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U-Haul/SPAm-CS000925 (2)S~EP 25 2000 15:0S FR NICHOLS JACKSON DILLA4 965 0010 TO 9723047092 P.01×05 NICHOLS, JACKSON, DILLARD, HAGER & SMITH, L.L.P. 1800 Lincoln PIs~s 500 North Aka. rd Dallas, Texas 75201 (214)965-9900 (214)965-0010 FAX SEP 2 5 2000 FACSIMILE COVER SHEET PLEASE DELIVER THE FOLLOWING TO: NAME: Ms. Barbara Wolenty Mr. Jim Witt Mr. Gary Sieb COMPANY: Robinson &WOt, ENTY City of Coppell Coppell Planning Dept. FAX NO.: 317-587-7829 972-304~7063 972-304-7092 DATE: September 25, 2000 FROM: Robert E. Hager TRANSMITTED BY: Cindy Brown NUMBER OF PAGES (Including Cover Sheet): COMMENTS: Denton Tap Development THE INFOItaMATION CONTAINED IN THIS FACSIMILE I$ A'ITORNEY PRIVILEGED AND CONFIDENTIAL [NFOP, aMATION INTENDED FOR THE USE OF THE INDIVIDUAL OR ENTITY NAMED ABOVE. IF THE RECIPf~'NT I~ NOT THE INTENDI~D RECIPIENT, YOU ARE I-I~RI~BY NOTIFIED THAT ANY DISTRIBUTION, D[$SEMINATION OK COPYING OF THIS COMMUNICATION I$ STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS IS ERROR, PLEASE NOTIFY US IMMEDIATELY BY PHONE AND RETURN THE 0RIGINAL MESSAGE TO US AT THE ABOVE ADDRESS VIA THE U.S. POSTAL SEP. V[CE. SEP 25 2000 15:09 FR NICHOLS JACKSON DILLA4 965 0010 TO 9723047092 P.02/05 Robert E. Hager E~mail: rhager~jdhs.com NICHOLS, JACKSON, DILLARD, }lAGER & SMITH, L.L.P. Attorr~ys & Counselors at I~w 1800 Lincoln Plaza D~ll~, Texas 75201 (2~4) 965-9900 F~x (21,~) 965-0010 E-mail NYDHS ~NYDH,.q.com FIO~Em' L. DLI, XI~, Jl~. t4. LO~J~ NI~HOL~ LAW~I~qCE W. J~ Og September 25, 2000 VIA FACSIMILE (317) 587-7829 Ms, Barbara A. Wolenty ROBINSON & WOLENTE LLC 8888 Keystone Crossing Suite 710 Indianapolis, Indiana 46240 RE: U-Haul Site Plan Review Dear Ms. Wolenty: We are in receipt of your letter of Friday, September 22, 2000, concerning our letter of September 21, 2000 concerning the application of U-Haul for their site plan review before the Planning and Zoning Commission. Please be advised that the letter we dictated was to memorialize the position of our client concerning the proposal that had been presented to us and the request of September 19, 2000 by U-Haul for a continuance. As we personally indicated to you, in keeping with our duties to our client, we could not accept a letter but needed evidence that in fact U-Haul had reinstated the contract. We indicated to you that we had concerns about why a continuance was necessary in this case. Mr. Anderson, who represents U-Haul, is an experience land use attorney and can determine the best course of action to take no matter what the outcome was before the Planning and Zoning Commission. We reiterate to you that the Commission had three (3) alternatives to consider at their meeting of Thursday, September 21, 2000, concerning the site plan review of the U-Haul site, as follows: '1. They could approve the site plan per the recommendations of the staff or with alterations as they saw appropriate based on the site plan and ordinances with regard to Light Industrial CLI") regulations. They could.continue the case for a period of time, which was acceptable to the Planning and Zoning Commission concerning modifications, if any, to the site plan. sEP 25 2000 15:0S FR NICHOLS JACKSON DILLA4 SG5 0010 TO 97230470S2 P.03/05 Ms. Barbara A, Wolenty ROBINSON & F~OLENT~. ££C September 25, 2000 Page 2 They could deny thc plan based on appropriate health, safety and welfare concerns. Mr. Anderson knows what course of action, given that the Commission may follow any of those three (3) alternatives. We did state to you during the course of our telephone conversation that without proof that the owners of the property had given the proper authority to U-Haul or their subsidiaries concerning this site that we had grave concerns about whether or not a site plan review could go forward, or that the Planning and Zoning Commission could entertain a request for a continuance. We further indicated to you that if proof of ownership or authority were properly provided to us, the request for a continuance would be entertained. In fact, that request was honored and considered by the Planning and Zoning Commission. They, in their wisdom, declined to make alterations or to grant an extension and denied the site plan, Again we reiterate that Mr. Anderson knows the alternatives that he can undertake to address the issue of denial of the site plan. The fact that the zoning will be considered at the first City Council meeting in October has no immediate impact on the U-Haul site with regard to U-Haul's application for site plan review, Again, we discussed those issues surrounding the change in zoning and how it would or would not impact U-Haul's application for site plan review. Further, we indicated without U-Haul having any interest in this particular site, the opportunity for a vested rights argument was gravely limited or non-existent in our opinion. The select/on on how to proceed in this matter was a decision that your client needed to make in order to do what was in their best interest. With all due respect, it is not our duty or responsibility to predict what the outcome of any action would be before a legislative or quasi- legislative body of the City. The prerogatives of the City Council and the Planning and Zoning Commission within the bounds of the law are reserved for them. Whether or not either one of us would personally agree with their method or manner of handling an issue, if it is within the bounds of the law and recognized as their legislative discretion, could be debated. However, there can be no bad faith or "lack of good faith" concerning their legislative prerogative if the matter