Contract Bars Work on Riverside Freeway

Caltrans is deferring safety improvements to what it had deemed an unusually dangerous stretch of the Riverside Freeway because a legal agreement prohibits the state from doing any work that would harm business on a parallel private toll road.

As a result, roadwork that California Department of Transportation officials once described in legal papers as essential “to protect the traveling public” will be delayed for decades, and even minor repairs will wait for at least six years.

Thwarted by a lawsuit filed by the toll road owner, California Private Transportation Co., Caltrans quietly reached a settlement two months ago. But that deal has drawn the attention of state legislators demanding to know if public safety has been sacrificed for private profit.

“If Caltrans, which is not motivated by profit, comes to the conclusion that there is a safety problem, then there is a safety problem,” said state Sen. Joe Dunn (D-Santa Ana), who serves on the Senate Transportation Committee. “And then to compromise that because of a contractual reason, well that’s contrary to the public interest. The public interest is not being served.”

The controversial settlement is at the heart of growing debate over what role, if any, private roads should play when it comes to building highways in California. Caltrans agreed to the Riverside Freeway toll project a decade ago at a time when it was strapped for money to build roads.

A number of legislators have called for hearings into the recent settlement and the original 1993 franchise agreement that granted the private company the right to operate the 91 Express Lanes. Caltrans officials now say that agreement barred them from doing the work they had planned.

As early as 1997, Caltrans data had indicated that the accident rate on a stretch of the Riverside Freeway alongside the toll road was as much as 72% higher than on comparable freeways throughout California.

A $30.6-million plan, designed to correct problems with dangerous onramps and offramps along a six-mile stretch of the freeway by adding lanes, had been approved at Sacramento headquarters.

Caltrans at first asserted its legal right to improve the freeway, which connects Orange and Riverside counties, by invoking a safety clause in the original franchise agreement.

Responding to the toll road operator’s $100-million lawsuit, attorneys for the agency asserted that the “proper exercise of constitutional police powers reserved to the state of California mandates that this department of state government take every action reasonably necessary to protect the traveling public.”

But the agency did an about-face this October, halting the planned improvements after its attorneys concluded that Caltrans would lose the lawsuit.

Jim Drago, Caltrans’ spokesman, said the department’s legal team decided that the agency would be unsuccessful in court because the agreement included a “non-compete” clause prohibiting Caltrans from adding lanes.

“Clear and simple, this was an increase in the capacity [of the freeway], which was not allowed under the terms of the franchise agreement,” Drago said.

State transportation officials would not say Wednesday whether they still have concerns about the safety of the road.

“Caltrans is continuing to study the accident data,” said Bill Sessa, deputy secretary for the state Business, Transportation and Housing Agency, which oversees Caltrans. “It’s likely that somewhere down the road a solution could be proposed.”

But Sessa and Drago could not say why Caltrans agreed to settle the case in October--before the study of accident data was complete--or define what type of safety improvements would be allowed under the franchise agreement.

“This was not a lawsuit over accident rates,” Sessa said. “The settlement was in the best interest of the taxpayers. It was settled to end a legal debate.”

Matt Johnson, an attorney for California Private Transportation, said there is no safety problem along that stretch of the Riverside Freeway.

“They had absolutely no basis for that project,” he said. “If they had had a basis for it, they wouldn’t have pulled it off the table the way they did.”

The 10 miles of private toll road run parallel to the Riverside Freeway, from the Riverside/Orange County line to the Orange Freeway.

The 91 Express Lanes have come under intense scrutiny in the last few weeks as the owner attempted to sell the road to a nonprofit group for $225 million.

That sale of the money-losing toll lanes fell apart last week under a barrage of criticism from high-ranking state officials, including state Atty. Gen. Bill Lockyer, who launched an investigation into whether the seller and buyer had too close a relationship.

Internal Caltrans documents show that the agency first flagged safety problems on the Riverside Freeway as early as December 1995, when the toll lanes opened.

It took another two years and $5 million for Caltrans to issue a 70-page report detailing the high accident rate and offering a solution--adding one eastbound and two westbound auxiliary lanes. Over those two years, more than 1,300 crashes occurred in the stretch of freeway that runs parallel to the toll lanes, killing six people and injuring 276 others.

Caltrans officials, concerned that merging traffic would be even more dangerous with the opening of the Eastern Toll Road, which connects the Riverside and Santa Ana freeways, began working on plans to improve the Riverside Freeway. Those plans ultimately prompted the breach-of-contract lawsuit.

In the suit, the company alleged that the planned work would “irrevocably damage” its business. The state agency, it argued, had given up the right to do such work when it signed the 35-year franchise agreement for the toll road.

Caltrans agreed in the Oct. 12 settlement, saying that “although Caltrans believes that safety benefits might result from the [project], Caltrans could not currently demonstrate that the [project] clearly qualified under the safety exception.”