The URL can be used to link to this page

Creekview Add PD-CS090911Page 1 of 4 Ken Griffin - Re: FW: Pletta v. Johnson From: Ken Griffin To: David Dodd Date: 9/11/2009 2:28 PM Subject: Re: FW: Pletta v. Johnson David I've reviewed our files and we were not involved in the permitting of the wall or the fence. It seems like the forms should go to building inspections, maybe Tim Oates. Ken Griffin »> David Dodd <ddodd @njdhs.com> 9/11/2009 11:41 AM »> From: Michele Sparkman [mailto:michele @amlawteam.com] Sent: Friday, September 11, 2009 10:44 AM To: David Dodd Subject: Pletta v. Johnson Mr. Dodd, Here is the most recent MSJ that Mr. Pletta filed. In addition, I have attached a propose affidavit for a City employee. We really appreciate your assistance in this matter. If you have any questions, just let me know. Thank you, Michele V. Sparkman file: HC: \Documents and Settings \radloo \Local Setting s \Temp \XPgrpwise \4AAA5EAOCity... 1/12/2010 Page 2 of 4 Attorney 4501 Merlot Avenue michele amlawteam.com Grapevine, Texas 76051 Tel: (972) 444 -8777 xt 1107 Cell: (214) 517 -0018 Fax: (972) 444 -8778 amlawteam.com & churchlawgroup.com churchlawblog.com CONFIDENTIALITY NOTIFICATION: This e -mail and any attachments to it is covered by the Electronic Communications Privacy Act, 18 U.S.C. Section 2510 -2521 and may contain confidential information that is (1) subject to the Attorney - Client Privilege, (2) an attorney work product, or (3) strictly confidential. Do not read this e-mail if you are not the intended recipient. Disclosure, copying, distribution or use of any information in or attached to this e-mail is STRICTLY PROHIBITED. Unauthorized interception of this e-mail is a violation of federal criminal law. If you received this email in error, destroy the original and its attachments without reading or saving in any manner and immediately notify us by reply e-mail, or at (972)444 -8777. VIRUS NOTIFICATION: Our computer system is equipped with a virus scanner. However, no warranty is made that this material is free from computer virus or other defect. Any loss /damage incurred by using this material is not our responsibility. Our firm's entire liability shall be limited to resupplying the material. ALTERATION NOTIFICATION: Because e-mail can be altered, the integrity of this communication cannot be guaranteed. IRS CIRCULAR 230 DISCLOSURE: Unless expressly stated otherwise, any U.S. federal tax advice contained in this email, including attachments, is not intended to be used, and any such tax advice cannot be used, for the purpose of avoiding penalties that may be imposed by the Internal Revenue Service. From: Michele Sparkman Sent: Thursday, September 10, 2009 3:15 PM To: ddodd @njdhs.com Subject: Pletta v. Johnson Mr. Dodd, I work with Robert Rucker, whom I believe you have spoken with previously regarding a pending suit originating in the City of Coppell. Our Firm represents the Johnsons who have been sued by their neighbor, Timothy Pletta, over a boundary issue. Allegedly, the Johnson's reconstructed fence and retaining wall encroach upon Mr. Pletta's property. Mr. Pletta has filed a summary judgment and essentially is trying to assert himself in the role of the file: HC: \Documents and Settings \radloo \Local Setting s \Temp \XPgrpwise \4AAA5EAOCity... 1/12/2010 Page 3 of 4 City of Coppell; that is, he is alleging that the court should grant his motion because the Johnsons failed to comply with city ordinances such as obtaining building permits. Albeit after the fact, the Johnsons applied for and received building permits from the City for the construction of the fence and retaining wall. Would you be willing to help us obtain an affidavit from a City employee that basically states that Mr. Pletta is not an employee of the City and has no authority to assert himself in the role of the City? In addition, the affidavit would address the fact that the City has issued building permits to the Johnsons. We would appreciate your assistance in this matter. Sincerely, Michele Sparkman R -% +- YY. ' . 1 ~ . L I. Michele V. Sparkman Attorney 4501 Merlot Avenue Grapevine, Texas 76051 Tel: (972) 444 -8777 xt 1107 Cell: (214) 517 -0018 Fax: (972) 444 -8778 michele amlawteam.com amlawteam.com & churchlawgroup.com churchlawblog.com file: HC: \Documents and Settings \radloo \Local Setting s \Temp \XPgrpwise \4AAA5EAOCity... 1/12/2010 Page 4 of 4 CONFIDENTIALITY NOTIFICATION: This e -mail and any attachments to it is covered by the Electronic Communications Privacy Act, 18 U.S.C. Section 2510 -2521 and may contain confidential information that is (1) subject to the Attorney - Client Privilege, (2) an attorney work product, or (3) strictly confidential. Do not read this e-mail if you are not the intended recipient. Disclosure, copying, distribution or use of any information in or attached to this e-mail is STRICTLY PROHIBITED. Unauthorized interception of this e-mail is a violation of federal criminal law. If you received this email in error, destroy the original and its attachments without reading or saving in any manner and immediately notify us by reply e-mail, or at (972)444 -8777. VIRUS NOTIFICATION: Our computer system is equipped with a virus scanner. However, no warranty is made that this material is free from computer virus or other defect. Any loss /damage incurred by using this material is not our responsibility. Our firm's entire liability shall be limited to resupplying the material. ALTERATION NOTIFICATION: Because e-mail can be altered, the integrity of this communication cannot be guaranteed. IRS CIRCULAR 230 DISCLOSURE: Unless expressly stated otherwise, any U.S. federal tax advice contained in this email, including attachments, is not intended to be used, and any such tax advice cannot be used, for the purpose of avoiding penalties that may be imposed by the Internal Revenue Service. file: HC: \Documents and Settings \radloo \Local Setting s \Temp \XPgrpwise \4AAA5EAOCity... 1/12/2010 CAUSE NO. DC -08 -01366 TIMOTHY G. PLETTA and § IN THE DISTRICTCOURT ANN H. PLETTA, § Plaintiffs /Counter - Defendants, § VS. § F -116 JUDICIAL DISTRICT ALBERT JOHNSON and § KATHLEEN JOHNSON, § Defendants /Counter - Plaintiffs. § DALLAS COUNTY, TEXAS AFFIDAVIT OF BEFORE ME, the undersigned authority, personally appeared who being duly sworn, stated the following: "My name is . I am at least 18 years of age and of sound mind. All statements contained herein are based upon my personal knowledge and are true and correct. The facts stated within this affidavit are within my personal knowledge and are all true and correct." "I am an employee of the City of Coppell. I have worked for the City since "Mr. Timothy G. Pletta is not an employee of The City of Coppell. Mr. Pletta does not have the authority of a City Employee or authority to act for the City of Coppell." "I am the custodian of the records of building permit applications for the City of Coppell. Attached hereto are pages of records kept by The City of Coppell in the regular course of business for an employee or representative of The City of Coppell, with knowledge of the act, event, condition, opinion, or diagnosis, recorded to make the record or to transmit information thereof to be included in such record; and the record was made at or near the time or reasonably soon thereafter. The records attached hereto are the original or exact duplicates of the original." "Attached to this affidavit are (1) a permit dated April 21, 2009, that authorized the Johnsons to replace their crosstie retaining wall with a stone retaining wall; and (2) a perinit dated April 21, 2009, that authorized the Johnsons to replace the wooden fence on their property." "When the City issues a permit it has the opportunity to evaluate whether the building project violates any City ordinances. By issuing the building permit, the City holds that no such violations exist. The fence and retaining wall constructed by Albert and Kathleen Johnson at 154 E. Bethel Road, Coppell, Dallas County, Texas does not violate any applicable city law, ordinance or rule. Both 154 E. Bethel„ ,,,Road, Coppell, Dallas County, Texas (Lot 2) and 150 Bethel Road, Coppell, Dallas G unty, are located in Coppell, Texas." "Mr. Pletta has made various complaints to City of Coppell officials regarding existing conditions at the Johnson lot and the City is satisfied that no City of Coppell laws, ordinances or rules are being violated by the Johnson's fence or retaining wall." Further affzant sayeth not, Affiant SUBSCRIBED AND SWORN TO BEFORE ME on known to me to be the person executing the above verification. by Notary Public, State of Texas cmmmm�� TIMOTHY G. PLETTA and ANN H. PLETTA, Plaintiff/Counter-Defendant, VS. ALBERT JOHNSON and KATHLEEN JOHNSON, § Defendant/Counter-Plaintiff. 