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Appeal Letter SEP~19-2007 02:02 PM WALTER W. LEONARD 8173350932 P.02 WALTER W. LEONARD AITORNEY AT LAW ONE SUMMIT AVENUE SUITE 1010 FORT WORTH. TeXAS 76102 e17.336-e536 FAX B17.33S.0g32 EMAll.: wwlfwlBwOluno,eom September 19, 2007 Mayor Doug Stover and Members of the City COlU'lcil 255 Parkway Boulevard Coppell, Texas 75019 VIA FAX NO.: 972/304-3673 AND VIA REGULAR U.S. MAIL RE: Alexander Court Project, Mira Mar Development Dear Mayor Stover and Members of the Council : This letter is to follow up the Council's general action to deny the requests for an appeal from several decisions by City staff by Mr. John Hawkins on behalf of Mira Mar Development and the Alexander Court proj ect. As you are certainly aware, the gist of the appeal was on two (2) levels. We were appealing certain items based upon what we felt was simple rationality since everyone seemed to be in basic agreement as to the circumstances of what was being done and we also had an appeal based upon recent rules that have been handed down by the Supreme Court of Texas and the Texas Legislature requiring that fees, dedications and other requirements by cities which are necessary for the approval of developments be justified on at least a system of rough proportionality and possibly even more strict equality under the Texas Constitution. These matters were those which we generally raised in our letter which was handed out to the Council prior to the meeting and a copy of which I am enclosing with this letter for your convenience. First of all, we appreciate the City's consideration in making sure that we are given full credit for the land which was dedicated to the City and the City's action of ensuring that the balance of three thousand, two hundred sixty-six dollars ($3,266.00) be credited to the applicant was obviously a proper act and we appreciate the City's action. One point which does not seem to be appreciated, however, was that we still have serious questions as to whether the fundamental fee against which that was being applied is supported by any of the requirements of State law and, to date, we have still seen no such documentary or other support. . I am also enclosing a copy of a correspondence which we received this day in response to one by which we had inquired whether or not it might be possible to work out some sort of accommodation with regards to the dirt work in the area of the flood plain which everyone still agrees will be modified and about which we are all in basic agreement as to the more or less precise location. Our studies, the City's consultant's studies and the City's own previous studies have all shown that the flood plain will be changed and will be changed in' more or less the same manner. SEP-19-2007 02:02 PM WALTER W. LEONARD 8173350932 P.03 Mayor Stover & Members of the Council September 19, 2007 Page 2 We had sent a further request after the City's refusal to allow any such work asking that we at least be allowed to begin work in areWl in which everyone still fully concedes that such matters will be corrected upon finalization of the technical paperwork issues that still remain to be resolved with the Corps. By the way. we have been just infonned that the Corps has finally sent us the model which it seems to wish us to use although all the engineers in this case, including those recommended by the City, have not felt was absolutely necessary but about which we were ordered to stop work until such was obtained. Obviously we were quite disappointed by the staff's attitude towards this matter. We do not feel this was simply a reiteration of the matters which were brought to the attention of the Council. We were asking here for a waiver by staff of its rules with regards to an area in which everyone fully agrees that there will be a modification and only to the extent of which everyone currently agrees there will be a modification. The request sought from the Council was with regards to the specific provisions of our request and included the full amount which was being asked for (which a modification was being requested from the Corps of Engineers ), and this was after the over two (2) month delay caused by the City's insistence, outside the ordinance requirements. for a Kimley- Horn study which basically duplicated that of our engineers and information the City already had. We would further observe that this is all becoming rather difficult because there seems to be developing an adversarial position with regards to this development and it has become very difficult to deal with certain members of City staff and we would like to indicate our wish to correct this situation and to continue with this project in a way that is beneficial to everyone. As I believe we made very clear at the hearing, the developer has specifically agreed to all the requests made by the City. The appeal and request that were forwarded to the Council were simply an indication that there were some areas in which we felt that some of the requirements were inappropriate or unsubstantiated and that we asked that they be reviewed and corrected. Nonetheless, we seem to be placed in a position in which those who were attempting to evade compliance with the City's requirements might fmd themselves placed and being treated accordingly. This is not the position that we have taken but it is extremely disappointing to find that such is being imposed upon us. With regard to some of