Sam's Club Injunction Filings

DEFENDANTS OPPOSITION TO PLAINTIFFS REQUEST FOR A TI - Page 1
NO. DC-14-07239

EAST VILLAGE ASSOCIATION IN THE DISTRICT COURT
Plaintiff,

162nd J UDICIAL DISTRICT

V.

CITY OF DALLAS, et al.,
Defendants. DALLAS COUNTY, TEXAS

CITY OF DALLAS AND BUILDING OFFICIAL OF THE CITY OF DALLAS
RESPONSE AND BRIEF IN OPPOSITION TO PLAINTIFFS APLICATION FOR A
TEMPORARY INJUNCTION

TO THE HONORABLE J UDGE OF SAID COURT:
Defendants the City of Dallas (Dallas) and Larry Holmes, the Chief Building Official
for the City of Dallas (the CBO) (collectively the City) file this their response and brief in
opposition to the request for a temporary injunction (TI) made by Plaintiff East Village
Association (Plaintiff or East Village), contained in Plaintiffs First Amended Petition and
Application for Temporary Restraining Order and Temporary and Permanent Injunction Relief
(Petition), and respectfully shows the following:
FACTS
The owner of approximately 26 acres of land near the intersection of North Central
Expressway and North Haskell Avenue (the Property) submitted an application for the
rezoning of the Property as a planned development district (PD) for mixed use district 3 or
MU-3 uses. The PD that was eventually approved for the Property was designated PD 889. A
PD permits flexibility in that conditions and uses can be added or removed from the base zoning
that forms the basis of the PD. In PD 889 the base zoning district that the owner sought was the
Kimberly Ferguson
FILED
DALLAS COUNTY
7/24/2014 1:22:59 PM
GARY FITZSIMMONS
DISTRICT CLERK


Mixed Use District 3 or MU-3 District. One of the main uses permitted in the MU-3 District is a
general merchandise or food store containing more than 100,000 square feet (GM/FS). The
GM/FS under the MU 3 District requires as a condition that a specific use permit (SUP) be
obtained. An SUP is a type of zoning revision that permits the Dallas City Council to consider
certain factors before the approval of that use. In PD 889, the owner sought the removal of the
SUP condition.
Notices of the rezoning were sent both before the public hearings of the Citys Plan
Commission (the CPC) and the Dallas City Council to the owners of property within 200 feet
of the Property as required by state law and also to owners of an additional 300 feet beyond that
which is not required by state law but which the City sends out in zoning cases that seek a PD.
Both notices are attached hereto as Exhibit A. The notices stated that the owner sought to
rezone the Property as a PD for MU-3 uses, that the PD was to accommodate a retail
development with design standards. The notice contained a map showing the location of the
rezoning, advised property owners that a different use could be approved, advised the property
owner that another public hearing might be held by the City Council and gave the phone number
of the City planner working on the rezoning in the event the property owner had any questions.
Notices of the public hearings were also posted on the Citys website, published in the
newspaper, posted at City Hall and signs were posted on the Property advising members of the
public that there was a zoning case pending for the Property.
After its public hearing, the CPC recommended approval of PD 889 with one of the
conditions being the removal of the SUP condition. Several property owners sent the City letters
in favor of and in opposition to PD 889. After its public hearing, the Dallas City Council
adopted Ordinance No. 29019 which ordinance rezoned the Property as PD 889.


ARGUMENT AND AUTHORITIES
A. In General
In Midway Protective League v. City of Dallas, 552 S.W.2d 170, 175 (Tex.
App.Texarkana 1977, writ refd n.r.e.), the court examined an almost identical case as this
one. In Midway, an association of homeowners sought to overturn PD zoning for a retail
development because of lack of notice. In rejecting the homeowners claims noting that while
general, the notice was sufficient because it advised property owners that a planned development
district for a shopping center was under consideration, the court held:
The requisite details of notice of hearing are not specified by statute. The general
rule is that the notice is sufficient if it reasonably apprises those for whom it was
intended of the nature of the pending proposal to the extent that they can
determine whether they should be present at the hearing. The content of the
notice should be sufficiently specific to warn the recipient that he may be affected
by the contemplated action While the notice need not be complete and perfect
in every respect, it must be such as will afford the recipient an opportunity to
oppose the measure if he desires. Deviation of an ordinance from the descriptions
of the notice and the discussions at the statutory hearing is permissible unless the
changes become so substantial that the proposal made can said to be a new one.
(emphasis added)
Id.
Compliance with notice requirements is a question of law to be determined by the Court.
See, Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 510 (Tex. 1993); Mickens v.
Longhorn DFW Moving, Inc., 264 S.W.3d 875, 878 (Tex. App.Dallas 2008, pet. denied). The
right to have notice and appear before a zoning commission is a statutory right, not a due-process
requirement, Murmur Corp. v. Board of Adjustment of City of Dallas, 718 S.W.2d 790, 793 (Tex.
App.Dallas 1986, writ refd n.r.e.); Eudaly v. City of Colleyville, 642 S.W.2d 75, 77 (Tex.
App.Fort Worth 1982, writ refd n.r.e.), because a citys adoption and amendment of a zoning


ordinance is an exercise of its legislative power. Thompson v. City of Palestine, 510 S.W.2d 579,
581 (Tex. 1974).
Only owners of property within 200 feet of a zoning request are entitled to receive
written notice of a zoning change, Kinkaid School, Inc. v. McCarthy, 833 S.W.2d 226, 229 (Tex.
App.Houston [1st Dist.] 1992, no pet.) and a subsequent owner has no standing to challenge
the lack of notice to a prior owner. Murmur Corp. 718 S.W.2d at 793; Leach v. City of North
Richland Hills, 627 S.W.2d 854, 857 (Tex. App.Fort Worth 1982, no writ). An association of
homeowners who own lots adjoining property that is the subject of a rezoning request does not
have standing to challenge a zoning ordinance on notice grounds when it doesnt own property
within 200 feet of the zoning request because it is not entitled to statutory notice. McCarthy, 833
S.W.2d at 229.
A planned development district is unique in that it permits changes to the zoning
requirements that are not permitted if an owner seeks to rezone property to a district other than a
planned development district. In Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 931 (Tex.
1998), the Texas Supreme Court noted:
A planned development is not a typical request for a zoning change; the density,
type, and location of particular uses in a development are left to the planning
process and are determined through negotiations between the developer and town.
Id.
Furthermore, the court in Mayhew added: Zoning decisions are vested in the discretion of
municipal authorities; courts should not assume the role of a super zoning board. Mayhew, 964
S.W.2d at 933; Burns v. City of Des Peres, 534 F.2d 103, 108 (8th Cir.), cert denied, 429 U.S.
861 (1976).


A city ordinance is presumed to be valid, and this presumption applies to amendatory
zoning ordinances as well as original comprehensive zoning ordinances, Hunt v. City of San
Antonio, 462 S.W.2d 536, 539 (Tex. 1971), and [a]n extraordinary burden rests on one
attacking the ordinance to show that no conclusive or even controversial issuable facts or
conditions exist which would authorize the governing board of the municipality to exercise the
discretion confided to it. Id. This query presents a question of law, not a question of fact.
Id.; City of Waxahachie v. Watkins, 154 Tex. 206, 275 S.W.2d 477 (1955).
B. Plaintiff is not entitled to injunctive relief because Plaintiff does not have standing to
bring this claim.

Standing is a necessary component of subject-matter jurisdiction and is, therefore, a
threshold issue. Patterson v. Planned Parenthood of Houston & Se. Tex., Inc., 971 S.W.2d 439,
442 (Tex. 1998); Barshop v. Medina County Underground Water Conservation Dist., 925
S.W.2d 618, 626 (Tex. 1996). As a component of subject-matter jurisdiction, standing is never
presumed, cannot be waived, and can be raised for the first time on appeal. Tex. Assn of Bus.,
852 S.W.2d at 443-44. Standing is a question of law. Mayhew v. Town of Sunnyvale, 964
S.W.2d 922, 928 (Tex. 1998). Courts apply the same standard of review to determine standing
as they do to determine subject-matter jurisdiction generally. Tex. Assn of Bus., 852 S.W.2d at
446.
The doctrine of standing identifies suits appropriate for judicial determination. Brown v.
Todd, 53 S.W.3d 297, 305 (Tex. 2001). The Association alleges its standing is granted by
statute. (Petition at 13 [citing Tex. Bus. Org. Code 252.007].) When standing is conferred by
statute, the common-law rules of standing do not apply. See, e.g., Hunt v. Bass, 664 S.W.2d 323,
324 (Tex. 1984); Mazon Assocs., Inc. v. Comerica Bank, 195 S.W.3d 800, 803 (Tex. App.
Dallas 2006, no pet). When standing has been statutorily conferred, the statute itself serves as


the proper framework for a standing analysis. Everitt v. TK-Taito, L.L.C., 178 S.W.3d 844, 851
(Tex. App.Fort Worth 2005, no pet.); Mazon Assocs., 195 S.W.3d at 803. The plaintiff must
allege and show how he has been injured or wronged within the parameters of the language used
in the statute. Mazon Assocs., 195 S.W.3d at 803; see also Tex. Dept of Protective &
Regulatory Servs. v. Sherry, 46 S.W.3d 857, 861 (Tex. 2001) (determining whether a putative
father had standing to maintain a suit affecting the parent-child relationship based solely on a
construction of the statutory standing provision).
The Association claims to be an unincorporated nonprofit association under section
252.001 et seq. of the Texas Business Organization Code (the TBOC). (Petition at 2.) It
asserts that, as a nonprofit association, it has members that have standing to seek declaratory and
injunctive relief by owning property within 200 feet of the property subject to the zoning change.
(Petition at 13-14.) The Association asserts that the relief sought is germane to its purpose.
(Petition at 13.) The purpose of the association is stated in the agreement as:
The purpose of the Association is advancement of the interests of the East Village
Residents, specifically but not limited to advocacy on East Village land use and
zoning issues for the benefit of East Village Residents, and to engage in any and
all activities necessary or incidental thereto as permitted by the TBOC [Texas
Business Organization Code]. The Association shall have all the powers to carry
out the purpose for which it was formed, including the powers granted by the
TBOC.

For the Association to have standing as alleged, it first must be a nonprofit association
under the code. J ust calling itself a nonprofit is not sufficient. The Association does not meet the
criteria to be a nonprofit association. A nonprofit association is governed by the provisions of
chapters 1 and 4 of the TBOC. Tex. Bus. Org. Code 252.017. Chapter 1 provides that a
nonprofit association is a nonprofit entity that is organized solely for specified purposes in the
code. Id. 1.002(60) (Nonprofit entity means an entity that is a nonprofit corporation,


nonprofit association, or other entity that is organized solely for one or more of the purposes
specified by Section 2.002.). The only purposes allowed by the statute are (1) serving
charitable, benevolent, religious, eleemosynary, patriotic, civic, missionary, educational,
scientific, social, fraternal, athletic, aesthetic, agricultural, and horticultural purposes; (2)
operating or managing a professional, commercial, or trade association or labor union; (3)
providing animal husbandry; or (4) operating on a nonprofit cooperative basis for the benefit of
its members. Id. 2.002. None of these allowed purposes encompasses a private interest
purpose that the Association has for a specific set of residents. Thus, the Association is not a
nonprofit association that can benefit from the statutory provisions.
Moreover, the statute does not even provide a nonprofit association with authority to seek
injunctive and declaratory relief to invalidate a zoning ordinance. The statute only provides that
an association is a legal entity for the purposes of determining and enforcing rights, duties and
liabilities in contract and tort. Tex. Bus. Org. Code 252.006; MT Falkin Investments, L.L.C. v.
Chisholm Trail Elks Lodge No. 2659, 400 S.W.3d 658, 665 (Tex. App.Austin 2013, pet.
denied). The Associations action has nothing to do with torts or contracts. Thus, the TBOC
does not authorize the Association to bring the action against the City. Because the Association
is not a nonprofit association under the code and is not bringing a contract or tort claim, the
Association does not have standing to seek declaratory and injunctive relief to invalidate a
zoning ordinance or to enjoin the City from taking ministerial actions in connection with
development of property within the City.
Finally, only owners of property within 200 feet of the rezoning request are entitled to
receive written notice of a zoning change and to challenge the zoning based on improper notice.
Kinkaid School, Inc. v. McCarthy, 833 S.W.2d 226, 229 (Tex. App.Houston [1st Dist.] 1992,


no pet.) An association of homeowners who own lots adjoining property that is the subject of a
rezoning request does not have standing to challenge a zoning ordinance on notice grounds when
it doesnt own property within 200 feet of the zoning request because it is not entitled to
statutory notice. Id. Plaintiff did not own property within 200 feet of the zoning change at the
time of the written notice in 2013. Since it did not own property within 200 feet, it does not have
standing to challenge the notice of the zoning change. While a nonprofit association may
participate in a judicial proceeding pursuant to section 252.007(a) of the TBOC on behalf of its
members, that participation may only occur if neither the claim asserted nor the relief requested
requires the participation of a member. 252.007(b)(3). McCarthy requires the participation of
people owning real property within 200 feet of the zoning change in a lawsuit challenging the
notice.
C. Plaintiff is not entitled to injunctive relief because it cannot show a wrongful act or
a probable right of relief.