116th JUDICIAL DISTRICT 0= I f4folto COMES NOW, TIMOTHY G. PLETTA and AM H. PLETTA ( Counter-Defendant'l)(hereinafter 11 Plaintif f 11 ) in the above - referenced and cause numbered action who files this its Third Motion for Summary Judgment pursuant Texas Rules of Civil Procedure 166a(c) directed to ALBERT JOHNSON and KATHLEEN JOHNSON ( "Def endant /Counter - Plaintif 11 ) (hereinafter "De f end ant 11 ) and would show unto the Court the following: 1A 1.01 This case involves a boundary dispute by and between adjacent land owners where, where Defendant replaced his wooden fence and remodeled his railroad tie retaining wall with a stone retaining wall which extended on Plaintiff Is real property and into the FEMA, flood way without any permission or authorization from either the Homeowners Association, The City of Coppell or EMA, and without a fence permit or survey or any sort of plans, all in m olation of the applicable and governing deed restrictions, City of Coppell ordinance and Floodplain Ordinance #2001-952. 11. SMOIARY =GMENT EVIDENCE ATTACHED 2.01 In support of this Motion, and as evidence offered by Plaintiff to be considered in this summary judgment proceeding, Plaintiff attaches hereto ias Exhibit "All and incorporates herein by reference a true and correct copy of the Affidavit of Timothy G. Pletta and a true and correct copy of the governing Creek view Estates Deed Restrictions for which judicial notice is requested. 2.02 In support of this Motion, and as evidence offered by Plaintiff to he considered in this summary judgment proceeding, Plaintif attaches hereto as Exhibit "B 1 and incorporates herein by reference a true and correct copy of the Affidavit of Michael R. III. BREACH OF RESTRICTIVE COVENANT 3.01 The statute of limitations for breach of a restrictive covenant is four years from the date the cause of action accrues. Schoenhals v. Close, 451 S.W.2d 597, 599 (Tex. App. -- Amarillo 1970, no writ). 3.02 In this motion for summary judgment, Plaintiff has standing to enforce the following as it - made demand and more than 30 days has since elapsed and demon8trates herein that no genuine issue of material fact exists and the court should grant summary judgment on the following grounds; -DEFENDANV8 �X 4MGMENT page A a) Defendant's entire project arid/or work violates article VII Section 7.,02 for failing to submit three (3) copies of the plans and specifications showing the nature, kind, shape, height, materials, color', and location be submitted to and approved in writing to the architectural Control; Committee; (b) Defendant's entire project and/or work violates Addendum -- Restrictions and Construction Section g. as its fence exceeds the seven foot (7 height requirement by almost three feet (3 ") and fails to conform, to the then existing building codes, and therefore, also fails to have been granted either: (a) a. building permit, (b) a fence permit or (c) a flood plain permit prier to construction,. (c)' Defendant's stone retaining wall violates City of Coppell, ordinance number 297-a -63, adopted in 1989, the then.,, existing building code,; which established zoning on the subject property as Planned Development District No. 104 with SF -12 residential development (Single Family zoning with a minimum 12, 000 square fact lot) . In short, this ordinance makes clear that Defendant [s stone retaining wall, which exceeds four feet: (4 in height is eight and one half feet (8.5 too close to the property line. ,a (d) Defendant's entire project and/or work violates Article III, Section 3.01(u) which prohibits a Lot being maintained or utilized in such a manner as to violate any applicable statute, ordinance, or regulation of the United States of America, the State of Texas, the County of Dallas, the City of Coppell, or any other governmental agency or subdivision having jurisdiction in the premises. Violation of Article VII Section 7.02 3.03 Plaintiff would show Defendant admits; and therefore cannot demonstrate that he complied, with Article VII Section 7,02 for failing to submit three (3) copies of the plans and specifications showing the nature, kind, shape, height, materials, color, and location ... be submitted to and approved in writing . . . to the Architectural Control Committee. (Affidavit of Timothy G. Pletta attached hereto as Exhibit "All and incorporated herein by reference.) 3. 04 Plaintiff would further show that had Defendant submitted three (3) copies of the plans and specifications showing the nature, kind, shape, height, materials, color, and location ... be submitted to and approved in writing ... to the Architectural Control Committee, the known and existing iron rod ("FIR") documented in 1997, would have been located prior to work, (Affidavit of Timothy G, Pletta attached hereto as Exhibit "Pill and incorporated herein by reference,) 3.05 As such, Defendant entire project and/or work violates Article VII Section 7.02 for failing to submit three (3) copies of the plans and specifications showing the nature, kind, shape, height, materials, color, and location . . . be submitted to and approved in writing ... to the Architectural Control Committee, and requires this Court to grant Plaintiff's Motion for Summary IMEEMM - Restrictions and Construction Section g, as its fence exceeds the seven foot (71) height requirement by almost three feet (3 and fails to conform to the then existing building codes; and therefore, also fails to have been granted either: (a) a building permit, (b) a fence permit or (c) a flood plain permit prior to construction, (Affidavit of Timothy G. Pletta attached hereto as Exhibit "All and incorporated herein by reference) (Affidavit of Michael R, Coker, AjCP/CBO attached hereto as Exhibit "B" and incorporated herein by reference.) 3.07 The Affidavit of Michael R. Coker, A1CP/CBO makes abundantly clear that 154 East Bethel Road, Coppell, Texas 75019 is being maintained or utilized in such a manner as to violate applica-ble statutes, ordinances, and regulations of the United States of America and the City of Coppell. FL Im III lill 111111111aIIIIIIIIIii I I K 11111 !111 - I wall, placed fill & built a wooden fence in the floodplain at 154 M East Bethel Road in violation of the City of Coppellts Floodplain Ordinance #2001-952, Set Back Ordinance Section 12-32-3 (2) , without a permit, and which encroached and trespassed on the property located at 150 East Bethel Road. (Affidavit of Michael R. Coker, AICP/CBO attached hereto as Exhibit "B" and incorporated herein by reference.) 