FILED

DALLAS COUNTY
11/12/2014 4:10:00 PM
GARY FITZSIMMONS
DISTRICT CLERK

DC-14-13276

Tonya Pointer

Case No.

The Town of Highland Par

IN THE DISTRICT COURT

Plaintiff,

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 rward

Comprehensive Plan, as

Code.

it

Dallas!

must be under $211.004 of the Texas Local Government

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.

(
2.

lI. PARTIES

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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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

4.

AND VENUE

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.

forward Dallas! Comprehensive Plan (the "Comprehensive

Plan") on June 14,2006 via Dallas City Ordinance No. 2637I. Comprehensive Plan, p.
Dallas adopted

bhe

r-i-2.

7.

The Comprehensive Plan

Comprehensive Plan, p. Il-i-2.

8.

is for the long range development of

Dallas.

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

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11.

On August 13,2014 Dallas City Council passed Ordinance 29420, approving

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. IIi-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
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to quality

development that

will

encourage private investment,

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sustain property values and mitigate negative impacts

of

adjacent

uses

on

neighborhoods." Comprehensive Plan, p. I-33.

22.

Policy 5.1.3 of the Urban Design Element in the Comprehensive Plan encourages

complementary building height, scale, design and character.

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

sought to increase the building height up to ninety (90) feet.

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

application for rezoning the Property was f,rled

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.
pLAlNrIrr'SoRIGINALVERIFIEDPETITIoNANDAPPLICATIoNFoRTEMPoRARYANDPE@
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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

paragraphs above as if

34.

fully

all the allegations set forth in

the

set forth herein.

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

comprehensive plan. Tex. Local Gov't Code Ann. $ 211.004.

pL.rNtIr''s

ORIGINAT VERIFIED IETITION AND AppLIcATIoN FoR

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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

44.

5-77 (Tex. 2009).

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

46.

Civil Practice

&, Remedies Code Chapters 37 and 65.

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@
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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,

Section 37 .009 because this is a suit for declaratory relief.

VIil.

48.

'Wherefore,

CONCLUSION

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

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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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
972-650-7105

- phone
- fax

ATTORNEYS FOR PLAINTIFF

ILATNTIFF's orucrNAL vERIFIEo

34l73l9vl/014553

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Case No.

The Town of Highland Park,

IN THE DISTRICT COURT

s
s
s

Plaintif4

$
$

The City of I)allas,

DALLAS COUNTY, TEXAS

s
Defendant.

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.

wil

TEMPEST A. TH(IMPS(N
Notary Public Stte of ax
Commision Erplrs

SEPTEMBER

17,2018

lo

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lLt

III, Mayor