1. Wrongful act.
The Court should deny a request for a request for injunctive relief when the plaintiff does
not show the existence of a wrongful act. See Priest v. Texas Animal Health Commn, 780
S.W.2d 874, 875 (Tex. App.Dallas 1989, no writ). For an act to be wrongful, the right
threatened and sought to be protected by injunctive relief must be an existing one vested in the
applicant. See, e.g., Garland v. Shephard, 445 S.W.2d 602, 604-05 (Tex. Civ. App.Dallas
1969, no writ); City of San Antonio v. Bee-Jay Enters., Inc., 626 S.W.2d 802, 804 (Tex. Civ.
App.San Antonio 1981, no writ). As noted in section B above, Plaintiff has no right to recover
because it lacks standing to bring this claim. Furthermore, there has been no wrongful act
committed by the City. The City sent notices of the rezoning of the Property in strict
conformance with the state law and Midway Protective League and Plaintiff has raised no issues


with respect to ordinance No. 29019 other than the notice to the property owners was
insufficient.
Plaintiff cannot show that the City committed a wrongful act.
2. Probable right of relief
The Court should deny a request for a temporary injunction when the plaintiff does not
show that it has a probable right to the relief it seeks on final hearing. See Butnaru, 84 S.W.3d at
204. In other words, the plaintiff must prove that it is likely to succeed on the merits of its
lawsuit. See DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 686 (Tex. 1990). A probable right
of relief is proven by alleging a cause of action and presenting evidence which tends to sustain it.
Miller Paper Co. v. Roberts Paper Co., 901 S.W.2d 593, 597 (Tex. App.Amarillo 1995, no
writ).
Plaintiff cannot show a probable right of relief in this case. In addition to the fact that it
lacks standing, the notices for the zoning case that is the subject of this case strictly comply with
state law and Midway Protective League. The notices apprised property owners of the nature of
the pending proposal and was sufficiently specific to warn the recipient that he may be
affected by the contemplated action. Midway Protective League, 552 S.W.2d at 175.
Ordinance No, 29019 is deemed valid and Plaintiff has not shown that it is not.
Plaintiff cannot show that it has a probable right of relief.


D. Plaintiff is not entitled to injunctive relief for other reasons.
1. Probable injury. The Court should deny a request for injunctive relief when the
plaintiff does not plead and show it will suffer a probable injury. See Butnaru v. Ford Motor
Co., 84 S.W.3d 198, 204 (Tex. 2002). Probable injury requires the plaintiff to show that the
harm is imminent, the injury would be irreparable, and the plaintiff has no other adequate legal
remedy. See Harbor Perfusion, Inc. v. Floyd, 45 S.W.3d 713, 716 (Tex. App.Corpus Christi
2001, no pet.); Henderson v. KRTS, Inc., 822 S.W.2d 769, 773 (Tex. App.Houston [1st Dist.]
1992, no writ).
a. Imminent harm. The Court should deny a request for injunctive relief
when the plaintiff does not plead the harm is imminent. See Operation RescueNatl v. Planned
Parenthood, 975 S.W.2d 546, 554 (Tex. 1998); Bell v. Texas Workers Comp. Commn, 102
S.W.3d 299, 302 (Tex. AppAustin 2003, no pet.); Tex. R. Civ. P. 680. The Court should
deny injunctive relief unless the plaintiff shows that the defendant will otherwise engage in the
activity enjoined. State v. Morales, 869 S.W.2d 941, 946-47 (Tex. 1994). A plaintiffs fear or
apprehension of the possibility of injury is not sufficient; the plaintiff must show that the
defendant has attempted or intends to harm the plaintiff. See Spears v. City of South Houston,
150 S.W.2d 74, 77-78 (Tex. 1941); Jones v. Jefferson County, 15 S.W.3d 206, 213 (Tex. App.
Texarkana 2000, pet. denied). Similarly, the threat of harm must not be merely speculative.
Camarena v. Tex. Employment Commn, 754 S.W.2d 149, 151 (Tex. 1988).
There is no imminent harm to Plaintiff in this case. Plaintiff cannot show how it will
suffer imminent harm if a GM/FS is developed on the Property as opposed to other retail space
that could be developed on the Property.


b. Irreparable harm. The Court should deny a request for injunctive relief
when the plaintiff does not show that it will suffer irreparable harm if the request for injunctive
relief is not issued. The plaintiff must plead that, if the injunctive relief is not issued, the harm
that will occur is irreparable. See Town of Palm Valley v. Johnson, 87 S.W.3d 110, 11 (Tex.
2001); Butnaru, 84 S.W.3d at 204; Tex. R. Civ. P. 680. An injury is irreparable if the plaintiff
could not be adequately compensated in damages or if the damages cannot be measured by any
certain pecuniary standard. Butnaru, 84 S.W.3d at 204; see also Wright v. Sport Sup., 137
S.W.3d 289, 294 (Tex. App.Beaumont 2004, no pet.) (plaintiff pleaded irreparable injury
because it showed its damages were not presently ascertainable or easily calculated). Costs and
delay alone are not irreparable injuries. Reynolds, Shannon, Miller, Blinn, White & Cook v.
Flanary, 872 S.W.2d 248, 252 (Tex. App.Dallas 1993, no writ).
There is no irreparable harm to Plaintiff in this case. Plaintiff cannot show how it will
suffer irreparable harm if a GM/FS is developed on the Property as opposed to other retail space
that could be developed on the Property.
c. No adequate remedy at law. The Court should deny a request for
injunctive relief when the plaintiff does not plead and show that it has no adequate remedy at
law for prevention or redress of wrongs and grievance of which complaint is made. Hancock v.
Bradshaw, 350 S.W.2d 955, 957 (Tex. Civ. App.Amarillo 1961, no writ); see also McGlothlin
v. Kliebert, 672 S.W.2d 231, 232 (Tex. 1984); Synergy Ctr., Ltd. v. Lone Star Franchising Inc.,
63 S.W.3d 561, 567 (Tex. App.Austin 2001, no pet.). The plaintiff must show that no other
remedy, such as a specific statutory or administrative remedy, is available to fully compensate
him for his injury. See, e.g., El Paso Elec. Co. v. Public Util. Commn, 727 S.W.2d 283, 286-287
(Tex. App.Austin 1987, no writ). For purposes of injunctive relief, there is no adequate


remedy at law if: (1) damages cannot be calculated, or (2) the defendant will be unable to pay
damages. See Texas Indus. Gas v. Phoenix Metallurgical Corp., 828 S.W.2d 529, 533 Tex.
App.Houston [1st Dist.] 1992, no writ); cf. Butnaru, 84 S.W.3d at 204. A plaintiff should
pursue a legal remedy, not an injunctive relief, if pecuniary damages can be ascertained. Garland
Grain Co. v. D-C Homeowners Improvement Assn, 393 S.W.2d 635, 643 (Tex. Civ. App.
Tyler, 1965, writ refd n.r.e.); see also Hancock, 350 S.W.2d at 957.
2. Laches and other delay in seeking request for injunctive relief. The Court should
deny a request for a request for injunctive relief if the plaintiff is guilty of laches. Landry's
Seafood Inn & Oyster Bar-Kemah, Inc. v. Wiggins, 919 S.W.2d 924, 927 (Tex. App.Houston
[14th Dist.] 1996, no writ). A party asserting the defense of laches must show both an
unreasonable delay by the other party in asserting its rights and harm resulting to the party
asserting laches because of the delay. Rogers v. Ricane Enters. Inc., 772 S.W.2d 76, 80 (Tex.
1989). However, even short of laches, delay or lack of diligence in seeking a request for
injunctive relief is grounds for denial of relief, because [e]quity aids the vigilant, not those who
slumber on their rights. Bartlett v. Terrell, 292 S.W. 273, 280 (Tex. Civ. App.San Antonio
1927, writ ref'd n.r.e.) (citation omitted); see American Red Cross v. Longley, 165 S.W.2d 233,
237 (Tex. Civ. App.Fort Worth 1942, writ refd w.o.m.); Donovan v. Young, 127 S.W.2d 517,
520 (Tex. Civ. App.Beaumont 1939, writ refd); Ricketts v. Ferguson, 64 S.W.2d 416, 417
(Tex. Civ. App. Dallas 1933, writ refused); O'Brien v. Perkins, 276 S.W. 308, 312-13 (Tex. Civ.
App.Amarillo 1925), aff'd, 285 S.W. 260 (Tex. Comm'n App. 1926). and not those who
slumber on their rights. See Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993)
(orig.proceeding).


A plaintiff who does not act promptly to enforce his rights is not entitled to injunctive
relief. See, e.g., Morris v. Edwards, 62 Tex. 205, 205 (Tex. 1884); Davis v. Carothers, 335
S.W.2d 631, 64041 (Tex. Civ. App.Waco 1960, writ dism'd by agr.) (when equities were
balanced, injunction requiring removal of gas station was inequitable, oppressive, harsh and
unconscionable because residents of area did not act while station was being built); Gillingham
v. Timmins, 104 S.W.2d 115, 119 (Tex. Civ. App.Galveston 1937, writ dism'd) (property
owners lost right to enjoin construction of garage-house because they did not act until the
construction was nearly completed). Because equity aids the diligent, American Red Cross v.
Longley, 165 S.W.2d at 237; Donovan v. Young, 127 S.W.2d at 520; Ricketts v. Ferguson, 64
S.W.2d at 417; O'Brien v. Perkins, 276 S.W. at 312-13, it will refuse relief to those wanting in
diligence in prosecuting their claim. Frost v. Wolf, 14 S.W. 440, 463-64 (Tex. 1890); Ricketts v.
Ferguson, 64 S.W.2d at 417; Bartlett v. Terrell, 292 S.W. at 280. A person who would have
equity must do equity. Tex. R. Civ. P. 693; Riley v. Davidson, 196 S.W.2d 557, 559 (Tex. Civ.
App.Galveston 1946, writ refd n.r.e); Smith v. Switzer, 293 S.W. 850, 851 (Tex. Civ. App.
San Antonio 1927), affd, 300 S.W. 31 (Tex. Commn App. 1927, judgmt adopted).
3. Balancing the equities. The Court should deny a request for a request for
injunctive relief sought under equitable grounds when the equities tilt against the plaintiff. See
Tex. Civ. Prac. & Rem. Code 65.001; Tex. R. Civ. P. 693; Landry's Seafood Inn & Oyster Bar-
Kemah, Inc. v. Wiggins, 919 S.W.2d 924, 927 (Tex. App.Houston [14th Dist.] 1996, no writ)
(citing Weinberger v. RomeroBarcelo, 456 U.S. 305, 312 (1982)). The Court should weigh any
possible injury to the defendant and to the public against the injury the plaintiff would sustain if
the relief is not granted. Storey v. Cent. Hide & Rendering Co., 226 S.W.2d 615, 61819 (Tex.
1950).


WHEREFORE, PREMISES CONSIDERED, the City respectfully prays that the Court:
(1) deny all relief requested by Plaintiff; and (2) award the City all further relief, at law or in
equity, to which it may show itself to be justly entitled.

Respectfully submitted,

WARREN M. S. ERNST
Dallas City Attorney

s/ Christopher J. Caso
Christopher J . Caso
Texas Bar No. 03969230
chris.caso@dallascityhall.com
Christopher D. Bowers
Texas Bar No. 02731300
chris.bowers@dallascityhall.com
Assistant City Attorneys

City Attorneys Office
1500 Marilla Street, Room 7D North
Dallas, Texas 75201
Telephone: 214-670-3519
Telecopier: 214-670-0622

CERTIFICATE OF SERVICE

This is to certify that on this the 24th day of J uly, 2014, a true and correct copy of the
above and foregoing was served in accordance with the Rules 21 and 21a of the Texas Rules of
Civil Procedure, upon all counsel of record.