3.09 The ordinance specifically states that a Floodplain D&*Iopment Permit is re4oited fbt All new development, and encroachment within the floodplain management areas of the city. The property in question is located within an identified floodplain and floodway of Grapevine Creek as shown on Flood Insurance Map #48113C0155J effective date of August 23, 2001. (Affidavit of Michael R. Coker, AICP/CBO attached hereto as Exhibit I'D" and incorporated herein by reference.) 3.10 Finally, Defendant's stone retaining wall violates City of Coppell ordinance number 297-A-63, adopted in 1989, the then existing building code, which established zoning on the subject property as Planned Development District No. 104 with SF-12 residential development (Single Family zoning with a minimum 12, 000 square foot lot) . in short, this ordinance makes clear that Defendant's stone retaining wall, which exceeds four feet (4 1 ) in height is eight and one half feet (8.5') too close to the property line. (Affidavit of Michael R. Coker, AICP/CBO attached hereto as Exhibit "B" and incorporated herein by reference.) Violation of Citv of Co ell Ordinance Number 297-A-63 3.11 Plaintiff would further show Defendant's stone retaining wall violates City of Coppell ordinance number 297-A-63, adopted in 1989, the then existing building code, which established zoning on the subject property as Planned Development District No 104 with SF-12 residential development (Single Family zoning with a minimum 12,000 square foot lot) . In short, this ordinance makes clear that Defendant's stone retaining wall, which exceeds four feet (4 in height is eight and one half feet (8.5 too close to the property line. (Affidavit of Michael R. Coker, AICP/CBO attached hereto as Exhibit "B" and incorporated herein by reference.) Violation of Article Ill ,.Section 3.01(u) 3.12 Plaintiff would further show Defendant's entire project and/or work violates Article III, Section 3.01(u) which prohibits a Lot being maintained or utilized in such a manner as to violate any applicable statute, ordinance, or regulation of the United states of America, the State of Texas, the County of Dallas, the City of Coppell, or any other governmental agency or subdivision having jurisdiction in the premises. 3.13 Article III, Section 3-01(u) which provides: No Lot shall be maintained or utilized in such a manner as to violate any applicable statute, ordinance, or regulation of the United States of America, the State of Texas, the County of Dallas, the City of Coppell, or any other governmental agency or subdivision having jurisdiction in the premises. (Affidavit of Timothy G. Pletta attached hereto as Exhibit "All and incorporated herein by reference) 3.14 Defendant's entire project and/or work violates Addendum - Restrictions and Construction section g. as its fence exceeds the seven foot (7 height requirement by almost three feet (3 and fails to conform to the then existing building codes; and therefore, also fails to have been granted either: (a) a building permit, (b) a fence permit or (c) a flood plain permit prior to construction. (Affidavit of Timothy G. Pletta attached hereto as Exhibit "All and incorporated', herein by reference) (Affidavit of Michael R. Coker, AICP/CBO attached hereto as Exhibit "B" and 3.15 The Affidavit of Michael R. Coker, AICP/CBO makes abundantly clear that 154 East Bethel Road, coppell, Texas 75019 is being maintained or utilized in such a manner as to violate applicable statutes, ordinances, and regulations of the United States of America and the City of Coppell. 3.16 Al Johnson and/or the occupants located at 154 East Bethel Road, Coppell, Texas, built a sixl foot high stone retaining wall, placed fill & built a wooden fence in the floodplain at 154 East Bethel Road in violation of the City of Coppell's Floodplain Ordinance #2001-952, Set Back Ordinance Section 12-32-3 (2) , without a permit, and which encroached and trespassed on the property located at 150 East Bethel Road. (Affidavit of Michael R. Coker, AICP/CBO attached hereto as Exhibit "B" and incorporated herein by reference.) 3.17 The ordinance specifically states that a Floodplain Development Permit is required for all new construction, development, and encroachment within the floodplain management areas of the city. The property in question is located within an identified floodplain and floodway of Grapevine Creek as shown on Flood Insurance Map #48113CO155J effective date of August 23, 2001. (Affidavit of Michael R. Coker, AICP/CBO attached hereto as Exhibit 'tS" and incorporated herein by reference.) 3.18 Finally, Defendant's stone retaining wall violates City of Coppell ordinance number 297-A-63, adopted in 1989, the then existing building code, which established zoning on the subject property as Planned Development District No. 104 with SF-12 residential development (Single Family zoning with a mini mum 12, 000 square foot: lot) . In short, this ordinance makes clear that Defendant's stone retaining wall, which exceeds four feet (4 in height is eight and one half feet (8-5 too close to the property line. (Affidavit of Michael R. Coker, AICP/CBC attached hereto as Exhibit "B" and incorporated herein by reference.) 11 111�111 -W IRI VIP I - This matter be set for a hearing with notice to Defendant and upon completion of this hearing the Court grant Plaintiff's Third Motion for Summary Judgment; 2. Plaintiff be awarded sanctions as requested herein; 3. Plaintiff be awarded prejudgment interest at the rate of 10* percent; 4. Plaintiff be awarded postjudgment interest against Defendant at the rate 10 percent from the date of Judgment until the entire Judgment is paid in full; 5. Plaintiff be awarded all costs of court expended in this cause by Plaintiff; and, 6. Plaintiff be awarded any other and further relief, special or general, legal or equitable, to which Plaintiff may be justly entitled. 0 MMOR SIGNED this the 12 I CERTIFICATE OF SERVICE This is to certify a true and correct copy of this Plaintiff's Motion for Summary Judgment has been made upon Defendant, via hand' delivery, on this the 31st day cif Yugust, 2019. Motion for Summary for hearing in the as County, a, at e " w � da of -.. , • . w Casemaker - TX - Case Law - Search - Result 597 Dave SCHOENHALS and Wife, Mrs. Dave Schoenhals, et al., Appellants, v, G. R. CLOSE and wife, Ann Lee Close, Appellees. No. 8044. Court of Civil Appeals of Texas, Amarillo. February 9, 1970. 598 Linn, Helms & Countiss and Richard N. Countiss, Spearman, for appellants. Lemon, Close & Atkinson and R. D. Lemon, Perryton, for appelfees. DENTON, Chief Justice. This is an appeal from a temporary injunction enjoining the appellants from opening a beauty shop in violation of a restrictive covenant. Plaintiff-appellants Mr. and Mrs. G. R. Close and defendants Schoenhals own adjoining lots in a residential section of Perryton, Texa Each of the deeds to their respective lots derived from a common source and each contained a residential restriction and covenant whit stated "that there shall never be erected upon said land hereiribefore described no improvements save and except improvements to be used for residential purposes * * *." Secondly, appellants contend that appellees' cause of action is barred by lathes. https://demo.lawriter.net/states/TX/books/Case 1 8131/2009 599 Casernaker -'TX - Case Law - Search - Result Mwte or limitations coes apply to violations of 'a restrictive covenant. Keene v. Reed, 340 S.W.2d 859 (Tex.Civ,App,, Y. Cleveland, 242 S.W.2d 400 (Tex.Cjv.App,, writ refd). However, we have concluded the four year statute is not M Where there has been a single violation of a restrictive covenant in a neghbor-hood, the fact that one violation is protected by some valid defense does not have the effect of removing the restrictive covenant as it applies to the rest of the tract. Barham v. Rearnes, 366 S.W.2d 257 (Tex.Civ.App.). t;vmt: ummurceaDie vviin respect to a particular lot in a tract under the defenses of the statute of