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It's RTD versus the little guys

Opinion Editorial
May 4, 2008

By Jessica Peck Corry, Kate Melvin

At the corner of West 14th Avenue and Wadsworth Boulevard in Lakewood, one couple’s American Dream lingers on the verge of collapse. The reason, they say: RTD’s overzealous condemnation efforts.

In 2004, 54 percent of metro-area voters approved an expansion of Denver’s FasTracks, an RTD light-rail system promoted as a way to ease congestion for commuters. While the initial transportation package, which also included new buses, stood at $4.7 billion, now the total taxpayer investment has ballooned to more than $6.1 billion. An additional $400 million in new cost overruns is also expected.

To help subsidize its increased costs, RTD officials are now pursuing private development projects they say will help keep the overall price tag more manageable for taxpayers. There is just one problem with this strategy: Property owners in the path of such projects may be forced to forfeit their land to make way for pricey high-rise condos and coffee shops.

Galen Foster and Kim Snyder (shown at right), owners of Lakewood’s Pro-Tint Window Tinting, are living this reality. The couple is the first to admit that sometimes eminent domain — the forced condemnation of private property for a public good — is unavoidable. This public good, they concede, can include public transportation projects like FasTracks.

What Foster and Snyder say they cannot accept, however, is that they are being threatened with condemnation not for new FasTracks rails or a rail station, but rather so that RTD can turn their property into a massive private-development project, of which a parking garage would be just a small portion. Further, Foster and Snyder point out that there are more desirable locations for the garage — closer to a proposed FasTracks station.

RTD defends its pursuit of the couple’s property, saying that the garage is essential to the project and that adding several stories of privately funded residential and commercial development above and around it would ultimately benefit taxpayers.

If private development is RTD’s goal, Foster and Snyder maintain that they shouldn’t be excluded from the process. Foster has publicly said that he’d consider redeveloping the property. When he approached RTD about doing so, he was told that he could put in a redevelopment bid after his property had been condemned.

Ultimately, RTD has no interest in doing business with Foster and Snyder — it seeks only to take their business. The loss of their unique property would be devastating not only for Foster and Snyder, but also for their surrounding community. While RTD would be required to help them relocate their 25-year-old business, they would have a difficult (if not impossible) time trying to find a suitable replacement.

Foster and Snyder’s business is about as unique as they come. In addition to selling window tinting, the couple sells Native American art, including authentic totem poles. They live in the back of the business, in a 5,000-square-foot ranch-style home, with Dobermans that they have rescued from abusive homes. While the situation might be too unconventional for most, Foster frequently talks of the “love affair” the couple has built there, not only with each other, but also with their land.

Bob Hoban, the couple’s attorney, argues that under state law, RTD is not entitled to take the land for anything other than transit-related purposes. He specifically points to reform legislation passed by state lawmakers in 2006 that sought to put the brakes on aggressive eminent domain pursuits. But this hasn’t been enough to stop RTD.

In an effort to bolster the couple’s case, Hoban and a coalition of dozens of property-rights activists pursued House Bill 1278, legislation that in its original form would have explicitly prohibited RTD from taking his clients’ property. While the bill survived adverse amendments, it was restored to its original form last week before being toppled by RTD’s team of top lobbyists and killed in the Senate’s Local Government Committee.

Snyder was at the Capitol when she got word that the bill had been killed, and broke down in tears. Before receiving a letter last fall from RTD telling her that her property was being targeted, she says she started every day at 4:30 a.m. Now, she barely sleeps a few hours a night. Scared she will lose everything, she still clings to the hope that legislators will do the right thing and protect her from being forced off her land. But the momentum is not in her favor.

Furthering the concerns of dozens of property owners along RTD’s west corridor is another bill passed this month that will allow RTD to issue tax exempt financing to private developers seeking to develop properties of those like Foster and Snyder’s. According to Hoban, real estate developers have now been given a perverse incentive to stay silent as small-business owners and working families are being pushed out to make way for more lucrative private projects.

Last month, RTD was questioned by the Denver Regional Council of Governments for understating its cost estimates. And while RTD may be bad at math or overly optimistic in its fiscal projections, taxpayers shouldn’t be forced to make up funding shortfalls by forfeiting their land. Eminent domain for such purposes is illegal and unconstitutional, but RTD and its team of lawyers can afford to take the chance of getting sued, knowing litigation is out of the realm of possibility for most of the property owners it targets.

When RTD says its needs to condemn property for light rail, Hoban warns people to be skeptical. While you may be envisioning new tracks, a rail station, or a parking garage, it may just be a Starbucks and expensive lofts that pop up instead.

Jessica Peck Corry serves as the director of the Independence Institute’s Property Rights Project (www.propertyrightsproject.org). Kate Melvin is a research assistant for the project.
Originally Appeared in the Denver Post