s/ Christopher J. Caso
Christopher J . Caso

CITY PLAN COMMISSION HEARING DATE
~
REPLY
CASE NO:
May 2, 2013
FORM Z112-265 (MW)
CITY OF DALLAS
This notice has been sent to you because your property (or properties) is in or near the area of a proposed zoning change.
As a property owner, you can support or oppose this request. To be counted, this form must be received before noon on the
business day before the City Plan Commission hearing date.
Only the original of this reply form or a written reply that complies with Dallas Development Code Section 51A-4.701 may be
used. Faxes or !;!hotoco1;1ies of this re1;1ly form will not be acce1;1ted.
- - -- - - --
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,
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For information contact Megan Wimer at
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I
(214)670-4131 or
megan.wimer@dallascityhall.com
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Si desea informacion en espanol, favor de
I
!lamar a Olga Torres-Holyoak al teletono (214)
L
670-4525.
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-
@ii#l:tli I am authorized to sign this form because I am... (Check only one box.) -
Individual Business/Organization Condominium
0 Property owner 0 PresidenWice President D Governing body*
0 Authorized by a power of attorney D General Partner D Individual owner **
0 Representing a majority of property owners D Attorney in fact
* I am authorized to sign by the governing body of the condominium in accordance with its bylaws.
**A condominium unit owner must enclose a copy of the legal document that gives the individual owner the right to act
separately from the governing body.
@ i i l i l ~
List the street address(es) of your property if different than the address on the label above.
(Do not list a P .0. Box.) If you own multiple properties under different appraisal district
account names, you may receive multiple forms; please return all of the forms.
Street Address( es ):
@ii#lill Indicate your support or opposition to the proposed zoning change request:
D Support D Opposed
Comments:
@ii#lill
Sign below. For this form to be valid
1
the date and time you signed must be Qrovided. Fold the
form as indicated on the reverse side and return it by mail or hand delivery. To be counted
1
this form must be
received before noon on the business day before the City Plan Commission hearing date.
Signature (and Title if applicable)
Signature (and Title if applicable) DEFENDANT'S
I
EABIT
Date and Time (both must be provided) Date and Time (both must be provided)
It is a crime to knowingly submit a false zoning reply form. (Texas Penal Code 37.10) Revised: December 2008
I
Z112-265 (MW)
(Second- fold here)
City of Dallas
Dept of Sustainable Development & Construction
1500 Marilla Street
Room 5 B North - City Hall
Dallas, Texas 75201
CITY OF DALLAS OFFICIAL REPLY
(First- fold here)
r .... ~ ~ ~ t ............... 1
i Class i
1 Postage 1
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CITY OF DALLAS
NOTICE OF PUBLIC HEARING ON ZONING CHANGE REQUEST
THURSDAY, MAY 2, 2013
CASE NO. Z112-265(MW)
Dear Property Owner:
You are hereby notified that the Dallas City Plan Commission will consider the following request:
Z112-265(MW) -An application for 1) a Planned Development District for MU-3 Mixed Use
District uses on property zoned a GO(A) General Office District, an MU-3 (SAH) Mixed Use
District (Affordable) and a portion of Subdistrict E in POD No. 305, Cityplace, on the
northeast corner of North Central Expressway and North Carroll Avenue and for 2) a new
subdistrict within Planned Development District No. 305 on property zoned Subdistrict E
within the POD on the northeast corner of North Central Expressway and North Haskell
Avenue
A Planned Development District is proposed on a 16.158-acre portion of the request site to
accommodate a retail development with design standards. A new subdistrict within POD No.
305 is proposed on a 1 0.596-acre portion of the request site to create a "data center" use
and associated parking ratio. This will allow existing office buildings to be utilized for that
purpose.
Please refer to the opposite side of this notice for a general location of the subject property. The shaded
area is the property included in this request. Your property is not a part of this application if it is outside of
the shaded area. If your property is outside the shaded area, you received a notice of the hearing because
your property is within the area of notification as required by law.
The City Planning Commission will hold a public hearing on this zoning request at 1 :30 p.m., Thursday,
May 2, 2013, in the City Council Chambers on the sixth floor of Dallas City Hall, which faces Young Street
between Akard Street and Ervay Street.
The City Plan Commission may approve a different zoning district than the one requested, except that the
different district may not (1) have a maximum structure height, floor area ratio, or density that is higher than
the one requested; or (2) be "nonresidential" when the one requested is for residential uses or vice versa.
A second public hearing may be held by the City Council at which time a final decision will be made on the
zoning matter. If the application is recommended for approval, you will be mailed a notice of the hearing
before City Council. If the application is recommended for denial, the applicant has ten (1 0) days in which to
send a letter of appeal. If the case is appealed, you will be mailed a notice of the hearing before City
Council.
Please contact Megan Wimer in the Department of Sustainable Development and Construction at (214) 670-
4131 for additional information on this request. Si desea informacion en espaiiol, favor de llamar a Olga
Torres-Holyoak al (214) 670-4525.
Sincerely,
Megan Wim , AICP
Senior Planner
The area of request is hatched [Z] . Notification is sent to all
property owners within the notification buffer area {shown by the dashed
circle). Your property is not being rezoned if you are outside of the
hatched area. If your properly is not within the hatched area, you are
receiving this notice only to let you know of the request
@ NOTIFICATION
I sool AREA oF NOTIFICATION
r.;:;;--,
74
NUMBER OF PROPERTY
1:4,800 L.!.:!....J OWNERS NOTIFIED
Case no: __ Z_1.....:1.....:2:....;-2:::.6.::.5.::.. __
4/18/2013
Date:-------
CITY OF DALLAS
AVISO DE LA AUDIENCIA PUBLICA PARA UN CAMBIO DE ZONA
JUEVES, MAY 2, 2013
NO. DEL CASO. Z112-265 (MW)
Estimado Duena de Propiedad:
Por este media se le notifica que Ia Comision de Planificacion de Ia Ciudad de Dallas considerara Ia
siguiente peticion:
Z112-265 (MW)- Una peticioh para 1) un Distrito Planeado de Desarrollo para usos del MU-3
Distrito de Usos Mixtos en propiedad con zona GO(A) Distrito de Oficinas Generales, un MU-
3SAH) Distrito de Usos Mixtos (asequible) y una porcion del Subdistrito E dentro del Distrito
Planeado de Desarrollo No. 305, Cityplace, en Ia esquina noroeste de North Central
Expressway y North Carroll Avenue y para 2) un nuevo subdistrito dentro del Distrito Planeado
de Desarrollo No. 305 en propiedad con zona Subdistrito E dentro del Distrito Planeado de
Desarrollo en Ia esquina noroeste de North Central Expressway y North Haskell Avenue.
El solicitante propane crear un Distrito Planeado de Desarrollo en una porcion de los
16.158 acres para utilizar Ia propiedad para usos comerciales con estandares de diseno.
Un nuevo subdistrito dentro del POD No. 305 ocupara una porcion de 10.596 acres del
area propuesta, para crear un usa para un "banco de datos" y estacionamiento para este
uso. La nueva zona va a permitir que los edificios existentes se manipulen para este
propos ito .
. Par favor, refierase al otro !ado de este aviso para una ubicacion general de Ia propiedad en cuestion.
El area con rayas anchas es Ia propiedad que se incluye en esta peticion. Su propiedad noes parte de
esta peticion si esta fuera de esta area. Si su propiedad esta fuera del area indicada con lineas
gruesas. El area de notificaci6n esta marcada con lineas cortas segmentadas. Usted recibi6 el
aviso porque su propiedad esta dentro del area de notificaci6n como lo exige Ia ley.
La Comision de Pianificacion de Ia Ciudad va a efectuar una audiencia publica sabre esta peticion de
zonificacion a Ia 1:30 p.m., jueves, 2 de mayo del 2013, en el auditorio de Consejo de Ia Ciudad,
sexto piso, Dallas City Hall, que enfrenta a Ia calle Young entre las calles Akard y Ervay.
La Comision de Planificacion puede aprobar un distrito de zonificacion diferente del solicitado, excepto
que este nuevo distrito no puede (1) tener altura maxima, proporcion del area del edificio y el area del
terrene, o densidad mayores a las solicitadas; (2) o ser 'no residencial" cuando el distrito solicitado es
para usos residenciales y viceversa.
Una segunda audiencia publica se puede efectuar por el Concilio de Ia Ciudad en cuya oportunidad se
hara una decision final en el asunto de Ia zonificacion. Si Ia peticion se recomienda para su
aprobacion, a usted se le enviara par correo un aviso de Ia audiencia ante el Concilio de Ia Ciudad. Si
se recomienda su rechazo, el peticionario tiene diez (10) dfas para enviar una carta de apelacion. Si el
caso se apela, a usted se le avisara por correo del aviso de Ia audiencia ante el Concilio de Ia Ciudad.
Para informacion en ingles, contacte a Megan Wimer al214-670-4131. Para informacion en espanol,
contacte a Olga Torres-Holyoak en el Departamento de Desarrollo y Construccion Sostenible al (214)
670-4525.

Planificadora Principal
The area of request is hatched CZl . Notification is sent to all
p r ~ r t y owners within the notification buffer area (shown by the dashed
Circle). Your property is not being rezoned if you are outside of the
hatched area. If your property is not within the hatched area, you are
receiving this notice only to let you know of the request.

1:4,800
NOTIFICATION
AREA OF NOTIFICATION
NUMBER OF PROPERTY
OWNERS NOTIFIED
i
,
,
,
,
t 72
I
I
Case no: ---=Z:...:1_;1.=2:....::-2=.:6::..:5=...__
Date: _4_11_8_12_0_1_3 ___ _
GENERAL INFORMATION ON
CITY PLAN COMMISSION
PUBLIC HEARINGS
The City Plan Commission is a recommending body to the City Council on all zoning matters.
The City Plan Commission forwards its recommendation to the City Council after conducting a
public hearing. The City Plan Commission may recommend, and the City Council may
approve, a different zoning district than the one requested, provided the district does not have
a maximum structure height, floor area ratio or density that is higher than the one requested; or
be "nonresidential" when the one requested has uses or vice versa.
A second public hearing may be held by the City Council at which time a final decision will be
made on the zoning matter. If the application is recommended for approval, you will be mailed
a notice of the hearing before City Council. If the application is recommended for denial, the
applicant has ten (1 0) days in which to send a letter of appeal. If the case is appealed, you will
be mailed a notice of the hearing before City Council.
Public Input:
You are encouraged to attend the public hearing to give your opinion on the zoning change. At
the City Plan Commission public hearing, the applicant and those in favor of the zoning
change will be allotted 15 minutes to speak and those opposed to the zoning change will also
have 15 minutes to speak. The Commission may set other time limits on speakers at the
public hearings.
Your written reply is also very important and may have a bearing on the vote required by the
City Council to grant the request at a later hearing. It is suggested that the enclosed reply form
be used to express your feelings on this matter prior to the hearing. Please return the
completed reply form to the address shown on the form no later than noon on the Wednesday
prior to the hearing.
Location and Time:
All public hearings are held in the City Council Chambers on the sixth floor of the Dallas City
Hall, which faces Young Street between Akard Street and Ervay Street. (See map on the back
for location.) The City Plan Commission meetings are scheduled to begin at 1:30 p.m.
For general questions, please contact the Department of Sustainable Development and
Construction at (214) 670-4209.
Si desea information en espanol, favor de habla a Olga Torres Holyoak al teletono (214) 670-
4525.
Location map for Dallas City Hall
From East Dallas on 1-30
Take the Ervay Exit #45 (from the left lane) and turn right at the second light on Ervay.
From South Dallas on Northbound 1-45
Take the exit for westbound 1-30, but take the Ervay Exit #45 before getting onto 1-30. Turn right on
Ervay at the second light.
From Oak Cliff on 1-35
Turn on East 1-30, but stay on the access road, marked Lamar and Griffin. Continue on the access road
until the second exit, which is the Cadiz exit. Go right on Cadiz and turn left on Akard.
From North Dallas on Central Expressway, Hwy 75
Take the exit #284a for westbound 1-30, but take the Ervay Exit #45 before getting onto 1-30. Turn right
on Ervay at the second light.
From Northwest Dallas on Southbound 1-35
Take the exit for eastbound 1-30, but stay in the second lane from the left at the 1-30 exit. Exit onto the
access road of 1-30, marked Lamar and Griffin to go to the Cadiz exit, (second exit). Go right on Cadiz
and turn left on Akard.
From West Dallas on Eastbound 1-30
As 1-30 merges with traffic from 1-35, take the access road of 1-30, marked Lamar and Griffin to go to the
Cadiz exit, (second exit). Go right on Cadiz and turn left on Akard.
JUNTA PUBLICA LA COMISION
DE PLANIFICACION
2 de mayo del 2013
CITY OF
DALLAS
REPLY
FORM
CASE NO:
Z112-265 (MW)
Esta notificaci6n se le ha enviado porque su propiedad o propiedades estan en el area o cerca del area en donde han
hecho una petici6n para un cambia de zona. Como dueiio de propiedad, usted puede estar a favor o en contra de esta
petici6n. Para que su voto cuente, esta forma debe ser recibida antes de las doce del dfa anterior al dfa de Ia junta
publica Ia Comision de Planificaci6n.
Solo el original de esta forma o una respuesta escrita que cumpla con los requisites del C6digo de Desarrollo de Ia
Ciudad de Dallas, Secci6n 51 A-4. 701 puede ser usado. Fotocopias y facsimiles de esta forma no seran aceptadas.
-----------------,
I
I
I
1 Para mas informacion contacte a Olga
Torres Holyoak al teletono (214) 670-4525 o
1 olga.torholy@dallascityhall.com.
I
L---------------- _...._ ________________ ....
@iiiiiiYo estoy autorizado(a) a firmar esta forma porque yo soy ... (Marque solo un cuadro.)
Individual
D Dueiio(a) de Propiedad
D Autorizado por poder de abogado
D Representando Ia mayorfa de los
Propietarios
Negocio/Organ izaci6n
D Presidente/Vicepresidente
D Socia General
D Abogado Responsable
Condominios
D Administrador*
D Propietario Unico **
*Yo estoy autorizado(a) a firmar como representante de Ia asociaci6n de dueiios de Ia propiedad y de acuerdo a las
regulaciones del conjunto residencial.
** El dueiio de un condominia debe incluir una copia del documento legal que le autoriza como propietario individual
el derecho a actuar separadamente del grupo administrative de los condominios.
@ii#11ndique Ia direcci6n (o direcciones) de su propiedad si es diferente de Ia direcci6n en Ia etiqueta arriba.
(No indique un buz6n de correo por favor). Si usted es dueiio de varias propiedades; devuelva por favor todos
los impresos.
Direcci6n de calle:
@iiifllndique si esta a favor o en contra de Ia petici6n de cambio de zona:
D A Favor DEn Contra
Comentarios: --------------------------------------
@iiit!Firma abajo: Para que esta forma sea valida, Ia fecha y Ia hora en que usted firm6 debe ser incluida. Doble Ia
forma como se indica en el reverso de esta hoja y envfela por correo o entreguela personalmente. Para que su voto
sea contado, esta forma debe ser recibida antes de las dace del dfa, el dfa anterior a Ia junta publica Ia Comision de
Planificaci6n.
Firma (y titulo si es a plica) Firma (y titulo si es aplica)
Fecha y hora (debe proveer las dos) Fecha y hora (debe proveer las dos)
Es un crimen proveer informacion falsa en esta forma. (Texas, C6digo Penal 37.1 0) Revised December 2008
Z112-265 (MW)
(Second - fold here)
City of Dallas
1500 Marilla Street
Dallas, Texas 75201
(First - fold here)
r F ~ l
~ Class ~
1 Postage 1
L ........................... J
CITY COUNCIL HEARING DATE
a
REPLY
CASE NO:
May 22,2013
FORM
Z112-265 (MW)
CITY OF DALLAS
This notice has been sent to you because your property (or properties) is in or near the area of a proposed zoning change.
As a property owner, you can support or oppose this request. To be counted, this form must be received before noon on the
business day before the City Council hearing date.
Only the original of this reply form or a written reply that complies with Dallas Development Code Section 51A-4.701 may be
used. Faxes or of this reQIY form will not be
- --- - - --
---------
i
I For information contact Megan Wimer at
I
I (214 )670-4131 or
I
megan.wimer@dallascityhall.com
I
Si desea informacion en espaiiol, favor de
I
llamar a Olga Torres Holyoak al telefono (214)
L
670-4525.
--
-
------------
- -
f#ii#hll
I am authorized to sign this form because I am .. (Check only one box.)
Individual Business/Organization Condominium
D Property owner D PresidenWice President D Governing body*
D Authorized by a power of attorney D General Partner D Individual owner**
D Representing a majority of property owners D Attorney in fact
* I am authorized to sign by the governing body of the condominium in accordance with its bylaws.
** A condominium unit owner must enclose a copy of the legal document that gives the individual owner the right to act
separately from the governing body.

