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Whittington v. City of Austin9/30/2005
ent evidence is there proof of any legislative determination to condemn the Whittingtons' property for one of these uses. The Resolution 010809-11 approved by the Austin 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. See Horton, 468 S.W.2d at 477-78 (in absence of resolution, " roof of . . . necessity and the public purpose of the project may be made by introducing additional proceedings such as orders, resolutions, and minutes . . . .").
The City's evidence relating to voter approval of Proposition 1 does not meet its summary judgment burden to demonstrate a legislative determination to condemn the Whittingtons' property for use as a parking garage or chilling plant. The City's summary judgment evidence is, at best, unclear with regard to whether Proposition 1, as submitted to the voters, asked them to approve additional parking or a chilling plant for the convention center. In any event, it is undisputed that, at the time Proposition 1 was approved in May 1998, City staff had not yet formulated the intent to construct either additional convention center parking or a chilling plant, and that it did not target the Whittingtons' property until years later.
The City emphasizes that its condemnation petition and other pleadings contain various statements regarding uses it intends for the Whittingtons' property. But mere statements in pleadings, even if sworn, are not competent summary judgment evidence. See Laidlaw Waste Sys., Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995). Moreover, none of these statements are conclusive proof that the City's governing body, as distinguished from its attorneys and other agents, determined to condemn the Whittingtons' property for use as a parking garage or chilling plant. As the Whittingtons observe, a municipality's governing body cannot delegate its eminent domain power but "is the authority to exercise the power of eminent domain and must itself officially express the intention and necessity to condemn the land in question." Burch v. City of San Antonio, 518 S.W.2d 540, 543-45 (Tex. 1975). A municipal governing body officially expresses itself through its official proceedings, as manifested in orders, resolutions, and minutes. See Horton, 468 S.W.2d at 878. The City fails to offer proof of any such proceedings manifesting a determination to condemn the Whittingtons' property for any specific use.
We conclude that the City has failed to meet its summary judgment burden to conclusively establish that it condemned the Whittingtons' property for a public use.
Necessity
Regarding necessity, the Whittingtons principally contend that the City's failure to expressly state in Resolution 010809-11 that condemning their property was "necessary" is alone fatal. They point to the language of local government code section 251.001, the statutory basis for the City's assertion of eminent domain powers. Section 251.001 provides, "When the governing body of a municipality considers it necessary, the municipality may exercise the right of eminent domain for a public purpose." Tex. Loc. Gov't Code Ann. ยง 251.001(a) (emphasis added). Because the City can act only through its governing body and cannot delegate its eminent domain power, Burch, 518 S.W.2d at 543-45, and must manifest its official actions through orders, resolutions, and minutes, Horton, 468 S.W.2d at 878, the Whittingtons extrapolate that section 251.001 requires proof that the Austin City Council adopted an explicit resolution that it "considered it neces
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