Alexander Ct-CS080417
Page 1 of 1
Ken Griffin
From:
"David T. Ritter" <dritter@toase.com>
To:
"Clay Phillips" <CPHILLIP@ci.coppell.tx.us>, "Ken Griffin"
<KGRIFFIN@ci.coppell.tx.us>
Date:
4/17/2008 12:37 PM
CC:
"Carvan Adkins" <cadkins@toase.com>, "Diane Ferguson"
<dferguson@toase.com>
Attachments:
McMullen.DTR.01.doc
Clay and Ken:
Attached in MS Word format is a draft of the informational letter we plan on sending to the mediator to prepare
him for Monday. Please let me know if you have any changes you would like me to make prior to sending. I will
be out of the office after 2:00, but can be reached on my cell phone (214.403.0954).
Thanks,
David
David T. Ritter
Attorney-at-Law
Taylor, Olson, Adkins, Sralla & Elam, L.L.P.
6000 Western Place, Suite 200
Fort Worth, Texas 76107-4654
Voice: 817.332.2580
Fax: 817.332.4740
dritter@toase.com
file://C:\Documents and Settings\radloo\Local Settings\Temp\XPgrpwise\480744A0City_o...2/22/2010
DAVIDT.RITTER
dritter@toase.com
April 17, 2008
VIA FAX 817.731.7744
Mr. Wade McMullen
6300 Ridglea Place
Suite 509
Fort Worth, Texas 76116
Re: Alexander Court Development Status
Mira Mar Development Corp. V. City of Coppell,
st
Cause No. 07-1151, 101 District Court, Dallas County, Texas
PRIVILEGED AND CONFIDENTIAL
Dear Mr. McMullen:
Pursuant to your letter of February 28, 2008, I am providing this letter in lieu of the
Information Sheet and Request for Mediation form attached to your mediation packet.
1. Plaintiff. The plaintiff is Mira Mar Development Corporation, a Texas
corporation. We anticipate that it will be represented at mediation via its attorney,
Walt L. Leonard of the Law Offices of Walt Leonard, and its president and sole
employee, John Hawkins.
2. Defendant The defendant is the City of Coppell. We anticipate that it will be
represented at mediation via its attorneys in this matter, Carvan E. Adkins and
David T. Ritter of Taylor, Olson, Adkins, Sralla & Elam, L.L.P., and via its
assistant city manager, Clay Phillips, City Attorney David Dodd of Nichols,
Jackson, Dillard, Hager & Smith, L.L.P., and city engineer, Ken Griffin, P.E.
3. Other Parties. There are no other parties involved in this lawsuit at this time.
4. Plaintiff’s Claims and Defenses.
Background
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Plaintiff Mira Mar Development Corporation (“Mira Mar”) is a property
development company involved in a high-end development located in the City of
Coppell, Texas. The development, Alexander Court, consists of 29 lots on +/-
18.5 acres of land. Houses on the lots will be built by David Weekley Homes and
are expected to start at the $900,000+ price point. Mira Mar is managed by its
president, John Hawkins. During interactions with the City of Coppell planning
and engineering staff, Mr. Hawkins adopted an increasingly inflexible and
confrontational posture. This culminated in an August 28, 2007 hearing, in which
he appealed certain fees and planning/engineering requirements to the Coppell
City Council under the provisions of Texas Local Government Code sec. 212.904.
The City Council spent over 90 minutes reviewing Mira Mar’s claims, hearing
from members of City staff, and deliberating. At the conclusion of the hearing, the
City Council awarded Mira Mar some $3000 in relation to a credit balance caused
by a land dedication, and denied the balance of Mira Mar’s claims. In September
2007, Mira Mar filed the instant action. Against this backdrop, the City has
continued to work with Mira Mar in advancing its plat application, however,
nearly every comment or request by City staff has been perceived by Mr.
Hawkins to be punitive attempts to derail the Alexander Court project. After
months of resolving a variety of plat issues, including a boundary dispute with
landowners to the west, securing a letter of map revision (“LOMR”) from the
Federal Emergency Management Agency that allowed development to proceed in
an area formerly designated as a floodplain area, and numerous engineering
th
issues, the Final Plat will be voted on by the Coppell P&Z Board on April 17.