List the street address(es) of your property if different than the address on the label above.
(Do not list a P .0. Box.) If you own multiple properties under different appraisal district
account names, you may receive multiple forms; please return all of the forms.
Street Address:
f#iia:tE
Indicate your support or opposition to the proposed zoning change request:
D Support D Opposed
Comments:
f#iiaill
Sign below. For this form to be valid
1
the date and time y:ou signed must be grovided. Fold the
form as indicated on the reverse side and return it by mail or hand delivery. To be counted, this form must be
received before noon on the business day: before the City: Council hearing date.
Date and Time (both must be provided) Date and Time (both must be provided)
It is a crime to knowingly submit a false zoning reply form. (Texas Penal Code 37.10) Revised: December 2008
Z112-265 {MW)
(Second- fold here)
City of Dallas
1500 Marilla Street .
Dallas, Texas 75201
(First- fold here)
:'""''"'''"'"''''''''''"\
First
Class
! Postage l
............................ J
CITY OF DALLAS
NOTICE OF PUBLIC HEARING ON ZONING CHANGE REQUEST
WEDNESDAY, MAY 22, 2013
CASE NO. Z112-265(MW)
Dear Property Owner:
You are hereby notified that the Dallas Council will consider the following request:
Z112-265(MW) - An application for 1) a Planned Development District for MU-3 Mixed
Use District uses on property zoned a GO(A) General Office District, an MU-3 (SAH)
Mixed Use District (Affordable) and a portion of Subdistrict E in POD No. 305, Cityplace,
on the northeast corner of North Central Expressway and North Carroll Avenue and for
2) a new subdistrict within Planned Development District No. 305 on property zoned
Subdistrict E within the POD on the northeast corner of North Central Expressway and
North Haskell Avenue
A Planned Development District is proposed on a 16.158-acre portion of the request
site to accommodate a retail development with design standards. A new subdistrict
within POD No. 305 is proposed on a 10.596-acre portion of the request site to create a
"data center" use and associated parking ratio. This will allow existing office buildings to
be utilized for that purpose.
Please refer to the opposite side of this notice for a general location of the subject property. The
shaded area is the property included in this request. Your property is not a part of this application if it is
outside of the shaded area. If your property is outside the shaded area, you received a notice of the
hearing because your property is within the area of notification as required by law.
The City Council will hold a public hearing on this zoning request at 1:00 p.m., Wednesday, May 22,
2013, in the City Council Chambers on the sixth floor of Dallas City Hall, which faces Young Street
between Akard Street and Ervay Street.
The City Council may approve a different zoning district than the one requested, except that the
different district may not ( 1) have a maximum structure height, floor area ratio, or density that is higher
than the one requested; or (2) be "nonresidential" when the one requested is for residential uses or vice
versa.
On May 2, 2013, the City Plan Commission recommended approval of a new Planned Development
District for MU-3 Mixed Use District uses; subject to a conceptual plan and conditions and approval of a
new subdistrict within Planned Development District No. 305 subject to conditions.
Please contact Megan Wimer in the Department of Sustainable Development and Construction at (214)
670-4131 for additional information on this request. Si desea informacion en espafiol, favor de llamar a
Olga Torres-Holyoak al (214) 670-4525.
Sincerely, ~
~ ~
Senior Planner
The area of request is hatched CZJ . Notification is sent to all
property owners within the notification buffer area (shown by the dashed
circle). Your property is not being rezoned if you are outside of the
receiving this notice only to let you know of the request.

1:4,800
The number '0' indicates City of Dallas Ownership
NOTIFICATION
NUMBER OF PROPERTY
OWNERS NOTIFIED
Case no:
4/18/2013
Date: --------
CITY OF DALLAS
AVISO DE LA AUDIENCIA PUBLICA PARA UN CAMBIO DE ZONA
MIERCOLES, MAYO 22 DEL 2013
NO. DEL CASO. Z112-265 (MW)
Estimado Duefio de Propiedad:
Por este media se le notifica que el Consejo de Ia Ciudad de Dallas considerara Ia siguiente peticion:
Z112-265 (MW)- Una peticion para 1) un Distrito Planeado de Desarrollo para usos del MU-3
Distrito de Usos Mixtos en propiedad con zona GO(A) Distrito de Oficinas Generales, un MU-
3SAH) Distrito de Usos Mixtos (asequible) y una porcion del Subdistrito E dentro del Distrito
Planeado de Desarrollo No. 305, Cityplace, en Ia esquina noroeste de North Central
Expressway y North Carroll Avenue y para 2) un nuevo subdistrito dentro del Distrito Planeado
de Desarrollo No. 305 en propiedad con zona Subdistrito E dentro del Distrito Planeado de
Desarrollo en Ia esquina noroeste de North Central Expressway y North Haskell Avenue.
El solicitante propane crear un Distrito Planeado de Desarrollo en un area de 16.158 acres
para utilizar Ia propiedad para usos comerciales con estandares de disefio. El solicitante
tambiem pro pone un nuevo subdistrito dentro del POD No. 305 en una porcion de 10.596
acres del area propuesta, para crear un uso para un "banco de datos" y estacionamiento para
este uso. La nueva zona va a permitir que los edificios existentes se manipulen para este
proposito.
Por favor, refierase al otro lado de este aviso para una ubicacion general de Ia propiedad en cuestion.
El area con rayas anchas es Ia propiedad que se incluye en esta petic!on. Su propiedad no es parte de
esta peticion si esta fuera de esta area. Si su propiedad esta fuera del area indicada con lineas
gruesas. El area de notificaci6n esta marcada con lineas cortas segmentadas. Usted recibi6 el
aviso porque su propiedad esta dentro del area de notificaci6n como lo exige Ia ley.
El Consejo de Ia Ciudad va a efectuar una audiencia publica sabre esta peticion de zonificacion a Ia
1:00 p.m., miercoles, 22 de mayo del 2013, en el auditorio de Consejo de Ia Ciudad, sexto piso,
Dallas City Hall, que enfrenta a Ia calle Young entre las calles Akard y Ervay.
El Consejo de Ia Ciudad puede aprobar un distrito de zonificacion diferente del solicitado, excepto que
este nuevo distrito no puede (1) tener altura maxima, proporcion del area del edificio y el area del
terrene, o densidad mayores a las solicitadas; (2) o ser 'no residencial" cuando el distrito solicitado es
para usos residenciales y viceversa.
En mayo 2 del 2013, Ia Comision de Planificacion recomendo aprobacion de un nuevo Distrito
Planeado de Desarrollo para usos de un MU-3 Distrito de Uso Mixtos, sujeta a un plan conceptual y
condiciones y aprobacion de un nuevo subdistrito dentro del Distrito Planeado de Desarrollo No. 305
sujeto a condiciones.
Para informacion en ingles, contacte a Megan Wimer al 214-670-4131. Para informacion en espafiol,
contacte a Olga Torres-Holyoak en el Departamento de Desarrollo y Construccion Sostenible al (214)
670-4525.
The area of request is hatched [Z] . Notification is sent to all
proJ?Srty owners within the notification buffer area {shown by the dashed
Circle). Your property is not being rezoned if you are outside of the
receiving this notice only to let you know of the request

1:4,800
NOTIFICATION
NUMBER OF PROPERTY
OWNERS NOTIFIED
Case no: _
4/18/2013
Date: --------
GENERAL INFORMATION ON
CITY COUNCIL MEETINGS
PUBLIC HEARINGS
The City Council makes the final decision on zoning matters for the City of Dallas. The
Council reviews the City Planning Commission recommendations, staff recommendation, and
the merits of the case in determining their decision. The Council may recommend, and the City
Council may approve, a different zoning district than the one requested, provided the district
does not have a maximum structure height, floor area ratio or density that is higher than the
one requested; or be "nonresidential" when the one requested has residential uses or vice
versa.
Public Input:
You are encouraged to attend the public hearing to give your opinion on the zoning change.
The applicant and those in favor of the request and those opposed to the request will have 3
minutes per person to present their arguments before the City Council. If a large group is
present to oppose the request, it is suggested that one or two speakers be selected as a
representative( s ).
Your written reply is also very important and may have a bearing on the vote required by the
City Council to grant the request. It is suggested that the enclosed reply form be used to
express your feelings on this matter prior to the hearing. Please return the completed reply
form to the address shown on the form no later than noon on the Tuesday prior to the hearing.
Location and Time:
City Council public hearings are held in the City Council Chambers on the sixth floor of the
Dallas City Hall, which faces Young Street between Akard Street and Ervay Street. See map
on back for location. The City Council public hearings are scheduled to begin at 1:00 p.m.
For general questions, please contact the Department of Sustainable Development and
Construction at (214) 670-4209.
Si desea informacion en espafiol, favor de Hamar a Olga Torres Holyoak al (214) 670-4525.
Location map for Dallas City Hall
From East Dallas on 1-30
Take the Ervay Exit #45 (from the left lane) and turn right at the second light on Ervay.
From South Dallas on Northbound 1-45
Take the exit for westbound 1-30, but take the Ervay Exit #45 before getting onto 1-30. Turn right on
Ervay at the second light.
From Oak Cliff on 1-35
Turn on East 1-30, but stay on the access road, marked Lamar and Griffin. Continue on the access road
until the second exit, which is the Cadiz exit. Go right on Cadiz and turn left on Akard.
From North Dallas on Central Expressway, Hwy 75
Take the exit #284a for westbound 1-30, but take the Ervay Exit #45 before getting onto 1-30. Turn right
on Ervay at the second light.
From Northwest Dallas on Southbound 1-35
Take the exit for eastbound 1-30, but stay in the second lane from the left at the 1-30 exit. Exit onto the
access road of 1-30, marked Lamar and Griffin to go to the Cadiz exit, (second exit). Go right on Cadiz
and turn left on Akard.
From West Dallas on Eastbound 1-30
As 1-30 merges with traffic from 1-35, take the access road of 1-30, marked Lamar and Griffin to go to the
Cadiz exit, (second exit). Go right on Cadiz and turn left on Akard.
JUNTA PUBLICA DEL CONSEJO
DE LACIUDAD
22.de mayo del 2013
CITY OF DALLAS
REPLY
FORM
CASE NO:
Z112-265 (MW)
Esta notificaci6n se le ha enviado porque su propiedad o propiedades estan en el area o cerca del area en donde han
hecho una petici6n para un cambia de zona. Como duefio de propiedad, usted puede estar a favor o en contra de esta
petici6n. Para que su voto cuente, esta forma debe ser recibida antes de las dace del dfa anterior al dla de Ia junta publica
del Consejo de Ia Ciudad.
Solo el original de esta forma o una respuesta escrita que cumpla con los requisites del C6digo de Desarrollo de Ia
Ciudad de Dallas, Secci6n 51A-4.701 puede ser usado. Fotocopias y facsimiles de esta forma no serari aceptadas.
- - - - - - - - - - - - - - - - - -,------------------
1
I
I
I
Para mas informacion contacte a Olga
Torres Holyoak al t h ~ f o n o (214) 670-4525
o olga.torholy@dallascityhall.com.
L - - - - - - - - - - - - - - - - ~ ..... -----------------
@ii3:111Yo estoy autorizado(a) a firmar esta forma porque yo soy ... (Marque solo un cuadro.)
Individual
D Duefio(a) de Propiedad
D Autorizado par poder de abogado
D Representando Ia mayorfa de los
Propietarios
Negocio/Organizacion
D Presidente/Vicepresidente
D Socia General
D Abogado Responsable
Condominios
D Administrador*
D Propietario Unico **
*Yo estoy autorizado(a) a firmar como representante de Ia asociaci6n de duefios de Ia propiedad y de acuerdo a las
regulaciones del conjunto residencial.
** El duefio de un condominia debe incluir una copia del documento legal que le autoriza como propietario individual
el derecho a actuar separadamente del grupo administrative de los condominios.
@ii3#11ndique Ia direccion (o direcciones) de su propiedad si es diferente de Ia direccion en Ia etiqueta arriba.
(No indique un buzon de correo por favor). Si usted es dueno de varias propiedades; devuelva por favor todos
los impresos.
Direcci6n:
@iiij:&lndique si esta a favor o en contra de Ia peticion de cambio de zona:
D A Favor DEn Contra
Comentarios: --------------------------------------
@ii3:111Firma abajo: Para que esta forma sea valida, Ia fecha y Ia hora en que usted firm6 debe ser incluida. Doble Ia
forma como se indica en el reverse de esta hoja y envlela par correo o entn3guela personalmente. Para que su voto
sea contado, esta forma debe ser recibida antes de las dace del dla, el dla anterior a Ia junta publica del Consejo de Ia
Ciudad.
Firma (y titulo si es aplica) Firma (y titulo si es aplica)
Fecha y hora (debe pro veer las dos) Fecha y hora (debe proveer las dos)
Es un crimen proveer informacion falsa en esta forma. (Texas, C6digo Penal 37.10) Revisado Diciembre 2008
Z112-265 (MW)
(Second -fold here)
City of Dallas
1500 Marilla Street
Dallas, Texas 75201
(First- fold here)
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CAUSE NO. 14-07239-1
EAST VILLAGE ASSOCIATION IN THE DISTRICT COURT OF
PLAINTIFF
V.

