      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-08-00551-CV



                       Block House Municipal Utility District, Appellant

                                                  v.

                     The City of Leander, Texas; and Anthony Johnson,
                 Individually and in his Capacity as City Manager, Appellees


  FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT
     NO. 07-632-C26, HONORABLE BILLY RAY STUBBLEFIELD, JUDGE PRESIDING



                                           OPINION


               Appellee, the City of Leander, Texas, approved the condemnation of an easement

through parkland for a wastewater line. Appellant Block House Municipal Utility District, which

had dedicated the property as parkland, filed suit opposing the condemnation. Under section 26.001

of the parks and wildlife code, to condemn parkland property, the City is required to determine

that there is no feasible and prudent alternative to the taking. See Tex. Parks & Wild. Code Ann.

§ 26.001(a) (West 2002). The District contends that a feasible and prudent alternative exists and,

therefore, that the City’s determination was improper and no condemnation proceeding should occur.

The district court granted summary judgment in favor of the City. We hold that a determination

under section 26.001 that there is no feasible and prudent alternative to the use or taking of parkland

is subject to judicial review only where there is a showing that the condemnor acted fraudulently,

in bad faith, or arbitrarily and capriciously. The summary judgment evidence demonstrates that the
City did not act fraudulently, in bad faith, or arbitrarily and capriciously. Therefore, we affirm the

district court’s judgment.


Factual and Procedural Background

               On July 17, 2007, the City Council of the City of Leander, in a public meeting, passed

a resolution authorizing condemnation of a portion of parkland property for a 24-inch wastewater

line. The condemnation would consist of a twenty-foot-wide utility easement and a thirty-foot-wide

temporary construction easement. The parkland property is located outside the municipality,

and within the Block House Municipal Utility District. In authorizing the condemnation, the City1

relied on the recommendations of its City Engineer and an independent engineering consultant,

and concluded that no feasible and prudent alternative route for the wastewater line exists. The

City considered an alternative route that does not traverse the parkland, but rejected that route “due

to a large increase in cost and considerable engineering challenges as compared to the proposed

Parkland Route.”

               The City’s condemnation of District parkland stems from efforts by the City to

prepare for its expected need to increase wastewater disposal capacity based on rapid population

growth. Having determined that its existing wastewater treatment plant is inadequate to handle

the anticipated increases, the City approved a project by which the Horizon Park Lift Station would

be taken offline, a percentage of the wastewater flow would be transferred to the Brushy Creek




       1
          Because appellees’ interests in this appeal do not diverge, we refer to
appellees—Anthony Johnson, individually and in his capacity as City Manager, and the City of
Leander, Texas—collectively as “the City.”

                                                  2
Wastewater Interceptor, and costly expansion to the Leander Wastewater Treatment Plant could

thereby be postponed. The transfer of wastewater flow to the Brushy Creek Wastewater Interceptor

requires that a new wastewater line be installed. The City approved a route for this wastewater line

that requires the City to obtain an easement across District parkland (the “Parkland Route”).

               The District parkland includes 91.793 acres of land formally designated as a park

and recreation area in July 1998, and a 2.765-acre tract previously occupied by a wastewater

treatment plant and formally designated as a park and recreation area in November 2006.

Representatives of the District appeared before the Leander City Council in the July 17, 2007

meeting opposing selection of the Parkland Route for the City’s wastewater line. In addition, on

August 22, 2007, the board of directors of the District made its own determination that the

alternative route considered by the City for the wastewater line (the “Alternate Route”) was both

feasible and prudent.

               On July 30, 2007, the District filed suit against the City, seeking injunctive

and declaratory relief that a feasible and prudent alternative route exists for the wastewater line,

which route does not require condemnation of the District’s parkland property, and therefore, that

the City may not initiate condemnation of any parkland property. The parties filed competing

motions for summary judgment. On August 19, 2008, the district court granted the City’s motion

for summary judgment, denied the District’s motion for summary judgment, and dismissed all of the

District’s claims. The District appeals.




                                                 3
Analysis

               The gist of the District’s lawsuit is that the City’s decision to condemn the District’s

parkland property must be overturned because a feasible and prudent alternative route exists that

does not result in condemnation of parkland property. The City filed a “traditional” motion for

summary judgment on the ground that the district court could not substitute its judgment for that of

the City on whether a feasible and prudent alternative exists. The District also filed a “traditional”

motion for summary judgment, asking the district court to find and declare that a feasible and

prudent alternative exists to the taking of the District’s parkland property.

