AUSTIN (KXAN) — A popular state park has closed to the public after almost 50 years in operation. A developer plans to turn the land into a private, gated community with multi-million dollar homes and a golf course.
Fairfield Lake State Park, about 70 miles east of Waco, shut its gates for the last time at 10 p.m. on June 4. The following day, construction equipment arrived on site as the developer, Todd Interests, takes over. But a last-ditch effort by the state to acquire the land could lead to years of litigation.
So how did we get to this point? KXAN has compiled a timeline of the twists, turns and failed negotiations that spanned multiple years.
1968-69: Texas Utilities (now known as Luminant) constructs a dam on Big Brown Creek to create Fairfield Lake.
1971: Big Brown Power Plant opens. Texas Utilities leases land for a state park to the Texas Parks and Wildlife Department (TPWD) at no cost. The initial lease is for 25 years but is extended multiple times.
1976: Fairfield Lake State Park opens to the public.
Feb. 2018: Big Brown Power Plant is decommissioned.
Sept. 27, 2018: Vistra Energy, parent company of Luminant, sends a letter to TPWD’s then-executive director, Carter Smith, informing him of their intent to terminate the lease in October 2020 and sell the property.
“We also let them know that it would be up to the new owner to determine whether to continue the lease with the TPWD,” Meranda Cohn, a spokesperson for Vistra, tells KXAN in February 2023. “We also encouraged the state to submit a bid.”
March 2020: TPWD executives visit the Luminant office in Dallas to discuss options. Vistra wants to sell its entire 5,000-acre property as a whole, including the 1,460-acre park. TPWD wants to buy just the park, but Vistra doesn’t want to carve up the property.
At this point, TPWD does not have land acquisition authority or major land acquisition funds, so it cannot afford to purchase the property in its entirety. TPWD tries to work with partners to buy the land. Conservation Equity Management Partners puts in a bid, but it is rejected.
Oct. 2020: Vistra extends the lease with TPWD until fall 2022, contingent on the sale of the land.
Fall 2021: Vistra lists the property for sale online. The asking price is just over $110 million, which is more than the entire annual TPWD state park budget.
Oct. 5, 2021: Todd Interests, a Dallas-based developer, comes across the property listing in the Dallas Morning News.
“We knew that TPWD leased a portion of the property for 50 years, and that during that half-century span it failed to express any interest in acquiring the property from Luminant,” Todd Interests writes in a June 2023 letter to the Parks and Wildlife Commission. “After Luminant enlisted a real estate firm to market Fairfield Lake… TPWD still took no action. We had no reason to believe that the state of Texas wanted to acquire Fairfield Lake when we made an offer on the property.”
April 21, 2022: Vistra enters into a contract with Todd Interests. The sale price is undisclosed due to confidentiality provisions in the contract.
Aug. 30, 2022: Vistra temporarily extends the lease with TPWD.
September 2022: Arch “Beaver” Aplin, chairman of the Texas Parks and Wildlife Commission, meets with Todd Interests. A spokesperson for Vistra, Brad Watson, said they were not at the negotiating table. “Vistra is in an existing contract with a buyer, and we are not legally permitted to negotiate with any other potential buyer, including the state of Texas,” Watson said in a February 2023 legislative hearing.
Aplin claims Shawn Todd, CEO of Todd Interests, asked for $60 million and 250 acres of land to hand over the contract to TPWD. Aplin counter-offered $6.6 million. “Shawn told me that was not acceptable to him. That wasn’t enough money,” Aplin said in the February 2023 hearing.
Aplin 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.”
The developers claim Aplin told them at that point to back out of the contract. “Todd Interests has been asked or told to walk away from this, step away, for no compensation,” attorney Blake Beckham says. “That’s not how the government is supposed to operate in Texas.”
Sept. 9, 2022: TPWD submits its legislative appropriations request for the 2024 and 2025 fiscal years to the Governor’s Office of Budget, Planning and Policy and the Legislative Budget Board. In the document, TPWD says that funds from the Sporting Goods Sales Tax have “significantly improved the department’s agility” to acquire land adjacent to state parks. The funding request includes the acquisition of Fairfield Lake State Park “and other strategic state park acquisitions from willing sellers as they become available.”
Feb. 13, 2023: TPWD is given a 120-day termination of lease notice.