limitations, :hough a party has violated a restrictive covenant and is able to continue to do so under one of the foregoing covenant will continue to exist, "even if the violation as it exists, continues," Simon V, Henrichson, 391 S,W,2d ref. n. r. e.), If the violation caasp-q. thp. f-nvpn;inf will nnrarnnr= hnr— &AP—m— --A —111 t,-- - — 600 https:/Idemo.lawn'ter.nat/states/TX(books/Case—Law/result?number--1 8/31/2009 The question which must be decided in this case is whether a party who acquires a right through the statute of limitations to operate a commercial enterprise In contravention of a restrictive covenant may lose that right by abandonment? of a restrictive covenant in the neighborhood had not rendered that covenant ineffective. ' asemaker - TX - Case Lard - Search - Result' ff When appellant Griggs reopened her beauty shop in .duly of 1969, she once again was in violation of the restrictive covenant, Appellees filed this suit within ten days after learning of appellants' plans. The concept of !aches is based on the ground of unreasonable; delay, and ten days is not an unreasonable delay., the four year statute of limitations is applicable and that the appellees' cause of action is barred by that sere were two violations of the restrictive covenant and thus two causes of action. The first arose when shop in 1960. The second cause of action arose in July, 1969, when appellant reopened her beauty she tenant. That cause of action was not barred by the statute of limitations at the time annpll -p fiipri thin c The judgment of the Trial am it s. / /de t),I writer,net/states/TYdbo ks /Case La /result ?number- 8/31/2009' October 1988 L Declaration OF COVENANTS AND RESTRICTIONS TBE STATE OF TEXAS COUNTY OF DALLAS These Covenants made as of the _day of October, 1988, by Creekview Estat Limited Partnership, a Texas limited partnership. WITNBSSETH: WheteaS, Developer desires to establish the Land as a planned un it development consisting o f l which are individually owned, in fee simple; Whereas, Developer desires to establish certain covenants, easements, and restrictions for th mut benedit and protection of the Owners; MEM (c) "Building" shall mean any vertical structure l on t h e L (d) "Bylaws" shall men the Bylaws of the Association initially adopted by the Board of Directors, as duly amended from time to time. (9) "Covenants" shall mean the covenants, conditions, easements, charges, servitudes, liens, reservations, and assessments set fiorth herein. (h) 'Deed" shall mean a deed or other instrument conveying the fee simple title to a tot, H "First Lien hulebtedness" shall mean any indebtedness se=ed by EL first and phorlien or e=urubrame upon a Lot 191 ARTICLP, GENERAL RRQM&O_N$ SectionUl The land shall be Subject to the Covenants and said Covenants shall run with, be for the benefit of, and bind and burden the Land, provided M'RESMIC'T 10M Section 3.01 All lots within the land are hereby restricted as fonows,- (9) 0) No Lot shall be further subdivided and no portion less than all of my such Lot (including the garage) or any easement or any other interest therein, shall be conveyed by say Owner. (k) No Owner shall permit any thing or condition to exist upon any Lot which shall include, breed, or harbor plant disuse or noxious insects. �, -1 , 4 " , I Land, and no noxious or otherwise offensive condition or activity shall be allowed to exist or be 01 thereon. M= areas, or (V) No Lot shall be maintained or utilized in violation o� tho Covenants. a (a) Ti (p)+ (c) The power Co contract with and employ others for mai tenaoce acid repair; an d Section 4.02 The Association shall have two classes ofvating membership: (d) The power to adopt rules and regulations concerning the operation of the Association.. ki ti then any aggrieved Owner may enforce these Covamts on his own behalf by appropriate Sedan, whether in law or in equity. &UCLE v I ,I MIJIUVIVOK . I FAR Allm ASSCC1aLt n MEME ARTICLE VII (a) That he will pay to the Association within thirty (3) days after the dare of written notice thereof any maintenance Costs assessed against his Lot; and (a) Bring an action at law and recover judgment; against the der personally obligated to pay Maintenance Cost, The sale or transfer of any Lot shall not afrect the Maintenance Lien,. I . 1 i 5§9kajR These Covenants may be revoked Gr amended in thOfbllowing manner I A � MO EXECUTED on the date f irst alcove written.: CREEKVIEW ESTATES LTD. PARTeRSHIP, a Texas Limited Partnership' STATE OFTEXAS Notary Public 2,700 SF'' 12 -14 A 1 -12 B 2,400 SY 18 -25; l3 32 -37 1 -I6 D? 2,100 SF 13 -17 26 -31' The fully enclosed floor area devoted to living purposes shall be exclusive of porches, terraces, garages, carports, and other areas uot heated and air conditioned. The lots and all improvements constructed on the Lets shall be improved, constructed, occupied, and used in strict compliance with the tbllQwing. mill I 12E, 1 Ila i o' I % Minimum SgmY 2kge Block 2,700 SF A 2,400 SF 38 4G-43 56-66 B 1-23 C 2,100 SF 39 B 44 -55i B The My enclosed floor area devoted to living purposes shall be exclusive of porches, terraces, garages, carports, and other areas not heated and air conditioned. f. d. Chimrieys Chinineys and fireplaces shall be of inasonry construction. Metal rain caps will be permitted only upon approval of the ACC %* {< ( Nfi/@ 0 $ -- « tan : &£ ƒ70 F 7 A $# . . 3 : 7 40-43 56-66 1-23 q ^ f00 ,SF . # . ® - / °Th4full m sedfoI#eadevoted lo5 purposes Aallbe exclusive ofpo/\k »mac \ garages , MrPorts, aud other ams wt heated and air conditioned. wood, or iron. Stucco is pitted Only upon approval of the ACC.. The ACC approves mas6iny designs on the front elevations which include soldier, rowlock, and treader courses: ,� TIMOTHY G. PLETTA 9 IN THE DISTRICT COURT and ANN H. PLETTA, § Plaintiff/Counter-Defendant, VS. 116th JUDICIAL DISTRICT ALBERT' JOHNSON and KATHLEEN JOHNSON, Defendant/Counter-Plaintiff. § DALLAS COUNTY, TEXAS AFFIDAVIT OF TIMOTHY i G . PLETIA STATE OF TEXAS COUNTY OF DALLAS BEFORE ME, the undersigned authority, on this day personally appeared Timothy G. Pletta, who, being by me duly sworn on his oath and stated the following "My name is Timothy G. Pletta. I am over the age of 21 years, have never been convicted of a felony or a crime involving moral tarpitude, and am fully competent to testify in all respects. I have personal knowledge of all facts set forth herein, and they are all true and correct. (2) "Al Johnson told me he neither obtained a survey nor submitted any plans and specifications showing the nature, kind, shape, height, materials, color, and location ... nor submitted them in writing to the Architectural Control Committee nor obtain any approval in writing from the Architectural Control Committee during our discussion which took place after February 15, 2006. (3) "Had Defendant submitted three (3) copies of the plans and specifications showing the nature, kind, shape, height, materials, color, and location — be submitted to and approved in 'writing ... to the Architectural Control Committee, the known and existing iron rod ( 11 FIR") documented in 1997, would have been located prior to defendantas work, (4) "As such, Defendant entire project and/or work violates Article V11 Section 7.02 for failing to submit three (3) copies of the plans and specifications showing the nature, kind, shape, height, materials, color, and location .. b submitted to and approved in writing to the Architectural Control Committee, (5) "Defendant's entire project and/or work violates Addendum - Restrictions and Construction Section g. as its fence exceeds the seven foot (7 height requirement by almost three feet (3 as it measures 9 feet 10 inches ( '10") from its base to the top at its north west corner and fails to