               We review the district court’s summary judgment de novo. Joe v. Two Thirty Nine

Joint Venture, 145 S.W.3d 150, 156 (Tex. 2004). Under the “traditional” Rule 166a(c) standard, a

summary judgment should be granted only when the movant establishes that there is no genuine

issue as to any material fact and that it is entitled to judgment as a matter of law. See Tex. R. Civ.

P. 166a(c); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex. 2003).

When, as here, both parties file motions for summary judgment and the court grants one and denies

the other, we must decide all questions presented and render the judgment that the trial court should

have rendered. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex. 2000).


       Scope of Judicial Review

               It is well settled that a condemnor’s discretion is nearly absolute in the absence

of any applicable constitutional or statutory limitation. See Malcomson Rd. Util. Dist. v. Newsom,

171 S.W.3d 257, 268 (Tex. App.—Houston [1st Dist.] 2005, pet. denied); Luby v. City of Dallas,

396 S.W.2d 192, 196-97 (Tex. Civ. App.—Dallas 1965, writ ref’d n.r.e.). Where the legislature

                                                  4
delegates to an entity the power to condemn, and the entity condemns property for public use, the

extent to which the property is taken is a legislative question not generally reviewable by courts.

Housing Auth. v. Higginbotham, 143 S.W.2d 79, 88-89 (Tex. 1940); Mercier v. MidTexas Pipeline

Co., 28 S.W.3d 712, 717 (Tex. App.—Corpus Christi 2000, pet. denied) (citing West v. Whitehead,

238 S.W. 976, 978 (Tex. Civ. App.—San Antonio 1922, writ ref’d)). The condemnor’s exercise of

discretion may be subject to judicial review, but only where there is a showing that the condemnor

acted fraudulently, in bad faith, or arbitrarily and capriciously. See Newsom, 171 S.W.3d at 268-69;

Boswell v. Brazos Elec. Power Coop., 910 S.W.2d 593, 599 (Tex. App.—Fort Worth 1995,

writ denied); Luby, 396 S.W.2d at 196-97 (citing Texas Elec. Serv. Co. v. Linebery, 327 S.W.2d 657,

664 (Tex. Civ. App.—El Paso 1959, writ dism’d w.o.j.)).2

               In the same way, the condemnor’s determination that the exercise of eminent domain

is necessary is conclusive absent a showing that the condemnor acted fraudulently, in bad faith, or

arbitrarily and capriciously. Whittington v. City of Austin, 174 S.W.3d 889, 898 (Tex. App.—Austin

2005, pet. denied); Anderson v. Clajon Gas Co., 677 S.W.2d 702, 704 (Tex. App.—Houston

[1st Dist.] 1984, no writ); Maberry v. Pedernales Elec. Coop., 493 S.W.2d 268, 271 (Tex. Civ.

App.—Austin 1973, writ ref’d n.r.e.). This presumption applies as long as the condemnation statute


       2
          In addition to challenging the condemnor’s exercise of discretion, the condemnee may
be able to assert that the condemnor did not have authority to condemn the property under
the applicable constitutional and statutory provisions, see City of Wichita Falls v. Thompson,
431 S.W.2d 909, 910 (Tex. Civ. App.—Fort Worth 1968, writ ref’d n.r.e.), that the intended
use of the property is not a “public use,” see Whittington v. City of Austin, 174 S.W.3d 889, 896-
97 (Tex. App.—Austin 2005, pet. denied), or that the condemnor failed to comply with any
applicable procedural requirements, see Walker v. City of Georgetown, 86 S.W.3d 249, 254 & n.2
(Tex. App.—Austin 2002, pet. denied). The District does not make any such allegation in this
lawsuit.

                                                 5
does not impose an affirmative obligation to plead and prove necessity. See Mercier, 28 S.W.3d

at 719 (“When a statute delegating the power of eminent domain does not require proof of necessity

the condemnor need only show that its board of directors determined that the taking was necessary.”)

(citing Anderson v. Teco Pipeline Co., 985 S.W.2d 559, 565 (Tex. App.—San Antonio 1998,

pet. denied)).

