Market Value Set at Four Times the Purchase Price for Fairfield Lake Property in Eminent Domain Case Filed by Texas Parks & Wildlife

Over two days and a couple of hours, the three judged-appointed special commissioners announced their rendering of $418.3 million as the fair market value for the 5,000 acres surrounding Fairfield Lake — property that up until this summer had included a state park.

This week’s hearing was part of the process to access damages for the current property owner after the Texas Parks and Wildlife (TPWD) filed a petition of condemnation in order to exercise the State’s power of eminent domain in order to preserve Fairfield Lake State Park.

TPWD’s Attorney, Charles McFarland, and owner Todd Interest’s attorney, Eddie Vassallo, with others, presented witnesses, each hoping to convince the three commissioners of their fair market value assessment.

The property had originally been acquired from Freestone County landowners in the 1960’s by Texas Utilities, who built the dam that created the lake to be used as a cooling agent for the coal-fired Big Brown Power Plant.

(Texas Utilities, now known as Luminant, is a subsidiary of Vistra Energy Corp.)

The plant was in operation from 1971 to 2018.

The same year the plant began operating, the utility company leased 1,800 acres to the State of Texas — free of charge — for the purpose of establishing a state park, which officially opened to the public in 1976.

That lease remained in place for over 50 years.

In 2020, when the park’s lease was set to expire in the Fall, Vistra gave TPWD an opportunity to purchase the Park. They took no action to purchase it at that time.

According to TPWD, this offer was for the entire 5,000 acres surrounding Fairfield Lake, as Vistra made it clear that they would not entertain a partial sale of the state park property.

Todd Interests found out about the property through an advertisement in the Dallas Morning News. According to Shawn Todd, they decided to purchase it right away.

After the $103 million sale was finalized in June, TPW Commission Chair, Arch Aplin, made two offers in an attempt to acquire it from Todd Interests. These were less than the purchase price, and Todd Interests declined both offers.

TPWD then filed a petition on September 1st to condemn the property and seize it through the power of Eminent Domain.

It has now come down to presiding Judge David Brabham appointing the special commissioners — Taylor German, Nanette Harwell, and Justin Lee — to decide the fair market value.

The trio heard from TPWD experts first, with former Park Rangers, Daniel Stauffer and Justin Rhodes, recounting the way it was and how park buildings have been destroyed by developer Todd Interests.

Another witness indicated that the soil and parts of the lake are contaminated with heavy metal and other pollutants.

Appraiser Mike Deal compared the property to other similar properties that have sold to come up with an $85 million value

Todd Interests pointed out that Deal’s evaluation was about “recreation” properties, which no longer applies.

Deal attempted to indicate the value was also predicated on the investors, whom he thought to be foreign.

Commissioners Lee and Harwell stopped him by indicating they knew who the investors were.

Todd Interests’ first witness was Patrick Todd, son of CEO Shawn Todd. He gave a pictorial account of the many successes Todd Interests had in the Dallas area.

Robert Elliott, a Dallas-based home builder, spoke of similar properties throughout Texas including Long Cove in Cedar Creek, east of Dallas, and Lake Travis in Austin.

Elliott, who has invested in the property, said, “Value is created immediately when you buy something with a plan for [developing] it.”

He indicated that Todd Interests has sold lots, and has an additional $50 million investment already.

The PSA (Purchase and Sale Agreement) plan is to build 595 multi-million dollar homes at “Freestone Lake Club,” a private community with all the amenities expected, including a golf course.

Dr. Barney Austin of Aqua Strategies, Inc, gave a report on water. He compared the lake’s water to Lake Tehuacana, which has yet to be developed. Using a mathematical formula in the comparison he ascertained that Fairfield Lake’s water is worth $336 million.

It is important to note that the State owns all water in Texas. However, the landowner can sell the water with a Certificate of Adjudication from Texas Commission on Environmental Quality. Since the lake has always been private, this action has not yet been taken.

Shawn Todd has previously indicated that he would not be selling the water and made no statement during the proceedings to the contrary. This does not negate the value.

There was a tense exchange between Shawn Todd and Attorney McFarland when McFarland asked him a number of questions in regard to how much he had spent on the project.

Todd refused to tell him, saying “as a seller, I don’t tell the buyer what development cost are.”

ESCORTED OUT OF THE COURTROOM for filming the last day of proceedings is Award-winning Investigtive Reporter and Anchor Brett Shipp of Spectrum News 1 in DFW, as attendees were reminded no recordings were allowed. The veteran reporter has covered the sale of Fairfield Lake State Park property to developer Todd Interests since the beginning of the year. (Photo by Natalia V. Marsters)

At four o’clock on Tuesday, the Commissioners asked the attorneys to give their closing statements, each in 10 minutes.

McFarland stood firm at $85 million, although stating it should only “be enough to make the property owner whole.”

Finally he stated, “If you agree to $475 million, Fairfield Lake is gone whether it’s a gated private community or the water is sold off.”

After the attorneys, which included an attorney for the investment group, spoke, the meeting was paused to be continued the next day with a decision.

On Wednesday, the gathering was told that, although they had deliberated the prior evening, they had not yet agreed on a final value. They went to another area of the Courthouse to discuss it further.

Just before 10:00 a.m., the special commissioners returned with $418.3 million as the fair market value.

Shawn Todd made a brief statement to the press, “The professionalism, business acumen, and most of all the integrity exhibited by the Special Commissioners today and over these last 3 days in these proceedings is consistent with the citizens of Freestone County. I am now asking that Texas Parks & Wildlife exhibit the same professionalism, business acumen, and integrity and to stop this process that was started by a previous board chairman. We do not want the State of Texas’ money. We want to move forward with our development.”

Attorney McFarland was not present on Wednesday to make a statement. However, later that evening TPWD released the following statement through Deputy Communications Director Cory Chandler:

“Texas Parks and Wildlife Commissioners and department staff will evaluate the award by the special commissioners and decide next steps. Texans overwhelmingly support state parks and current supply can’t keep up with the demands of our growing population. Our mission calls on us to provide for current and future outdoor recreation needs, and we will continue to work toward that end.”

The next step will be determined by the State.

If TPWD accepts the $418.3 million valuation, they can take possession of the property after depositing the payment into the registry of the court.

Either party may object to the valuation set by the special commission. If they do so, the case would proceed to a civil trial.

The judgment rendered in the civil trial can also be appealed.

Once all avenues of appeal have been exhausted, TPWD would be required to pay the final value decided by the courts in order to take ownership of the land.

(Added to article for the 11-22-2023 print edition):

Following the court proceedings, Freestone County Times spoke with the Freestone Central Appraisal District (FCAD) about what would be the potential property tax on Freestone Lake & Golf (FLG), formerly Fairfield Lake State Park, now that the special commission set the $418.3 million in market value.

According to FCAD Chief Appraiser Don Awalt, the value that someone else places on a property is not necessarily the same value the Appraisal District would subscribe to it.

The appraised value will be as of January 1, 2024, with statements going out April 15, 2024 to property owners.

These appraised values will be posted on their website at that time.

Should Texas Parks & Wildlife Department continue to pursue eminent domain and purchase the property from Todd Interests, the property would be owned by the State of Texas; and would be exempt from taxes.

Mary McDonald reporting; court sketch by Sonny Strait.