by jude galligan
Part one begins here.
In 2003 Harry Whittington begins to win. But, the City is proving to be just as stubborn with their appeals – just as Whittington had been between 2000-2003.
Whittington has postured himself along the following legal issues
1) originally, the condemnation was incorrectly processed
2) on the second condemnation attempt, the City did not properly condemn the alley
3) the City hasn’t demonstrated the condemnation was done out of necessity for a public purpose
4) the City already has parking on 2nd & Trinity and the new parking lot and (later) chiller system are intended to benefit private sector, beginning with the new Hilton hotel, and specifically future developers
Chronology of events from 2003 to 2007 begins after the jump.
2003: Whittington prepares his appeal of Judge Naranjo’s decision to allow the new condemnation to proceed. This decision allowed the City to take title of the land in February of 2002, but they’ve been hesitant to do anything with the land out of fear of another legal batter. In May, the City begins construction of the garage on the condemned land. $7.7MM cash is sitting on the City’s books. Harry won’t accept the money.
2004: nothing found
2005: Monday, January 24th, state district Judge Jeanne Meurer ruled that, in fact, the City of Austin failed to condemn Whittington’s alley and has no right to that strip of land. Additionally, Juded Meurer must repay upto $167,000 in Whittington’s legal fees. This is a major win for Harry. Specifically, this alley represents 7.5% of the land.
The City’s lawyer, Ken Wright, begins his appeal. Wright says that if the City loses their appeal of Judge Meurer’s decisions, they will start from the beginning and go through with a separate condemnation of the alley.
As of February, the parking garage is nearly complete. Harry still hasn’t collected the $7.7MM from the City’s condemnation of the block, and he still owns his alley upon which the garage is built.
On Wednesday, June 8th, the Texas 3rd Court of Appeals ruled, that the City of Austin did not adequately prove that the garage would be for public use. Another win for Harry this year. The land is, for the moment, back in Whittington’s hands.
Ken Wright, the City’s attorney, speculates on if he will take the case to the Texas Supreme Court.
2006: Friday, January 27th, the Texas Supreme Court denies the City’s request to hear their case – re-affirming a June 8th, 2005 verdict by the Texas 3rd Court of Appeals that the City did not prove the condemnation of the land was for public use. The City plans to go back to the Texas Supreme Court.
Saturday, Febraruy 11th, Dick Cheney accidentally shoots Whittington while on a hunting trip.
Still ongoing is the City’s appeal of the January 24th ruling by state district Judge Jeanne Meurer that the City failed to condemn an alley that runs through the land.
Friday, March 17th, the Texas Supreme Court denies the City’s request to hear the case.
Thursday, June 22nd, Austin City Council passes a resolution “confirming that the intent of the City’s initial condemnation was to condemn the whole block.” Whittington believes this is just official recognition that they messed up the first time.
2007: Friday, May 25th, a jury in a state district court found that the City of Austin condemned land owned by Whittington for economic development purposes rather than for public use. The jury set the value of the land at $10.5MM.
The City is appealing.
If the City of Austin drops their appeal, they would need to pay Harry $10.5MM or figure out a partnership in the garage and retail. Starting as far back as 2000, the City made several blunders in how they managed the condemnation and in their public statements about the intended use of the garage. Litigation has been ongoing since 2000, and to the best of my observation Harry Whittington is poised to win. It’s tough to say how many times and for how long the City can appeal.
One thing is for certain: the social impact of having dead retail space is significant. The City and Downtown Austin stakeholders have made moves to clean up the entertainment district. Many would like to see more day time focused retail East of Congress. My message to the City: here is your opportunity.Sources: This is an incomplete list of sources. Most of my research was taken from the Statesman and Business Journal archives. I intend to post a ‘binder’ of the printed articles I relied on.
- http://www.bizjournals.com/austin/stories/2001/11/26/story2.html (cache)
-by Jude Galligan