conform to the then existing building codes; and therefore, also fails to have been granted either: (a) a building permit, (b) a fence permit or (c) a flood plain permit prior to construction. (6) "1 am authorized on behalf of the Plaintiff's as custodian of the business records which includes the records applicable to a written demand made on Creekview Homeowners Association relating to the above-referenced and cause numbered action, AFFID VITj OF TIMOTHY G. PLETTA Page 2 (7) "Each record was kept by Timothy Pletta in the regular course of business. It was the regular course of the Law office of Timothy Pletta for an employee or representative of the Law Office of Timothy Pletta, with personal knowledge of the act, event, or condition recorded, to make the record or to transmit information to be included in that record, (8) "My demand letter dated June 24, 2009, a copy of the green card and the Creekview Homeowners Association governing deed restrictions are attached to this affidavit, and incorporated herein by reference, and were made at or near the time of the act, event, or condition recorded or reasonably soon thereafter and each copy attached is an exact duplicate of the original record. (9) "Despite demand, Creekv±ew Architectural Control Committee has failed and/or refused to take any action within 30 days of demand; and therefore, I as an aggrieved owner and Plaintiff may enforce the violations herein pursuant to Article IV, Section 4.05 and/or Article VII, Section 7.03. (10) "As such, Defendant's entire project and/or work - violates Article 111, Section 3.01(u) which prohibits a Lot being maintained or utilized in such a manner as to violate any applicable statute, ordinance, or regulation of the United States of America, the State of Texas, the County of Dallas, the city of Coppell, or any other governmental agency or subdivision having jurisdiction in the premises. AFFIDAVIT OF TIMOTHY G. PLETTA Page 1 PURTHER AFFIANT SAI TH NOT." 110 Ingam tm I Sm ., �tiy6Ytft JA . myommisstcWEXPIRS a « %mW4r2012 ., AFFIDAVIT OF TIMOTHY G. PI?EUTA gage 4' Creekview Architectural Control Committee c/o Ms. Barbara L. Wolf 217 Glendale Drive Coppell, Texas 75019 Dear Ms. Wolf: We are in receipt of your letter dated May 16, 2009, wherein you denied our previous request dated May 4, 2009, and make reference to certain deed restrictions which vou contend are applicable and controlling. While we regret your decision of denial. in the event the Creek-view Estates Deed Restrictions apply to 150 East Bethel Road, Coppell, Texas 75019, then they should likewise apply to 154 East Bethel Road, Coppell, Texas 75019. Accordingly, request and/or demand is hereby made for enforcement of Article VII, Section 7.02 which prohibits any fence, wall, sign, .. or other structure ... to be erected, placed, or maintained upon the Land — until three (3) copies of the plans and specifications showing the nature, kind, shape, height, materials, color, and location — be Submitted to and approved in writing ... to the Architectural Control Committee. This section further provides that the Architectural Control Committee shall have the right, all in the sole discretion to [approve or] disapprove any plans and specifications submitted. However, in the present case, the property owners never submitted plans to the Architectural Control Committee; and therefore, the Architectural Control Committee Nvas denied an opportunity to approve or disapprove the fence, wall, sign, .. or other structure . . . to be erected, placed, or maintained upon the Land at 154 East Bethel Road, Coppell, Texas 75019, We are aware Article VII, Section 7.03 provides shall have the right, but not the obligation, to enforce referenced above, such enforcement by definition can the plans and specifications showing the nature, kin location . - - be, submitted to the Architectural Control Architectural Control Committee ever know the contei ovisions of these Covenants, but as take place after three (3) copies of ape, height, materials, color, and anittee; otherwise, how would the -d work to approve or disapprove, Creekview Architecftuul Control Committee c/o Ms. BarWwa L. Wolf June 24, 2009 Page - 2 - As to this end, Article VII, Section 7.04 makes clear that neither the Developer, the Association, the Architectural Control Committee and the Board, nor the officers, directors, members, employees and agents of them, shall be liable in damages to anyone submitting plans and specifications to any of them for approval, or to any Owner of property affected by these restrictions by reason of mistake in judgment, negligence, or nonfeasance arising out of or in connection with the approval or disapproval variance or failure to approve or disapprove any such plans and specifications. However, as referenced above, the property owners never submitted plans to the Architectural Control Committee; and therefore, the Association, the Architectural Control Committee and the Board, its officers, directors, members, employees and agents of them, remain liable in damages to the Owner of property affected by these restrictions, Ann H. Pletta and Timothy G. Pletta, arising out of, not the approval or disapproval, but the failure to enforce certain deed restrictions to obtain plans and specifications for approval or disapproval. Had the Architectural Control Committee bothered to enforce Article VII, Section 7.02 instead of selectively enforcing some but not all the deed restrictions it contends are applicable and controlling, it would have discovered that the work performed at 154 East Bethel Road, Coppell, Texas 75019 violates Article III, Section 3.01(u) which provides: No Lot shall be maintained or utilized in such a manner as to violate any applicable statute, ordinance, or regulation of the United States of America, the State of Texas, the County of Dallas, the City of Coppell, or any other governmental agency or subdivision having jurisdiction in the premises. In the present case, the Affidavit of Michael R. Coker, AICPICBO makes abundantly clear that 154 East Bethel Road, Coppell, Texas 75019 is being maintained or utilized in such a manner as to violate applicable statutes, ordinances, and regulations of the United States of America and the City of Coppell. Specifically, Al Johnson and/or the occupants located at 154 East Bethel Road, Coppell, Texas, built a six foot high stone retaining wall, placed fill & built a wooden fence in the floodplain at 154 East Bethel Road in violation of the City of Coppell's Floodplain Ordinance #2001-952, Set Back Ordinance Section 12-32-3 (2), without a permit, and which encroached and trespassed on the property located at 150 East Bethel Road, The ordinance specifically states that a Floodplain Development Pen is required for all new construction, development, and encroachment within the floodplain management areas of the city. The property in question is located within an identified floodplain and floodway of Grapevine Creek as shown on Flood Insurance Map #48113CO155J effective date of August 23, 2001. 