Developer has ‘no way’ to stop Texas from taking Fairfield Lake State Park, experts say

Dallas-based developer Shawn Todd has promised to make the state pay big bucks as it seizes his 5,000-acre property, which includes the Fairfield Lake State Park land.

Todd has legal avenues to fight the state on how much it owes him for the property, under Texas’ eminent domain laws. But he doesn’t have legal options at this point to stop the acquisition of the land itself, according to an eminent domain expert.

Under eminent domain laws, entities including the state government can seize private property if it is for the public benefit. Andrew Morriss, a professor at Texas A&M’s School of Law and The Bush School of Government and Public Service, said that a state park is firmly within the scope of the public benefit.

“It’s like one of the obvious examples that are used in textbooks,” Morriss said. “Highways, parks, firehouses — that’s what eminent domain is for.”

Another eminent domain expert — Emilio Longoria, an assistant law professor who specializes in eminent domain at St. Mary’s University in San Antonio — previously told the Star-Telegram the same thing.

“The right to take would be very difficult to challenge here,” Longorio said in February.

But, because the state is required to pay a fair price for the property it seizes, Todd could fight the state on the amount it pays.

“The only thing he can argue with the state about is how much they have to pay him for the property,” Morriss said. “There’s no way he can stop them from taking the property.”

The public saga

Fairfield Lake State Park and the surrounding land have been at the center of an ownership scuffle for months now. The state had leased the 1,800-acre state park from the former owner, power company Vistra Corp., for about five decades. Several years ago, Vistra decommissioned the power plant it operated on the property and prepared to sell its 5,000 acres, which includes the state park land.

The state did not make a formal offer on the full property at the time, and Vistra rebuffed informal discussions about the state purchasing just the park land. Then, in 2022, after listing the full property for $110.5 million, Vistra entered into a contract with Dallas development firm Todd Interests. (The agreed-upon price has not been made public, but Todd told the Star-Telegram that it was over $100 million.)

The firm made clear that it did not plan to renew the state park’s lease, intending instead to transform the property into a luxury gated community and golf course. The potential loss of the park triggered legislative hearings and bills throughout the spring, with legislators first aiming to use eminent domain to acquire the property and then shifting to block the developer’s water rights on the land.

As those legislative efforts fizzled out, state officials reopened conversations about purchasing the land, offering to buy out Todd’s contract and purchase the land directly from Vistra. The negotiations came down to the wire but ultimately failed. Todd Interests closed on its purchase on June 1, and the state’s lease on the park land was slated to end on June 13.

But the state Parks and Wildlife Commission, which oversees the Parks and Wildlife Department, took one last swing at acquiring the park land. On Saturday, three days before the lease would have ended, the commission voted unanimously to seize the 5,000-acre property under the state’s eminent domain laws.

“I think we have a clear duty to act for the greater good of all Texans,” said Parks and Wildlife Commissioner Jeffery Hildebrand at the meeting. “While we have the power of eminent domain, that power should be used sparingly and reluctantly. ... The action today is in line with that principle.”

The price and the process

In the days since the commission’s vote, Todd has not responded to the Star-Telegram’s requests for comment. But ahead of the vote, he lambasted the state for considering eminent domain and promised that such a decision would be costly.

“The state’s going to pay an infallible amount of damages to us. It’s going to be sad for the state, it’s going to be reckless stewardship, it’s going to be lack of accountability,” Todd said last week. “They’ve appropriated a billion dollars of the fund to buy up parks — they may pay that just for one park.”

Morriss, the A&M professor, said that the state is only required to pay a fair market price for Todd’s property. There may be some wiggle room for Todd to argue that he should also be reimbursed money that he’s invested into the property, or any money he spent to improve the property. But because Todd Interests purchased the land so recently, it’s already clear how much it’s worth on the market.

“The starting point for the discussion would be how much he paid,” Morriss said. “I think it’s very likely the state will pay him what he paid, possibly plus a little bit more to make up for expenses that he’s incurred.”

The state Parks and Wildlife Department has already contracted with an appraiser to evaluate how much the property is worth, department spokesperson Cory Chandler said in a Tuesday email. After the appraiser’s report is complete, the department will make a written offer to Todd Interests, which the developer can accept or reject.

If Todd Interests rejects the offer, Chandler said, the state Attorney General’s office will file to condemn the property, which would trigger the formation of a local three-person commission to review the case. After that commission decides how much the property is worth, either the state or the developer can object to that decision, which would push the case into the civil court system.

Depending in large part on how Todd Interests responds to the state’s offer, the eminent domain case could either be resolved quickly or could stretch on as it winds through the system. Chandler said that the park will remain closed until the case is fully resolved, as Todd Interests will legally own the property until then.

“We can’t say at this point how long that process will take,” Chandler wrote in an email.

Some Parks and Wildlife commissioners at Saturday’s special meeting expressed concern that Todd Interests might move forward with development while the eminent domain case proceeds. They pleaded with him to hold off on any demolition on the property.