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Click here for the full text of this decision FACTS:The Austin City Council passed a resolution that eight lots in downtown Austin owned by Harry M. Whittington and members of his family (the Whittingtons), should be acquired for a public use and authorizing the city attorney to file a condemnation suit. The resolution was silent regarding what public use the city council intended to effectuate by condemning the Whittingtons’ property. In their condemnation petition, the city of Austin’s attorneys asserted that the city’s proposed “public use” for the property was a parking garage and an Austin Energy chilling plant. The trial court granted partial summary judgment that the city had authority to condemn. The issue of compensation was then tried to a jury, which awarded the Whittingtons $7.75 million for their property. The Whittingtons appealed the trial court’s partial summary judgment ruling, which was incorporated in the final judgment, and also appealed the trial court’s determination of the prejudgment interest accrual date. HOLDING:Reversed and remanded. The Whittingtons argue that the city did not meet its summary judgment burden to establish either the necessity for the condemnation or that the condemnation was for a valid public purpose. In the alternative, the Whittingtons assert that their summary judgment evidence raised genuine issues of material fact regarding whether the condemnation was necessary, whether it furthered private rather than public purposes, and whether the city’s decision to condemn the property was fraudulent, arbitrary and capricious, and in bad faith. To support their arguments, the Whittingtons rely on the corporate representative deposition testimony of Robert Hodge, who admitted that: 1. the city could have met all of its projected convention center parking needs for a fraction of the cost merely by nonrenewing contract parking leases in the city’s existing parking garage; 2. at the time the City Council approved exclusive negotiations to develop the convention center hotel project, the city had been assured that the project would include dedicated convention center parking sufficient to meet the projected needs; and 3. the city began to target the Whittingtons’ property only after convention center parking in the hotel project fell through, and the city did not conceive the idea to place a chilling plant on the property until still later. The court examines the summary judgment evidence presented by the city and concludes that, at most, it might establish that as an abstract proposition parking garages and chilling plants can be public uses under Texas law. The court points out that nowhere in the city’s summary judgment evidence is there proof of any legislative determination to condemn the Whittingtons’ property for one of these uses. The resolution approved by the City Council stated only that the city was taking the Whittingtons’ property for a “public use,” but did not specify what its intended public use was. Nor does the City offer any other evidence, such as minutes of council meetings, to establish this critical fact. Regarding necessity, the Whittingtons principally contend that the city’s failure to expressly state in its resolution that condemning their property was “necessary” is alone fatal. The court notes that Texas Local Government Code 251.001(a) provides, “When the governing body of a municipality considers it necessary, the municipality may exercise the right of eminent domain for a public purpose.” But the court examines the legislative history and judicial interpretations of the section and concludes that 251.001 does not impose an independent requirement that a condemnor enact an explicit resolution that a taking is “necessary.” Instead, the court held, necessity can be presumed from a determination by a condemnor’s governing body that a taking is necessary to advance a public purpose, subject to affirmative defenses. Because proof that a condemnor’s governing body made a necessity determination is what gives rise to the presumption that the taking was necessary, the court pointed out that, absent such proof, the city cannot meet its summary judgment burden on the substantive element that the taking actually advanced its intended public use. Under such a standard, the court held that the City Council’s resolution would clearly be deficient, because it contains no determination that condemning the Whittingtons’ property was necessary to advance a public use or even what its intended public use is. Nor did the city establish through other means that the City Council made an express determination of necessity, because there was no evidence of orders, resolutions, or minutes that might have elaborated on the proceedings underlying the resolution. Because the city failed to meet its summary judgment burden to conclusively demonstrate affirmative acts manifesting a necessity determination by the City Council, the court concludes that the city failed to meet its summary judgment burden regarding its authority to condemn the Whittingtons’ property. OPINION:Pemberton, J.; Kidd, B. A. Smith and Pemberton, JJ.

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