1717 i L-i �,Jkf Creekview Architectural Control Committee c/o Ms. Barbara L. Wolf June 24, 2009 Page - 3 - Upon further review of the applicable deed restrictions for which you con are applicable and controlling, please note, the enforcement provisiom of Article 111, Section 3.01 are mandatory and not subject to discretionary enforcement for approval or disapproval as set forth in Article VII, Section 7.03, after three (3) copies of the plans and specifications are submitted. In conclusion, request and/or demand is hereby made for enforcement of Article VII, Section 7.02 and/or Article III, Section 3.01(u). In the event the Architectural Control Committee fails to enforce the deed restrictions it contends are applicable and controlling by July 24, 2009, Ann H. Pletta and Timothy G. Pletta will have no choice but to join the Association, the Architectural Control Committee and/or the Board, its officers, dire members, employees and agents of them, in Cause Number DV08-01366-F, styled, T iMothy. G. Pletta and Ann H. Pletta v. Albert Johnson and Kathleen Johnson, pending in the Dallas District Court, 116th Judicial District, Dallas County, Texas, to either request the court to declare the Creel view Estates Deed Restrictions void and of no effect or consequence and/or seek to recover damages afforded under Texas of Federal law, including but not limited to a claim for attorney's fees and costs of court at all levels of the litigation process, Please note, we regret having to make demand and/or file suit, but all other attempts to resolve this matter have been ignored and have failed, CC." file Im Em NEZM m Vehicles -,lamed or inoperative ve- hicles may not be stored in public view. Vehicles with a rated Capacity Of more Tan 1.5 tons or 33 feet in length may not be stored in a residential district. Vehicles must be parked on a paved surface. arty. Uras,< whei) they Owners or of Lights is Knocidug On Your I Nov. 20 i_r.jjLLU LUCII PjVVr,4LY W 1110 U_U%6LFUtLAL UL 4F11 "WWI z - I-. J the alley, This vear*s annual Holidav Parade "No Solicitors" sign posted in accor- Municipal Court Closures Coppell Municipal Co = No. 1, 13 0 Town Center Blvd., will close at 4 p.m. on Fri., Nov. 14, for staff trams g. asking, must not obstruct access to doors or 'Windows. Alleys and sidewalks must be kept free of overhanging limbs and branches. , ty of Coppelt's Code of Ordi- hapter 6, Article 6-2 provides v. —l'i regulations on how solicitors and peddlers can operate within the city - Nov... 11 tin btils SolicitorInformatityri -ALL solid -, tars and peddlers roust register with the Nov. 12 Police Department before gaing doer-. room, to-door, After review of the registra- on or permit application, and if the ov l3 registrant meets the criteria as outlined by the Ordinance, City staff will issue a Nov. 20 6 at oIftqg ati cert _e :1str on or permit Nov. 20 i_r.jjLLU LUCII PjVVr,4LY W 1110 U_U%6LFUtLAL UL 4F11 "WWI z - I-. J the alley, This vear*s annual Holidav Parade "No Solicitors" sign posted in accor- Municipal Court Closures Coppell Municipal Co = No. 1, 13 0 Town Center Blvd., will close at 4 p.m. on Fri., Nov. 14, for staff trams g. asking, must not obstruct access to doors or 'Windows. Alleys and sidewalks must be kept free of overhanging limbs and branches. mm 11144 r r4l momifflom Hum SECTION 1. That the Coppell City Code be, and the same is hereby, amended by 'A 111110;lding Article 16-4 to read as follows: tp Emmimmm MANAGEPYIENT ARTICLE I Adoption and Title, Statutory Authorit Findings of Fact, Purposes and Nlethods, Scope of Authority, and Organization. SECTION A. Adoption and Title This Ordinance is hereby adopted and shall be known as the "Floodplain Uanagement Ordinance" of the City of Coppell. "l evelv�r t' Any manmade change to improved or unimproved real estate including, but not 11 m to, buildings or other structures, mining, dredging, 4� in &ad g, paving, excavation or drilling operations located within the floodplain management areas of the City. A Floodplain Development Permit is required for all development within a floodplain, t'Development permit" See "Floodplain development permit." "Elevated bmilding" A building located in SFHA Zones A1 -99, AE, A, AO, AH, X, or D, with the lowest floor elevated above the ground level and above the design base flood by means of pilings, columns (posts and piers), or shear walls parallel to the flow of the water and adequately anchored so as not to impair the structural integrity of the building during a flood of up to the magnitude of the design base flood and further includes a building elevated by means of fill or solid foundation perimeter walls with openings sufficient to facilitate the unimpeded movement of flood waters. "Encroachment" My activity in a floodplain which could hinder the passage of water or otherwise affect flood flows; e.g. fill, buildings, fences and so on, A Floodplain Development Permit is required for all encroachments. "Enclosure" An area subject to flooding which is constructed based upon flood resistant design concepts to create a structure at or above adjacent grade solely for parking of vehicles, essential temporary storage, building access or other real or perceived need which is otherwise impossible to construct outside of flood -elevations provided that such t not built so as to render the structure in violation of the applicable non- tlz design r_-quirements of this ordinance. "Erosive velocity" That average velocity of moving flood waters which will begin to cause erosion of the parent materials of the channels, overbanks, or aseas of shallow Hooding. S "Maximum permissible velocity." "Equal conveyance alteration" The principle of changing the conveyance at a stream I cross section by altering the conveyance lost in each overban-k of the section an equal amount. Conveyance is defined in units of cfs as a function of the roughness and the flow area and hydraulic radius at the cross section. 'Existin,o conditions' The floodplain conditions established by a flood elevation SM&Y based on land use as of the datl of the study completion. L ", Existing c o n struction" Structures for -which the "start of cons cornmenced before August 1. 1980. "Existing construction" may also be referred to as "existing structures, " ` "Elrisfing structures" See "Ex=stina 0 construction, 8 "Floodplain .0evelopment Permit" A permit which must be obtained by any person before any development begins on land within a floodplain. See "Development" and "Encroachment". "Ploo4p,lain management" The operation of an overall program 'bf " corrective and preventive meaktres for reducing flood damage including, but not limited to emergency "Floodplain management area" The combination of all floodplain and regulatory floodways within the jurisdiction of the City, including floodplain land that is not identified on Flood Hazard Boundary Maps or Flood Insurance Rate Maps. "Floodplain management regulations" The zoning ordinances, subdivision regulations, building codes, health regulations, special purpose ordinances (such as this floodplain ordinance), and other applications of police power, The term describes such City, County, State, or Federal regulations, or any combination thereof, which provide standards for the purpose of flood damage prevention and reduction. "Flood Protection system" Those physical structural works for which funds have been authorized, appropriated, and expended and which have been constructed specifically to modify flooding in order to reduce the extent of the area within the City subject to a ° "special flood hazard" and the extent of the depths of associated flooding. Such a system typically includes channel improvements, reservoirs, levees or other - specialized flood modifying works constructed in conformance with sound engineering standards, "F1oodproqJ7n Any combination of structural and non-structural additions, changes, or adjustments to structures which reduce or eliminate flood damage to real estate or improved real property, water and sanitary facilities, structures and their contents. "Flood-related erosion" The collapse or subsidence of land along the riverine flow line, or banks, the shore of a lake or other body of water as a result of undermining caused by waves or currents of water exceeding normal and anticipated levels or suddenly caused by an unusually high water level in a riverine or lacustrine environment accompanied by a severe storm, or by an unanticipated force of