DALLAS COUNTY
11/12/2014 4:10:00 PM
GARY FITZSIMMONS
DISTRICT CLERK
DC-14-13276
Tonya Pointer
Case No.
Plaintiff,
$
$
JUDICIAL DISTRICT
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
Comprehensive Plan, as
Code.
it
Dallas!
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.
l.
Highland Park intends to conduct discovery under Level 2 as set forth in Texas
(
2.
lI. PARTIES
of the State of Texas which owns real property within 200 feet of the Property.
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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
III. JURISDICTION
4.
AND VENUE
The Court has jurisdiction pursuant to Texas Civil Practice and Remedies Code
$ 37.003 because
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.
bhe
r-i-2.
7.
8.
Dallas.
The Comprehensive Plan shall serye as a guide to all future city council action
9.
II-i-3.
10.
11.
Planned Development District for the property located at 4719 Cole Avenue, Dallas,
Texas (the "Property").
12.
13.
The Property lies directly across the Katy Trail from Highland Park's Abbott
14.
15.
16.
The Property was previously zoned for MF-2 Multiple Family Subdistrict uses
18.
The maximum structure height allowed within MF-2 zoning is thirty-six (36)
feet.
19.
20.
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. IIi-24.
2I.
provides an Urban Design Element, which is intended "to promote a consistent and
predictable approach
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to quality
development that
will
vERIFIED IETITION AND AreLICATION FoR TEtwonRnv ,No peRMnNENr rNJtrNcrloN - Page 3
of
adjacent
uses
on
22.
Policy 5.1.3 of the Urban Design Element in the Comprehensive Plan encourages
23.
Policy 5.1.3 of the Urban Design Element in the Comprehensive Plan provides
that "[n]ew development should be appropriate to the context of its location in density,
intensity and size, particularly when adjacent to existing residential areas, historic or
conservation districts."
24.
Policy 5,1.3 of the Urban Design Element in the Comprehensive Plan further
provides that "[b]uildings should be designed to be compatible in height, scale, bulk and
massing to the urban context and established character of the surroundingarea."
25.
In 2005, the Property was the subject of a prior zoning change application which
26. In 2005, Dallas staff recommended denial of the zoning change and height
increase based on their conclusion that the "proposed height was not conducive or
compatible to the surrounding uses".
27.
On February 7,2013, a
ne\ry
seeking Planned Development Subdistrict zoning and was assigned Dallas City Plan
Commission number Zl23 -193 (V/E) (the "2013 Application").
28.
The 2013 Application sought a change in density from seventy-eight (78) units
to two hundred fifty-eight (258) units and a l47Yo increase in the maximum allowable
structure height from thirty-one (36) feet to eighty-four (89) feet.
29.
The 2013 Application was subsequently held under advisement through three
meetings of the City Plan Commission. During this period, the increase in maximum
structure height sought was changed to eight-four (84) feet, which was still
a I33%o
increase.
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30.
rezoning of the Property and its additional height based on their determination that the
"proposed increase
in
neighborhood because the scale of the proposed development is not consistent with the
surrounding development."
31.
in the 2013
32.
the
V. DECLARATORY JUDGMENT
33.
paragraphs above as if
34.
fully
the
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.
matter of law.
38.
accordance
with
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trvronlnv
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39.
40. All
in
accordance
with
its
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
43.
will likely
accrue absent the requested injunctive relief. Because Ordinance 29420 is void and the
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
44.
Moreover, the full extent of the damages will continue to be suffered by Highland
45.
pursuant to Texas
46.
Civil Practice
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@
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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,
VIil.
48.
'Wherefore,
CONCLUSION
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
Respectfully submitted,
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
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Case No.
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Defendant.
JT]DICIAL DISTRICT
VERIF'ICATION
STATEOFTEXAS
corrNTY oF DALLAS
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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.
wil
TEMPEST A. TH(IMPS(N
Notary Public Stte of ax
Commision Erplrs
SEPTEMBER
17,2018
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III, Mayor