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Payne corresp. re ZC-downsizing T H I= C I T Y * 0 F C-OPPEL£ Planning Depar/ment 255 Parkway Blvd Coppell, Texas 75019 Phone: 972-304-3678 Fax: 972-304-7092 PLANNING DEPARTMENT CONTACT: DIRECT DIAL: Marcie Diamond 972-304-3676 FAX COVER SHEET DATE: April 28, 2003 PAGES: 14 (including cover sheet) TO: Bob Hager cc: Gary Sieb FAX: 214-965-0010 Items Transmitted: Correspondence from one of the property owners whose property is subject to a Planning and Zoning Commission authorized public hearing to rezone from LI to HC. Excerpt from TML Legislative Update, dated April 18, 2003, and a copy of HB 2178 Remarks: On the first item, the P&Z recommended approval of the rezoning because; there was no one to speak in opposition (even though all effected property owners replied in opposition), Mr. Payne only owns 4.2 of the 36 acres being rezoned, and P&Z was of the opinion that the rezoning was appropriate and that during the next 30 days the property owners would not change their mind, so they proceeded with this one case, and pretty much tabled the rest of the cases. I did however, make a presentation and we had a public hearing, contrary to Mr. Payne's accusations. On the second item... I assume if we finish the rezoning prior to this becoming law ( if it does) then there will not be a retroactive clause attached that could effect us. Please call so we can discuss, Thanks If you have any questions or would like additional information, please contact me at 972-304-3676 or e- mail at mdiamond~,ci.coppell.tx.us. 0.4/28/03 M0N 14:59 FAX 214 745 5881 WS~ FLOOR 45 UNIT A ~002 W NSTEAD April 28, 2003 direct dial: 214.745.5129 rpayne~winstead.oom Ms. Maxcie Diamond Planning & Zoning Department City of Coppell P. O. Box 9478 Coppell, Texas 75019-9478 via Facsimile Re: Case No. ZC 614(CH) Dear Marcie: As mentioned in my telephone call today~ we think we should have had the right to a Planning & Zoning hearing instead ora City Council heating on May 13, 2003. Enclosed for your comments is a draft of our response to the City Council if one has to be made. Before filing it, I would appreciate your comments. Can't we, by agreement, ret-am it to the Planning & Zoning Committee? Very truly yours, Robert B. Payne RBP:rlw Enclosure 5400 RENAISSANCE TOWER PH 214,745.5400 [ WINST/SAD SUC~RF.$T &' MINICK [ A~tin, Dallas, Fort Worth, 04/28/03 MON 15:00 FAX 214 745 5881 WSM FLOOR 45 UNIT A ~003 Case #ZC 614(CH) Response to the City by Property Owners Robert B. Payne, et al. The undersigned property owners (the "Property Owners") file this their response to the City Council for Coppell, Texas, concerning the above proceeding, for hearing presently set for May 13, 2003. Failure to Grant Property Owners the Right of a Hearing Before the Planning & Zoning Commission-- Request for Hearing Before Planning & Zoning Commission 1. The Property Owners have not had the right to a hearing on this case before the Planning & Zoning Commission. The Property Owners appropriately requested a continuance before the Planning & Zoning commission (Attachment "1"). After consultation with the staff, the extension was seemingly granted (Attachment "2"). Nevertheless, no hearing was ultimately held before the Planning & Zoning Commission. Instead, the matter was sent direct to the City Council and is set for appearance before the City Council on May 13, 2003 (Attachment 3). Objection is therefor made to such a procedure and request is made to return this proceeding to Planning & Zoning Commission. The Flawed Staff Report 2. Attached is a copy of the Staff Report. The Staff Report is fundamentally flawed. For reasons previously explained to the staff, the plat attached to the Staff Report is misleading. Such attempted rezoning of the subject tract completely ignores the fact that the subject tract is directly adjacent, along its entire length, to the lands subject to the jurisdiction of the City of Lewisville, Texas, located to the north thereof. Any zoning of the subject tract, and any 04/28/03 NON 15:00 FAX 214 745 5881 WSM FLOOR 45 UNIT A ~004 development on the subject tract, must be attempted only upon prior consultation with the City of Lewisville and such adjacent property owners in that city. Accordingly, this action must be returned to the Planning & Zoning Committee for appropriate action. Material Misstatements in Staff Report 3. The Staff Report states that the present zoning permits a variety of uses which are part of the highest and best use for this "high visible comdor". Nevertheless, under the paragraph headed "Surrounding Land Use & Zoning", the report states that to the "East" is "Coppell Greens; PD-134R-SF-7". Further, the Staff Report (page 3 of 4) states that "this property abuts Coppell Greens, a single-family development". Such statements are false. In actual fact, to the East of the subject property and abutting the same, is a very tall and large cement plant! In fact, such lands located in Coppell Greens are ~eparated from the subject property by such a large