Plaintiff’s Claims
Plaintiff claims, at last count, 27 categories of alleged damages. The City of
Coppell believes that these fall into three general categories, which can be divided
into (1) Impact Fees; (2) Engineering Decisions; and (3) Incidental and Delay
Damages. The terminology and values assigned are those described of Mira Mar;
the City of Coppell disagrees with both the characterization and values of many of
these items, and will be ready to discuss each in detail at the mediation.
(1) Impact Fees: Surveying Fees ($27,000); Engineering Fees
($22,000); Park Fees ($37,265); Roadway Assessment Fees
($18,444); Tree Mitigation Fees ($34,500); Inspection Fees
($27,000); and Water & Sewer Impact Fees ($94,289); .147 Acre
Total Claimed Impact
Land Dedication Exaction ($49,000).
Fees: $309,498
.
(2) Engineering Decisions: Disallowing Rolled Curbs ($40,000); Extra
Drainage Inlets ($14,000); Offsite Public Sidewalk ($17,000);
Raised Building Pads ($5000); Drainage Pipe Headwall Piers and
Rip Rap ($18,200); Extra Sanitary Sewer Manhole ($3500);
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Concrete Lined Roadway Caps ($3000); Screening Wall Columns
($18,000); Retaining Walls and 4:1 Slope Gradients ($52,000);
Duplicate Flood Study ($2000); Water Bacteria Test ($2500);
Extra 16” Water Tap ($4500); Screenwall Planting Plan ($18,000).
Total Claimed Engineering Decisions: $197,700
.
(3) Total Incidental and Delay Damages: Delay in Securing FEMA
LOMR Decision ($16,000); Attorney’s Fees and Administrative
Costs ($55,000); Interest and Late Payment Penalties ($20,000);
.725 Acre Plot Ceded to resolve boundary dispute ($125,000);
Wall Permit and Final Plat Approval Delay ($123,000); Redundant
Floodplain Excavation ($18,000)
Total Claimed Incidental and Delay Damages: $357,000
.
Defendant’s Response
The City of Coppell maintains that:
(1) Only certain claims were validly appealed to the City Council in
accordance with the requirements of Texas Local Government Code sec.
212.904, and many of the other claimed damages are not ripe for
adjudication, as the administrative remedies available to the plaintiff have
not yet been exhausted;
(2) Many of the damages sought by plaintiff do not fall under the definition of
an “exaction” as contemplated by the Texas Supreme Court in Town of
Flower Mound v. Stafford Estates, Ltd., 135 S.W.3d 620 (Tex. 2004), or
its subsequent codification in Texas Local Government Code sec. 212.904.
In these cases, the burden of proof lies with Mira Mar, who has not shown
any evidence that it is likely to prevail on these issues. In regard to many
of the issues, Mira Mar’s retained engineers have differed in opinion with
the City Engineering staff, however, the City feels confident that its
engineering and planning decisions are supported by sound reasoning and
engineering judgment, and there have been no arbitrary or capricious
actions;
(3) Even in the items that clearly fall into the Flower Mound and statutory
“exaction” category, the city has addressed the majority of these claims in
a way consistent with the statutory requirements. Principles of public
purpose and rough proportionality have been adhered to, and the approval
of most items was done directly by the City Engineer; and
(4) Mira Mar’s president has shown a consistent pattern of litigating against
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cities in which he has developed projects. Operating under his former
company, Rischon Development Corporation, Mr. Hawkins sued the City
of Keller, which won at both the trial and appellate levels, and the Texas
Supreme Court recently denied its petition for review. He also has pending
litigation open with Dallas County and a homeowner’s association over a
prior development. In the City of Coppell’s opinion, much of the current
litigation seems driven by personal animus rather than legitimate disputes
regarding business or governmental decisions.
5. Mira Mar seeks monetary relief for city actions that it claims are exactions. In
addition to the entire amount of all impact fees charged by the City, Mira Mar is
seeking what essentially amount to delay damages for the perceived delay caused
by the City in securing the LOMR from FEMA, although the correspondence
from FEMA makes it clear that Mira Mar’s submitted engineering studies and
documentation was deficient. Mira Mar is also seeking recovery from the City for
the claimed value of land it ceded to an adjacent landowner when a boundary
dispute arose.
