Lawyer wins another round in eminent domain case against the city: Austin (TX) American-Statesman, 1/28/06

City might argue the case in a lower court

By Sarah Coppola

Little Guys who take on the government rarely win, unless the Little Guy is a guy like Harry Whittington.

Whittington, an Austin lawyer, is very rich, very stubborn and very patient — qualities that come in handy if, like him, you're waging a long legal battle against the city.

Six years ago, Austin condemned a downtown block Whittington's family owned to build a $10.5 million parking garage. Whittington's been fighting the city ever since. He racked up two legal victories last year, and on Friday racked up a third: The Texas Supreme Court denied the city's request to hear an appeal, which basically re-affirms a prior ruling in Whittington's favor.

The city law department, which has spent $387,000 on the case, doesn't plan to throw in the towel just yet. It can and will choose from two options, Austin's chief of litigation, Anne Morgan, said: Ask the state Supreme Court again to hear the case or argue the case in a county court trial, which Austin never had a chance to do.

Bring it on, says Whittington, who seems unfazed at having spent "hundreds of thousands of dollars" on his legal fees. He says his winning streak should give comfort to property owners unnerved by a recent U.S. Supreme Court decision in favor of city condemnations.

"This," Whittington, 78, said of his lawsuit, "shows how the judicial system should work if you stay with it."

Whittington's family, which owned the block on Red River between Fourth and Fifth streets since 1980, wanted to develop the lot into apartments or shops. But the city had other ideas: building a 700-space garage for visitors to the nearby convention center and Sixth Street, and a $19.3 million chiller to cool nearby buildings.

A board initially told the city to pay Whittington $3.6 million for the land, which Whittington rejected. Austin built the garage anyway and opened it last year. So far the city has earned about $181,000 charging for parking there, which helps pay back bonds used to build the facility.

Whittington lost Round One of his legal battle in 2002 when a county court judge ruled that the garage was a public use — the legal standard for condemnations — and a jury ruled that the block was worth $7.7 million. The city has set aside that money, but Whittington can't take it unless he stops appealing. And he doesn't plan on quitting now, especially with a few wins under his belt.

In June, the Third Court of Appeals agreed with Whittington that Austin failed to prove it needed the land for a public purpose.

In January 2005, a district judge ruled in Whittington's favor in a second lawsuit, saying Austin failed to condemn an alley on the block. That case is still pending in an appeals court.

The city faces a bevy of gloomy outcomes if it keeps losing, such as attempting to condemn the land again, demolishing the garage or giving Whittington a cut of the parking-garage profits. Both sides say they are willing to try to settle the case instead, yet neither seems willing to make the first move.

Whittington is always coy when asked how long he plans to fight, or exactly what he'll do with the land or garage if he wins them. At this point, he seems more invested in the battle itself.

"We're right on the law," he said. "And we're not in any hurry."

American-Statesman: www.statesman.com