cement plant. The Planning & Zoning Commission must be afforded the right to consider this matter. Conclusion Petitioners pray that such cause be sent to the Planning & Zoning Commission and Petitioners granted such other and further relief as they may be entitled. Respectfully submitted, By: Robert B. Payne Individually and as an Agent and Attorney for Those Property Owners listed on the Next Page Hereof 5400 Renaissance Tower 1201 Elm Street 04/28/03 M0N 15:00 FAX 214 745 5881 WSM FLOOR 45 UNIT A ~005 Dallas, Texas 75270-2199 Telephone: (214) 745-5129 Facsimile: (214) 745-5881 DALLAS IX3806249\1 04/28/03 M0N 15:01 FAX 214 745 5881 WSM FLOOR 45 UNIT A ~006 W NSTEAD April 15, 2003 direct dial: 214.745.5129 tpayne,~wiustead.com Ms. Marcie Diamond City of Coppell P. O. Box 9478 Coppell, Texas 75019 Re: Cases ZC-613(CH) and ZC-614(CH) Dear Marcie: Confirming my telephone call of a few minutes ago, I will be out-of-town on Thursday and request a postponement of the hearing on Thursday night for Items 17 and 18 until the May 15, 2003 Planning & Zoning meeting. Please respond to fax number 214.745.5881. Thanks. Very truly yours, Robert B. Payne RBP:rlw DALLokS_ 1~3800989\1 1821%10 04415/20113 Attachment 1 04/28/03 NON 15:01 FAX 214 745 5881 WSM FLOOR 45 UNIT A ~007 W NSTE FILE COPY April 16, 2003 direct dial: 214.745.5129 rpayne~winstead.com Ms. Marcie Diamond City of Coppell P. O. Box 9478 Coppell, Texas 75019 Re: Cases ZC-613(CH) and ZC-614(CH) Dear Mareie: Thank you for the 30-day extension. As mentioned, I have no intent to file any permit for development on this property within the next 60-90 days. Please fax back your okay. Thanks. Very truly yours, Robert B. Payne RBP:rlw DALLAS_Ik3801618\1 Attachment 2 5400 R.ENAiSSANCE TOWER PH 214.745.5400 I W[NSTEADSECH[I'E$1'&MJNIC{( I AuStin. Dallax, Fort Worth, ~4/28/03 MON 15:01 FAX 214 745 5881 WSM FLOOR 45 UNIT A ~008 COPPELL April 21, 2003 Greens West Developmem, L.C. P.O. Box 129 Lewisville, Texas 75067-0129 Dot V. Turner 148 Cedar Drive Lewisville, TX 75077-6902 Flournoy, Mary Sue Et Al 516 Main St W Mo~t Vernon, TX 75457-2210 FRWM~n¢/ PO Box 6173 San Antonio, TX 78209-0173 Texas Industries Inc. 1341 W Mockingbird Ln, Suite 700 Dallas, TX 75247-6913 Robert B.Payne 5400 Renaissance Tower i201 Elm Street Dallas, TX 75270-2102 Carol AnnHowsley AndreaLane Howsley P.O. Box 700056 Dallas, TX75370-00056 RE: ZC-614(CH} To Whom It May Concern: This letter is to inform you that an amendment to the Land Use Plan of the 1996 Comprehensive Master Plan from Light Industrial/Showroom to Freeway Commercial, and consideration of Case No. ZC- 614(CH), zoning change from LI (Light Industrial) to HC (Highway Commercial) on approximately 36.11 acres of property located north of S.H. 121, between Business S.H. 121 and Coppell Greens, were recommended for approval by the Coppell Planning and Zoning Commission on Thursday, April 17, 2003. The date scheduled for consideration by the Coppell City Council is Tuesday, May 13, 2003, at 7 p.m. in Council Chambers at City Hall. If you have any questions, please contact the Planning Department at (972) 304-3678. Sincerely, Marcie Diamond Assistant Director of Planning Cc Building Inspection File Attachment 3 B[ffl.nERS ARE ROUTINELY AL[OWED TO MAKE WIl.n ALLEGATIONS AGAINST CFFIES Almost every week, Texas builders and developers descend on the Texas Capitol to testify for bills that are designed to gut municipal regulation of development. This is perfectly understandable; for obvious reasons, some builders and developers wish to be totally fi'ee from municipal regulations. What is not so understandable is the willingness of legislators to allow these b~.ilders/developers to make outlandish accusations against city officials without one shred of evidence that such accusations are based in fact. Here are some examples: The purpose (of down-zoning) is either to limit or eliminate affordable housing. Lots of times it is to get rid of multi-family .... It is extremely difficult for any builder or developer to litigate against a municipality just for fear of retribution.., the fear is that if you are hostile to that municipality - not even to the extent of retribution, just being vocal and outspoken in front of a city council or critiquing staff- that you will be subjected to retribution. Actually, just the opposite is tree. When builders and developers don't get exactly what they want when they want it from city officials, they seek retribution...through the legislature. DETRIMENTAL ZONING BII.I. AUTHOR COMPARES REZONING TO MURDER. The House Land and Resource Management Committee has approved H.B. 2178, a bill that would require a city to compensate a property owner for a change in zoning classification that results in a reduction of more than ten percent in the r ' p operty s value, unless the owner of the property consents to the change. Last week's TML Legislative Update reported extensively on this bill. The bill would also allow, in lieu of compensation, a prevailing property owner to develop th, e property under