Feb. 14, 2023: TPWD sends out a press release announcing the park will close on Feb. 28. Meanwhile, State Rep. Angelia Orr, R-Itasca, files House Bill 2332. It would grant TPWD the power of eminent domain to acquire “any property necessary to preserve Fairfield Lake State Park.”
Feb. 27, 2023: At a hearing of the House Appropriations Subcommittee, Aplin says TPWD “stands ready and anxious” to negotiate an opportunity to save the park. He tells lawmakers TPWD now wants to purchase the 5,000-acre property in its entirety, not just the state park, over concerns of what the developer will do to the lake.
He says Todd Interests plans to remove 14,000 acre-feet of water and send it to the Dallas/Fort Worth Metroplex. Aplin says modeling shows the lake elevation would drop 15 feet, almost halving its acreage. “If [Todd] has the right to take the water out, we’re dead in the proverbial water, so to speak,” Aplin says.
Beckham tells lawmakers the developers knew there was a chance they could lose the land to eminent domain, but they didn’t think it was likely. “While there was a contemplation of that, the fact that the state never even approached making a market value offer told us the state really wasn’t that interested,” Beckham says.
“If the state at some point moves toward eminent domain, we think that would be a shame if it got to that,” Beckham says.
Feb 28, 2023: Fairfield Lake State Park closes to the public.
March 6, 2023: State Sen. Charles Schwertner, R-Georgetown, files Senate Bill 1656. It is identical to HB 2332.
March 9, 2023. At a House Committee on Culture, Recreation and Tourism meeting, chairman Rep. Trent Ashby, R-Lufkin, asks TPWD to consider reopening the park temporarily. “I trust you guys know how much time you actually need to put the sign up and say the park is officially closed, but it just seems to me that we may have a bit more time for the public and Texans to enjoy this, to the economic benefit of Fairfield and Freestone County,” Ashby says.
Brad Watson, spokesperson for Vistra, says the company is open to discussing the sale of the Lake Colorado City State Park property to the state. The park is also currently leased to TPWD. “Yes, our company would still seek fair market value,” Watson says. “But such a sale would remove all doubt that the land would forever be used by Texans as a state park.”
March 10, 2023: Orr files House Bill 4757 to replace HB 2332. The new bill focuses on water rights and says any application for water permit changes at Fairfield Lake must first be approved by the Texas Parks and Wildlife Commission.
March 14, 2023: Fairfield Lake State Park reopens to the public for day-use only. Entrance fees are waived.
March 23, 2023: At a House Committee on Culture, Recreation and Tourism meeting, Orr introduces the substitute bill, HB 4757.
“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 says. “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.”
April 6, 2023: The House Committee on Culture, Recreation and Tourism unanimously approves HB 4757, sending it to the full House.
April 21, 2023: The Texas House of Representatives passes HB 4757 by a vote of 131-8.
May 1, 2023: The Senate Committee on Water, Agriculture and Rural Affairs discusses HB 4757 in a hearing, but leaves it pending in committee. Some senators raise concerns that the bill could open the state up to potential litigation.
“And as a taxpayer, I’m frankly disgusted that Parks and Wildlife could not figure out over multiple years how to purchase a piece of property,” Todd tells the lawmakers.
May 12, 2023: Todd Interests receives a written proposal from Aplin for the state to purchase its contract with Vistra. Aplin offers a $20 million assignment fee and up to $5 in expenses reimbursements.
May 23, 2023: Todd Interests responds to TPWD’s offer with a $30 million counter-offer.
May 25, 2023: The Texas Parks and Wildlife Commission votes unanimously to authorize TPWD Executive Director David Yoskowitz to take “all necessary steps” to purchase the land. The same day, Todd Interests says it receives a letter from the attorney general’s office directing them to preserve evidence, “as if we had been involved in a crime.” The developers call it an act of “intimidation” in a June 6 letter to commissioners.
May 29, 2023: Both the Texas Senate and House sign Senate Bill 30, which appropriates funds to various state departments. TPWD is given $125 million from the state’s general revenue fund for a two-year period for land acquisition.
June 1, 2023: Todd Interests officially purchases the property. “Since taking title, we have begun executing our development plan and executed millions of dollars in related contracts,” the developers say in the June 6 letter.
On the same day that Todd Interests officially closes its deal with Vistra, TPWD sends an offer to Vistra to purchase the property for $95 million. A spokesperson for TPWD later clarifies to KXAN this offer would have taken effect if Todd Interests had accepted the $25 million contract reassignment fee offered on May 12 and agreed on the timeline of payment.