is within their discretion. The law in Texas is very clear regarding the discretion afforded the Planning and Zoning Commission and the City Council concerning their statutorily recognized legislative authority. This is particularly true in the area of land use regulations. There are statutory limitations through the Vested Rights statute and those rights were honored at all times during the course of the legislative proceedings concerning the application of U-Haul. Despite the fact that the outcome was not favorable in terms of your client does not necessarily infer that there was a "lack of good faith" or that there was any misunderstanding or misrepresentations on our part in discussing these issues with you, In discussing this matter with you in a telephone conversation on Wednesday evening, we recall that we would not predict the outcome of this matter but that we could assure you that without proper proof that the contract had either been reinstated or that specific authority had been given to U-Haul or their subsidiaries, that a continuance would not be proper. It is our 36215 S~P 25 2000 15:10 FR NICHOLS JACKSON DILLA4 gG5 0010 TO g723047092 P.04×05 Ms. Barbara A. Wolenty ROBINSON & WOLENT}5. LLC September 25, 2000 Page 3 understanding of the law that only the owner or those with clear authority acting on his behalf are authorized to proceed under our zoning ordinances and under the laws of the State of Texas. If we created any impression that such a continuance would be given we apologize but it is our belief that we cleaxly went out of our way to make sure that you understood that there would be no promise of any outcome concerning the continuance or the outcome 0~) site plan review. While reasonable minds may differ regarding the reasons for the Commission's actions based on their perspective, it is our position that the Commission acted within the bounds of the law based on adequate safety, health and welfare concerns under the applicable zoning regulations for the "LI" district, that we have honored the Vested Rights statute and that we acted in good faith in accordance with the ordinances of the City of Coppell and the statutes of the state of Texas. While we recognize your right to take whatever action you deem appropriate, we steadfastly deny any improper action on the part of the Planning and Zoning Commission, the City Council, or any member or agent of the City of Coppell in this matter and we have acted in good fa/th in accordance with our statutory duties. That is not to say that we did not attempt to work out a solution that was mutually agreeable to both of our clients. Sadly, we were unable to reach such resolution. However, that does not either infer or result in an act of bad faith. It may be that we are disappointed in each others actions but to bandy about the accusations of bad faith does not make it so. We were very careful in handling this matter and we treated U-Haul and members of the Denton Tap Development LLC with the same consideration of other persons under like circumstances. Due to the uniqueness of property and the circumstances of individual cases as they come before the Planning and Zoning Commission and the City Council what may appear to be inconsistent behavior is totally consistent given the facts and circumstances of each of those cases. Without elaborating any further on this matter, it our understanding that there were serious concerns with the Fire Marshall's comments regarding this application. Moreover, it appears that no one from U-Haul responded to the concerns of the Fire Marshall at the time of or during the Planning and Zoning Commission meeting. Despite Mr. Anderson's representation that those matters would be corrected, the Commission felt that it would be improper to do so based on the promise of a representative of U-Haul without written proof and without staff review. This type of action is neither outrageous or lacks in good faith but recognizes that those matters must be corrected before any further action could be taken. The Commission was within its rights to do so and elected to decline further review to such time as those matters had been properly presented before the staff for their comments, the comments of the Fire Marshall and a proper application for site plan review. We apologize for getting the letter to you late but we waited as long as we possibly could to start dictating the letter in order to obtain the information we needed to move forward on our part. It is clear that Mr. Anderson did plan to attend the meeting and we were merely advising you that it would be advisable to do so if he talked to you at any time prior to that. We apologize for not calling you back sooner or calling you late on Thursday night, however, your client through the representation of Mr. David Bunnell was present and we assumed, apparently incorrectly, that he would contact either Mr. Urbahns or that Mr. Burmell himself would call to 36215 SDP 25 2000 15:10 FR NICHOLS JACKSON DILLA4 965 0010 TO 9723047092 P.05/05 Ms. Barbara A. Wolenty ROBINSON & WOL£NTE, LLC September :25, 2000 Page 4 converse with you about this subject matter. Again, we apologize and if someone from the Development Corporation had not appeared we would have called you. However, knowing that both Mr. Anderson and Mr. Burmell were both present, we felt it unnecessary. If we have misrepresented ourselves based on your understanding, again we apologize. This was not our intent. If you have any questions please contact us at your convenience. Very truly yours, NICHOLS, JACKSON, DILLARD, REH/cdb CC: Mr. Sim Witt Mr. Gary Sieb VIA FAX VIA FAX 36215