The showdown


Citizens fight CPS in court over power lines

It was within the first hour of the first court hearing in the case of City Public Service versus Bexar County landowners and already there were insinuations that gunfire might erupt, although it was unclear who would do the shooting.

"We don't want people getting excited and getting hurt," attorney Jack Ross, who represented CPS at the October 11 hearing, told Judge Martha Tanner of the 166th District Court.

Several landowners, including Jack White Jr. and Myfe Moore are trying to stop CPS from surveying their 3,300-acre family ranch as the municipally owned utility prepares to use its power of eminent domain to build a series of high-voltage transmission lines and towers on their land in western Bexar County.

CPS wants to build a 345-kilovolt transmission line over environmentally sensitive land, including nature preserves, private ranches, and land purchased under Proposition 3, a city referendum passed by voters in 2000 that allowed a portion of sales taxes to buy land to protect the vulnerable Edwards Aquifer Recharge Zone.

The controversial proposed route, which has been the subject of several public hearings over the past year, was approved by the CPS Board of Trustees on September 10. CPS is scheduled to ask City Council to approve the proposed route in December, which critics charge is a time when people will be out of town or otherwise distracted by the holidays.

If Council approves the route, CPS, as a governmental agency, could exercise its right of eminent domain and condemn the parcels of land, including private property, needed to build the towers.

However, the landowners' attorneys - David Leibowitz, Michele Petty, and Richard Corrigan - noted that ownership of the 3,300 acres is convoluted; the land is held as an undivided interest by about eight individuals and several trusts. In an undivided interest, for example, if three individuals own one-third of the land, they each own one-third of each acre, not 1,000 separate acres.

Petty told Tanner that not all the owners had been properly notified and thus did not have an opportunity to attend the hearing. One of the owners, represented by Leibowitz, is deaf and legally blind and will need special accommodations in court.

"Ownership interests are not relevant," argued Ross. "We're asking the court to restrain them from interfering with our survey."

Petty also is filing open records requests to require that CPS and other state agencies supply data and documentation related to the necessity and appropriateness of the lines and proposed route.

CPS has maintained it is urgent that it build the lines to preserve the integrity of the state's interconnected electrical grid. However, route opponents contend that CPS has overstated the need and the urgency, since the utility has already postponed the date. Originally, CPS stated the lines would be supplying power by June 2005; that date has changed to June 2006.

"There has to be proof that they need the electricity," Leibowitz told the court. "They need to prove to us they need additional capacity before going on the land."

Ross emphasized that the delay could further set back CPS' timetable to complete the project. "The landowners understandably want to stall, but we have to start somewhere. We have the right to go through the gate without the breach of peace."

Yet, CPS encountered another hitch in their case when it was learned that an attorney from the firm representing CPS has also served as legal counsel for White, a landowner, in other unrelated matters. This presents a conflict of interest.

After an hour of debate, Judge Tanner granted the landowners' request for a continuance, which gives them additional time to research the issue, contact all owners and trusts of the acreage, and sort out the conflict of interest issues. It is unclear on how long the landowners have to prepare for the next hearing, but Petty said she and the other attorneys asked for at least 30 days.

Although no one in this case has threatened to fend off CPS with firearms, it is not unheard of for property owners to fight governmental agencies attempting to exercise eminent domain.

Petty said she interpreted Ross' courtroom comments to mean, "that in the past there have been irate property owners that have shown up with shotguns."

To read previous stories about the CPS lines, see "Power play," October 30-November 5, 2003 and "High tension," September 16-22, 2004.

See related eminent domain story "A king's divine right" in this issue of the Current.

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