THE CITY OF DALLAS, MICHAEL
ANGLIN, NEIL EMMONS, EMMA
RODGERS, BETTY CULBREATH,
TONY SHIDID, ANN BAGLEY,
JED ANANTASOMBOON, MYRTL M.
LAVALLAISAA, GLORIA TARPLEY,
JOHN SHELLENE, JAYNIE SCHULTZ,
COOKIE PEADON, MARGOT MURPHY,
PAUL E. RIDLEY, AND ROBERT
ABTAHI IN THEIR OFFICIAL
CAPACITY AS MEMBERS OF THE
CITY PLAN COMMISSION; LARRY
HOLMES IN HIS OFFICIAL CAPACITY
AS CHIEF BUILDING OFFICIAL; AND
TC CENTRAL ASSOCIATES, LLC

DEFENDANTS.
DALLAS COUNTY, TEXAS
162
nd
JUDICIAL DISTRICT
DEFENDANT TC CENTRAL ASSOCIATES. LLC'S BRIEF IN
OPPOSITION TO PLAINTIFF'S APPLICATION FOR TEMPORARY INJUNCTION
TO THE HONORABLE JUDGE OF SAID COURT:
Comes now TC Central Associates, LLC ("TC Central"), named as a Defendant herein,
and files this its Trial Brief in Opposition to Plaintiffs Application for Temporary Injunction
("Application"), and in support thereof respectfully shows as follows:
I.
PROCEDURAL HISTORY
On July 9, 2014, Plaintiff East Village Association ("EVA") filed its Application for
Temporary Restraining Order ("TRO") and for temporary and permanent injunctive relief,
DEFENDANT TC CENTRAL ASSOCIATES, LLC'S BRIEF IN OPPOSITION
TO PLAINTIFF'S APPLICATION FOR TEMPORARY INJUNCTION - Page 1 of 12
Kimberly Ferguson
FILED
DALLAS COUNTY
7/24/2014 2:44:19 PM
GARY FITZSIMMONS
DISTRICT CLERK
seeking to effectively shut down TC Central's East Village Development (the "Development").
Plaintiffs contention was, and continues to be, that Dallas City Ordinance 29019, approved by a
unanimous vote of the City Council action over one year ago, is void due to alleged defective
notices issued by the City prior to approval of the Ordinance. After a short hearing before
Associate Judge McFarlin, in which Defendant the City of Dallas ("City") urged its Plea to the
Jurisdiction, Judge McFarlin granted the Plea and held that Plaintiffs TRO Application was
premature. Because the activity that was sought to be restrained (i.e., a hearing scheduled before
the City of Dallas City Plan Commission ("CPC") to approve the final site plan for the
Development) occurred the next day, Plaintiff filed an Amended Petition and sought a new TRO.
This time, Plaintiffs aim was directed at any discretionary act to be taken by the City of Dallas
in furtherance of the construction of the Development based on Ordinance 29019. On Friday,
July 11, 2014, Judge Emily Tobolowsky (sitting for the assigned Judge, Honorable Phyllis Lister
Brown) entered a TRO, restraining only the issuance of a building permit by the City of Dallas
pending hearing on Plaintiffs Application.
II.
BACKGROUND FACTS
EVA was formed, according to its governing documents, on July 8, 2014, the day before
its first TRO request. Plaintiff has declined to furnish the names of any of its members who
lived within the statutory notice area of the Development at the time the notices from the City in
this case were sent, other than member David Shaw.
Trammell Crow Company ("Crow") is a sixty-six year old real estate developer which is
considered iconic in Texas. Crow has been responsible for virtually "building the Dallas
skyline," in the words of a former Dallas mayor. Many of its achievements are of the skyscraper
variety (e.g., Chase Tower, Trammell Crow Center), while other developments, ranging from
multi-family structures to shopping centers, permeate the Dallas/Ft. Worth landscape. Crow has
represented and continues to represent the dynamism that exemplifies the growth and prosperity
of the greater Dallas area.
In keeping with its historical work, Crow envisioned a development opportunity in the
aging Xerox Corporation campus located near downtown Dallas near Cityplace, itself a well-
known Dallas landmark. The approximate 26.5 acre tract was incapable of acceptable
development due to its 3 different zoning districts: Go(A); Mu-3(SAH); and Subdistrict E ("East
Mixed Use"). Thus, no worthwhile development could be achieved unless and until a single
zoning district was achieved. Recognizing the potential for development, Crow (through its
subsidiary TC Central), approached Xerox Corporation, the tract owner, and negotiated a
purchase of the entire tract. Importantly, closing on the transaction was expressly conditioned on
a change in zoning to a unified Planned Development District ("PD"), which would by
definition give TC Central maximum flexibility in developing mixed-use district containing
retail use, multi-family uses and a merchandise or food store of 100,000 square foot or more.
An application for change of zoning was first made on behalf of Xerox in mid-June 2012.
The application was then amended, but in each instance, the application carried with it the
requirement that a general merchandise or food store of 100,000 square feet or more would be an
integral part of the development. City staff undertook its study and after lengthy negotiations
between the City and TC Central (which included at least one public town hall meeting), the
CPC noticed a public hearing and considered and approved the PD at a public meeting on May 2,
2013. The CPC recommended approval by the full City Council, which took place, after public
notice, at a regularly-scheduled public meeting held on May 22, 2013.
In reliance upon the lengthy process that led up to unanimous Council approval, TC
Central undertook to negotiate with potential anchor tenants, including food stores and other
general merchandise entities. It was in August 2013 that TC Central entered into a preliminary
agreement with Sam's Club to serve as the anchor tenant in the development. TC Central then
negotiated and obtained significant financing and let contracts for construction work including
grading, demolition, and asbestos abatement in existing buildings. Numerous other activities
inherent in a development of this size have already taken place in the 14 months since Council
approval of Ordinance 29019. Numerous commitments have been made, and TC Central is
poised to begin additional work, all of which is time-sensitive. All of these commitments, as
well as TC Central's investments, have been made in reliance upon the validity of Ordinance
29019.
III.
ARGUMENT AND AUTHORITIES
Plaintiff seeks to enjoin the City of Dallas (and, by Texas Rule of Civil Procedure 683
any party in active concert and participation therewith) based on its single claim:
"As set forth in detail, Plaintiff has established a probable right to the relief they
seek upon final hearing. The current zoning for the Development is void and
has no force or effect because the notice of zoning use change did not disclose
that the change would permit a 100,000+ square foot merchandise store."
(First Amended Petition ("Petition" 1 83.) (Emphasis added).
This portion of the Petition is found under the section denominated "Request for
Temporary and Permanent Injunctive Relief." Thus, it is the only basis asserted by the Plaintiff
for the issuance of an injunction.
Standards for the granting of an injunction are well-known and well-established in Texas.
A temporary injunction is an extraordinary remedy and does not issue as a matter of right.
Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002); Walling v. Metcalfe, 863 S.W.2d
56, 57 (Tex. 1993). A party asking for a temporary injunction seeks extraordinary equitable
relief. Wilson N. Jones Mem 'I Hosp. v. Huff, 188 S.W.3d 215,218, Tex.App. - Dallas 2003, pet.
denied). Furthermore, extraordinary equitable relief of an injunction must be carefully regulated
and confined to proper cases. Associated Gen. Contractors of Tex. Inc. v. Cit y of El Paso, 932
S.W.2d 124, 126 (Tex. App. - El Paso 1996, no pet.). To obtain a temporary injunction, the
applicant must plead and prove: (1) a cause of action against the Defendant; (2) a probable right
to the relief sought; and (3) a probable, imminent and irreparable injury in the interim. Butnaru,
84 S.W.3d at 204; Walling, 863 S.W.2d at 57; Sun Oil Company v. Whitaker, 424 S.W.2d 216,
218 (Tex. 1968).
The purpose of a temporary injunction is to preserve the status quo of the subject matter
of a suit pending a trial on the merits. El Tacaso Inc. v. Jire h Star, Inc., 356 S.W.3d 740 (Tex.
App. - Dallas, 2011), no. pet.). The element relating to "probable injury" includes the elements
of imminent harm, irreparable injury, and no adequate remedy at law. Univ. of Tex. Med. Sch. v.
Than, 834 S.W.2d 425, 428 (Tex. App. - Houston [1
st
Dist.] 1992, no writ). A trial court does
not abuse its discretion by denying an application for temporary injunction if the applicant did
not prove any one of the requirements for a temporary injunction. Matrix Network Inc. v. Ginn,
211 S.W.3d 994, 997 (Tex. App. - Dallas 2007, no pet.).
III.
APPLICATION OF LAW TO FACTS
A. Overview.
Assuming arguendo that Plaintiff can overcome the jurisdictional and standing objections
lodged by both the City and TC Central, even a cursory review of Plaintiff's Petition makes it
clear that Plaintiff cannot meet the heavy burden required to obtain its desired injunctive relief.
The deficiencies are discussed infra, but it should be noted at the outset that Plaintiff cleverly
focuses its request against the City and its officials, and not directly against TC Central, in an
effort to minimize its bond obligation in the event of an injunction (Petition, |88). Plaintiff
asserts that since the City has "no pecuniary interest in the suit and no monetary damages can be
shown" that the Court, in issuing an injunction, should fix the bond at a nominal amount.
(Petition, 88). This, of course, is a patently false construct of their "case," and an attempt at
shameless manipulation. TC Central is in the dead center of Plaintiffs target zone, given its
huge investment to date in the Development and its multiple commitments to multiple third-
parties, including Sam's Club. All of these commitments have been incurred since the ordinance
in question was adopted by the Dallas City Council on May 22, 2013. Indeed, TC Central's
original acquisition of the land was expressly conditioned upon the adoption of the subject
ordinance. Every action taken by TC Central has therefore been in full reliance upon the
ordinance being in place and on the City Council's unanimous approval thereof. Neither
Plaintiff itself nor its "confidential" membership bears any burden whatsoever, financial or
otherwise, so the comparative hardships faced as between Plaintiff and TC Central are enormous
and one-sided. Indeed, EVA was formed literally the day before it sought its first TRO, and its
primary purpose is transparently the attempted advancement of financial interests of its
