, Section C, sub-clause 2.5, which says, 'How some ever, the before said not withholding, this policy don't cover nothing, and persons claiming otherwise could get hurt because we got your address.'"

Several weeks ago the city rushed into court with a big emergency petition claiming that the Sensible Priorities lawsuit had caused the Texas attorney general to hold up all city bond sales for everything, river-related or not, bringing City Hall to its knees. The city was joined by what looked at first like a long list of civic-minded "intervenors" who wanted to help the judge understand what a terrible emergency this was.

I looked at the list. It's like 10 different masks on the same basic group of landholders along the river and their lackeys, all of whom were strung together by a lobbyist. The real message of the intervenor list was: "Hey, judge, we've got every googleplexionaire in town wired up to this deal. You make us mad, you think you might have an opponent next election?"

This Tuesday Judge Ann Ashby ruled that the city can do whatever it wants with the Trinity River tax money. She granted the city's request for a summary judgment, basically saying that it's none of the taxpayers' beeswax what City Hall does with their money. In my own humble opinion, the judge was impressed by the googleplexionaire argument.

At this week's hearing, Jim Blackburn, the Houston lawyer representing the Sensible Priorities people, had planned to present reams of evidence to show that the Dallas City Council, both in its official votes and in the promises it made to other government officials, made very specific guarantees about this river plan.

Not vague. Not loose. Very carefully detailed assurances.

In fact, in 1998 the city made specific promises to the Texas attorney general about what each element of the plan would look like, in order to get the A.G.'s permission to tie all of the elements of the plan into one YES or NO proposal. Since then, the city has gone back on almost all of the promises it made to the A.G.

So what does Sensible Priorities want in all this? Do they want to kill the project? Absolutely not. Their lawsuit merely says to the judge that the project has changed so radically that the city needs to give voters a fresh chance to vote on it. A new election.

Their very expensive lawsuit is being funded out of the pockets of private individuals. And all they are trying to do is protect the public pocketbook for the rest of us.

The city, in its answer to the Sensible Priorities lawsuit, tried to take a backup position. Referring to the official brochure that it claimed didn't really count, the city said in its brief, "...even if the brochure had some legal status, any variance...represents a thoughtful, rational and legally appropriate adaptation to changed circumstances..."

Sure. Main changed circumstance: "Quick! They're looking the other way!"

But let's give them the benefit of the doubt. Let's say they really believe their changes are reasonable. The changes still involve huge sums of taxpayer money. So why, if you have respect for the taxpayers, would you not want to go back to them and ask them if this new version you think is so "thoughtful and rational" is still OK with them?  

The only reason City Hall resists giving the voters another crack at it is because the powerful landholders pulling the strings just want the public's money for their toll road. And they do not care about trust.

I guess Judge Ashby isn't worried about us taxpayers ever giving her a good opponent.

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