February 9, 2004
On December 22, 2003, the El Paso County Commissioners' Court voted 4-1 -
in a special meeting unattended by the public - to "settle" a nearly
decade-long legal battle, by selling 302 acres of county land to Chris Collins'
Catalina Development.
County Commissioner Charles Scruggs was the lone vote against the sale. This
is what he had to say after the vote.
[Editor's Note: For background on the sale, read "Catalina Development
vs. County of El Paso" in this same issue of the Newspaper Tree.]
NPT: Given the procedural posture of the case, why the urgency and why
the settlement of a matter that was not being litigated?
SCRUGGS: I don't know. And I did not think there was any urgency in settling
it. You know, we have a piece of property out there that there's a lot of
expressed interest in. And I don't think we would have had any problems selling
that property. And there was certainly no urgency in doing it. And I don't
think there was any real risk to the county of any threat of appeal.
What we were being told was that the other side was threatening to appeal
to the US Supreme Court - through a writ of certiorari. That is an
extremely difficult thing to do. The Supreme Court gets about 8,000 applications
a year for cert. And grants only about - I think it's 1 in 800 of those.
It's a very, very limited right of appeal. And you can only raise to the Supreme
Court issues of a federal nature that were raised at the lower court - and
none of those issues, like unfair taking or due process, US Constitutional
were raised at the appellate level in the state courts.
NPT: The Texas Supreme Court decision in favor of the county is based
on a state statute, right?
SCRUGGS: Yeah. It's all based on the statute. So, you know, the chances of
having something granted in the Supreme Court was slim and none. And I didn't
see the reason for us to rush into doing this, or do it at all, frankly.
NPT: Would it be correct to say that only in extraordinary circumstances
would the federal Supreme Court override a state law?
SCRUGGS: Right. I mean, if there is a compelling federal interest involved
or there is an outright violation of federal law - and you know, those issues
weren't even raised at the state court level. So, I don't believe we had much
of a risk on any appeal.
NPT: What is the value of the property?
SCRUGGS: Well, we don't know - that's the other issue. I mean, it hasn't
been appraised. And when all this sale was done back 10 years ago, it wasn't
even appraised then. They had a GLO - General Land Office - appraisal that
was dated 10 years ago. But now, 10 years later, that property is right in
the growth path of the city. In matter of fact, it's right adjacent to the
city limits. It will probably be annexed, obviously.
NPT: Why do you say this property is likely to be annexed?
SCRUGGS: Well, I mean, all of East El Paso will continue to grow whether
we do anything about it or not. I mean, it is destined that this side of town
will grow. I've lived my entire life in East El Paso. I've lived here 36 years.
And, when I went to Eastwood High School, El Paso pretty much ended at Yarbrough.
And it has continued to grown and will continue to grow. Now, the city, having
it annexed, will increase the value of the property, obviously - and, extend
city services out there.
It's a huge block of land. The whole thing is around 380 acres. So, you
know, I did not see the need for us to get involved in land speculation for
development on the East side of town, because there's a block right north
of there that somebody could have bought. You know, this is public land.
How often does a governmental body have 380 acres that it can not only control
through zoning, but it owns? With all that growth out here on the East side
of town, it would have been much better for us to plan the use of that land
for public space, because the East side is going to continue to grow, and
the amenities that we can foster on the East side, through that, would be
a lot better than just having more housing. I mean, we're going to have that
anyway.
NPT: That bring us to the issue of affordable housing.
SCRUGGS: It sometimes simplifies things a great deal to say that we're going
to promote affordable housing. What we were told - what some of the members
of the Court said, "We're going to get affordable housing as a result
of this."
First of all, I can't believe anybody's going to build unaffordable housing,
here. A builder is not going to build unaffordable housing. So, what does
that mean? And nobody defined what affordable housing was going to be. And
even if we were going to get lower market housing than what would normally
be the case, is that a proper thing for government to do either? Should the
county subsidize any kind of housing development? And I'm not saying we are
doing it with this, but that was an argument that was made, "This will
provide for some affordable housing in East El Paso."