members, despite the euphemistic rhetoric it markets in its governing documents.
B. Plaintiff Has No Cause of Action" Against TC Central.
With the foregoing in mind, it is apparent that Plaintiff seeks to "have its cake and eat it
too" by casting its claims as ones for declaratory relief. It has no direct claim against TC Central
- no "cause of action against this Defendant," and seeks to satisfy the first element of an
injunction action by focusing on the City's action in noticing hearings lending to the passage of
Ordinance 29019. Their public stance is hollow and misleading, given the requirement of Texas
Rules of Civil Procedure 683 that an injunction, once issued, is binding "upon the parties to the
action" and "upon those persons in active concert or participation with them." Thus, while
Plaintiff may facially and superficially satisfy the first element of a "cause of action" against this
Defendant, substantively it fails to meet that requirement.
C. Plaintiff Cannot Demonstrate "Probable Right" to Recovery.
In order to prevail and demonstrate its "probable right," Plaintiff has chosen a single
avenue of attack: purported faulty notices issued by the City. Inherent in that approach is the
concession that notices required by statute were indeed given, thus reducing Plaintiffs inquiry to
a question of "how much information is enough" to satisfy the requirements. While "insufficient
notice" cases are few in number, the one that stands out and is of greatest interest to this Court
(and from which Plaintiff quotes a stray statement out of context) actually supports TC Central's
and the City's position in this case that the notices given were more than adequate.
Midway Protective League v. City of Dallas, 552 S.W.2d 170 (Tex. Civ. App. -
Texarkana 1977, writ ref d n.r.e.), involved a notice issued by the City advising the residents that
the zoning in question would be changed to permit shopping center district uses, but did not
include the fact that the shopping center would be classified as "dry." Id. at 173. On its own
motion, and well after the public hearing required for the rezoning, the City Council determined
on its own motion to impose a "dry" classification. In upholding the City's defense of sufficient
notice, the Court noted that although the notice was general, it was "sufficient to advise that a
planned development for a shopping center was under consideration." It went on to say that
notice is sufficient if "it reasonably apprises those for whom it was intended of the nature of the
pending proposal" and warns recipients that they may be affected by the contemplated action.
Id. at 175. This is precisely what the notices in this case accomplished. The Court also observed
that the notice need not be complete in every respect but that it "must be such as will afford the
recipient an opportunity to oppose the measure if he desires." Therefore, unless changes are
made "that are so substantial that the proposal can be said to be a new one," the notice is
sufficient. Id. (citing City of Corpus Christi v. Jones, 144 S.W.2d 388 (Tex. Civ. App. - San
Antonio 1940, writ, dism'd); Amarillo v. Wagner, 326 S.W.2d 863 (Tex. Civ. App. - Amarillo
1959, writ ref d n.r.e.) (ordinance voided because the Court found an absence of notice rather
than an insufficiency)).
Plaintiff cannot meet the second element required for the issuance of a temporary
injunction.
D. Plaintiffs Alleged Injury Illusory.
Even more illustrative of Plaintiff s inability to meet its heavy burden is the lack of any
true "immediate, irreparable injury." First, it is obvious that EVA itself can suffer no injury: it
owns no property, and therefore owns none within 200 feet of the Development. It was not even
formed for purposes for which non-profit organizations can statutorily be organized. Even
Plaintiff makes no pretense of the ability of EVA to satisfy the injury element. The inquiry thus
focuses on unnamed (with few exceptions) EVA members and their complaints about the Sam's
Club. In every instance cited by Plaintiff, the "injury" is hypothetical, speculative, and purely
subjective: increased traffic, and "suppression" of their property values are the main recurring
complaints.
Texas courts - including the Dallas Court of Appeals - have consistently held that an
applicant for injunctive relief must show the existence of a "probable, imminent and irreparable
injury." Butnaru, 84 S.W.3d at 204; Matrix, 211 S.W.3d at 948; Amend v. Watson, 333 S.W.3d
625, 629 (Tex. App. - Dallas 2009). (installation by neighboring landowner of sewer line on
Applicant's property found to be insufficient to demonstrate "probable, imminent and irreparable
injury" despite complaints of trespass, speculative loss of trees, and potential sewer main
leakage). The Amend Court concluded that "fear and apprehension of injury are not sufficient to
support a temporary injunction." Id. (citing Matrix, 211 S.W.3d 947-48). Here, all Plaintiffs
members can show is an overstated, theoretical "parade of horribles" instead of actual injury.
Plaintiff itself has no injury. The members cite "fear and apprehension" as theirs. On this
element as well, Plaintiff has failed to meet its burden.
E. Comparative Harm: "Balancing the Equities."
A secondary consideration, albeit very important in this case, involves a comparison of
harm that will result from the issuance of an injunction. This factor merits strong consideration
by the Court. Texas courts are required, in exercising their discretion, to "take into account other
considerations evident on the face of the pleadings and in the evidence," including the issue of
comparative injury or a "balancing of the equities and hardships" (including a consideration of
the public interest). Methodist Hosp. of Dallas v. Tex. Indu. Accident Bd., 798 S.W.2d 651, 660
(Tex. App. - Austin 1990, writ dism'd w.o.j.). See also, Computek Computer & Office Supplies
Inc. v. Walton, 156 S.W.3d 217, 220 (Tex. App. - Dallas 2005, no pet.). ("Because an injunction
is an equitable remedy, a trial court weighs the respective conveniences and hardships of the
parties and balances the equities.").
The effect of a temporary injunction would be to shut down the next steps in the
Development process: preparing infrastructure required in order to carry out asbestos abatement
in existing buildings and a demolition thereof; opening the door to the invocation of "insecurity"
or other default provisions in existing agreements; and creating "domino effect" on the many
steps involved for completion of the Development, as each step in the process is dependent upon
prior actions. In short order, TC Central would find itself unable to deliver a building site to
Sam's Club, which would in turn open the door for substantial delay damages. Meanwhile,
Plaintiff blithely ignores the fact that the cost meter would continue unabated, with the reality of
carrying charges and the prospects of delay penalties looming. The equities overwhelmingly
favor TC Central in this case and weigh strongly against injunctive relief.
F. The Status Quo Would be Altered, Not Preserved, by the Issuance of An Injunction.
As previously indicated, the purpose of a temporary injunction is to preserve the status
quo pending final adjudication. Status quo has been defined as the last, actual, peaceable, non-
contested status that preceded the pending controversy. Janius Films Inc. v. City of Fort Worth,
358 S.W.2d 589 (1962). It is also settled law that a trial court will not decide disputed ultimate
factual issues in a hearing on an application for temporary injunction, nor will a temporary
injunction issue if the applicant would thereby obtain substantially all the relief that is properly
obtainable in a final hearing. See, e.g., Dallas Indep. Sch. Dist. v. Daniel, 323 S.W.2d 639 (Tex.
Civ. App. - Dallas 1959, writ ref d n.r.e.); Texas Foundries Inc. v. Int'l Molders & Foundry
Workers Union, 248 S.W.2d 460 (1952). Here, the last actual, peaceable, non-contested status
that existed prior to this controversy was at a time after May 22, 2013 (the date on which the
Dallas City Council unanimously approved Ordinance 29019). An injunction in the form
requested by Plaintiff could alter rather than preserve the status quo. As if that were not enough,
the granting of a temporary injunction in this case would have the effect of granting to Plaintiff
all of the relief it could hope for at a final hearing.
As noted earlier, this discussion brings to life pragmatic, hugely material issues
associated with Plaintiffs desired relief, because all of the hardship will be visited upon TC
Central if injunctive relief is issued. All of the financial, reputational, and contractual
obligations will remain or, worse, escalate. In addition, the public interest would hardly be
served by the issuance of injunctive relief. That is because a development that is shut down
often has the earmarks of an abandoned project. Thus, a Sam's Club and other facilities that
meet design standards that have both practical and aesthetic value would be replaced by
incomplete grading and other halted work. Ironically, the very citizens who purport to be
aggrieved by a Sam's Club built to design standards would undoubtedly then be heard to
complain about the very urban blight they attribute to the planned construction.
CONCLUSION
For all the reasons set forth, TC Central Associates, LLC prays that upon hearing, the
Court deny Plaintiffs Application for Temporary Relief respectfully and for such other and
further relief to which Defendant may show itself entitled.
WINSTEAD PC
2728 N. Harwood Street
500 Winstead Building
Dallas, Texas 75201
214-745-5709 (telephone)
214-745-5390 (facsimile)
By /s/JavJ. Madrid
Jay J. Madrid, Esq. SB#12802000
Art Anderson, Esq. SB#01165957
Stephen R. Clarke, Esq. SB#24069517
ATTORNEYS FOR DEFENANT
This will certify that a true and correct copy of the foregoing document was provided to
counsel of record pursuant to the Texas Rules of Civil Procedure on July 24, 2014.
Christopher D. Bowers, Esq.
Christopher J. Caso, Esq.
City Attorney's Office
7BN Dallas City Hall
1500 Marilla Street
Dallas, Texas 75201-6318
214-670-3475 (Telephone)
214-670-0622 (Fax)
P. Michael Jung, Esq.
Strasburger & Price LLP
901 Main Street, Suite 4400
Dallas, Texas 75202
214-651-4724 (Telephone)
214-659-4022 (Fax)
Anthony Ricciardelli, Esq.
Brown Fox Kizzia & Johnson PLLC
750 N. St Paul St., Suite 1320
Dallas, Texas 75201
469-839-9950 (Telephone)
214-613-3330 (Fax)
/s/ Jay J. Madrid
One of Counsel
CAUSE NO. 14-07239-1

