Highland Park Suit

8/10/2019 Highland Park Suit

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Case No.

The

Town

of

Highland

Parþ

Plaintiff,

IN

THE

DISTRICT

COURT

$

$

s

$

s

$

$

v

DALLAS COUNTY,

TEXAS

The City

of

Dallas,

Defendant.

JUDICIAL

DISTRICT

PLAINTIFF'S ORIGINAL

VERIF'IED

PETITION

AND

APPLICATION

FOR

TEMPORARY

AND PERMANENT

INJUNCTION

TO

THE

HONORABLE

ruDGE

OF

SAID

COURT:

The

Town

of

Highland

Park

("Highland Park")

files this

Original Petition

and

Application

for Temporary

and

Permanent

Injunction

to

prevent

the

City

of

Dallas

("Dallas")

from approving

any

development

permits

for

the

property

located at

4719

Cole

Avenue

(the

"Property")

based

upon

Dallas City

Ordinance

No.29420.

Ordinance

29420

is void

because

it

was not

adopted

in

accordance

with

the

þrward

Dallas

Comprehensive

Plan,

as

it

must be under

$211.004

of the

Texas

Local

Government

Code.

Ad

hoc

departures

from the

Comprehensive

Plan, such

as

Ordinance

29420,

jeopardize

the future

and character

of

the

entire

Katy

Trail

corridor, which is

precisely

the

kind

of

risk that

the Comprehensive

Plan and

$211.004

are

designed

to mitigate.

In

support

of

its request,

Highland

Park

respectfully

states as

follows:

I. DISCOVERY

CONTROL PLAN

l.

Highland

Park

intends

to

conduct

discovery

under

Level 2

as set

forth in

Texas

Rule

of Civil

Procedure

190.3,

if

any discovery

be

necessary.

(

lI.

PARTIES

2.

Highland

Park is a

home-rule municipality

oryanized

under

laws and constitution

of

the State

of

Texas which

owns

real

property

within

200 feet

of

the Property.

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DALLAS

11/12/2014 4:

GARY FITZS

DISTRI



3.

The

City

of Dallas

is

a

Texas

municipal corporation

and may be served through

the

City

Manager's

Office,

City

Manager,

A.C.

Gonzalez,

at his

place

of business

at 1500

Marilla Street,

Room

4EN, Dallas,

Texas,

75201.

III.

JURISDICTION

AND

VENUE

4.

The

Court

has

jurisdiction

pursuant

to

Texas

Civil

Practice

and Remedies Code

$

37.003

because

this

action

seeks a declaratory

judgment

regarding the

validity

of

Ordinance

No.

29420.

Dallas's

sovereign

immunity

is

waived

pursuant

to

Texas

Civil

Practice and

Remedies

Code

$

37.006(b).

5.

Venue

is

proper

in

Dallas County

pursuant

to

Texas Civil

Practice and Remedies

Code

$

15.002

because

Dallas County

is

the

county

in which all

or

a substantial

part

of

the

events

giving

rise

to

the claim

occurred

and

because

Defendants

reside

in Dallas

County.

w.

6.

Dallas

adopted

bhe

forward

Dallas

Comprehensive

Plan

(the

"Comprehensive

Plan")

on

June

14,2006 via

Dallas

City

Ordinance

No.

2637I. Comprehensive

Plan,

p.

r-i-2.

7.

The Comprehensive

Plan

is for the

long

range

development

of

Dallas.

Comprehensive

Plan,

p.

Il-i-2.

8.

The

Comprehensive

Plan

shall

serye as

a

guide

to all

future

city

council

action

concerning

development

regulations.

Comprehensive

Plan,

p.

II-i-2.

9.

The

Comprehensive

Plan

was

adopted

to

provide

predictability

for

developers

and

consistency

for residents.

Comprehensive

Plan,

p.

II-i-3.

10.

The Comprehensive

Plan's self-proscribed

intent is to

provide

"a

policy

framework

that the

City, the

development

community

and

residents

can rely

on

to

continually

guide planning

efforts."

Comprehensive

Plan,

p.

II-i-3.

pLntNtIpr's

ORIGINAL VERIFIED

eETITION

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11.

On

August

13,2014 Dallas City

Council

passed

Ordinance

29420, approving a

Planned

Development

District

for

the

property located

at

4719 Cole

Avenue,

Dallas,

Texas

(the

Property ).

