Lockyer Gave Early Warning on Toll Lanes

Then-state Sen. Bill Lockyer, now California’s attorney general, warned in a 1991 memo to fellow legislators that contracts being drawn up for four private roads, including the 91 Express Lanes, had serious defects that were likely to come back to haunt the state.

Chief among his concerns were prohibitions that prevented the state from building new freeways or making existing road improvements that would compete with business on the private toll roads.

Just such strict prohibitions prompted Caltrans to agree in October to halt plans they said were necessary to improve safety on the Riverside Freeway near the privately operated toll lanes. Caltrans backed down after being sued for $100 million by the California Private Transportation Co., which claimed the work would irreparably damage their business.

“My argument all along was that the existence of the toll roads would limit traditional public highway construction, and we’re seeing it now,” Lockyer said Thursday. “The inherent conflict is that the success of the toll road depends on congestion on the public highway. It’s very unfair to the other drivers.”

The state Assembly Transportation Committee has scheduled a hearing in Sacramento in January to review Caltrans’ agreements with the 91 Express Lanes operator. Some legislators say they were shocked to learn that Caltrans forfeited its right to improve the highway for decades to come.

The core conflict, critics say, is that a badly congested state-run freeway is the best incentive for drivers to use the toll lanes. The worse the commute, the theory goes, the more money people will fork over to escape it.

“What was going on in the minds of state legislators when they passed this thing?” Riverside County Supervisor John F. Tavaglione said earlier this week. “To give away a 35-year exclusive agreement on the entire length of the freeway?”

Riverside County Supervisor Bob Buster said Thursday that he would ask the Riverside County Transportation Commission next week to petition Lockyer to investigate whether Caltrans illegally surrendered its powers or violated the “public trust doctrine” when the agency agreed to the initial franchise agreement as well as October’s settlement agreement.

That agreement, Buster said, resulted in “one of the biggest public giveaways that we’ve ever witnessed.”

But some legislators who voted for the 1989 law that made private roads possible say they were looking for creative solutions to a long-standing need for new roads.

“I think that involving the private sector was a very acceptable solution,” said Marian Bergeson, a former state senator from Orange County who now serves on the California Board of Education. “We were trying to find ways of expediting tremendous transportation problems in Orange County especially that were not being addressed. This ‘pay as you go’ was offering a way to get private money to build roads that were desperately needed.”

It Seemed Like a Good Idea to Some

Bergeson, however, said that she didn’t believe private companies should have been guaranteed that public road improvements not be made.

“I don’t think the public should be manipulated in order to let a private investment succeed,” she said. “And I don’t remember that being part of the deal.”

The state’s awkward position came to light recently when the operators of the 91 Express Lanes--the only private toll road to be built in the state--tried to sell the road to a nonprofit group. Caltrans had cleared the way for the attempted sale in October by approving the deal and settling a lawsuit brought by the operator of the toll lanes to stop planned improvements on the road.

Internal Caltrans documents show that by 1997 Caltrans officials had documented an unusually high rate of accidents on the Riverside Freeway near the 91 Express Lanes--as much as 72% higher than comparable roads. But after initially asserting in court papers that the state’s mandate was “to protect the traveling public,” Caltrans officials conceded that its safety concerns took a back seat to the promises contained in its contract with the private toll road operators.

Caltrans officials then scrapped its plans for major road improvements. Jim Drago, Caltrans spokesman, said Thursday that the state agency did extract two concessions before signing the Oct. 12 settlement. State officials got permission to improve 3,000 feet of the road in 2006 and will be allowed to add an additional lane in either direction after traffic swells to 370,000 each day, a more than 50% increase over current traffic levels. By Caltrans’ own estimates, that won’t happen for at least 15 years.

Drago also said Thursday that a Caltrans review this week of accident data in the area showed accident rates mostly lower than average from 1996 to 1998. He could not explain why those totals differed from figures in the 1997 report.

Lockyer and others say the state compromised its obligations to commuters when it promised to protect profit-making on the private road.

In Lockyer’s memo eight years ago, he sharply criticized the agreements. Among serious concerns he raised about the deals:

* The right of the private investors to make a return exceeding 21% at the same time Caltrans was required to use its “best efforts” to ensure the projects’s success.

* That Caltrans not only was prohibited from doing improvements that would compete with the private roads, but was also compelled to prevent other agencies from doing such work.

* The fact the developer need only pay a $10-a-year franchise fee to Caltrans for the duration of the 35-year lease.

* Full liability for the toll road rested with Caltrans, which had no right to any money damages for defects in the road. The condition leaves taxpayers responsible for defending lawsuits and compensating the injured.

* The right of the developer to sue the state for damages if the state’s action damaged the toll road’s business, precisely what happened when the 91 Express Lanes’ operators sued.

“There were a lot of specific defects with the agreements that had been negotiated,” said Lockyer. “Those defects included the likelihood that the more affluent toll road users would have a better highway--better maintained, less congestion--and the ordinary citizen would get the potholes and the gridlock. And that does seem to be happening.” Former state Senate majority leader David Roberti, who was one of nine state senators to vote against the private road law, said the debate over the issue was fierce.

“Caltrans’ business is the maintenance of the public highway system, especially its safety and then its efficiency,” said Roberti, now a member of the California Integrated Waste Management Board. “There are some functions which are so expensive and so basic to the safety and economics of the state that it is the duty of government to take those tasks up without consideration about making a profit.”

Lockyer said the time has come for the state to remedy the problem.

“I think [private roads] are a bad policy and I opposed it at the time,” Lockyer said. “But now the principal question is, how do we undo the mistake? The state ought to buy the road and put it in the freeway system.”