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8/10/2019 Highland Park Suit
http://slidepdf.com/reader/full/highland-park-suit 1/9
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.
pL¡.t¡,¡TtFr's
ORIGINAL
vERIFIED
IETITION AND
ApILICATION
FoR
TEMpoRARy
eNo
pBRvRNeNr
TNJUNcTIoN
-
Page
I
3417319v11014553
DC-14-13276 Tonya Po
DALLAS
11/12/2014 4:
GARY FITZS
DISTRI
8/10/2019 Highland Park Suit
http://slidepdf.com/reader/full/highland-park-suit 2/9
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
AND AIeLICATION FoR
TEMpoRARy RNp
pERMANENT
TNJUNCTIoN
-
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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,
pLntNtlrr's
oRIGINAI
vERIFIED IETITION
AND AreLICATION
FoR TEtwonRnv
¡,No
peRMnNENr
rNJtrNcrloN
-
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3
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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.
pL¡.rNtIr'¡'s
ORIGINAT
VERIFIED
IETITION
AND
AppLIcATIoN
FoR
trvronlnv
RND
peRMnNENr
rNJUNcrtoN
-
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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
8/10/2019 Highland Park Suit
http://slidepdf.com/reader/full/highland-park-suit 7/9
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
FoR TEMpoRARy AND
pERMANENT
TNJUNCTION
-
Page
7
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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
- Page
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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
Vep.rplc¡rtoN -
Paec I
3411319y11014553
TEMPEST
A.
TH(IMPS(¡N
Notary
Public
St¡te
of
Ïax¡¡
Commis¡ion
Erplr¡s
SEPTEMBER
17,2018
Àlo
lLt
4