12.

The Property

is

a2.39

acre

multi-family site abutting

Highland

Park.

13.

The

Property

lies directly across

the

Katy Trail

from Highland Park's

Abbott

Park

and

several

residential

properties

within

Highland

Park.

14.

Abbott

Park is

within

two

hundred

feet

of

the

Property.

15.

As

a

result

of

the

adoption

of

Ordinance

29420, the

maximum

permitted

building

height

on the Property is

now eighty-four

(84)

feet:

16.

The

Property

is

surrounded by

low

rise developments,

none

of which exceed

thirty-six

feet

(36)

in height.

17

.

The Property

was

previously zoned for

MF-2

Multiple

Family

Subdistrict

uses

and sits

within

Dallas's

Planned

Development

193

( PD-193 ).

18.

The

maximum structure

height allowed

within

MF-2

zoning

is thirty-six

(36)

feet.

19.

The Property

is

within

the Urban

Neighborhood

block,

as identified

by the

Comprehensive

Plan. Comprehensive

Plan,

p.

II-i-30.

20. According

to the

Comprehensive

Plan, the

Urban Neighborhood

area

is designed

to

include

a

variety

of housing types,

including

low-

to

mid-rise apartments

and condos,

townhomes

and

small or

medium

sized

single-family

homes. Comprehensive

Plan,

p.

II-

i-24.

2I.

Regarding

architectural

design and

building

height, the Comprehensive

Plan

provides

an Urban

Design

Element,

which

is

intended

to

promote

a consistent

and

predictable

approach

to

quality

development that

will

encourage

private

investment,

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30.

On

May 8,

2014, Dallas staff

again

recommended

denial

of

the

proposed

rezoning

of

the

Property and

its

additional

height based on

their

determination

that the

proposed

increase in

height and density

is

not compatible

with

the

surrounding

neighborhood

because

the

scale

of the

proposed

development

is

not consistent

with

the

surrounding

development.

31.

Dallas staff further

concluded

that

the zoning

change sought

in the 2013

Application

was

not

in

compliance

with the Comprehensive

Plan.

32.

Dallas staffs

conclusion

was

reported

to

Dallas City Council

prior

to

the

adoption

of

Ordinan ce

29

420.

V.

DECLARATORY

JUDGMENT

33.

Highland

Park

incorporates by

reference

all

the

allegations

set

forth in the

paragraphs

above

as

if

fully

set forth

herein.

34.

Highland

Park

owns

real

property adjacent to the

Property and

its rights,

status,

or

other

legal relations

are affected

by

Ordinance

29420.

Highland

Park may therefore

have the

Court determine

any

question

of

validity

arising under

the ordinance.

35.

The

interests that

Highland

Park

seeks

to

protect

through this declaratory

judgment

action

are

germane

to

its

pu{poses,

which

include

protecting

the

health, safety,

and

welfare of

the

public.

36.

Highland

Park

also

has

particularized

injury

standing

to

challenge

the validity

of

Ordinance

29420 due

to

the

negative

impacts

on its

real

property

nearby the

Property,

Abbott

Park.

37.

Highland

Park seeks a declaratory

judgment

that

Ordinance

29420

is

void

as a

matter

of

law.

38.

Texas

law requires

that

all

zoning

regulations

must be in accordance with a

comprehensive

plan.

Tex.

Local

Gov't

Code

Ann.

$

211.004.

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39.

Dallas

has

adopted a

comprehensive

plan

for long-range development.

40.

All

zoning

regulations adopted

by Dallas

must be

in

accordance with

its

comprehensive plan. Nevertheless,

Ordinance29420

was

not

adopted

in

accordance

with

the Comprehensive

Plan,

and

therefore, is

void as

a matter of law.

VI.

REOUEST

FOR TEMPORARY

AND

PERMANENT

IN.IUNCTIVE

R ELIEF

4I.

Highland

Park

incorporates

by

reference

all of the

allegations

set forth

in

the

paragraphs

above.

42.

As

set

forth in detail above,

Highland

Park has established

a

probable

right

to

the

relief

they

seek

upon

final hearing.

43. Highland

Park lacks an

adequate

remedy

at

law

for

damages

that

will

likely

accrue absent

the

requested

injunctive relief.

Because

Ordinance

29420

is

void and the

Pre-Existing

Zoning

applies,

Dallas's approval

of any

development

plan

based

on

Ordinance

29420

would

be

ultra

vires.