the zoning rules that applied to the property before the change in the property s zoning classification and require a city to waive any fees associated with the development of the property, including application fees and impact fees. House Bill 2178 is sponsored by Representative Anna Mowery (R-Fort Worth), who is also the chair of the House Land and Resource Management Committee. In describing her bill to the other committee members, she said: This is a preventative bill. It's just like the bills we have against murder. We don't want murder to happen; we don't want downzoning to happen. If downzoning occurs, it occurs only at the request of the owner ... It's a property right. This bill has been sent to the House Calendars Committee. City officials should flood House and Senate offices urging the defeat of H.B. 2178. TML believes that the legislature is moving far too quickly and precipitously on a bill that has far-reaching implications for community development. The League is urging the legislature to do an in-depth interim study of this issue, but to defeat H.B. 2178 in its present form. 3 April 9, 2003 HB 2178 (Mowery) This morning the Land and Resource Management Committee of the Texas House favorably passed (unchanged) this Bill that relates to the authority of the governing body of a municipality to change previously adopted zoning regulations. The Bill could require a City to financially compensate a property owner for the rezoning of their property, when they object and the loss in property value exceeds 10% of its worth. On April 2, 2003, the author of the bill, Representative Anna Mowery from District 97 (Fort Worth-Benbrook Area), described her bill as follows: "This is a preventative bilL..its just like the bills we have against murder. We don't want murder to happen. We don't want downzonings to happen. We want...if down zoning occurs, it occurs only at the request of the owner...it's a property right...." The proposed Bill reads as follows: 78R8290 AKH-D By: Mowery H.B. No. 2178 A BILL TO BE ENTITLED AN ACT relating to the authority of the governing body of a municipality to change previously adopted zoning regulations. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Section 211.003, Local Government Code, is amended by adding Subsection (d) to read as follows: (d~ Notwithstanding any other provision of this subchapter, the governing body of a municipality may not change the zoning classification of a property that results in a diminution of more than 10 percent of the property's value unless: (1') the owner of the property: (Al waives any right to ob!ect to the proposed change; or (BI fails to file with the governing body before the 90th day after the date the ~overning body notifies the property owner of the date the governing body will vote on the proposed change under Section 211.006: (ii a written statement objecting to the proposed change under this section; and (ii) a copy of an appraisal report by a state certified or licensed appraiser that states the appraiser's opinion of the value of the property before and after the proposed change in the zoning classification; or (2~ the ~overnin~ body compensates the property owner for the diminution in value resulting from the change as determined (A~ an agreement with the property owner; or (B~ a proceedin~ ~overned bv Chapter 21, Property Code. SECTION 2. Subchapter A, Chapter 21, Property Code, is amended by amending Section 21.003 and adding Section 21.004 to read as follows: Sec. 21.003. DISTRICT COURT AUTHORITY. A district court may determine all issues, including the authority to condemn property and the assessment of damages, in any suit filed under this chapter and any suit filed: (1) in which this state, a political subdivision of this state, a person, an association of persons, or a corporation is a party; and (2) that involves a claim for property or for damages to property occupied by the party under the party's eminent domain authority or for an injunction to prevent the party from entering or using the property under the party's eminent domain authority. Sec. 21.004. PROCEEDINGS REGARDING CHANGE OF ZONING CLASSIFICATION. (a~ A oroceeding filed under this chapter for the puroose of determining the diminution of a property's value under Section 211.003(d/. Local Government Code, is a condemnation or eminent domain proceedin~ under this chapter for the sole purpose of satisfying the procedures required by this chapter. (b~ In a proceeding described by Subsection fa), the condemnor or acquiring entity is the municipality, the condemned property is the orooertv for which the zoning is to be reclassified, and the condemnation is the change in the property's zoning classification. lc') The special commissioners or district court, as aooropriate, may determine all issues related to a proceeding under this section. (d) Not later than the lOth day before the date the condemnation proceeding begins, each party shall provide to the other parties a coov of each aopraisal report supporting that party's opinion