SPEAKOUT: RTD going too far

By Bob Hoban

Published in the Rocky Mountain News 

Is RTD a Regional Transportation District, or is it a Regional Redevelopment District?

In 2004, RTD voters approved a light-rail transportation project, but not a large-scale redevelopment scheme headed by RTD. The FasTracks transportation project will undoubtedly provide the Denver metro area with invaluable services, and transit-oriented development will likely change the landscape and economy in certain areas accordingly. However, RTD is a transportation district - not a redevelopment authority - and it should not be permitted to unilaterally define/change its scope and authority at the expense of private property rights across the state of Colorado.

In recent weeks, there has been a tremendous amount of media attention regarding RTD’s land-acquisition efforts for its proposed FasTracks light-rail lines. Generally speaking, it appears that RTD is taking great liberties with its land-acquisition powers concerning FasTracks.

RTD has condemnation powers arising by Colorado statute that are limited to acquiring property through this ugly process for transportation systems and related transportation facilities. However, RTD’s unabashed desire to facilitate transit-oriented development along its corridors and adjacent to its park-n-Ride facilities along these proposed corridors has inspired it to make an entrance into the development business.

One can argue all day long whether the market will drive transit-oriented development to these transportation facilities, or whether it is the role of governments to facilitate conditions that will accelerate or especially encourage transit-oriented development. However, it is very clear that RTD is attempting to expand the scope of its operations and authority to encompass operations that far exceed the oversight of a mass transportation system (see Colorado Revised Statues 32-9-107).

RTD is doing everything it can to unilaterally broaden its land-acquisition powers to encompass land acquisition for such purposes as the development of commercial, retail and residential transit-oriented development. In particular, RTD has drawn up “preliminary site plans,” which generally depict its purported land-acquisition needs for the purposes of developing its park-n-Ride facilities.

However, even RTD has acknowledged that these “preliminary site plans” are not to be relied on and may be entirely changed after the land has been acquired (through eminent domain where necessary) and after a Request for Proposals has been initiated and awarded to a selected developer.

In other words, RTD plans to afford its selected developers considerable latitude in designing and constructing these RTD park-n-Ride facilities, including the incorporation of commercial/residential “amenities” into the site plan.

RTD has further indicated that it plans to allow these selected developers this “flexibility” as a “incentive.” In other words, RTD plans to allow its selected developer(s) to provide revenue-generating “amenities” to its riders at its transit facilities. These “amenities” might include food service businesses, service-based businesses, and/or residential units.

RTD appears to be drastically stretching the term “amenity” to include large-scale transit-oriented development vs. simply providing its riders with a newsstand (or the like) that is typically found at RTD’s transit facilities.

To allow RTD to acquire property based on an illusory “preliminary site plan” with intentions to allow a selected developer to profit from commercial/residential development within property that was supposed to be acquired for a transportation-related “public use” is tantamount to allowing RTD to proscribe its own authority, scope and parameters.

RTD’s efforts in this regard need to be examined very closely and its purported efforts to expand its condemnation powers during the upcoming legislative session also need to be viewed with great scrutiny. Otherwise, the Colorado Constitution and the Colorado Revised Statutes are rendered mere optional guidelines.

Coloradans should not sit idly by in the face of such a power grab.

An attorney, Bob Hoban is a partner at Frank and Finger, P.C., in Evergreen (www.frankandfinger.com) and specializes in eminent domain, land use and real estate litigation.