Well, there's plenty of land all the way to the county line. People could
buy and do affordable housing if they wanted. This is a piece of land that
is about two and a half times, three times the size of UTEP. We could have
done so much with it.
NPT: The issue of "process" has been a part of this case from
the beginning. The county originally sued to stop the sale in 1995 based on
a concern that state "notice and appraisal" requirements had not
been followed. Again, this year, Rancho Real Developers have sued,
calling this sale a "sham." In place of what was done, what would
have been an alternative process regarding this sale?
SCRUGGS: The issue that I have with selling it, first of all, is that we
don't have any plan for what we're going to do with proceeds from the sale.
I mean, I would think that if we're going to sell it - we could make $10 million
on this land, depending on what the appraisal comes back at. But, if we have
no plan or commitment related to what we're going to do with those funds,
then I think that's irresponsible. I mean, if we take that money and just
dump it into our budget, to pay bills with it - that's just a waste of a public
asset that we fought for ten years to get.
But, if we are going to sell it, it behooves us to get the best price for
it. And I think that the tax payers would expect us to get the best price
for it. And that means to go out and bid it, and let people bid on it.
You know, you have to decide, are you really truly settling a law suit, or
are you selling property? And if we are settling a lawsuit, I think we should
do that with the advice of our counsel, and our counsel is telling us not
to do this. If we are selling land, then we have a process to go through under
the government code, to dispose of public assets - and we didn't follow either
one.
NPT: Is that why you opposed the sale?
SCRUGGS: That's why I opposed it - besides the fact I didn't think we should
sell it. Because I think, really, that this was an opportunity for us to have
done some long-range planning.
We had that Six Flags group that came to the Coliseum last year -
they used to be downtown on the railroad. I met with the guy who runs their
park in Houston. He told me that Six Flags would be interested in looking
- and they had looked - at El Paso as a market. And he said, the one thing
that they had looked at several years ago for El Paso, if it made sense, was
a NASCAR track - like they have in Phoenix; that El Paso's a natural half-way
point between the tracks back in the east part of the country and the Phoenix
track. The other thing we could have done with the land would have been an
arena.
NPT: Has there been any public input on the best use for the land?
SCRUGGS: Any kind of public input on the deal just got pushed out. I talked
with Commissioner Hooten about this property about three months ago. He was
instrumental in buying it about a decade ago. He suggested, and I agreed,
that it would be a good idea to have a planner come in and look at the potential
for this property in several aspects. We never got to explore those possibilities,
because this deal was done.
NPT: What's next?
SCRUGGS: I hope it's not the case, but it could be that this is tied up in
litigation for years to come. And the city will go around this property.
NPT: So, this might be dead space in the middle of the East side?
SCRUGGS: Yeah. I'm really disappointed. I know the courts are going to have
to make a decision on this particular law suit. Who knows if other law suits
are going to be filed. I think all of this was unnecessary if it had just
gone out to public bid. I would have not supported selling it, even at a public
bid, because I think we could have done other things with this property. But,
if we did go out for public bid, at least we would have had some discussion
on what we're going to do with the money once it's generated and comes into
county coffers. I just have a feeling we'll spend it, with no plan on what
do with it.
When I ran for this office, people asked me about this land and they were
saying it was just a travesty what had happened; and "What are we going
to do with this land when we get it back, if the county gets it back? If the
county doesn't get it back, look at all the money that's been tied up - county
money that's been tied up in this property for all these years, that hasn't
been put to public use."
I said, "Yeah, it's reprehensible. You know, we shouldn't do that. And
I don't want to see that happen." And what happens? I'll be darned if
it didn't happen again. I'm really sad about it. It's one of the saddest things
that I've seen since I've been here. If it stays in litigation, it's going
to be sad for everybody.
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