Plaintiff,

v.

TONY SHIDID, ANN BAGLEY, DALLAS COUNTY, TEXAS

Defendants. 162nd JUDICIAL DISTRICT
DEFENDANT TC CENTRAL ASSOCIATES, LLC'S
TRIAL BRIEF ON JURISDICTIONAL ISSUES
Defendant TC Central Associates, LLC ("TC Central") files this Trial Brief on
Jurisdictional Issues in opposition to the application for temporary injunction asserted in the First
Amended Petition of Plaintiff East Village Association ("EVA").
A. The Temporary Injunction Must Be Denied Because EVA Lacks Standing to
Complain About Sufficiency of the Notice
Subject-matter jurisdiction is essential to the authority of a court to decide a case, and
standing is a component of subject-matter jurisdiction. See Tex. Ass 'n of Bus. v. Tex. Air Control
Bd., 852 S.W.2d 440, 443-45 (Tex. 1993). Under Texas law, standing limits subject-matter
jurisdiction to cases involving a distinct injury to the plaintiff and a clear controversy between
the parties that will be actually determined by the judicial declaration sought. Bland Indep. Sch.
TC CENTRAL'S TRIAL BRIEF ON JURISDICTIONAL ISSUES - Page 1 of 9
Kimberly Ferguson
FILED
DALLAS COUNTY
7/24/2014 2:46:15 PM
GARY FITZSIMMONS
DISTRICT CLERK
Dist. v. Blue, 24 S.W.3d 547, 554 (Tex. 2000). Standing is a prerequisite of subject-matter
jurisdiction. Id. at 553-54.
To have standing to challenge a zoning ordinance based on the insufficiency of the
statutory notice that is required to be sent to neighboring property owners before a zoning
reclassification, a plaintiff must fall within the scope of the statute requiring notice. City of
McKinney v. OH Skyline/380, L.P., 375 S.W.3d 580, 583 (Tex. App.Dallas 2012, no pet.). In
OH Skyline, several entities challenged the validity of two zoning ordinances on the ground that
the City of McKinney had failed to give the statutory notice to individual property owners
affected by the zoning changes. Id. at 581-82. The City of McKinney argued on appeal that two
of the plaintiff entities lacked standing to challenge the zoning ordinances, and the Dallas Court
of Appeals agreed. Id. 582-83. The Court held that because those two plaintiffs did not own
property within 200 feet of the property affected by the zoning reclassification at the time that
notice was required to be sent, they lacked standing to complain about the lack of notice, and
there was no justiciable controversy to maintain the plaintiff entities' claims. Id. at 583; see also
Kinkaid Sck, Inc. v. McCarthy, 833 S.W.2d 226, 232 (Tex. App.Houston [1st Dist.] 1992, no
pet.) (reversing a temporary injunction in a zoning-notice case because, among other reasons, the
nonprofit homeowners association that sued in its own name on behalf of its members did not
have standing because it did not own real property within the statutory zone of notice).
OH Skyline sets forth a clear standard for determining when an entity has standing in
zoning-notice cases, and EVA cannot satisfy that standard. Here, the applicable notice statute
Local Government Code 211.007(c)requires notice to be mailed to any person or entity that
the current tax roll indicates is the owner of real property located within 200 feet of the property
on which a "change in [zoning] classification" is proposed. TEX. LOC. GOV'T CODE ANN.
211.007(c). A plaintiff therefore lacks standing in this case, under the logic of OH Skyline, if
that plaintiff does not own property within 200 feet of the proposed zoning change. It is
undisputed that EVA does not own property within 200 feet of the property that is the subject of
the zoning reclassification. Accordingly, EVA lacks standing to complain about the notices in
this case.
Despite its failure to satisfy the test set forth in OH Skyline, EVA asserts in the First
Amended Petition that it has "associational standing" to bring this lawsuit. There are two
problems with this argument. The first problem is that the argument is inconsistent with the
decision of the Dallas Court of Appeals in OH Skyline, which sets forth a clear standard for
determining when an entity has standing in a zoning-notice case and does not provide an
exception for "associational standing." See OH Skyline, 375 S.W.3d at 583. Indeed, EVA has
not cited to any case in which a Texas court has expressly held that an entity has standing to
maintain a zoning-notice suit without owning property within 200 feet of the proposed zoning
reclassification.
The second problem with EVA's argument is that the requirements for "associational
standing"assuming the doctrine even appliescannot be satisfied in this case. An association
has standing to sue on behalf of its members only when (1) its members would otherwise have
standing to sue in their own right, (2) the interest it seeks to protect are germane to the
organization's purpose, and (3) neither the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit. Tex. Ass 'n of Bus., 852 S.W.2d at 447. The
first prong of this test requires that at least one of the association's members demonstrate the
"irreducible constitutional minimum" of individual standing: (1) the member must have suffered
an "injury in fact," which is an invasion of a legally protected interest that is concrete and
particularized, and that is actual or imminent rather than conjectural or hypothetical, (2) the
injury must be fairly traceable to the challenged action of the defendant and not the independent
action of a third party not before the court, and (3) it must be likely that the injury will be
redressed by a favorable decision. Save Our Springs Alliance, Inc. v. Cit y of Dripping Springs,
304 S.W.3d 871, 878 (Tex. App.Austin 2010, pet. denied) (citing Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992)).
EVA member David Shaw is the only identified member of EVA who owned property
within 200 feet of the proposed zoning reclassification at the time that the notices challenged in
this case were mailed. EVA has failed to present any evidence that Mr. Shaw (or any of its other
members, for that matter) will suffer a concrete, particularized, and actual "injury in fact." In the
First Amended Petition, EVA alleges that its members have suffered the requisite injury because
the proposed zoning reclassification will "suppress[ ]" their property values and "will cause a
traffic nuisance." (PL's First Am. Pet. 69.) But those allegations are entirely conjectural and
hypothetical.
Moreover, EVA cannot demonstrate that the interests it seeks to protect in this lawsuit are
germane to its purposes (the second prong of the associational-standing test). See Tex. Ass 'n of
Bus., 852 S.W.2d at 447. The Texas Business Organizations Code 252.001(2) defines
"nonprofit association" as an "unincorporated organization... consisting of three or more
members joined by mutual consent for a common, nonprofit purpose." TEX. BUS. ORGS. CODE
ANN. 252.001(2) (emphasis added). To the extent that EVA is seeking by this lawsuit to
protect its members' individualized interests in the fair market values of their respective homes,
those interests are neither "common" nor "nonprofit." Regardless of the broad purposes listed in
its association agreement, EVA cannot seek to protect interests that are beyond the scope of the
Texas Business Organizations Code.
Lastly, EVA cannot show that this lawsuit does not require the participation of the
individual members of EVA in this lawsuit (the third prong of associational standing). See Tex.
Ass'n of Bus., 852 S.W.2d at 447. Both OH/Skyline and McCarthy require the participation of
members owning real property within 200 feet of the zoning change in a lawsuit challenging the
sufficiency of the notice. See OH Skyline, 375 S.W.3d at 583; McCarthy, 833 S.W.2d at 229.
For this reason and the others listed above, EVA does not have associational standing to bring
this lawsuit and therefore cannot succeed on its application for temporary injunction.
B. The Temporary Injunction Must Be Denied Because Defendants The City of Dallas
and Larry V. Holmes, in His Official Capacity, Have Sovereign Immunity from Suit
in this Declaratory-Judgment Action
"[Sjovereign immunity deprives a trial court of subject matter jurisdiction for lawsuits in
which the state or certain governmental units have been sued unless the state consents to suit."
Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). In Texas,
sovereign immunity has two components: immunity from liability and immunity from suit.
Tooke v. City ofMexia, 197 S.W.3d 325, 332 (Tex. 2006). Immunity from suit "bars suit against
the [governmental] entity altogether" because it "deprives a court of subject matter jurisdiction."
Id. Defendant The City of Dallas (the "City") is a governmental entity that has sovereign
immunity from suit as a general matter. See City of Dallas v. Albert, 354 S.W.3d 368, 378-79
(Tex. 2011). Defendant Larry V. Holmes ("Holmes") is sued in his official capacity as the
City's Chief Building Official, and thus he is also entitled to sovereign immunity. See City of El
Paso v. Heinrich, 284 S.W.3d 366, 380 (Tex. 2009) (holding that "a government employee sued
in his official capacity enjoys the same protection of immunity afforded to the governmental
entity).
The Texas Declaratory Judgments Act contains a limited waiver of immunity from suit.
See TEX. CIV. PRAC. & REM. CODE ANN. 37.006(b); see also Heinrich, 284 S.W.3d at 373 n.6
(Tex. 2009). Immunity from suit is waived only if a party joins a governmental entity and seeks
a declaration that an ordinance or statute is void and invalid. Heinrich, 284 S.W.3d at 373 n.6.
EVA complains about the sufficiency of the statutory notice required by 211.007(c).
But the potential failure to provide sufficient notice as required by Texas Local Government
Code 211.007(c) merely renders the zoning ordinance voidable, not void. See City of N.
Richland Hills v. Home Town Urban Partners, Ltd., 340 S.W.3d 900, 91415 (Tex. App.Fort
Worth 2011, no pet.) (recognizing the distinction between void and voidable zoning ordinances);
see also Town of Fairview v. City of McKinney, 271 S.W.3d 461, 470 (Tex. App.Dallas 1008,
pet. denied) ("Private parties may not... attack an annexation that is merely voidable.") (citing
City of Balch Springs, v. Lucas, 101 S.W.3d 116, 120 (Tex. App.Dallas 2002, no pet.)).
Moreover, EVA's lawsuit does not principally contest the validity of any ordinance or statute,
but rather, at its core, it challenges the City's interpretation of the notice requirements found in
Texas Local Government Code 211.007(c). See City of McKinney v. Hank's Rest. Grp., L.P.,
412 S.W.3d 102, 111-12 (Tex. App.Dallas 2012, no pet.) (holding that a governmental entity
retains its immunity from suit when the claimant does not challenge the validity of a statute but
rather challenges a government officer's interpretation of a statute or application of a statute to
the claimant). Therefore, there is no waiver of immunity from suit under the Texas Declaratory
Judgments Act, and the City retains its general sovereign immunity from suit in this declaratory-
judgment action.
Regarding Holmes, the only time that a suit against a government employee in his official
capacity is not barred by sovereign immunity is when the employee is sued for an ultra vires act.
Tex. Dep't of Ins. v. Reconveyance Servs., 306 S.W.3d 256, 258 (Tex. 2010). To assert an ultra
vires action, a plaintiff must allege that a government official (1) failed to perform a ministerial
act or (2) acted without legal authority. Id. In this case, EVA has not alleged that Holmes has
failed to perform an act or that Holmes has acted without lawful authority. Nor can EVA
demonstrate that Holmes will act without lawful authority in the future by issuing a building
permit because, as explained above, the ordinance is v oidable, not void. Accordingly, Holmes is
entitled to sovereign immunity.
C. The Temporary Injunction Must Be Denied Because EVA Has Failed to Join the
Attorney General in a Quo Warranto Action and Cannot Otherwise Bring a Private
Action
Under Texas law, a plaintiff lacks standing to bring a private cause of action to challenge
a municipal ordinance for mere procedural irregularities. Rather, the plaintiff, to make such a
challenge, must join the Attorney General of the State of Texas in a quo warranto proceeding.
See Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 658 (Tex. 1995)
("Laidlaw has no standing to challenge the annexation on procedural grounds, such as alleged
failure to meet the notice and signature requirements."); Alexander Oil Co. v. Ci ty of Seguin, 825
S.W.2d 434, 438 (Tex. 1991) (holding that complaints concerning the adequacy of the service
plan presented to the city council and whether quorum was required to conduct a hearing were
matters that could only be attacked via quo warranto)-, Walton v. City of Midland, 287 S.W.3d
97, 99, 102-05 (Tex. App.Eastland 2009, pet. denied) (holding that quo warranto was required
to challenge the city council's approval of a settlement agreement when an alleged procedural
impropriety by the council would only render the act voidable, not void).
EVA is challenging the zoning ordinance in this case based on the alleged insufficiency
of the statutorily required notice (as opposed to the total lack of notice), which would be a mere
procedural irregularity. Thus, the exclusive remedy is a quo warranto proceeding, and EVA has
no standing to bring this private cause of action.
REQUEST FOR RELIEF
For the reasons stated above, Defendant TC Central respectfully asks this Court to deny
EVA's application for a temporary injunction in the First Amended Petition because EVA lacks
standing, the City and Holmes have sovereign immunity, and this Court therefore lacks subject-
matter jurisdiction, and to grant to TC Central all other relief to which it is entitled.
WINSTEAD PC
Dallas, Texas 75201
214-745-5709 (telephone)
214-745-5390 (facsimile)
By /s/JavJ. Madrid
Jay J. Madrid, Esq. SB#12802000
Art Anderson, Esq. SB#01165957
ATTORNEYS FOR DEFENDANT
1500 Marilla Street
214-670-3475 (Telephone)
214-670-0622 (Fax)
Dallas, Texas 75202
214-651-4724 (Telephone)
214-659-4022 (Fax)
750 N. St. Paul St., Suite 1320
Dallas, Texas 75201
469-839-9950 (Telephone)
214-613-3330 (Fax)
/s/ Jay J. Madrid
One of Counsel
CAUSE NO. 14-07239-1
Plaintiff,
V.

TONY SHIDID, ANN BAGLEY,

Defendants. 8
162nd JUDICIAL DISTRICT
DEFENDANT TC CENTRAL ASSOCIATES, LLC'S
ORIGINAL ANSWER. SPECIAL EXCEPTIONS. AND AFFIRMATIVE DEFENSES
Defendant TC Central Associates, LLC ("TC Central") files this Original Answer and
Special Exceptions to the First Amended Petition of Plaintiff East Village Association ("EVA").
SPECIAL EXCEPTIONS
TC Central specially excepts and objects to the following portions of EVA's First
Amended Petition ("Petition") and the exhibits attached thereto:
1. To paragraph 24 of the Petition because it fails to set forth facts sufficient to
apprise TC Central of the matters against which it must defend and because EVA lacks standing
to assert such a claim.
DEFENDANT TC CENTRAL ASSOCIATES, LLC'S ORIGINAL ANSWER,
SPECIAL EXCEPTIONS AND AFFIRMATIVE DEFENSES - Page 1 of 5
Kimberly Ferguson
FILED
DALLAS COUNTY
7/24/2014 2:41:46 PM
GARY FITZSIMMONS
DISTRICT CLERK
2. To paragraph 26 of the Petition because it is irrelevant to the gravamen of the
Petition and fails to set forth with particularity the facts against which TC Central must defend.
3. To paragraph 27 of the Petition because the assertions contained therein are
conclusory, argumentative, and irrelevant to the gravamen of the Petition.
4. To paragraph 28 of the Petition because the allegations contained therein are
conclusory, fail to apprise TC Central of the matters against which it must defend, and EVA fails
to demonstrate how the alleged City Council action is relevant to the instant case.
5. To paragraph 29 of the Petition because EVA extracts a selected portion from the
referenced Code and thus injects misleading and conclusory statements that are irrelevant to the
claims in the instant case.
6. To paragraph 34 of the Petition because EVA fails to set forth with particularity
the facts upon which such "information and belief' is based, and other facts sufficient to permit
TC Central to respond adequately.
7. To paragraph 36 of the Petition because the allegations contained therein are
argumentative and irrelevant to the issue of adequate notice raised by the Petition.
8. To paragraphs 37, 38, 41, 44, 51, 52, 62 and 63 of the Petition because all of the
attributed statements contain hearsay, are irrelevant to the issue of notice, and are conclusory and
argumentative.
9. To the assertions in paragraph 50 of the Petition suggesting that neither "City
officials" nor "the public" noticed language in the Ordinance, for the reason that those assertions
are argumentative, and fails to identify the "City officials" allegedly referred to and fails to set
forth with particularity the facts against which Defendant must defend.
10. To paragraph 69 of the Petition because EVA fails to identify which of its
members have "particularized injury" because the value of their real property "will be
suppressed" and because it fails to set forth facts upon which such claims are made.
11. To paragraph 75 and 76 of the Petition because the references to an alleged
requirement for a special use permit contained therein are irrelevant to the claim of the invalidity
of Ordinance 29019 and fails to set forth with particularity the facts upon which EVA relies.
12. To the purported transcript of hearing of June 19, 2014, attached to Plaintiffs
Petition, pages 25 through 52, inclusive, for the reason that such is not an official transcript of
either the City or the Court; is incomplete in several material respects; and contains inadmissible
opinion testimony, hearsay, speculation and other inadmissible materials.
13. To the Exhibit page numbered 133 through 137, attached as Exhibits to Plaintiff s
Petition, because that same constitute attorney client privileged or core work product and are
inadmissible for all purposes.
14. To page 138, attached as an Exhibit to Plaintiffs Petition, because that same is
irrelevant to the instant action and is misleading.
15. To the Affidavits of Jonas Park and David Shaw, attached to Plaintiffs Petition at
pages 139 through 144, because that same are repleat with inadmissible conclusions, hearsay,
lack foundation and are otherwise inadmissible in their entirety.
Of such exceptions Defendant prays judgment of the Court.
GENERAL DENIAL
16. Under Texas Rule of Civil Procedure 92, TC Central generally denies the
allegations contained in EVA's First Amended Petition and demands strict proof thereof.
17. TC Central reserves the right to amend this Original Answer.
AFFIRMATIVE AND OTHER DEFENSES
18. This Court lacks subject-matter jurisdiction.
19. EVA does not have standing to challenge the sufficiency of notice required by
Texas Local Government Code 211.007(c).
20. Defendants The City of Dallas has sovereign or governmental immunity from
suit.
21. Defendant Larry V. Holmes has sovereign or governmental immunity from suit.
22. EVA does not have standing to bring a private cause of action to challenge a
municipal ordinance for mere procedural irregularities and must join the Attorney
General of the State of Texas in a quo warranto proceeding.
23. EVA has failed to state a cause of action upon which relief can be granted.
24. EVA's causes of action fail because of estoppel.
25. EVA's causes of action fail because of waiver.
26. EVA's causes of action fail because of laches.
REQUEST FOR RELIEF
TC Central respectfully asks this Court to (1) sustain TC Central's Special Exceptions
and require EVA to re-plead with greater specificity; (2) enter judgment that all relief requested
in EVA's First Amended Petition be denied and that TC Central recovers its costs; and (3) award
to TC Central all other relief to which it is entitled.
WINSTEAD PC
Dallas, Texas 75201
214-745-5709 (telephone)
214-745-5390 (facsimile)
By /s/JavJ. Madrid
Jay J. Madrid, Esq. SB# 12802000
Art Anderson, Esq. SB# 01165957
ATTORNEYS FOR DEFENANT
Dallas, Texas 75202
214-651-4724 (Telephone)
214-659-4022 (Fax)
Dallas, Texas 75201
469-839-9950 (Telephone)
214-613-3330 (Fax)
1500 Marilla Street
214-670-3475 (Telephone)
214-670-0622 (Fax)
/s/JavJ. Madrid
One of Counsel
PLAINTIFFS RESPONSE TO THE CITYS SECOND PLEA TO THE JURISDICTIONPAGE 1
162ND JUDICIAL DISTRICT COURT

East Village Association

Plaintiff,

v.