                 The City’s approval of the condemnation of District parkland for purposes of

expanding the City’s wastewater capabilities was based on the authority of section 251.001 of

the Texas Local Government Code. “When the governing body of a municipality considers it

necessary, the municipality may exercise the right of eminent domain for a public purpose to acquire

public or private property, whether located inside or outside the municipality . . . .” Tex. Loc. Gov’t

Code Ann. § 251.001(a) (West 2005). This Court recently construed the phrase “considers it

necessary” in section 251.001, and held that the statute does not require affirmative pleading

and proof of necessity. See Whittington, 174 S.W.3d at 902. Therefore, according to this Court

in Whittington, a municipality has the burden to establish that its governing body made a

determination of necessity under section 251.001 for acquiring the property at issue. See id. Upon

the municipality’s meeting this burden, the presumption of necessity arises, and the fact of necessity

can be contested by the condemnee only by establishing affirmative defenses such as fraud, bad faith,

or arbitrariness. See id. at 898, 902.

                 The District does not dispute the City’s compliance with local government code

section 251.001. Instead, the District alleges that the City’s condemnation of parkland violates

section 26.001 of the Texas Parks and Wildlife Code.



                                                  6
                A department, agency, political subdivision, county, or municipality of this
                state may not approve any program or project that requires the use or taking
                of any public land designated and used prior to the arrangement of the
                program or project as a park, recreation area, scientific area, wildlife refuge,
                or historic site, unless the department, agency, political subdivision, county,
                or municipality, acting through its duly authorized governing body or officer,
                determines that:

                (1) there is no feasible and prudent alternative to the use or taking of such
                land; and

                (2) the program or project includes all reasonable planning to minimize harm
                to the land, as a park, recreation area, scientific area, wildlife refuge, or
                historic site, resulting from the use or taking.


Tex. Parks & Wild. Code Ann. § 26.001(a). The District seeks judicial review of the City’s

determination that “there is no feasible and prudent alternative” to the taking of the District parkland.

                The scope of judicial review of a determination under parks and wildlife code

section 26.001(a) that no feasible and prudent alternative exists mirrors the scope of review of a

determination under local government code section 251.001(a) that the taking is necessary. Neither

statute requires that pleading or proof of the applicable determination be made. See id.; Tex. Loc.

Gov’t Code Ann. § 251.001(a). Instead, the statutes merely require that the governmental entity

make the determination. See Tex. Parks & Wild. Code Ann. § 26.001(a); Tex. Loc. Gov’t Code

Ann. § 251.001(a). Section 26.001(c) specifically provides that chapter 26 does not constitute a

mandatory prohibition against the taking of parkland “if the findings are made that justify

the approval of a program or project.” See id. § 26.001(c). Unless a condemnation statute requires

affirmative pleading and proof on the matter, the extent to which property is to be taken is a political

or legislative question—not a judicial question. See Whittington, 174 S.W.3d at 898 (citing



                                                   7
Higginbotham, 143 S.W.2d at 88; West, 238 S.W. at 978). Therefore, the City has the burden to

conclusively establish that its governing body made a determination under section 26.001(a) of no

feasible and prudent alternative, and if it meets such burden, the District can contest such

determination only by establishing that the City acted fraudulently, in bad faith, or arbitrarily and

capriciously. See id. at 898, 902.

               The District contends that section 26.003 of the parks and wildlife code contradicts

the placement of a presumption in favor of the condemnor’s determination that no feasible

and prudent alternative exists. Section 26.003 provides: “A petition for the judicial review of the

approval or disapproval of a program or project under this chapter must be filed within 30 days

after the approval or disapproval is announced, or the review is barred.” Tex. Parks & Wild. Code

Ann. § 26.003 (West 2002). The District observes that the statute does not limit the scope of

judicial review of determinations made under section 26.001, and concludes that, as a result, the

scope of judicial review is not limited. However, the focus of section 26.003 is on the timing of a

petition for judicial review, not on the scope of the judicial review. See id. We do not consider the

phrase “judicial review of the approval or disapproval of a program or project under this chapter,”

standing alone, to provide a basis for de novo review of the approval of condemnation of parkland,

particularly given the longstanding precedent that the necessity or expediency of appropriating any

particular property for public use is not a judicial question. See Higginbotham, 143 S.W.2d at 89.