6. Primary Disputes. The primary disputes are described above in the Plaintiff’s
Claims and Defendant’s response section. In addition, the following disputed
matters of law and fact are at issue:
A. Law – Mira Mar has taken an extreme view of the Flower Mound rough
proportionality statute. They argue that any application of city fee
ordinances violates the rough proportionality requirement, regardless of
the engineering studies or analyses underlying these ordinances. They
have also at times read Texas Local Government Code sec. 212.904 to
require the retention of an outside engineer to validate City decisions. The
City of Coppell maintains that the City’s directly employed City Engineer,
who holds a valid Texas Professional Engineer license, is sufficiently
qualified to satisfy the statutory provisions.
B. Fact – Mira Mar maintains that the City’s August 28, 2007 hearing
violated its due process rights. Mira Mar’s primary complaint was that it
did not have advance notice of the rules of procedure, which had been
adopted that night in response to the appeals request and Texas Local
Government Code sec. 212.904(b). Recognizing this, the Mayor extended
to Mira Mar the option to continue the appeal in order to review the
procedures. Mira Mar declined. The City heard the statements from Mira
Mar’s president and counsel on each appealed item and City Staff
addressed each matter.
7. Discovery. Limited discovery has been done in the case. Both sides have
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exchanged a first set of discovery consisting of Interrogatories, and Requests for
Production. No depositions have yet been taken. Although not a formal discovery
mechanism, the August 28, 2007 hearing also provided an opportunity for the
parties to exchange information and present their positions.
8. A. Information. At this point, the City of Coppell does not possess sufficient
information to form a realistic settlement position that addresses all of
plaintiff’s claims. The respective parties’ positions regarding the “impact
fee” and “engineering decision” categories are well understood; however,
the method by which the claimed amounts were arrived at is still unclear.
In addition, both the logic and amounts claimed under the “incidental and
delay damages,” categories --- the single largest amount --- are not clear. It
was hoped that additional information would be obtained via the discovery
th
responses provided on April 15, however, the stated basis for many of
the demanded damages was not based on any articulible formula or logic,
but instead upon Mr. Hawkins’ “generalized experience of forty years in
the real estate development business”.
B. Last Offers. Mira Mar’s latest tabulation of alleged damages demanded
$864,198. The City of Coppell has not yet made an offer, as the method of
computation for the majority of plaintiff’s alleged damages remains
unclear.
Pursuant to your request for mediation form, the undersigned requests that you act as
mediator in the above-referenced case and represents that the rules of mediation attached to your
packet will be provided to our clients prior to mediation. Furthermore, the undersigned agrees to
comply with the aforementioned rules of mediation.
Please do not hesitate to contact me should you need any further information. I look
forward to meeting you on Monday.
Sincerely,
David T. Ritter
DTR:dkf
Enclosures
3316.064
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April 17, 2008
Page 6
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April 17, 2008
Page 7
bcc: Vivyon Bowman
Director of Admin-HR/Fund Contact
City of Coppell
255 Parkway
P.O. Box 9478
Coppell, Texas 75019
bcc:
Jim Witt
City Manager
City of Coppell
255 Parkway
P.O. Box 9478
Coppell, Texas 75019
bcc:
Clay Phillips
Assistant City Manager
City of Coppell
255 Parkway
P.O. Box 9478
Coppell, Texas 75019
bcc:
Ken Griffin, P.E.
Director of Engineering/Public Works
City of Coppell
255 Parkway
P.O. Box 9478
Coppell, Texas 75019
bcc: Robert Hager
David Dodd
N,J,D,H&S,LLP
ICHOLS ACKSON ILLARD AGER MITH
1800 Lincoln Plaza
500 North Akard
Dallas, Texas 75201
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April 17, 2008
Page 8
bcc: Mike Milvo
TML Intergovernmental Risk Pool
st
1821 Rutherford Lane, 1 Floor
P.O. Box 149194
Austin Texas 78754
RE: Style: Mira Mar Development Corp. v. City of Coppell
Cause No.: 07-11511
TMLIRP Claim No: 0800140451
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