Last Rights

The city wants Harry Whittington's property, northeast of the Austin Convention Center, for a new parking garage.

In the darker scheme of things, the city may have dug its own grave when it decided to take on the chairman of the Texas Funeral Commission over a piece of downtown property. Commission Chairman Harry M. Whittington has so far managed to foil the city's efforts to condemn his property in order to build a parking garage for the newly expanded Convention Center, scheduled to open in May.

The city, it should be noted, is no stranger to parking blunders, having first failed to consider parking when it built the original Convention Center -- an oversight that drew howls of public protest. This time around, city officials had pinned their hopes on an underground parking garage at the Convention Center hotel, but the exorbitant costs -- about $30,000 per space -- drove them to Whittington's property, where a surface parking lot already exists. Then, after the hotel had initially said it was impossible to dig further underground because of bedrock problems, it proceeded to do for its own purposes, after the condemnation proceedings against Whittington had begun.

But Whittington, it turns out, is not an easy sell. As a longtime civil lawyer and the owner of several valuable downtown properties, Whittington, 75, is well-versed in the nuances of real estate transactions. He rebuffed the city's previous offer of $3.5 million for his prized downtown block, which lies catty-corner from the Convention Center, bounded by Fourth and Fifth streets, and Red River and Sabine. The landowner also dodged the city's first condemnation lawsuit against him -- and collected $150,000 from the city in damages, thanks to a process server's failure to properly serve notice to Whittington's wife and daughter, both co-owners of the property.

As things stand now, the city leases the Whittington land for Convention Center parking, paying about $21,000 a month. Meanwhile, the Landmark Organization, developers of the Convention Center hotel, is proceeding to build 700 underground parking spaces for hotel guests, but not the additional 300 spaces originally planned for the Convention Center. (But then, the original parking plan was crafted back when the city thought it was getting a big hotel -- and underground parking -- without having to pay a dime for it. Time and city subsidies have altered that picture considerably.) Beyond the current arrangement, the city is no closer to controlling the Whittington land than it was when it first decided to go after the property nearly two years ago. Last month, City Council voted to begin condemnation proceedings anew, but only if a new round of negotiations (for which the city is paying about $10,000 in legal fees) failed to deliver the goods.

"We're still in negotiations," David Smith, the chief of the city's litigation division, said earlier this week. "We have not taken formal steps to begin condemnation because everybody is still trying to work it out."

Whittington says the city has already turned down one of his offers, to enter into a design/ build agreement in which he would build the 400-space garage and lease it to the city, thereby retaining ownership of both the land and the garage. His first choice, however, is to hang onto the property and build a mixed-use development, particularly now that revitalization endeavors in the area have added value to his property. "We've lived here a long time, and we have an attachment to this city," he says. "We'd like to keep all of our roots here, and we'd like to keep this particular property in the family. We think a mixed-use project would be a good investment for our family and for future generations."

Although he understands the city's right to condemn his property, Whittington doesn't believe the city has done a convincing job of arguing the necessity of taking his land for public use. "As I see it, a parking garage is just not a clear public service," says Whittington, who, as a two-year chair of the Funeral Commission, is credited with helping to restore consumer confidence in the then-troubled state agency.

Whittington is evidently not alone in his feeling that a parking garage would bring little aesthetic enhancement to the area, especially if city officials had carried out their plans to install a big chiller plant on top of the structure. (The most recent plans call for the chiller to be placed on the eastern side of the block.) Council Member Will Wynn agrees, having cast the dissenting vote last month against condemnation. "His feeling was that a concrete slab would not be a good urban development, and he didn't want to see another property downtown taken off the tax rolls," explains Mark Nathan, Wynn's aide.

Similarly, leaders of the Downtown Neighborhood Association and the Downtown Commission have voiced objections to the parking garage/chiller combination, arguing that it goes against efforts to create a more pedestrian-friendly environment for the area.

For his part, Whittington says he's disappointed that the city is forcing him to defend his property. "It's discouraging to think that you've acquired something for the long pull, and then the city comes along and tries to take it from you."