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CPS towers go to court

Local attorneys squared off one more time on July 11 in 37th District Court over the high-voltage transmission lines that CPS Energy plans to build from its Cagnon station to Kendall County.

The lawsuit, Gallagher Headquarters Ranch Development LTD et al v. the City of San Antonio, was filed by David Earl & Associates and two other law firms in February. District Judge David Berchelmann presided over Monday's hearing.

Developer Christopher Hill hired attorneys and sued the City after City Council ignored pleas from residents to avoid using protected Proposition 3 property, which had been purchased with funds from a sales-tax increase, to erect the 170-foot towers of power. Berchelmann heard arguments in the case previously but didn't rule on whether the people's vote should outweigh Council's decision to allow the project to proceed.

Berchelmann heard arguments in the case previously but didn't rule on whether the people's vote should outweigh Council's decision to allow the
project to proceed.

Berchelmann overruled plaintiff's attorney John Furrh's motion to postpone the case for 60 days pending a hearing in federal court. Furrh then argued that the City was not authorized to convey the property to CPS. "This (power line) project was not consistent with Prop 3, which was to acquire land over the Edwards Aquifer Recharge Zone."

A verbal slugfest ensued between the opposing sides.

Defense attorney Ricardo Cedillo countered, arguing that state law allows the City to "perform any act," including acquiring, selling, leasing, conveying, or otherwise disposing of any property in its possession.

In other words, although people voted to purchase Prop 3 land in 2000, City Council could still overrule their voices with impunity. Remember PGA Village.

Furrh asked Berchelmann to nullify the ordinance that allowed San Antonio to give away Prop 3 land to CPS Energy. "CPS is not allowed to hold title to property; it is all owned by the City." He declared that CPS is merely an agent for the City, composed of a board of trustees who should be trustworthy enough to leave park lands alone after voters decided to preserve the property from a "monstrous utility easement."

The quote of the day came from the side of the courtroom occupied by the plaintiff's attorneys; "This (Prop 3) is a completely self-contained public project. The City is required to keep its hands off it."

Cedillo said he was feeling metaphysical during the plaintiff's argument. "The City hasn't sold, leased, or conveyed anything." He took his watch off his wrist and set it on the table in front of another attorney, who refrained from picking it up and running out of the courtroom to pawn it. "I have disposed of it," Cedillo said, meaning he has merely placed the watch in a location off his wrists. "Government code allows the exercise of broad powers. CPS has to act in a trustee function. The trustee has legal control of property that was put in trust."

At this point, Berchelmann reminded the attorneys that he had a jury trial pending after lunch. "I fully understand. I'll let y'all know."

But he allowed for further argument about the role of the Planning Commission in the decision to allow CPS to build the transmission lines. The commission voted against the project in January, calling the project a "violation of public trust."

Cedillo said the commission merely makes recommendations to the City Council in its advisory role. "The City Council clearly has the power to overrule ... the City Council is not bound by the Planning Commission's actions."

"I've heard enough," Berchelmann said as he recessed the court and left the courtroom, leaving everyone in the dark about his ruling.

By Michael Cary

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