The City of Dallas; Larry V. Holmes in his
official capacity as Chief Building Official;
and TC Central Associates, LLC.

Defendants.

Cause No. DC-14-07239

Plaintiffs Response to
the Citys Second
Plea to the Jurisdiction

To the Honorable Court:
Plaintiff East Village Association hereby files this Response to The City's Second Plea
to the Jurisdiction (the "Second Plea"). The City of Dallas (the City) has informed Plaintiff
that its Second Plea is not yet set for a hearing. Were the Second Plea heard on Friday, July
25, 2014, it would prejudice Plaintiff, as Plaintiff would not have the three days it would
need to fully prepare for such a hearing. See Tex. Dep't of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 229 (Tex. 2004) (suggesting that pleas to the jurisdiction, like special
appearances under Texas Rule of Civil Procedure 120a, are subject to the three-day notice
period of Texas Rule of Civil Procedure 21). Plaintiff does not, by filing this Response,
intend to waive any arguments it has regarding the sufficiency of the Citys notice of its
Second Plea. Subject to the foregoing, Plaintiff responds to the Second Plea as follows.

Kimberly Ferguson
FILED
DALLAS COUNTY
7/24/2014 11:41:49 AM
GARY FITZSIMMONS
DISTRICT CLERK
1. The East Village Association satisfies the statutory requirements of the Texas
Business Organizations Code.
The City of Dallas (the City) goes to great lengths to trace through statutory
references in the Texas Business Organizations Code (the "TBOC") to arrive at the
conclusory argument that the East Village Association's purposes are not encompassed by
the purposes enumerated in TBOC 2.002. See Second Plea at 5. To the contrary, 2.002
specifically lists "civic" and "benevolent" purposes among its list of permissible purposes.
The City makes no specific argument that the East Village Associations purpose is neither
civic nor benevolent nor could it. The East Village Associations stated purposes
include, "advocacy on East Village land use and zoning issues for the benefit of East Village
Residents," which qualify as both civic and benevolent purposes. See Ex. 1 to The Citys
Second Plea to the Jurisdiction, East Village Association Agreement 2.04 (describing the
East Village Associations purposes). Advocacy regarding land use and zoning issues is
inherently civic. See Thomas v. Beaumont Heritage Soc., 339 S.W.3d 893, 900 (Tex. App.
Beaumont 2011, pet. denied) (finding non-profit organization had associational standing
where it had a civic purpose to "preserve and assist in the preservation of historic buildings
and landmarks."); see also BLACKS LAW DICTIONARY 262 (8th ed. 1999) (defining civic as Of
or relating to citizenship or a particular citizen <civic responsibilities>.).
Moreover, the East Village Associations purposes are "benevolent," which simply
means "organized for the purpose of doing good." MERRIAM-WEBSTER'S COLLEGIATE
DICTIONARY 106 (10th Ed. 1996); see also RANDOM HOUSE WEBSTER'S UNABRIDGED DICTIONARY
194 (2d Ed. 2001) ("benevolent" means "intended for benefits rather than profit.). The
East Village Association was certainly "organized for the purpose of doing good"
specifically, for the purpose of promoting the welfare of the East Village neighborhood by
encouraging proper land use therein and is intended for benefits rather than profit. See
Ex. 1 to The Citys Second Plea to the Jurisdiction, East Village Association Agreement 2.04
(The purpose of the Association is advancement of the interests of East Village Residents,
specifically including but not limited to advocacy on East Village land use and zoning issues
for the benefit of East Village Residents...).
A narrow interpretation of allowable purposes for nonprofit organizations would
run contrary to the legislative intent of Chapter 252 of the TBOC. As noted in MT Falkin
Investments, L.L.C. v. Chisholm Trail Elks Lodge No. 2659, cited by the City in its Second Plea,
the comments to the Uniform Unincorporated Nonprofit Associations Act (UUNAA) are
"persuasive authority concerning interpretation of chapter 252 because the legislature
presumably considered those comments when it adopted the statute." MT Falkin
Investments, L.L.C. v. Chisholm Trail Elks Lodge No. 2659, 400 S.W.3d 658, 661 (Tex. App.
Austin 2013, pet. denied). Indeed, under Texas Government Code 311.028, "[a] uniform
act included in a code shall be construed to effect its general purpose to make uniform the
law of those states that enact it." As explained in the prefatory note to the Uniform
Unincorporated Nonprofit Association Act, adopted by Texas:
This Act applies to all unincorporated nonprofit associations. . . .
There is no principled basis for excluding any nonprofit association.
Therefore, the Act covers unincorporated philanthropic, educational
scientific, and literary clubs, unions, trade associations, political
organizations, cooperatives, churches, hospitals, condominium associations,
neighborhood associations, and all other unincorporated nonprofit
associations. Their members may be individuals, corporations, other legal
entities, or a mix.
The Act is designed to cover all of these associations to the extent
possible.
UNIF. NONPROFIT ASSN ACT Prefatory Note, 6B U.L.A. 71112 (1996) (emphasis added). The
hair-splittingly narrow interpretation proposed by the City stands in stark contrast to the
broad purposes of Chapter 252 of the TBOC expressed above.
2. Both the TBOC and the Texas Declaratory Judgments Act confer standing upon
the East Village Association to bring declaratory judgment actions.
The City argues that the East Village Association does not have standing under TBOC
252.006, but its argument looks to the wrong section. The East Village Association is not
presently claiming standing under TBOC 252.006. Instead, the East Village Association
claims standing under TBOC 252.007 and Chapter 37 of the Texas Civil Practice and
Remedies Code. Section 252.007 clearly confers standing on the East Village Association:
Sec. 252.007. CAPACITY TO ASSERT AND DEFEND; STANDING.
(a) A nonprofit association, in its name, may institute, defend, intervene, or
participate in a judicial, administrative, or other governmental proceeding
or in an arbitration, mediation, or any other form of alternative dispute
resolution.
(b) A nonprofit association may assert a claim in its name on behalf of
members of the nonprofit association if:
(1) one or more of the nonprofit associations members have standing to
assert a claim in their own right;
(2) the interests the nonprofit association seeks to protect are germane to
its purposes; and
(3) neither the claim asserted nor the relief requested requires the
participation of a member.
(emphasis added). Section 252.007(a)s reference to administrative, or other
governmental proceeding[s] clearly contemplates that a nonprofit association has
standing to participate in proceedings beyond lawsuits on tort and contract claims. Even
more clearly, Section 252.007(b)s grant of standing for a nonprofit association, like the
East Village Association, to assert a claim in its name on behalf of members of the
nonprofit association if: (1) one or more of the nonprofit associations members have
standing to assert a claim in their own right contemplates that a nonprofit association
can bring any claim that could be brought by one of its members.
Comments to the UUNAA further clarify that the legislative intent behind the
UUNAA is to permit exactly this kind of action: "The typical case in which a nonprofit
association has standing is where it seeks only a declaration, injunction, or some form of
prospective relief for injury to its members." UNIF. NONPROFIT ASSN ACT 7, cmt. 4, 6B U.L.A.
732 (1996).
If all of this were not clear enough, the Texas Declaratory Judgment Act leaves no
doubt that an unincorporated association has standing to bring a declaratory judgment
actionindividual member participation is not required. See TEX. CIV. PRAC. & REM. CODE
37.001(a) (including "unincorporated association" in definition of "person"). Section
37.004(a), in turn, provides that [a] person whose rights, status, or other legal relations
are affected by a municipal ordinance, may have determined any question of
construction or validity arising under the ordinance, and obtain a declaration of rights,
status, or other legal relations thereunder. TEX. CIV. PRAC. & REM. CODE 37.004(a). The
East Village Associations standing under the Texas Declaratory Judgment Act is crystal
clear.
The East Village Association has pleaded and offered competent affidavit evidence
confirming that it has one or more members who reside in and own (and have resided in
and owned continuously since at least January 1, 2013) real property within 200 feet of
property subject to the zoning change at issue in this lawsuit. See Plaintiffs First Amended
Petition (the Petition), p. 2, 140, 143. This satisfies even the standing threshold
suggested by the City in its Second Plea. See Second Plea at 6.
Moreover, while Texas Local Government Code 211.007(c) requires that notice of
a public hearing on a proposed zoning change be sent to each owner of real property within
200 feet of the zoning change, the Dallas Development Code extends the range of required
notice to 500 feet when the zoning change is for a Planned Development, as was the case
here. See Dal. Dev. Code 51A-4.701(b)(5), 51A-1.105(a)(4). To that extent, the East
Village Association includes even more members who have standing because they were
entitled to receive notice at the time it was issued.
Finally, while there is no question that residents entitled to receive notice under
Texas Local Government Code 211.007(c) have standing to complain about notice
deficiencies, general principles of standing confer standing even on persons living beyond
the notice range. A plaintiff has standing when the plaintiff "claims an injury peculiar to
him which is not common to the public in general. " Canyon v. McBroom, 121 S.W.3d 410,
415 (Tex. App.Amarillo 2003, no pet.). In McBroom, the court found that Mike McBroom
had particular injury standing to contest the validity of a zoning ordinance where he had
alleged and offered evidence that he owned a home and land near the property to be
rezoned, and that the zoning change threatened increased flooding of his land as well as
decreased value of his property. Id. The East Village Association has likewise pleaded and
offered evidence that the zoning change permitting the development of a general
merchandise or food store 100,000 square feet or more would have an adverse effect on its
members specifically, including by suppressing their property value because of their
proximity to the zoning change. See Petition at 18, 140-44.
Plaintiff therefore respectfully requests that the Court deny the Citys Second Plea to
the Jurisdiction, and grant Plaintiff such further relief to which it may show itself justly
entitled.


/s/ Anthony Ricciardelli
P. Michael Jung
State Bar No. 11054600
michael.jung@strasburger.com
STRASBURGER & PRICE, LLP
Dallas, Texas 75202
214-651-4724
214-659-4022 fax
-and-
Anthony Ricciardelli
anthony@brownfoxlaw.com
BROWN FOX KIZZIA & JOHNSON PLLC
Dallas, Texas 75201
469-893-9950
214-613-3330 fax
Counsel for Plaintiff East Village
Association

CERTIFICATION OF SERVICE

The undersigned certifies that a copy of the foregoing was duly served on all known
counsel of record in accordance with Rule 21a on July 24, 2014.


PLAINTIFFS NOTICE REGARDING DEFENDANTS JURISDICTIONAL BRIEFING PAGE 1
162ND JUDICIAL DISTRICT COURT

East Village Association

Plaintiff,

v.

The City of Dallas; Larry V. Holmes in his
official capacity as Chief Building Official;
and TC Central Associates, LLC.

Defendants.

Cause No. DC-14-07239

Plaintiffs Notice Regarding
Defendants Jurisdictional Briefing

To the Honorable Court:
The Defendants in this case have made a number of filings this afternoon regarding
jurisdictional issues they intend to raise at the temporary injunction hearing at 9:30 AM
tomorrow morning: (1) City Of Dallas and Building Official of the City of Dallas Response
and Brief in Opposition to Plaintiffs Application For a Temporary Injunction, (2) Defendant
TC Central Associates, LLC's Trial Brief on Jurisdictional Issues, (3) Defendant TC Central
Associates, LLC's Original Answer, Special Exceptions, and Affirmative Defenses, and (4)
Defendant TC Central Associates, LLC's Brief in Opposition to Plaintiff's Application for
Temporary Injunction. These filings will be referred to collectively herein as Defendants
Jurisdictional Briefing.
In speaking with Court staff, Plaintiff has learned that neither of Defendants pleas to the
jurisdiction is set for hearing tomorrow. Accordingly, it is unclear whether the Court plans
to review Plaintiffs Response to the Citys Second Plea to the Jurisdiction or Plaintiffs
Response to Defendant TC Central Associates, LLCs Plea to the Jurisdiction (collectively,
Kimberly Ferguson
FILED
DALLAS COUNTY
7/24/2014 4:24:18 PM
GARY FITZSIMMONS
DISTRICT CLERK
herein, Plaintiffs Jurisdictional Briefing) in preparation for tomorrow mornings
temporary injunction hearing.
Plaintiffs Jurisdictional Briefing is responsive to Defendants Jurisdictional Briefing.
Rather than inundate the Court with paper by refiling these pleadings with a new caption,
Plaintiff incorporates Plaintiffs Jurisdictional Briefing herein by reference and respectfully
requests that the Court consider them responsive to Defendants Jurisdictional Briefing.
Plaintiffs Response to the Citys Second Plea to the Jurisdiction and Plaintiffs Response to
Defendant TC Central Associates, LLCs Plea to the Jurisdiction respond to many, though not
all, of the same arguments from Defendants pleas to the jurisdiction that Defendants raise
again in Defendants Jurisdictional Briefing.


P. Michael Jung
michael.jung@strasburger.com
STRASBURGER & PRICE, LLP
Dallas, Texas 75202
214-651-4724
214-659-4022 fax
-and-
anthony@brownfoxlaw.com
BROWN FOX KIZZIA & JOHNSON PLLC
Dallas, Texas 75201
469-893-9950
214-613-3330 fax
Counsel for Plaintiff East Village
Association

CERTIFICATION OF SERVICE

The undersigned certifies that a copy of the foregoing was duly served on all known
counsel of record in accordance with Rule 21a on July 24, 2014.


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