Here we go again.
Yesterday on Facebook, Dallas City Councilman Scott Griggs shared drafts of the documents that would establish the Local Government Corporation (LGC) to take control of the Trinity River Project. The council will be briefed on the documents on August 2, but this is the first look at the legal structure and authority that the new entity may have. I’ve uploaded the three documents for your perusal (the Term Sheet, Bylaws, and Certificate of Formation), and I would suggest looking at them in detail. I’ve spent the morning attempting a close read, and I’m left with a few questions.
I’m not necessarily opposed to the idea of Local Government Corporation taking over the business of managing, designing, and improving the Trinity River Watershed. That said, in this post back in April, I laid out some considerations and stipulations that would go a long way toward reestablishing public trust around the Trinity River Project by creating an entity that was both transparent and responsive enough to ensure that the public’s — and the Trinity’s — best interests. Does the LGC laid out in these documents meet those expectations? Yes and no. Let’s dig in.
Let’s get right to the meat and potatoes. One of the points I made last April was that the LGC should not have the authority to build roads — and, in particular, the Trinity Toll Road. In the Term Sheet, the scope of the project laid out in section 3 seems to specifically exclude construction of a road:
The Project does not and shall not include within its scope any regional, state, or federally sponsored or funded roadway infrastructure or authorize any activities to realize the construction of any regional, state, or federally sponsored toll roads within the Dallas Floodway.
That sounds like a win. But that’s just the term sheet. According to the LGC’s legally binding bylaws (Article 8.08(7)) and the formation docs (Article 6 (g)), the LGC will possess the authority to construct a toll road as long as it receives council approval for such a project. Why does this matter? Well, it creates an unnecessary loophole. If the intent of the project is to create an entity that will construct, enhance, and maintain the recreational amenities in the Trinity River floodway, then why create a stipulation that allows the same entity to construct a toll road with council approval, particularly in light of the fact that other road building entities that already exist — the NTTA and TxDOT — have already expressed reluctance to build such a road. Why mention it at all? I thought the point of the LGC was to build the park.
You might say that this isn’t a big deal. As long as the council never approves the construction of a toll road, the LGC will not be able to build the toll road. But let’s get even more loophole-y.
The way the authority of the LGC is laid out in these documents, the organization does have the authority to build “internal recreational vehicular and pedestrian accessways,” that is, roads inside the floodway meant to help cars and people move around the improved floodway. Now let’s say I was the head of the LGC and I believed, as some people in Dallas still do, that a toll road was absolutely essential to the aesthetic vision of the park — or, like some regional transportation planners, I was ideologically inclined to see a road built through the floodway as a necessary I-35 reliever route. This is how I would build it: I would get this new LGC to build six miles of road within the park that were technically considered “internal recreational vehicular and pedestrian accessways,” which can be built under the bylaws without any council oversight or approval. And then, once that money was spent and sunk into the ground — road bench and retaining walls constructed, medians, parking lots, and turnoffs paved — I’d go to the city council and get the 8 votes to approve the short connections to that road to hook it up the larger road network
Conspiratorial? Paranoid? Far-fetched? Maybe. After all, one of the beneficial stipulations in the LGC formation docs is that the any project improvements will be phased, and the phasing plan must be approved by the council. But my whole point back in April is that those steering the effort to create a LGC must make a good faith effort to eliminate the possibility for paranoia. These toll road building authority provisions are unnecessary. Take them out. If the council ever wants to build a road down the line, it can create a new entity to raise funds for and manage that project.
Another stipulation I laid out back in April was that the board of trustees of any new LGC should ensure that it represents the city of Dallas, contains experts who can speak to environmental and ecological issues, and is free from influence from any of the individuals who have been involved in the Trinity over the past few decades, including former city officials and board members and staff of the various Trinity-related non-profits.
The draft bylaws establish a board with three to seven members, all of whom must be Dallas residents. That’s a good start. But there are no provisions for qualifications or exclusions for those who may have had a hand in screwing up the Trinity over the years. The bylaws also allow the board to name an unspecified number of non-voting, ex-officio board members, for whom there are no explicit qualifications for membership. The board also has the authority to create committees, and these committees do not need to be comprised of members of the board and there are no explicit qualifications for committee members. At the very least, I would like to see more of an effort to create stipulations for naming environmentalists, ecologists, biologists, naturalists, and other environmental experts to the board. For example, I would like to see an ex-officio seat reserved for the head of the Dallas Audubon society.
I also argued that LGC board members should be appointed similarly to how Dallas appoints its DART board members, a process which has recently proven advantageous to advancing the public’s interest. DART board members are nominated by council members and voted on by the whole city council. But the LGC’s board members will be nominated solely by the mayor and approved by full council vote. That should be amended to allow for any council member to nominate a LGC board member.
Then there is the term-length and conditions of the city’s development and use agreement with the LGC. According to the term sheet, the LGC will be established for an initial term of 40 years, and the city will only have the right to terminate that agreement with cause. My fear here is that this could create another State Fair situation, in which, if the council would like to eliminate its contract with the LGC, it could get tangled up in a lengthy legal battle attempting to prove cause. Shorten the term and allow the council to terminate it with or without cause.
Next up is the LGC’s geographical jurisdiction. According to the formation docs, it will have oversight of the area from the confluence of the Elm and West Forks of the river and the railroad trestle just south of Corinth St. Bridge — the wide, levee-bounded area of the managed flood way. That leaves the planning, protection, maintenance, and potential improvement of the rest of the Trinity watershed and the Trinity Forest to the city and the familiar interdepartmental limbo between the Parks Department and Trinity Watershed Management. I would have liked to have seen the LGC provide for an entity that can plan and fundraise around a complete vision for the entire Trinity River and its tributaries inside Dallas’s municipal boundaries or even Dallas County.
Now, those are the sticky parts of these documents. There are actually a number of provisions that are worth commending, mostly regarding oversight of the LGC by the city council.
The construction of the floodway improvements are subject to a phasing schedule that must be approved by the council. The LGC will abide by the Texas Open Meetings Act, and the city reserves the right to audit the LGC. The city also has a right to review all design plans, financial plans, operating budgets, and capital budgets, which must be submitted to the city’s CFO annually and which will be subject to open records requests. However, the council won’t, as I wrote it should back in April, approve the LGC’s annual budget.
So what, then, is this LGC set up to do? In short, it will oversee the design, build-out, and management of a park project to be constructed in between the levees of the portion of Trinity River floodway nearest to downtown. It will raise money, posses the authority to issue bonds, and is obligated to manage and maintain any of the improvements, while the city maintains ownership of the lands. There are also requirements that the LGC completes these duties within a certain timeframe, including a stipulation that any approved plans must be constructed within 36 months or receiving council approval. These time limits, and the requirement that the LGC adequately manage and raise money for maintenance on the improvements, represent a big step in the right direction.
But the documents also paint a picture of an organization designed to execute the Michael van Valkenburgh vision for the Trinity that the mayor has been advancing over the past few years. If one were advancing the Wild Dallas vision for the Trinity, this LGC would not yet fit the mold. It doesn’t solve many questions about access and conservation facing the entire Trinity watershed; it doesn’t suggest that the LGC will be guided by principles that state and national park services employ to manage and conserve public lands; and it still contains worrisome loopholes with regard to authority to construct roads in the floodway that should be eliminated. The documents establish some basic oversight, though there is room to extend that oversight even further.
That said, this is a start, and, if its drafters are working in good faith, there should be some room for amendments on or before the August 2 council briefing. Those are the things that jump out to me upon first reading. If you spot anything else in the documents, or disagree with my interpretation of any of it, lets hear it in the comments.