               The District argues that the legislative history of parks and wildlife code chapter 26

reveals a legislative intent to “carve out an exception for parkland to the presumptive validity of

a municipality’s decision to condemn.” The District relies on language from a 1969 report by the



                                                 8
Senate Interim Committee on Parks and Recreation, which recommended, among other things,

enactment of chapter 26 of the parks and wildlife code. The report asserts that “once a public utility

or governmental agency selects a location or route, nobody can halt or change the location of

the construction or prevent condemnation,” and then declares that parklands’ “continued protection

and integrity must be maintained at all costs.” Tex. Sen. Interim Comm. on Parks & Recreation,

“This Land Is Our Land: A Report on Texas’ Natural Env’t,” 61st Leg., R.S., at 39 (Feb. 12, 1969).

However, the conclusion reached by the report as to this matter does not contain any

recommendation regarding the scope of judicial review. Instead, the report recommends:


               as a minimum starting point, a public law to require all agencies to consider
               alternate routes rather than to use parklands for new public facilities, to select
               the alternate routes if possible, and to give advance public notice and hearings
               of any intended invasion of our parklands, refuges, scenic, or scientific areas
               or historic sites.


Id. Parks and wildlife code chapter 26 incorporates each of these three recommended requirements.

See Tex. Parks & Wild. Code Ann. §§ 26.001(a), (b), .002 (West 2002). The language of the report,

at most, merely leaves room for the possibility that the senate committee would have favored a

law establishing de novo review of an agency’s condemnation of parkland. The report provides no

indication that the legislature intended chapter 26 of the parks and wildlife code to create such a

scope of judicial review.

               Having found no language in parks and wildlife code chapter 26 or its legislative

history that would create an exception to the presumptive validity of the City’s decision to condemn,

we turn to the District’s contention that an exception should apply here based on the District’s



                                                   9
status as a governmental entity. See Tex. Const. art. XVI, § 59 (authorizing creation of municipal

utility districts); Tex. Water Code Ann. § 54.201 (West Supp. 2008) (powers of municipal utility

districts); Northwest Austin Mun. Util. Dist. No. 1 v. City of Austin, 274 S.W.3d 820, 824 n.3

(Tex. App.—Austin 2008, pet. filed) (municipal utility districts are political subdivisions of State).

               The District contends that no presumptive validity should attach to the City’s exercise

of its discretionary power as condemnor because the District also is a governmental body with

discretionary authority. However, the District fails to identify a legal source of discretionary power

to reject the condemnation of its parkland. The City is expressly authorized by statute to exercise

the right of eminent domain to acquire public property located outside the municipality for

wastewater purposes. See Tex. Loc. Gov’t Code Ann. § 251.001(a). In condemning the District’s

parkland, the City has exercised this right. Section 26.001 of the parks and wildlife code permits

a use or taking of public land upon the municipality’s determination that there is no feasible

and prudent alternative; it does not prohibit such use or taking if a different governmental body

determines that a feasible and prudent alternative does exist. See Tex. Parks & Wild. Code Ann.

§ 26.001(a). It is true that the District is authorized by statute to “provide parks and recreational

facilities for the inhabitants in the district.” Tex. Water Code Ann. § 54.201(b)(7); see id. § 49.463

(West 2008) (identifying “financing, developing, and maintaining recreational facilities for

the people in the district” as a purpose of municipal utility districts). However, the District is not




                                                 10
expressly authorized or otherwise given discretion by statute to void another entity’s decision to

condemn a portion of the District’s parkland property.3

               The District also contends that the City’s determination should not outweigh

the District’s opposing determination because “the will of the smaller unit shall control over the

will of the larger unit.” The District relies on City of Laredo v. Webb County, in which this Court

considered a county’s authority to construct an international toll bridge inside a city’s municipal

limits despite the city’s objections. 220 S.W.3d 571, 574 (Tex. App.—Austin 2007, no pet.). In that

case, the city and the county had “overlapping toll bridge authority,” and each independently sought

to construct the same bridge within the municipal limits. Id. at 575. This Court resolved the dispute

in favor of the city “in deference to the well-established precedent that, within the boundaries

of a home-rule city, the municipality’s roadway authority prevails over the county’s.” Id. at 575-

