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| El Paso-owned and proud |
Jul. 25 - Jul. 31
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Downtown Plan foes: ‘Fight has just begun’
by Dan Huff |
 Dallas-based attorney Stuart E. Blaugrund says he’s prepared to fight redevelopment plans for Downtown El Paso “every step of the way” on behalf of his client, Land Grab Opponents (LGO).
And Blaugrund, who grew up in El Paso, says this fight is personal. If it weren’t for the Downtown businesses his relatives were able to establish, his father, Maurice, would never have been able to emigrate from war-torn Europe.
“He very well could have been slaughtered in the Holocaust, but he had brothers and cousins who had emigrated before him, who established successful businesses here on the border,” Blaugrund said.
While the attorney all but conceded there are currently enough votes to pass the redevelopment plan at the City Council’s Oct. 31 meeting, he added that would only trigger a legal challenge.
And that fight, he said, will hang on the definition of the words “blight” and “blighted area” in the Texas statutes regulating eminent domain – the power to take private property for public use by the state or municipality with just compensation.
In addition, Blaugrund said, he’ll be lobbying the Texas legislature on behalf of LGO when the January session begins.
LGO is composed of merchants and shop owners who fear the city, or a city-created Tax Increment Recovery Zone, might eventually exercise eminent domain to deprive them of their properties and livelihoods in a 120-plus acre swath of Downtown.
They’re reacting to the 300-member Paso del Norte Group (PDNG) plan that would have those same property owners join a real-estate investment trust (REIT) to develop that zone with condos, food and entertainment venues and high-end shops.
Language of law
Plan proponents see Downtown as decaying real estate that isn’t carrying its fair share of the community’s property tax burden, and which fails to provide an attractive city center for a booming El Paso.
Blaugrund maintains that individual property rights should trump economic development schemes, despite last year’s landmark U.S. Supreme Court ruling in Kelo vs. New London. The court held the City of New London, Conn., could condemn and purchase Susette Kelo’s home as part of a redevelopment plan to promote economic growth.
In the 5-4 decision, the high court ruled the common good a community enjoys from economic growth qualifies redevelopment as a permissible “public use” under the Fifth Amendment’s “takings” clause.
That decision prompted a rash of states, including Texas, to react with laws purporting to provide more protection for private property owners. Here, the law was called SB 7, and it went into effect in late 2005. While the new law purports to prevent government takings for purely economic development purposes, eminent domain is still allowed when it comes to dealing with a “blighted area.”
Blaugrund said he will be lobbying the legislature in January to change the language of the law from “area” to “property,” in hopes of making it difficult for Downtown plan supporters to argue that perfectly serviceable buildings could be condemned along with poorly maintained ones in El Paso’s proposed redevelopment zone.
Plan proponents have argued it’s an all-or-nothing situation Downtown – the city and the REIT they’re proposing must be able to offer a broad swath of land to national developers in order to achieve the “critical mass” of shops, entertainment and residential units necessary to breathe new life into the heart of the city.
Blaugrund, of the 300-member firm of Gardere, Wynne, Sewell, LLP, predicted the coming legal fight will be a long one.
“That’s because the stakes are very high for both sides,” he said. “You look at the revitalization proponents and the developers eyeing this opportunity, and you see there’s too much money at stake for them not to fight for it. And on the other side you have the merchants and property owners who stand to lose their livelihoods.”
In other words, expect an appeal no matter what a trial court may decide. And there could be yet another step, he warned.
“Of course the Texas Supreme Court has discretion whether to review a case from the intermediate appellate court," Blaugrund said. “But this is the kind of issue that is so important to the citizens of Texas. And as far as I can tell it’s probably going to be the first case to be litigated under the new law the legislature passed, so I would think the Supreme Court would agree to review the case.”
While Blaugrund is quick to point out that he doesn’t know for sure where the legal battle may wind up, he said the city and redevelopment plan proponents could expect a lawsuit to be filed “sooner rather than later.”
And he added:
“The city has all kinds of legitimate police powers, so the problem with the way Downtown looks now in certain areas is the fault of not just the few property owners who have neglected their properties, but the city for failing to enforce codes and ordinances. And if people are living in rundown tenements that are unfit for human habitation, shame on all of us. But shame on the city for not doing something about it.”
Send comments on this article to tomfenton@elpasoinc.com.
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