Highland

Park

is

entitled

only to

prospective

injunctive

relief for

such

ultra vires

conduct, and

if

the Court

does

not intervene to

stop

any development

approval based

on a void

ordinance, sovereign

immunity

will

preclude

Highland

Park from

retroactive recovery.

See

City of

El

Paso v.

Heinrich, 284 S.V/.3d

366,

31 5-77

(Tex.

2009).

44.

Moreover, the

full extent

of

the

damages

will continue

to

be suffered

by Highland

Park as a result of the conduct

set

forth

herein.

45.

Accordingly,

Highland

Park is entitled

to

injunctive relief

to

prevent

this harm

pursuant

to

Texas Civil

Practice

&,

Remedies

Code Chapters

37 and 65.

46. Highland Park

respectfully seeks

a

temporary

and

permanent

injunction

prohibiting

Dallas

from

approving

any development

permits

for

the

Property

that do

not

conform to the

Pre-ExistingZoning

and from

any conduct

with regard to the Property

PLnnqtI¡¡,SozuGINALvERIFIEDPETITIoNANDAPPLIcATIoNFoRTEMPoRARYANDP@

34r7319v11014553



inconsistent

with

the

permitted

uses

under the

Pre-Existing

Zoning until such time

as

the

zoning for the

Development is

modified through

proper

procedure,

including

proper

notice.

vII.W

47.

Highland Park is

entitled to recover

its costs and

reasonable

and

necessary

attomey

fees that are

equitable and

just

under

Texas

Civil

Practice

Remedies Code,

Section

37

.009

because

this

is a suit

for

declaratory

relief.

VIil.

CONCLUSION

48.

'Wherefore,

premises

considered,

Highland

Park

respectfully

prays

that

Dallas

be

cited

to

appear

and

answer

herein, that

Dallas

be

preliminarily

and

permanently

enjoined

as

described in detail

above,

and that the

Court

should award

Highland

Park

all

such

and

further relief to which

it

may show

itself

to

be

justly

entitled.

Dated:

November

12, 2014

Respectfully

submitted,

SUSMAN

GODFREY

L.L.P

a

Terrell W.

Oxford

Texas State Bar No. 15 90500

Jonathan

Bridges

Texas State

Bar No.

24028835

toxford@susmango

dfrey. com

j

bridges@susmangodfrey.

com

901

Main Street, Suite 5100

Dallas,

Texas 75202

Telephone: 214.7 54.1900

Fax:214.754.1933

pLRt¡ut¡r's

ORIGINAL vERIFIED

IETITION

AND

AIeLICATION

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pERMANENT

TNJUNCTION

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BOYLE LOWRY,

L.L.P.

Matthew

C. G.

Boyle

State Bar No.

24001776

Matthew

L.

Butler

State

Bar

No.

24073984

Ben

L.

Stool

State

Bar

No,

19312500

4201

Wingren,

Suite 108

Irving,

Texas

75062

972-650-7100

-

phone

972-650-7105

-

fax

ATTORNEYS

FOR

PLAINTIFF

ILATNTIFF's orucrNAL vERIFIEo

pentloN

ANo

eppltcArloN

pon

rgþpoRARv

AND

pSRMANENT

INJUNcttoN

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Case

No.

The

Town

of

Highland

Park,

Plaintif4

The

City

of I)allas,

Defendant.

IN

THE

DISTRICT

COURT

DALLAS

COUNTY, TEXAS

JT]DICIAL DISTRICT

VERIF'ICATION

STATEOFTEXAS

corrNTY

oF DALLAS

BEFORE

ME, the

undersigned authority,

personally

appeared

Joel

T.

Williams,

III,

who,

being

duly

sworn, stated that he is the

Mayor

of

the

Town of Highland

Park,

and

is a duly-authorized

agent for

Highland

Park

in

the

above captioned

cause;

that he

has

read

the

above

and

foregoing

Original Verified

Petition

and Application

for

Temporary

and

Permanent

Injunction; and that

every

factual

statement

contained

therein

is within

either his

personal

knowledge

or

within

the information

of Highland

Park

to

which

he has

had

access

by

reason

of

his

position

with Highland

Park, and

is true

and correct.

s

s

s

s

s

¡

wil

III,

Mayor

n

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of

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SEPTEMBER

17,2018

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Highland Park Suit

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