76 (citing City of Breckenridge v. Stephens County, 40 S.W.2d 43, 44 (Tex. 1931)). This Court

recognized that while a county is vested by statute with general authority over roadways in the

county, see id. at 576 (citing Tex. Transp. Code Ann. § 251.016 (West Supp. 2008)), a home-rule




       3
           The District has not identified any case law that has conferred such discretion on an entity
such as the District. The District cites Halbert v. Upper Neches River Municipal Water Authority,
367 S.W.2d 879 (Tex. Civ. App.—Houston 1963, writ ref’d n.r.e.), for the proposition that courts
will not interfere with a district’s discretionary decisions absent an abuse of discretion. However,
that case addresses a district’s exercise of its legislatively granted power of eminent domain, not a
district’s efforts to oppose another entity’s exercise of such power. See 367 S.W.2d at 881, 885-86.
The District cites City of San Antonio v. City of Boerne, 111 S.W.3d 22 (Tex. 2003), for the
proposition that courts will exercise a de novo review of coequal municipal corporations’ differing
interpretations of state law. However, de novo review in that case was based on the fact that the
dispute was over the proper construction of state law, not on the fact that the disputing parties were
coequal municipal corporations. See 111 S.W.3d at 25 (“We review matters of statutory construction
de novo.”).

                                                  11
city by statute exercises “exclusive control over and under the public highways” in the city, see id.

(quoting Tex. Transp. Code Ann. § 311.001(a) (West 1999)). In this case, unlike in City of Laredo,

no statute vests the District with exclusive control over its parkland. On the contrary, local

government code section 251.001 expressly authorizes the City to condemn public property outside

its municipal boundaries, see Tex. Loc. Gov’t Code Ann. § 251.001(a), and parks and wildlife code

section 26.001 expressly contemplates that such taking may include parkland, see Tex. Parks &

Wild. Code Ann. § 26.001(a). Moreover, there is no precedent providing that a municipal utility

district’s parkland authority prevails over a municipality’s condemnation authority.4

               Therefore, a municipality’s determination under parks and wildlife code

section 26.001(a) that there is no feasible and prudent alternative to the use or taking of parkland is

subject to judicial review only where there is a showing that the municipality made the determination

fraudulently, in bad faith, or arbitrarily and capriciously. See Whittington, 174 S.W.3d at 898 (citing

Higginbotham, 143 S.W.2d at 88; West, 238 S.W. at 978).


       Determination of No Feasible and Prudent Alternative

               For the district court’s judgment to be affirmed, the record must support the

district court’s summary judgment that the City did not act fraudulently, in bad faith, or arbitrarily

and capriciously in determining, in accordance with section 26.001(a)(1), that there was no feasible




       4
          A condemnee may be able to prevent a condemnation when the property is already devoted
to another public use and the condemnee establishes that the new condemnation would practically
destroy, or at least materially interfere with, the existing public use. See Canyon Reg’l Water Auth.
v. Guadalupe-Blanco River Auth., 258 S.W.3d 613, 616-17 (Tex. 2008). The District has not alleged
the applicability of this standard.

                                                  12
and prudent alternative to the taking of District parkland.5 See Tex. Parks & Wild. Code Ann.

§ 26.001(a). The District does not allege that the City failed to make this determination in the first

place. See Whittington, 174 S.W.3d at 902-03 (in order to meet its summary judgment burden on

necessity of taking, condemnor must first make conclusive demonstration that determination of

necessity was made); see also Newsom, 171 S.W.3d at 270 (agency’s failure to exercise discretion

that required to exercise can be deemed arbitrary and capricious). Nor does the District allege any

facts that would indicate fraud or bad faith. Instead, in essence, the District contends that the City,

in making its determination to select the Parkland Route for the wastewater line, acted arbitrarily

and capriciously and abused its discretion, because a feasible and prudent alternative to the

Parkland Route exists. An arbitrary and capricious act in the condemnation context is “willful and

unreasoning action, action without consideration and in disregard of the facts and circumstances.”

Newsom, 171 S.W.3d at 269 (quoting Wagoner v. City of Arlington, 345 S.W.2d 759, 763 (Tex. Civ.

App.—Fort Worth 1961, writ ref’d n.r.e.)).