June 2, 2023: TPWD announces the Texas Parks and Wildlife Commission will meet on June 10 to consider acquiring the land through eminent domain. “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 says. “Unfortunately, Todd Interests would not work with us, and we now need to pursue other options.”
June 4, 2023: Fairfield Lake State Park closes to the public.
June 5, 2023: Construction equipment begins arriving on site. Meanwhile, TPWD begins removing park equipment and relocating staff.
June 6, 2023: Todd Interests sends a letter to the Texas Parks and Wildlife Commission expressing its “astonishment” that the commission would consider using eminent domain. “Most striking is the activist message [commissioners] would sent to the entire nation on behalf of the state of Texas,” the developers write. “A state once considered the vanguard of private property rights would now take from its citizens and diminish the rights of sellers, buyers and private property owners of every order.”
June 10, 2023: The Texas Parks and Wildlife Commission authorizes using eminent domain to take over the 5,000-acre property. Commissioners will also consider a policy proposal in August to restrict future use of eminent domain to “extraordinary and unusual situations.”
“While condemnation presents an extremely rare outcome we would have rather avoided, we cannot stand by and watch the permanent closing of a park and fishing location that has provided so many benefits to Texans and the local community for five decades,” Yoskowitz says.
June 13, 2023: TPWD’s lease officially expires.
June 15, 2023: Todd receives a letter from Chairman Aplin with condemnation orders for the land. The letter, sent via certified mail, is dated June 8, two days before commissioners voted to condemn the property. Todd later said at a July 6 press conference that this is evidence the commission meeting was a “sham.”
A spokesperson for TPWD tells KXAN the letter was just one part of the condemnation process, and commissioners still could have voted against the use of eminent domain if they wanted to.
June 21, 2023: Freestone County Commissioners vote unanimously to send TPWD a letter condemning the use of eminent domain, calling it “an abuse of power and government overreach.”
Commissioners said the county and local school district stand to gain $20 million annually in tax revenue from the development. “For TPWD to steal an opportunity for us to replace that tax base [lost when the power plant closed] would be selfish,” commissioners write in the letter.
June 27, 2023: The Real Estate Council, the state’s largest commercial real estate organization, sends a letter to TPWD, urging it to reconsider using eminent domain, saying it sets a “dangerous precedent.”
July 6, 2023: Todd speaks publicly for the first time, holding a press conference on the steps of the Freestone County Courthouse. “With respect to this action, the state has never dealt fairly, they’ve never dealt forthrightly and they’ve never dealt openly,” Todd said.
The same day, Chairman Aplin publishes an op-ed in the Dallas Morning News explaining why eminent domain is the “appropriate way” to save Fairfield Lake State Park. “TPWD is not taking, nor do we intend to take, anyone’s private land to establish new parks,” Aplin writes. “This rare activation of eminent domain authority is a last resort to save an existing state park that Texans have enjoyed for the past 50 years.”
Aug. 3, 2023: As part of eminent domain proceedings, TPWD sends Todd Interests its final offer to purchase the property.
Aug. 7, 2023: TPWD files a temporary injunction in Freestone County, asking the court for access to the property to conduct inspections and environmental assessments.
Aug. 15, 2023: Todd rejects TPWD’s final offer, saying it is “hundreds of millions below fair market value” and below what he initially paid for the property.
In a statement to KXAN, TPWD says it has “not yet filed a petition for condemnation of the Fairfield Lake State Park property and remains hopeful the landowner will agree to a voluntary sale prior to TPWD initiating court proceedings. However, TPWD is following all legally required steps to initiate condemnation.”
Aug. 24, 2023: The Texas Parks and Wildlife Commission votes to limit future use of eminent domain to “exceptional and unusual circumstances.” Based on the commission’s definition of those circumstances, they would still be able to use eminent domain in the case of Fairfield Lake.
The same day, Gov. Greg Abbott announces the appointment of Jeff Hildebrand as chairman of TPWC, replacing Arch ‘Beaver’ Aplin as of Aug. 31.
Nov. 15, 2023: A three-person special commission, appointed by a district court judge, determines the property is worth $418.3 million. TPWD had argued the property was worth $85 million, while Todd testified he believed it was worth $475 million.
If TPWD pays Todd the $418.3 million, the department would take possession of the property immediately. Either party — TPWD or Todd Interests — could also object to the commissioners’ valuation of the property, which would move the case to a civil trial.