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David Minton

City to pay about $1M to settle suit

Profile image for By Peggy Heinkel-Wolfe
By Peggy Heinkel-Wolfe

The city of Denton is expected to pay out about $1 million to settle a long-running inverse condemnation case over power lines placed along Bonnie Brae Street in 2009.

Inverse condemnation is defined as government taking private property without fair compensation, which is required under the Fifth Amendment.

The property owners’ attorney, Charles Orsburn, asked Judge Doug Robison of the 393rd Judicial District Court to dismiss the case during a hearing Friday afternoon. But Robison said that he would retain the case on his docket for another 90 days.

All but three of the property owners have settled with the city in the past few months, according to court records. The city agreed to pay each property owner in exchange for dropping out of the lawsuit.

Orsburn told the judge that he and the city’s attorneys have agreed to finish the last three property owners’ settlements even if the lawsuit is dismissed.

“We’ve got some subrogation of lien problems with banks out of California,” Orsburn told the judge.

The city needs clear title to pay for an easement. Typically, the city works through any title issues in a condemnation case, according to Paul Williamson, the city’s real estate manager.

But to settle inverse condemnation, the burden to convey clear title is on the property owners, Orsburn said in an interview after the hearing. Some of the lien holders haven’t been very cooperative, he added.

Without that condition satisfied, the three properties would end up in regular condemnation hearings, Orsburn said.

“As it should have been in the beginning,” he said. “If I hadn’t filed this lawsuit, these people wouldn’t have received anything. The 2,000-pound gorilla rule no longer applies.”

In 2009, Denton Municipal Electric erected new power lines along Bonnie Brae Street.

The city-owned utility replaced old wooden poles with 80- to 105-foot tall steel poles and upgraded to new 138-kilovolt lines.

A total of 17 property owners, primarily between University Drive and Hickory Street, filed suit in 2012. Electric safety codes require 30 feet from either side of the line for safe clearance, court records showed. The plaintiffs claimed they were not paid by the city for the additional property needed for the easements to accommodate the larger power lines.

Orsburn also helped a church, Windsor Hall, negotiate with the city after the inverse condemnation case came to light, he said.

In all, about $300,000 is left to settle, including Windsor Hall, the Vintage Senior Care Center and two homeowners, Orsburn said.

The city retained local real estate attorney Richard Kelsey for the case and the negotiations. The city has paid Kelsey more than $33,000 in legal fees, according to Brian Daskam, spokesman for DME.

Orsburn said he took the case for the property owners on contingency. If the property owners didn’t collect, he didn’t get paid.

Daskam said the costs paid to acquire the easements are considered part of transmission costs, which are shared by the entire grid. DME is part of the Electric Reliability Council of Texas, or ERCOT, which operates the grid for about 75 percent of the state.