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Whittington v. City of Austin9/30/2005
sary" to condemn their property. As further support, the Whittingtons rely on authorities appearing to require (or at least contemplating) proof that a condemnor's governing body made an explicit determination of necessity by resolution or other enactment. See, e.g., Burch v. City of San Antonio, 508 S.W.2d 653, 655 (Tex. Civ. App.--San Antonio 1974) (predecessor statute to local government code section 251.001 contemplated "a finding by the 'governing authorities' that the taking of private property is necessary"), rev'd on other grounds, 518 S.W.2d 540 (Tex. 1975).
The City disputes that section 251.001 requires proof of an explicit council resolution stating that the condemnation was "necessary." It observes that section 251.002 of the local government code provides that chapter 21 of the property code governs procedure in eminent domain cases brought by municipalities. See Tex. Loc. Gov't Code Ann. § 251.002 (West 1999). In the City's view, any requirement that it prove that its governing body made a necessity determination by formal resolution would be purely a "procedural" requirement governed by chapter 21. As the City emphasizes, chapter 21 does not state any such requirement. See generally Tex. Prop. Code Ann. §§ 21.012-.018. Alternatively, the City asserts that it has met its burden of establishing that the Austin City Council made other "affirmative acts" equivalent to a finding of necessity. See Maberry v. Pedernales Elec. Coop., Inc., 493 S.W.2d 268, 270-71 (Tex. Civ. App.--Austin 1973, writ ref'd n.r.e.); see also Horton, 468 S.W.2d at 877-78.
The Whittingtons' interpretation of the phrase "considers it necessary" in section 251.001 is somewhat misdirected. Section 251.001 is a non-substantive recodification of former article 1109b of the revised civil statutes, which had authorized cities to "appropriate private property for public purposes . . . whenever the governing authorities shall deem it necessary." Act of May 15, 1987, 70th Leg., R.S., ch. 149, §§ 1-49, 1987 Tex. Gen. Laws 707-1308; Tex. Rev. Civ. Stat. Ann. art. 1109b (West 1963); see Coastal Marine Serv. v. City of Port Neches, 11 S.W.3d 509, 512 (Tex. App.--Beaumont 2000, no pet.); Tex. Loc. Gov't Code Ann. § 1.001 (West 1999). The statutory predecessor to article 1109b had required affirmative pleading and proof of necessity. See Stone v. City of Wylie, 34 S.W.2d 842, 844 (Tex. Comm. App. 1931, no writ). These types of pleading and proof requirements were omitted from Article 1109b. Instead, as the Stone court observed, the necessity of a particular taking under article 1109b was to be presumed from the determination of the city's governing body that the taking was necessary and could not be reviewed by the court except where the officials acted arbitrarily or capriciously. Id. This is the same general concept appearing in Higginbotham and Horton, among other cases--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. Higginbotham, 143 S.W.2d at 88-89; Horton, 468 S.W.2d at 877-78. Moreover, the phrase "deem . . . necessary," employed in former article 1109b, tracks language used in case law to distinguish the presumed necessity concept from statutory requirements of affirmative pleading and proof of necessity. Higginbotham, 143 S.W.2d at 88-89; Crary v. Port Arthur Channel & Dock Co., 47 S.W. 967, 971 (Tex. 1898). In short, contrary to the Whittingtons' suggestions, we conclude that section 251.001 does not impose an independent requirement that a condemnor enact an explicit resolution that a taking is "necessary." Instead, it merely reflects the general concepts regarding presumed necessity that are reflec
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