nature, such as a flash flood or an abnormal surge of water from some similarly unusual or unforeseeable event which results in flooding- "FIDod-relaied erosion area management" The operation of an overall program of 0 corrective and preventive measures for reducing flood-related erosion damage, including but not limited to emergency preparedness plans, flood-related erosion control works, and "Floodway encroachment lines" The lines marking the limits of the regulatory floodwaY on Federal, State and City floodplain maps. 0 77 "Floodplain .0evelopment Permit" A permit which must be obtained by any person before any development begins on land within a floodplain. See "Development" and "Encroachment". "Ploo4p,lain management" The operation of an overall program 'bf " corrective and preventive meaktres for reducing flood damage including, but not limited to emergency "Floodplain management area" The combination of all floodplain and regulatory floodways within the jurisdiction of the City, including floodplain land that is not identified on Flood Hazard Boundary Maps or Flood Insurance Rate Maps. "Floodplain management regulations" The zoning ordinances, subdivision regulations, building codes, health regulations, special purpose ordinances (such as this floodplain ordinance), and other applications of police power, The term describes such City, County, State, or Federal regulations, or any combination thereof, which provide standards for the purpose of flood damage prevention and reduction. "Flood Protection system" Those physical structural works for which funds have been authorized, appropriated, and expended and which have been constructed specifically to modify flooding in order to reduce the extent of the area within the City subject to a ° "special flood hazard" and the extent of the depths of associated flooding. Such a system typically includes channel improvements, reservoirs, levees or other - specialized flood modifying works constructed in conformance with sound engineering standards, "F1oodproqJ7n Any combination of structural and non-structural additions, changes, or adjustments to structures which reduce or eliminate flood damage to real estate or improved real property, water and sanitary facilities, structures and their contents. "Flood-related erosion" The collapse or subsidence of land along the riverine flow line, or banks, the shore of a lake or other body of water as a result of undermining caused by waves or currents of water exceeding normal and anticipated levels or suddenly caused by an unusually high water level in a riverine or lacustrine environment accompanied by a severe storm, or by an unanticipated force of nature, such as a flash flood or an abnormal surge of water from some similarly unusual or unforeseeable event which results in flooding- "FIDod-relaied erosion area management" The operation of an overall program of 0 corrective and preventive measures for reducing flood-related erosion damage, including but not limited to emergency preparedness plans, flood-related erosion control works, and "Floodway encroachment lines" The lines marking the limits of the regulatory floodwaY on Federal, State and City floodplain maps. 0 SECTION C. Establishment of a Floodplain Development Permit A Floodplain Development Permit shall be required for all now const development, and encroachment including the pl acemen t o f manu 40mes'A within the floodplain management areas of the City to ensure conformance with th e prOv i S i ons of this ordinance. SECTION D. Penalties for Noncompliance No structure or development of land shall hereafter be constructed, located, extended, converted or altered without full compliance with the terms of this ordinance a o th er applicable regulations. Violation of the provisions of this ordinance by failure to compl with any of its requirements (including violations of conditions and safeguards established in connection, with conditions) shall constitute a misdemeanor. Any person who violates this ordinance or fails to comply with any of its requirements shall upon conviction thereof be fined not more •than five hundred dollars ($500,00) for each violation, be required to correct or remove the noncompliance, and each and every day such violation is continued shall constitute a new and separate violation. Nothing herein contained shall prevent the City from taking such other lawful action as is necessary to prevent or remedy any violation. SECTION E. Repealing Clause Coppell Ordinance No. 94-639 and all provisions of all other ordinances conflicting with the provisions of this ordinance are hereby repealed. All other ordinances and provisions o" such ordinances -lot expressly in conflict with the provisions of this ordinance shall. remain in full force and effect. SECTION F. Abrogation and Greater Restrictions This ordinance is scot intended to repeal, abrogate, or impair any existing easements, covenants or deed restrictions. However, where this ordinance and other ordinances, easements, covenants or deed restrictions conflict or overlap, whichever imposes the more stringent restrictions shall prevail. SECTION G. Interpretation in the interpretation and application of this ordinance, all provisions shall be: I . Considered as minimum requirements; 1 Liberally construed in favor of the governing body, and, 3. Deemed neither to limit nor repeal any other powers granted under State statues, IM V t 12. Make submittals to FEMA in compliance with the provisions of this ordinance and the provisions of44 CFR, 13. Maintain and hold open for public inspection all records including maps, elevation certificates of eligibility, elevations and floodproofing, permits issued, variances, appeals, and so on, as required by or generally pertaining to the provisions of this ordinance. 14. Review and approve or deny all applications for development permits required by adoption of this ordinance, 15. Make interpretations as needed to determine the exact location of the boundaries of floodplain management areas or special flood hazard areas, 16. Notify the affected communities and the Texas Natural Resource Conservation Commission prior to any alteration or relocation of a watercourse, and submit evidence of such notification to the Federal Emergency Management Agency. 1 -!. Obtain and reasonably utilize base flood elevation data and floodway data available from a Federal, State, or other source, when those data have not been provided as outlined in Article 3, Section B, in order to administer the provisions ofAsticle 5. A Floodplain Development Permit shall be required for all new construction, development, and encroachment, including the placement of manufactured homes, within the floodplain management areas of the City. A Floodplain Development Permit will be required for the initial reclamation of all floodplain lands. Application for a Floodplain Development Permit shall be presented to the Floodplain Administrator on City permit forms or facsimiles thereof, which include drawings (to scale) and technical information sufficient to fully support the compliance of the proposed development with the provisions all this ordinance. These data shall include, but are not necessarily limited fo information which demonstrates the effects of such developments on the floodpWn, including impacts on the floodplains, floodways, flood elevations, and velocities within the channel of the 2-year and 100-year mean recurrence interval floods and in the discharges of the effective FIS upstream of, downstream of, and along or through the Show the lowest floor elevated to a minimum of two (2) feet above the FIS base flood elevation or to one (1) foot above the design base flood elevation, whichever is higher. In locations of assumed critical depth, the energy gradient shall be used to establish these respective miry mum lowest floor elevations. M 1 1 11111111 111 111pliq 0111M Ximj!