of any diminution of value. (e} The municipality may change the property's zoning classification after the special commissioners have made an award as prescribed bv Section 21.021. SECTION 3. Subchapter B, Chapter 21, Property Code, is amended by adding Section 21.0121 to read as follows: Sec. 21.0121. CONDEMNATION PETITION RELATING TO ZONING CLASSIFICATION. (a~ If the ~overnin~ body of a municipality or a political subdivision of this state wants to change a property's zoning classification but is unable to agree with the owner of the oropertv on the amount of damages, the condemning entity mav begin a condemnation proceedincz by filin~ a oetition in the proper court. (bi The petition must: (1~ describe the property to be reclassified under a different zoning classification; (2~ state the purpose for which the property's zoning is to be changed: (3~ state the name of the owner of the property if the owner is known; and (4) state that the entity and the property owner are unable to a§ree on the damages. SECTION 4. The heading of Section 21.021, Property Code, is amended to read as follows: Sec. 2:]..02:].. POSSESSION PENDING LITIGATION; ZONING RECLASSIFICATION. SECTION 5. Section 21.021(a), Property Code, is amended to read as follows: (a) After the special commissioners have made an award in a condemnation proceeding, except as provided by Subsection (c) of this section, the condemnor may take possession of the condemned property or change the zoning classification of the property pending the results of further litigation if the condemnor: (1) pays to the property owner the amount of damages and costs awarded by the special commissioners or deposits that amount of money with the court subject to the order of the property owner; (2) deposits with the court either the amount of money awarded by the special commissioners as damages or a surety bond in the same amount issued by a surety company qualified to do business in this state, conditioned to secure the payment of an award of damages by the court in excess of the award of the special commissioners; and (3) executes a bond that has two or more good and solvent sureties approved by the judge of the court in which the proceeding is pending and conditioned to secure the payment of additional costs that may be awarded to the property owner by the trial court or on appeal. SECTION 6. Section 21.047, Property Code, is amended by amending Subsection (a) and adding Subsection (d) to read as follows: (a) Special commissioners shall [may] adjudge the costs of an eminent domain proceeding as follows: [~.gc. lnst ~ny p~rty.] (1) if [t~] the commissioners award greater damages than the condemnor offered to pay before the proceedings began or if the decision of the commissioners is appealed and a court awards greater damages than the commissioners awarded, the condemnor shall pay [aH] costs and reasonable and necessary attorney's fees; or[:] (2) if [~4] the commissioners' award or the court's determination of the damages is less than or equal to the amount the condemnor offered before proceedings began, the court may require the property owner to [sh~',',] pay the costs. (d) This section governs a proceeding filed under this chapter, including a oroceeding filed for the purpose of determining the diminution of a oropertv's value under Section 211.003(d~. Local Government Code. SECTION 7. Subchapter C, Chapter 21, Property Code, is amended by adding Section 21.0485 to read as follows: Sec. 21.0485. PAYMENT OF DAMAGES BYCONDEMNOR. (a) This section applies to a property owner who prevails in a suit filed under this chapter, includin~ a proceeding, filed under this chapter for the purpose of determining, the diminution of a property's value under Section 211.003('d), Local Government Code. (b) The condemnor shall pa,/the full amount of the court or commissioners' award not later than the second anniversary of th~ date the Judgment is final or all appeals have been exhausted, whichever is later. SECTION 8. Subchapter D, Chapter 21, Property Code, is amended by adding Section 21.066 to read as follows: Sec. 21.066. PREVAILING PROPERTY OWNER; DEVELOPMENT OF CERTAIN PROPERTY. Instead of enforcing a judgment under this chapter, a property owner who prevails in a proceeding' filed under this chapter for the purpose of determining the diminution of a prooerty's value under Section 211.003(d), Local Government Code, may develop the property under the zoning rules that applied to the property before the change in the property's zonin~ classification. The municipality shall authorize the development according to regulations prescribed by that zoning classification and waive any fee associated with the development of the property, including a[}plication and impact fees, and any pro rata changes. SECTION 9. (a) Sections 21.0485 and 21.066, Property Code, as added by this Act, apply to a suit or proceeding filed under Chapter 21, Property Code, that is pending in a trial or appellate court on September 1, 2003. (b) This Act takes effect September 1, 2003.