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Whittington v. City of Austin9/30/2005
llowed." Horton v. Mills County, 468 S.W.2d 876, 878 (Tex. App.--Austin 1971, no writ). These requirements ultimately ensure that "the landowner is to be afforded adequate judicial review of his rights." Id.
Whether the City met its Summary Judgment Burden
The Whittingtons' first two issues challenge whether the City met its summary judgment burden regarding the requirements of necessity and that its intended use of the property be a public use. To meet its summary judgment burden regarding its right to condemn the property, the City proffered the following summary judgment evidence:
(1) the Austin city charter, establishing that the City is a municipality that had eminent domain power under section 251.001 of the local government code.
(2) the City's condemnation petition, which states that the City "has determined to acquire by condemnation fee simple title to Condemnees' real property for the purpose of building a parking garage for the Austin Convention Center, operated by the Austin Convention Center Department of Condemnor . . . as well as a district cooling plant to be operated by the Austin Energy Department of Condemnor."
(3) proof, including charter provisions, that the Convention Center Department and Austin Energy are City departments.
(4) documentation that in May 1998, the City's voters approved Proposition 1, which authorized a bond issue to finance "a venue project . . . described generally to consist of expansions to the City's Convention Center, including construction of tunnel improvements along Waller Creek in the vicinity of, and functionally related to the Convention Center, and related infrastructure."
(5) the August 9, 2001 Austin City Council Resolution 010809-11, previously discussed.
(6) papers from the condemnation proceedings, including the City's petition, the special commissioners' award, the parties' objections, and a receipt indicating that the City deposited the amount of the special commissioners' award into the registry of the court.
(7) the Whittingtons' responses to requests for admissions admitting ownership of the subject property and that "all conditions precedent to the invocation or acquisition of jurisdiction by the Court in which this eminent domain proceeding is now pending have been complied with and performed by the City."
Public Use
The City urges that this evidence establishes, as a matter of law, that it condemned the Whittingtons' property for a public use. It attempts to invoke the principle that legislative declarations of public use are entitled to deference, see, e.g., Maher, 354 S.W.2d at 925; Higginbotham, 143 S.W.2d at 85, pointing to three sets of legislative enactments. First, the City relies on Resolution 010809-11, observing that a municipality's exercise of eminent domain power is in itself a legislative act. See Golddust, 41 F.3d at 963-64. Second, it relies on the voters' approval of Proposition 1, which it asserts incorporates statutory authorizations for "venue projects" and their "related infrastructure" so as to include parking facilities. See Tex. Local Gov't Code Ann. § 334.001 (West Supp. 2004-05). Finally, the City points to various other statutes that either appear to view parking facilities and chilling plants as public uses or at least leave room for that interpretation. See id.; see also id. §§ 251.001(a)(5), 281.044 (West 1999), 402.002 (West 2004-05), 431.021(8) (West 1999).
At most, the City's summary judgment proof might establish that, as an abstract proposition, parking garages and chilling plants can be public uses under Texas law. But nowhere in the City's summary judgm
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