Becky, Ltd. v. the City of Cedar Park, Matt Powell, Stephen Thomas, Lyle Grimes, Lowell Moore, Jon Lux, and Don Tracy ( 2015 )

ACCEPTED
03-15-00259-CV
6282836
THIRD COURT OF APPEALS
AUSTIN, TEXAS
7/29/2015 5:39:39 PM
JEFFREY D. KYLE
CLERK
NO. 03-15-00259-CV
FILED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS AUSTIN, TEXAS
FOR THE THIRD DISTRICT OF TEXAS 7/29/2015 5:39:39 PM
AUSTIN JEFFREY D. KYLE
Clerk
BECKY, LTD.,
Appellant
v.
THE CITY OF CEDAR PARK, STEPHEN THOMAS, MATT POWELL, MITCH
FULLER, LYLE GRIMES, LOWELL MOORE, JON LUX, AND DON TRACY,
Appellees.
ON APPEAL FROM THE 126TH JUDICIAL
DISTRICT COURT OF TRAVIS COUNTY, TEXAS
TRIAL COURT CAUSE NO. D-1-GN-14-001293
APPELLEES’ BRIEF
BICKERSTAFF HEATH COBBY A. CAPUTO
DELGADO ACOSTA LLP State Bar No. 03784650
3711 S. MoPac Expressway ccaputo@bickerstaff.com
Building One, Suite 300
Austin, TX 78746 BRADLEY B. YOUNG
(512) 472-8021 State Bar No. 24028245
(512) 320-5638 FACSIMILE byoung@bickerstaff.com
ATTORNEYS FOR APPELLEES
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
The parties and counsel are correctly identified in the Initial Brief of
Appellant Becky, Ltd.
RECORD REFERENCES
The Clerk's Record filed with the Third Court of Appeals on May 6, 2015
will be cited as “CR __,” where the blank refers to the District Clerk’s consecutive
page numbering.
Appellees’ Appendix will be cited as “Appendix.” Appellant’s Appendix
will be cited as “Appellant’s Appendix.”
DESIGNATION OF PARTIES
The parties shall be referred to as follows: (i) “Appellant” or “Becky” refers
to Appellant Becky Ltd.; and (ii) “Appellees” or “the city” refers collectively to
Appellees the City of Cedar Park, Stephen Thomas, Matt Powell, Mitch Fuller,
Lyle Grimes, Lowell Moore, Jon Lux, and Don Tracy. “Milestone” refers to
Milestone Community Builders, LLC, a party to the proceeding below prior to
severance.
i
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL .............................................................i
RECORD REFERENCES .........................................................................................i
DESIGNATION OF PARTIES ..................................................................................i
TABLE OF CONTENTS .......................................................................................... ii
INDEX OF AUTHORITIES.....................................................................................iv
STATEMENT OF THE CASE .................................................................................. 2
STATEMENT REGARDING ORAL ARGUMENT ............................................... 2
ISSUES PRESENTED............................................................................................... 3
STATEMENT OF FACTS ........................................................................................ 4
SUMMARY OF THE ARGUMENT ........................................................................ 7
ARGUMENT AND AUTHORITIES ........................................................................ 8
I. Neither the facts that Becky has alleged nor the
jurisdictional evidence support subject-matter
jurisdiction over Becky’s claims. [Appellant’s Br. at 6-11] ................. 8
II. Both the city and the city council members acting
in their official capacities are entitled to
governmental immunity ...................................................................... 10
A. Becky has not implicated the ultra vires exception to
immunity because the City Council’s decision to
contract with Milestone was a discretionary act.