�lj 1111111gliplip 111p I Demonstrate, with technical data, the impacts on the design base flood storage capacity of the flo -odplain for a developments which include fill within th floodplaim Generally, the following requirements shall be met: b. For drainage areas in excess of 100 square miles the valley storage reduction shall not exceed 0% for the 100-year flood and 5%, for the standard project flood, 4. Demonstrate with technical data that the flood carrying capacity within the altered or relocated portion of any watercourse is maintained. Demonstrate with technical data that at any point within the City, the cumulative effect of the proposed development when combined with all other existing and approved proposed developments: a Will not increase the water surface elevations of the design, base flood (fully urbanized watershed), Will not increase the effective FIS base flood (existing condition %vater'shed) elevations by more than one foot, C. Will not increase the base flood water surface elevations of the FIS regulatory floodway in effect at the time of application for a floodplain d evelopment permit; and d. Otherwise meets the provisions of Article 5 of this ordinance. 6_ Prepare technical data for the Floodplain Administratoes review and submittal to the FF*,vfA. Affirm that all necessary permits have been obtained from those Federal (including Section 404 of the Federal Water Pollution Contra] Act), State, and other local governmental agencies from which prior approval is required. SECTION D. Variances 20 • x � _� °�` VM0!WG. PLETTA Plaintiff/Co Vs. 116" JUDICIAL DISTRICT ALBEIT JOHNSON and KATHLEEN JOHNSON, Defendant/Counter-Plaintiff DALLAS COUNTY, TEXAS • 17 We STATE OF TEXAS lfflmmnffl�� Before me, the undersigned authority, on this day personally appeared Michael R, Coker, AICWCB0, who, being by me duly sworn on his oath and stated the following "MY name is Michael R. Coker. I am over the age of 21 years, have never been convicted of a felony or a crime involving moral turpitude, and am fully competent to testify in all respects. I have personal knowledge of all facts set forth herein, and they are all true and correct. I am a Certified Building official (certified by the Council of Ainer Building Officials in October 1981), a Professional Code Administrator (certified by the National Academy of Code Administration in January 1981), a Certified Plans Examiner (certified by the International Conference of Building Officials in June 198 1), a certified Building Inspector (certified by the International Conference of Building Officials in February 1982, and a Certified Land Planner (certified by the American Institute of Certified Planners in July 1989). 1 am co-owner of the Michael R. Coker Company, Inc. a corporation incorporated in Texas, providing land planning and land development services to clients in Texas and throughout the United States. I am familiar with and have experience reviewing documents relating to real property such as deeds, easements, liens, zoning regulations, engineering requirements, design and construction documents, Permitting requirements, including surveys and platting documents, I was engaged to determine the requirements for construction of retaining walls in the City of Coppell, Texas as well as to determine requirements for building and structure setbacks within certain residential zoning districts. Further, I was asked to < determine whether or not there were standards for construction of structures within the FEMA designated floodplain, I was also asked to review the survey prepared by L. Lynn Kadleck to ascertain whether or riot it indicated the encroachment of a retaining wall from Lot 2, Block A of the Creekview Addition, an Addition of the City of Coppell on Lot 1, Block A of the Creekview Addition, an Addition of the City of Coppell. The survey performed, by Kadleck & Associates and dated April 18, 2008 indicates an encroachment of the retaining wall from Lot 2 to Lot I at the northern end of the retaining wall. The survey indicates that the encroachment is 0.2 feet. City of Coppell ordinance number 297-A-63, adopted in August 1989 established the zoning on the subject properties as Planned Development District No-104 with SF-12 residential development requirements (Single Family zoning with a minimum 12,000 square foot lot). This ordinance requires a side yard having a width of not less than ten 0 0) percent of the lot width. The lot width is measured at the Points parallel to the street at the minimum front yard width which 30 feet. In the case of Lot 2, the lot width is 85 feet when measured at the front setback line. This measurement, then, indicates that the required side yard between the property line dividing Lot 2 ftom Lot I is not less than 8.5 feet in width. Section 12-32-3 (2), Special and Additional Regulations for Side yards Every part of a required side yard shall be open and unobstructed except for accessory buildings as permitted herein and the ordinary projections of window sills, belt courses, cornices, and other architectural features not to exceed 12 I inches into inches into Based upon this section of the Coppell City ordinance, a side yard may only have limited encroachments and retaining - walls are not among the listed exceptions. Structures, except for those described in Section 12-32-3 (2) are not allowed in the required side yard. The stone retaining wall is a Structure as defined in the 2003 I.B.0 o Section 1..I definition of "structure" is. "That which is built or constructed" (Section 202), o Section 105.2 Work Exempt from Permit: 1. Retainin—a walk whirhnrp T-tr%+ rvgry A 4 measured from the bottom of the footing to the top of the wall, unless supporting a surcharge. A building permit was required for construction of the retaining wall structure, as per Section 105 of the I.B.C. since the wall exceeds four feet in height. The retaining wall stretches across a portion of Lot 2 at a point approximately 66.92 feet This wall also contains a substantial portion of the soil for the back yard of Lot 2. If a retaining wall supports a surcharge, then a permit is required regardless of its height. 3 The Kadleck survey shows the location of the Floodway Easement, The Floodw iy is that area defined by the Federal Emergency- Management Agency as a no build zone. The Kadleck survey indicate; that the northwestem most portion of the Lot , retaining wall encroaches in to the FEl1 A designated Floodway. A check ofFEMA records reveals that no permit has been re+l«ested nor has one been granted for the construction of the retaining wall in the F°loodwav C "ON LUSt lti There is an encroachment of the retaining wall onto Lot l from Lot 2, 4 Engineering records revealed that no building permit was applied for nor was a permit issued for the construction of the retaining wall Lot 2 has a structure located in the required side Yard where the area is supposed to be clear and unobstructed. A retaining wall in excess of four feet in height from the bottom of the footing to the top of the wall requires a permit to be issued by the City of Coppell, Lot 2 has a retaining wall that exceeds four feet in height. City records indicate that no such permit was applied for nor was a permit issued for the construction of the retaining wall on Lot 2. Survey records reveal that a portion of the retaining wall that was constructed on Lot 2 is in the FEMA, designated floodway. FEMA does not allow construction in the flood ay. FEMA records reflect that no Permit was requested nor was a permit issued by FEMA to construct the retaining wall in the floodway, I IR1111 fj�' zz:qi� 11 111 ILL I