AUSTIN (KXAN) — Ahead of a hearing to determine whether the state of Texas will use eminent domain to take over the property, we’re getting a look inside a planned private development on the site of a now-shuttered state park.
The ‘Freestone’ community, on the site of Fairfield Lake State Park, is marketed as a “luxury lake and golf enclave encompassing the largest privately owned body of water in the United States,” according to a marketing book provided to KXAN by Todd.
Construction crews are already preparing, after the park, which welcomed more than 80,000 visitors last fiscal year, closed its gates to the public Sunday night.
“We have construction equipment on site now,” said Shawn Todd, CEO of the company developing the site, Todd Interests. “Architects, surveyors, workmen are on property at present, and heavy construction will start when the park leaves.”
The park’s lease officially expires on Tuesday. Although a state park, Texas has never actually owned the land. The Texas Parks and Wildlife Department has leased the property from Vistra Energy since the 1970s. That company, which up until 2018 operated a power plant on the lake, is selling the property to Todd. Vistra says TPWD never put in a bid to buy the property itself, despite being encouraged to do so.
According to development plans, public access to the lake will be shut off entirely. “Membership capacity is intentionally limited to ensure members fully enjoy the uncrowded waters on holidays and weekends,” the marketing book states.
In addition to the 400 lakefront homes, the development will feature “amenities a family should expect from a world-class resort,” including a clubhouse, restaurant, resort pool and a “championship-level” golf course.
“There’s a strong demand across the United States for second homes, and even third and fourth homes,” Todd said. “We thought it was a highly unusual opportunity, in fact a once-in-a-lifetime opportunity, to find what the seller listed as the largest private lake in America.”
Todd said he expects the lots to sell “in a matter of days.” That’s despite the Texas Parks and Wildlife Commission meeting on Saturday to consider acquiring the land through eminent domain.
How did we get here?
The state has been interested in buying the property since at least 2020, when TPWD executives met with Vistra to discuss options. The department wanted to purchase just the 1,460-acre park, rather than the 5,000-acre property Vistra was trying to sell as a whole. Complicating matters, TPWD did not have major land acquisition funds at the time, so was unable to afford the $110 million price tag Vistra was asking.
Negotiations ceased in April 2022, when Vistra entered into a contract with Todd Interests. Todd confirmed to KXAN Friday the selling price was “just north” of $100 million.
Since then, Parks and Wildlife Commission Chairman Arch “Beaver” Aplin has attempted multiple times to purchase either the property or Todd’s contract outright. Aplin told lawmakers in a February 2023 legislative hearing that he offered Todd $6.6 million in September 2022.
“Shawn told me that was not acceptable to him. That wasn’t enough money,” Aplin said in the hearing. He said he then took a different approach by offering $60 million to Vistra for the land, in addition to a conservation easement. “I asked [Todd] to take a philanthropic, altruistic approach. Let us pay back his expenses and help me save this state park.”
Meanwhile, lawmakers considered using eminent domain to take over the park. Companion House and Senate bills were filed this past legislative session to give TPWD the authority to do so. Neither HB 2332 nor SB 1656 were passed.
Rep. Angelia Orr, R-Itasca, whose district includes the park, filed a substitute bill in March to focus on water rights, after some pushback about using eminent domain to take over private property.
“I understand that many of my colleagues have reservations about using eminent domain for this purpose, which is why it is not included in the substitute language,” Orr said. “Like my colleagues, I too am a supporter of property rights, and I believe that the park can still be saved without that language included.”
HB 4757, the replacement bill, was passed by the House but left pending in a Senate committee.
A new source of funding
In May, the legislature passed Senate Bill 30, which appropriates funds to various state departments. TPWD was given $125 million from the state’s general revenue fund for a two-year period for land acquisition.
With those additional funds in place, Aplin once again tried to purchase the property. TPWD confirmed to KXAN it offered Todd $25 million to reassign his contract with Vistra to the department. Todd counter-offered $30 million. A spokesperson for TPWD told KXAN the department “didn’t reject the counter,” while Todd said TPWD “never responded.”
The Parks and Wildlife Commission then voted unanimously to authorize TPWD Executive Director David Yoskowitz to take “all necessary steps” to purchase the land. A special meeting was later called for June 10 to consider acquiring the land through condemnation, the process by which governments can use eminent domain.
In a press release announcing the meeting, Yoskowitz alluded to the $25 million offer made to Todd.
“TPWD extended a formal offer to Todd Interests and, with the full support of our commission, we were vocal in our intention to conduct realistic negotiations with realistic conditions,” Yoskowitz said. “Unfortunately, Todd Interests would not work with us, and we now need to pursue other options.”
On June 1, TPWD sent an offer to Vistra to purchase the land for $95 million. The TPWD spokesperson told KXAN the offer would have taken effect if Todd had accepted the $25 million contract reassignment fee and agreed on the timeline of payment.
That same day, though, Todd officially closed the deal with Vistra, taking ownership of the land. It’s unclear if TPWD was aware of this when it made the $95 million offer to Vistra.
If the commission decides to move forward with eminent domain, the state would have to offer Todd Interests fair market value for the property it acquires. While it’s unclear how much the state would offer, Todd said his bank has appraised the water rights on the property alone at $238 million.
Still, he’s expecting commissioners to move forward with condemning the land.
“I expect them to put on a theatrical performance tomorrow to move forward with eminent domain,” Todd told KXAN, a move which could cost the state millions in the long run. And even if commissioners decide to use eminent domain, “We’re not stopping construction,” Todd said. “We’re not stopping anything.”