the requirements that the City has imposed based upon its own perceived needs and requirements of its engineer, we would like to file this dissent. As we indicated in our discussion that evening, we feel that items such as a sidewalk - which we were forbidden from pointing out further to the City is also on private property - will not be needed in any cognizable time, serves no particular purpose for the development and does not answer a specific need held by the City and actually goes to nowhere at the present time. Other matters such as the slopes and rolled curbs are matters which the City has completely failed to show any specific requirement generated by this particular development that requires these particular activities or requirements and such is certainly required by the law not only as promulgated by the Legislature but as pronoW1ced by both Federal and State courts under both the Federal and State Constitutions. In fact, the law under the courts is far more extensive and strict than that simple action by the Legislature and which was the basis - in part - for our hearing. SEP~19-2007 02:03 PM WALTER W. LEONARD 8173350932 P.04 Mayor Stover & Members of the Council September 19,2007 Page 3 With regards to development requirements such as the tree mitigation, the sidewalk concrete caps, the park fee, the roadway fees and so forth, we still are awaiting a specific individualized determination as to the ~sentia1 nexus of these requirements to a need, an individual determination as to the rough proportionality of these requirements and the demand placed upon the system as a whole by this particular project. Both statutory and constitutional law require these and we have heard nothing to that effect. In truth, what we have heard is testimony by City staff as to these being standard procedures, that they are enacted according to very standardized and mechanically enforced rules and that there was in fact no individual determination. As such, we have to propose to the COWlcil that this action is quite illegal and unsubstantiated both in terms of statutory and constitutional law under both the State and Federal Constitutions as well as a failure to meet the basic minimal requirements of the statutory requirement which was to approve and enact at least part of the rulings of the Flower Mound case. In all such cases as this, the burden is on the City to justify these demands and there is certainly no exemption for statutes or ordinances uniformly applied if they are not linked into the system required by the courts and the Constitution. This is further Wlderscored by the rules and regulations of the City of Dallas which has considered exactly the same legal requirements (I might also note that Dallas is not widely known as being excessively friendly and compatible with those with whom they deal) and they clearly and specifically accept and underscore these positions and require actions on behalf of their staff and Council in compliance with these new laws and these are certainly in line with information I have provided to the cities for which I act as Attorney. As 8UC~ we must submit that the City of Coppell has completely failed to meet these requirements. It has not made any 80rt of connection between the City's requirements and the requirements of the law other than to have a recitation that these are based upon standard rules and there certainly has been no showing of individual determination or other such materials which could be reviewed by any other court even under the fairly limited rules of the State statute. We must further complain about the procedures of the hearing itself. As the record reflects and as you are aware, we were much dismayed to find, after we had been told only that the rules would be basically following some sort of standard public hearing format., that we would not be given even the normal constitutional requirements of reasonable opportunity to be heard and to confront adverse information. We would like to point out that there are several things in which we were disappointed by not being able to rebut some of the statements made by staff. For example, the sidewalk about which we have raised questions was placed on an easement on the property not in the public road right-of~ SEP-19-2007 02:03 PM WALTER W. LEONARD 8173350932 P.05 Mayor Stover & Members of the Council September 19, 2007 Page 4 way. The sidewalk was not only placed upon the property but there was a demand that it be paid for as well. The screening wall was not placed in the City right-of -way as was stated but was in fact on a line ten feet (10') west of and parallel to the east property line common to a ten foot (10') Verizon telephone easement and a contiguous ten foot (10') wide sanitary sewer easement both of which were on the property itself. The wall in question will not conflict with either utility and was certainly the most practical place to put it. Unfortunately, on the night in question, we were presented with a circumstance in which the Council was passing a set of roles and regulations which we had never seen, about which we received no prior warning or information and about which we were not even given a copy during the hearing itself yet apparently these were enacted to be used at the hearing. Furthennore, we were even more dismayed when we attempted to ask for an opportunity to rebut or ask questions of those who furnished information to the Council on behalf of staff and were told