Texas will use eminent domain to seize Fairfield Lake State Park from private developer

The Texas Parks and Wildlife Commission on Saturday authorized the state to seize the Fairfield Lake State Park land from the private developer who purchased the property days ago.

The commission, which oversees the state Parks and Wildlife Department, voted unanimously in a specially called meeting in Austin. The decision allows the department to use eminent domain in a largely unprecedented case to obtain the 1,800-acre park as well as the surrounding 3,200 acres southeast of the Metroplex.

“We deserve to keep this for the people of Texas,” said Dick Scott, the vice chair of the commission.

The Dallas-based developer, Todd Interests, has indicated the move could lead to a legal fight. But on Saturday, state officials and members of the public celebrated the vote, and underscored the opportunity to not only reopen the recently shuttered state park, but to expand it. The state closed the park to the public June 5 in preparation for its lease expiring June 13.

In the days leading up to Saturday’s vote, Todd Interests founder Shawn Todd said that using eminent domain would be a blow to private property rights in Texas. His firm on June 1 finalized its purchase of the property from the energy company Vistra Corp.

Eminent domain is a legal authority that allows entities, including the government, to take private property for the public’s benefit. Under eminent domain — which is most often associated with roadways and pipelines, although it also applies parks and similar properties — the private owner must be compensated for their seized property.

A lawyer specializing in eminent domain previously told the Star-Telegram that the park would be a legally clear-cut application of eminent domain, because there is obvious public interest in the land.

But, in an interview Wednesday, Todd promised that if the commission used eminent domain, it would be “very costly to the state of Texas.”

“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. “They’ve appropriated a billion dollars of the fund to buy up parks — they may pay that just for one park.”

Todd told the Star-Telegram that his firm has already invested millions in the property. The firm plans to transform the park land and surrounding acreage into a high-end gated community, including a clubhouse and a private golf course. Todd said the firm has already done more than $100 million in pre-sales for the development and plans to have dozens of homes under construction “within a matter of months.”

How we got here

Fairfield Lake State Park has been at the center of a public saga for months now.

The park, which is in Freestone County between the Metroplex and the city of Houston, has sat on leased land for about five decades. Former owner Vistra Corp. leased the land to the state for free as it operated a power plant on a different portion of the property. But after Vistra closed that power plant in 2018, the company began preparations to sell the full 5,000 acres of land. The company listed the property for $110.5 million in 2021.

Last year, after the state’s informal conversations with Vistra had led nowhere, Todd Interests stepped in and signed a contract to purchase the property. The firm agreed to pay “over $100 million” for the property, Todd said this week. He added that he believes the property was mismarketed and not recognized for either its water value or its development potential. And because his firm specializes in “real estate anomalies,” that mismarketing signaled an opportunity to Todd.

“We knew what we were buying,” Todd said.

After Todd Interests made it clear that the firm would not be renewing the state park’s lease on the land after purchasing it, the state made a number of moves to try to halt the sale or otherwise keep the park open. The chair of the Parks and Wildlife Commission, Arch “Beaver” Aplin III, met with Vistra and Todd Interests representatives, and made offers to buy the land. Todd has underscored that those offers were for significantly less money than his firm offered.

State legislators also advanced legislation to try to halt the sale — first proposing that eminent domain be used on the property and then shifting to try to block the developer’s ability to sell water from the lake. Those bills died at the end of the session.

And as the state’s lease on the park rapidly drew to a close, Aplin made another last-minute offer. On May 12, he signed an offer to Todd Interests, asking the firm to step away from the property in exchange for $25 million. (Todd told the Star-Telegram this week that the offer was more than his firm had invested in the property at the time, although it was still significantly less than they stand to make on the property.)

Todd said that his firm countered that offer on May 23. Todd refused to share the details of that counteroffer, and Aplin and the Parks and Wildlife Department did not send a copy of that letter by the time of publication. Todd has said that the state didn’t respond to his offer; Aplin said the state communicated with the Todds about the offer, but that the offer did not give the state enough time to consider and vote before the imposed deadlines.

A little over a week later, on the same day that Todd Interests was finalizing its purchase of the property, Aplin sent another offer letter. This one, addressed to then-property owner Vistra, offered $95 million for the 5,000 acres. Aplin told the Star-Telegram that it was meant to come into play if Todd Interests didn’t finalize its purchase.

But the development firm did finalize the purchase, prompting the state to then close the park gates a few days later ahead of its June 13 lease end date. It’s unclear how Saturday’s vote to move to eminent domain will affect the park’s closure.

Heated debate

As the state has moved to last-minute efforts to get the property into public hands, Todd has stepped more firmly into the public eye. Until recent weeks, the developer largely avoided public comments, although he and an attorney representing his firm spoke at legislative hearings.

But with the Parks and Wildlife Commission’s monetary offers and the impending eminent domain vote, Todd stepped into the public spotlight, sitting for interviews with news outlets, including the Star-Telegram.

Todd has excoriated the state generally, and Aplin specifically, for failing to purchase the property before it was under contract with another buyer.

He’s also lambasted the state’s efforts to halt his deal on the property. He recently labeled the state’s moves as “efforts of sabotage” and, in an interview, he referred to the state’s “Gestapo-like tactics.”

Todd has also repeatedly called the state’s handling of the situation “disgusting” and has said that state officials, including Aplin, need to take responsibility for fumbling on a prized state park.

He has also warned that the use of eminent domain could be precedent-setting in some way. At Saturday’s meeting, though, Aplin underscored that he saw the Fairfield eminent domain vote as a one-off. He added that, in the event that the commission approved the seizing of the Fairfield property, he had asked Parks and Wildlife staff to draft a policy that limits the department’s use of eminent domain to “extraordindary and unusual situations like Fairfield.”

“I view this situation with Farifield as a one-time event,” Aplin said.

But, while the Parks and Wildlife Commission’s vote signals a path forward for those who want to keep the park public, there’s likely a long road still ahead. With millions of dollars already spent, and hundreds of millions more on the line, Todd has made clear that he won’t give up the property without a fight.

“The state has laws on the books as to how condemnation processes and I don’t think Parks and Wildlife fully understands that,” Todd said. “But we fully do.”

Several Parks and Wildlife commissioners on Saturday responded to Todd’s public comments that his firm intended to move forward with its development in the coming weeks and months. They asked Todd Interests to hold off on demolishing any property on the site, at least until the legal case has been settled and the ownership of the property formally decided.