               The District contends that our construction of section 26.001(a) should be governed

by Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971). In Overton Park, the

Supreme Court construed federal statutes that prohibited the use of federal funds to finance


       5
           The District also argues the existence of a fact issue on the City’s compliance with
section 26.001(a)(2)—under which the City must determine its project includes all reasonable
planning to minimize harm to the parkland resulting from the taking. See Tex. Parks & Wild. Code
Ann. § 26.001(a) (West 2002). However, section 26.001(a)(2) is not at issue in this lawsuit. The
District’s pleadings request a declaration that “a feasible and prudent alternative exists to the taking
of The Parkland Property,” not that the project does not include all reasonable planning to minimize
harm. Indeed, in its motion for summary judgment, the District characterized its lawsuit as “a
declaratory judgment action brought by Plaintiff asking the court to find and declare that a feasible
and prudent alternative exists to the taking of certain dedicated parkland property.”

                                                  13
any project requiring the use of a public park unless “there is no feasible and prudent alternative to

use of such land” and “such program includes all possible planning to minimize harm to such park.”

401 U.S. at 404-05 nn.2-3. The dispute in Overton Park involved the Secretary of Transportation’s

authorization of federal funds for the construction of a six-lane interstate highway that would result

in the destruction of 26 acres of a 342-acre public park. See id. at 406. The Court interpreted the

federal statute at issue to be a “plain and explicit bar” to the use of federal funds for construction of

highways through parks except in “the most unusual situations.” Id. at 411. Construing the statutory

term “feasible,” the Court required a showing that “as a matter of sound engineering it would not be

feasible to build the highway along any other route” outside the parkland. Id. Next, construing the

statutory term “prudent,” the Court required a showing that alternative routes outside the parkland

would “present unique problems.” Id. at 413. Specifically, the Court found that concerns of cost,

directness of route, and community disruption would need to reach “extraordinary magnitudes” to

compel a conclusion that an alternative route was not prudent. Id. at 411-13.

                More recently, the Kansas Supreme Court construed a Kansas statute that prohibited

any project that would “encroach upon, damage or destroy any historic property” unless the

governmental body determined that “there is no feasible and prudent alternative to the proposal”

and “the program includes all possible planning to minimize harm to such historic property.” Reiter

v. City of Beloit, 947 P.2d 425, 435 (Kan. 1997). The landowner opposing the project at issue

in Reiter argued that the phrase “no feasible and prudent alternative” should be construed as in

Overton Park. See id. at 438. The Kansas court disagreed, based on a “critical distinction” between

the federal and Kansas statutes. See id. According to the court, Overton Park involved the building



                                                   14
of a roadway, which necessarily involves a complete taking of property, and thus close scrutiny

is warranted. See id. The court observed that the Kansas statute, in contrast, covered a “wide

spectrum” of possible actions, and concluded that the phrase “no feasible and prudent alternative”

should not be construed as tightly as in those situations where actual destruction of protected

property is involved. See id. According to the court in Reiter, the decision of the governing body

must be made on a case-by-case basis, taking into consideration all of the relevant factors. Id.

Rather than adopting the Overton Park definitions of “feasible” and “prudent,” the court in Reiter

opted to give the terms their “natural and ordinary meaning” and, for judicial review, to ask “whether

the governing body took a hard look at all relevant factors and, using plain common sense,

based its determination upon the evidence.” Id. The level of scrutiny would “depend in large part

on the nature of each individual action and the effect such action will have on the historic property.”

Id. at 439.

                The analysis in Reiter is more appropriate in our construction of parks and wildlife

code section 26.001(a). Section 26.001 covers any “use or taking,” see Tex. Parks & Wild. Code

Ann. § 26.001(a), which a municipality can accomplish for a wide spectrum of possible purposes,

see Tex. Loc. Gov’t Code Ann. § 251.001(a). A governmental body, in making a determination

under section 26.001(a), is entitled to exercise its discretion to consider all factors it deems relevant

to the determination.6 As held in Reiter, we conclude that the greater the impact a project has on the


        6
         Unlike the statute at issue in Reiter, section 26.001 of the parks and wildlife code does not
expressly provide that the condemnor may consider all relevant factors. Compare id. § 26.001(a),
with Reiter v. City of Beloit, 947 P.2d 425, 435 (Kan. 1997). However, section 26.001 does not
provide limits on what may be considered in determining whether a route is feasible and prudent.
We do not interpret the absence of a provision in section 26.001 that the condemnor may consider

                                                   15
public land to be used or taken, the greater the level of scrutiny the governmental body must employ

in weighing the feasibility and prudence of all alternative routes that do not impact the statutorily

protected property. See Reiter, 947 P.2d at 438-39.