that we could not do so or even make a proper record of objections or questions. The most fundamental requirements of any sort of due process hearing allows us to confront and rebut such items and if such was not to be done then there should be some sort of provision of some sort of warning of such matter and we certainly were not given any of those constitutional courtesies and there were many questions which were not allowed which might have even conceivably cleared up some of the problems with the City's own hearing procedures but we were not allowed to ask questions as to how these arbitrary rulings by staff were determined, how the City derived its conclusions, correct any falsehoods or misinfonnation, et cetera. All of these are essential for determining whether or not any sort of analysis was made such as is mandated by law and we were certainly not allowed any opportunity to confront any of our "accusers" with regards to various allegations which were made and which we believe to be incorrect or incomplete. As a result, the City's own procedures certainly fail to comply with the requirement of the law and we are left in a very difficult position. By denying us these rights and denying us this information and a reasonable opportunity to be heard, the City has violated not only the State statute but the Constitutions of both the State of Texas and the United States. We are asking that we receive an affinnation from the Council that this matter will be corrected or I shall have to inform my client that other options may be necessary and this is certainly not what anyone wishes to do since my client is finnly committed to making a fine addition to the City ofCoppell and believes that this will be of great benefit to the future citizens of Coppell, the developer as well as the taxpayers and citizens of the City of Coppell by bringing an excellent area of home sites both into the housing inventory of the City and to be placed upon the tax rolls. We look forward to hearing from the City that some sort of reconsideration is possi bie or that some of these matters may be reviewed and revised and because of the time constraints in these things, we will need to know by September 24, 2007, if such things will happen. ~~~~~~-L~~( ~L:~q ~M W~LI~~ W. L~UNARD Mayor Stover & Members of the Council Sep:tember 19,2007 Page 5 8173350932 P.06 Obviously, if I can be of any assistance or if you have any questions, please do not hesitate to contact me. WWL:cd cc: David Dodd John Hawkins encl. Walter W. Leonard SEP-19-2007 02:04 PM WALTER W. LEONARD 8173350932 P.07 SEP \7 2007 16:14 FR 2149650010 2149650010 TO lBI7~3Se9~2 P.02/02 NICHOLS, JACKSON, DILLARD. HAGER & SMITH, L.L.P. 1. David Dodd, m B-trIIlI ddod.db',llOm Atlnroeya i: CO\WIelor'lll Law UlOO UncQJft PIau ~ No", Abrd 0aIJu. .. 752.01 (ZI4) 965.9900 fix (2.14) 965.0010 E.nl~lI NIDHS.NJDa~.com FQEI'lT L, OIU.NlD. JR, (1"~aoool i4. LOVlll NlOHOLI l.AWl'leHCi IN, JACKION CI' COUHIIIL Walt Leonard September 17. 2007 Fax: (1-817) 33S..Q932 lU: FIDtJ4 """, la... '"'" A~"'" Com ,)'" Dear Walter: As oity attorneys 1br the City of Coppcll we me writiDa to you reprding the above reiCnmced matter. We are wriq in relpODle to your inquiries in a letter lut week. We reviewed your request and dilCUlsed them with staff. The request is identical to the requelJt you took before the City Councll for the City of <:oppelt The City Council has considered md voted on the iMua. 1'herefore, neither the ItatJ nor the City CoUDCil has an}'thina new to c:onaider in this matter. '111ank you for your attentioo in this 1DIIUet. Pleue feel be to CO.tdBCt our office should you have any questions. cc: Clay Phillips Ken Griffin ** TOTAL PAGE.02 ** SEP-19-2007 02:04 PM WALTER W. LEONARD 8173350932 t-'. \:H~ WALTER W. LEONARD ATTORNEY AT LAW ONE SUMMIT AVfONUE SUITE 1010 FORT WORTH, TeXAS 76102 817-335.6538 FAX 817-335.0932 EMAIL.: wwlfwlllwOJlmo com August 28, 2007 Mayor Doug Stover and Members of the City Council 255 Parkway Boulevard Coppell, Texas 75019 VIA HAND DELrvERY RE: Mira Mar Appeal to Council Dear Mayor Stover and Members of the Council : Although I will be making a presentation, I wanted to have a chance to put down a few thoughts on paper so that you might have these as an easy reference to some of the things we will be discussing. First of all, the appeal to the Council is actually on multiple levels. As we will discuss in our presentation, there are some things in which we and staff feel that the Council is the only entity in a position to untie a situation in which everyone seems to agree that certain items should happen, but are without the authority to make it so. Generally speaking, these revolve around the issue of the generally acknowledged adjustment of the flood plain line through this property. Everyone who has examined the situation, including the engineers for the developer, the engineers for the City and the third party engineer who the City required us to confl1'tl1 exactly what everyone else had already noted, have agreed that the flood plain line will be moved and moved considerably down slope. Nonetheless, no one really has the authority to agree to a provision whereby the developer is allowed to go ahead with his development based upon the flood plain line in the area in which we all expect it to be without some sort of agreement by the Council and a hold harmless agreement (already executed) by the developer in case the Corps of Engineers and FEMA