                The parties do not dispute that the Alternate Route is feasible. The District contends,

however, that the City failed to prove that no other feasible alternative exists. According to the

summary judgment evidence, the wastewater line would need to connect from the Horizon Park Lift

Station to a point to the southeast. The Parkland Route travels south into the District parkland,

and then turns east out of the parkland, passing under a north-south highway. The Alternate Route

travels east under the backyards of six single-family residential properties, continues east under

the north-south highway, and then turns south along the eastern side of the highway to the same point

as the Parkland Route. Based on the location of the lift station, which appears to be surrounded

by residential properties except for the parkland to the south, the City asserts that the Alternate Route

is the “one and only one alternate route which could be built and be feasible.” The District did not

submit evidence controverting this fact. Based on our review of the record, we conclude that the

City did not act arbitrarily and capriciously in considering the Alternate Route as the only feasible

alternative to the Parkland Route.

                The District contends that the Alternate Route is not only feasible, but also a prudent

alternative to the Parkland Route. The Parkland Route requires a taking of property, and therefore

a stricter scrutiny should apply. See id. However, the taking does not have as extensive an impact




all relevant factors to mean that the legislature intended a condemnor not to consider any and all
factors relevant to whether an alternative route is feasible and prudent.

                                                   16
as the six-lane interstate highway at issue in Overton Park. See 401 U.S. at 406. Rather, the taking

consists of a 30-foot-wide temporary construction easement and a 20-foot-wide permanent easement.

Although the installation of the wastewater line, according to the summary judgment evidence,

will likely result in the destruction of cedar thicket on the easements, the property would remain

available for use as parkland following the restoration of topsoil. Further, the City has asserted that

it would take steps to preserve hardwood trees, plan the route of the line to minimize large tree

removals as much as practicable, and re-vegetate the surface once the topsoil is restored following

the pipe’s installation.

                In rejecting the Alternate Route as not prudent, the City, according to the council

members’ affidavits in the summary judgment record, considered and relied on the advice of the

City Engineer and an independent engineering consultant, both of whom recommended rejection

of the Alternate Route as not prudent. The engineers determined that the Parkland Route could

be constructed through the parkland using the “open-cut” method, by which a trench is dug, the

wastewater pipe installed, and the trench refilled. The Alternate Route would require boring under

the backyards of six adjacent, single-family residential properties, which method involves horizontal

boring between bore pits, placement of a steel encasement pipe, and insertion of the wastewater

pipe inside the casing. According to the engineers, because of these differences in the installation

methods, installation at the Alternate Route would cost over $300,000 more than the Parkland Route

and could encounter unforeseen problems during the boring process; operation at the Alternate Route

could be less efficient due to the increased difficulty in setting the slope of the line; and any

future repair and maintenance at the Alternate Route would be more costly, difficult, and time-



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consuming, and would require interruption of service. The engineers also asserted that both the

initial installation and any future maintenance issues at the Alternate Route could be disruptive to

the homeowners. The City considered the engineers’ recommendations in a public hearing, where

the City also heard comments made by District officials and representatives in opposition to the

Parkland Route. The City rejected the Alternate Route as not prudent, given its increased cost and

engineering challenges.

                Based on our review of the record, considering the impact of the City’s taking at the

Parkland Route on the parkland, and the installation, operational, maintenance, and community

issues involved with the Alternate Route, we find that the City’s approval of the Parkland Route was

not a willful and unreasoning action, or one taken in disregard of the facts and circumstances. See

Newsom, 171 S.W.3d at 269 (quoting Wagoner, 345 S.W.2d at 763). We conclude that the City did

not act arbitrarily and capriciously, or abuse its discretion, in determining that there was no feasible

and prudent alternative to the taking of District parkland. Consequently, we affirm the judgment of

the district court.




                                               __________________________________________

                                               G. Alan Waldrop, Justice

Before Justices Patterson, Pemberton and Waldrop;
   Concurring Opinion by Justice Patterson

Affirmed

Filed: July 10, 2009

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