lose their minds. The net result of this waiver by the Council, which would allow us to go ahead on the supposition that all the engineers, developers and staff are correct, would be to effect severa} items in the development plan and it is our understanding that staff certainly does not oppose these changes. These changes would obviously constitute the requirements for grading and not grading in the flood plain, some of the necessity of raising certain lots and platforms above the flood plain and would also probably ultimately affect other things such as the tree mitigation zones and the areas that would need to be reserved as flood/open park areas. SEP-19-2007 02:05 PM WALTER W. LEONARD 8173350932 P.09 Mayor Stover & Members of the Council August 28, 2007 Page 2 Since everyone seems to agree and the only problem seems to be getting an approval from the appropriate federal agencies, an approval which was Wlfortunately somewhat delayed. we would earnestly request the Council to allow us to go ahead with the proposal in a fonnat and location that everyone has agreed will be applicable. Before I start the second portion of this discussion, I would like to note that the developer has fully agreed to go ahead with this project based upon the City staff's requirements and all those plans have been both agreed, all funding requirements have been met and everything is in process. The reason we are before you tonight is that we have feet that there are several items among the City's requirements for developers that are not particularly appropriate in this case and that the City needs to review them in light of simple equity, State and Federal law and the new statute concerning requirements from developers. We have, of course, agreed to go ahead with the project in any case but we hope to resolve these issues through the various processes available to us and staff Wlderstands that our agreement was in the light of an expectation that we would ask to have some of these reviewed and corrected if appropriate. The rest of the matters are ones which we feel are subject to both the new State statute which attempted to codify the recent rulings of the Texas Supreme Court in the ~ case regarding the limits of requirements that cities may impose on developers in terms of fees and requirements for various activities and the requirements of the Court. The Court held that this must be painted with a very broad brush and does not include just dedications and fees but also any other activities in which an analysis would show that the requirements imposed by the City on the development are not roughly proportional to the specific demands created for the City by this particular development. This analysis must be on a case by case basis and specifically correlated to the burden placed upon the City's infrastructure by this particular development. Obviously I this may require a case by case cletennination any time there is a question and the burden under the constitutional pronOlUlcements of the Supreme Court were entirely on the City. In 2005. the Legislature passed a bill modifying Section 212 of the Oovenunent Code which provided a fonnat for us to discuss these matters if there is a question. We are doing that tonight. We must point out that the format and some of the requirements of the legislative codification - although it recognized and codified the requirement of the Supreme Court - mayor may not actually meet all the requirements of the State Constitution and the Court's opinion in flower Mound. For example, the Court made it very clear that the rules do indeed impose a burden on the City to justify its actions individually and also tells us that Flower Mound was decided only on the basis of the U.S. Constitution and not the State Constitution because no one actually asked them the question about the State Constitution because, as the Court observed, the Texas State Constitution is far more protective of the interest of the owner and developer and would likely impose stricter SEP-19-2007 02:05 PM WALTER W. L~UNRRU ~ 1 (.6.6Jl::l""~L r. J. to Mayor Stover & Members of the Council August 28t 2007 Page 3 standards. As a result, we ask this Council to review these items and hear these items based upon the broadest possible interpretation of the circumstances, to make sure that the requirements of not only the statute but also ensure that the requirements of the Constitutions of both the United States and the State of Texas are met and that the requirements in each case ate specifically adjusted to the specific burden created for the City by the requirements that are being imposed on the developer. If these requirements do not meet the standards of the courts and the law then they must be overturned or adjusted in each particular case. Obviously, you may have questions concerning this and we will be glad to discuss them with you. Under the terms of the existing law of the procedural framework which the Legislature has set up for us, we will have thirty (30) days to resolve these matters before a final determination must be made by the Council but we do feel that this dialogue is one which is far more complex than has been traditionally the case in such matters and is one in which we need to ensure proper procedural protection for all involved and to make sure that the very clear mandate of the courts and the Constitutions of Texas and the United States are met. v cry truly yours, ~ Walter W. Leonard WWL:cd encl.