[Appellant’s Br. at 12-17] ......................................................... 10
ii
B. The UDJA does not waive a city’s governmental
immunity from a suit to declare rights under an
ordinance. [Appellant’s Br. at 17-19] ...................................... 17
III. Becky lacks standing because it was not a party
to the Agreement. [Appellant’s Br. at 19-23] ..................................... 19
IV. Becky’s claims were not ripe because it never
submitted a completed plat application to the city for
review. [Appellant’s Br. at 24-25] ...................................................... 24
V. Becky’s claims are moot. [Appellant’s Br. at 25-28] ........................ 27
PRAYER .................................................................................................................. 27
CERTIFICATE OF SERVICE ................................................................................ 29
CERTIFICATE OF COMPLIANCE ....................................................................... 30
APPENDIX .............................................................................................................. 31
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Bd. of Adjustment of the City of San Antonio v. Wende,
92 S.W.3d 424 (Tex. 2002)................................................................................. 14
Brunson v. Woolsey,
63 S.W.3d 583 (Tex. App.-Fort Worth 2001, no pet.) ....................................... 19
Cadle Co. v. Lobingier,
50 S.W.3d 662 (Tex. App.-Fort Worth 2001, pet. denied)................................. 19
Catalina Dev., Inc. v. County of El Paso,
121 S.W.3d 704 (Tex.2003)................................................................................ 11
City of Corinth v. NuRock Dev., Inc.,
293 S.W.3d 360 (Tex. App. – Fort Worth 2009, no pet.)................................... 26
City of Dallas v. Texas EZPAWN, L.P.,
No. 05-12-01269-CV, 2013 WL 1320513 (Tex. App. – Dallas Apr.
1, 2013, no pet.) (mem. op.)..........................................................................17, 18
City of El Paso v. Heinrich,
284 S.W.3d 366 (Tex. 2009) ........................................................................11, 16
City of El Paso v. Maddox,
276 S.W.3d 66 (Tex. App. – El Paso 2008, pet. denied) ..............................25, 26
City of Laredo v. Rio Grande H2O Guardian,
No. 04-10-00872-CV, 2011 WL 3122205 (Tex. App. – San
Antonio Jul. 27, 2011, no pet.) .....................................................................23, 24
City of New Braunfels v. Tovar,
No. 03-14-00693-CV, 2015 WL 2183479 (Tex. App. – Austin
May 7, 2015, no pet. h.) ...................................................................................... 15
Coble v. City of Mansfield,
134 S.W.3d 449 (Tex. App. – Fort Worth 2004, no pet.)................................... 26
iv
Cokins v. City of Lakeway,
No. 03-12-00083-CV, 2013 WL 4007522 (Tex. App. – Austin July
25, 2013, no pet.) (mem. op.) ............................................................................. 10
Creedmoor-Maha Water Supply Corp. v. Tex. Com’n on Envtl.
Quality,
307 S.W.3d 505 (Tex. App. – Austin 2010, no pet.) .......................................... 16
DeSoto Wildwood Dev., Inc. v. City of Lewisville,
184 S.W.3d 814 (Tex. App. – Fort Worth 2006, no pet.)................................... 14
Exxon Corp. v. Pluff,
94 S.W.3d 22 (Tex.App.-Tyler 2002, pet. denied) ............................................. 19
Heckman v. Williamson County,
369 S.W.3d 137 (Tex. 2012) .............................................................................. 20
Lone Star College Sys. v. Immigration Reform Coalition of Texas
(IRCOT),
418 S.W.3d 263 (Tex. App.-Houston [14th Dist.] 2013,
pet denied) ........................................................................................................... 18
Nobles v. Marcus,
533 S.W.2d 923 (Tex.1976)................................................................................ 20
Nootsie Ltd. v. Williamson County Appraisal Dist.,
925 S.W.2d 659 (Tex.1996)................................................................................ 19
Robinson v. Parker,
353 S.W.3d 753 (Tex. 2011) .............................................................................. 26
Saifi v. City of Texas City,
No. 14-13-00815-CV, 2015 WL 1843540 (Tex. App. – Houston
[14th Dist.] Apr. 23, 2015, no pet.) (mem. op.) ............................................18, 19
Save Our Springs Alliance, Inc. [SOS] v. City of Austin,
149 S.W.3d 674 (Tex. App. – Austin 2004, no pet.) ................................3, 21, 27
Save Our Springs Alliance, Inc. [SOS] v. City of Dripping Springs,
304 S.W.3d 871 (Tex. App. – Austin 2010, pet. denied) .............................20, 24
Schechter v. Wildwood Developers, LLC,
214 S.W.3d 117 (Tex. App. – El Paso 2006, no pet.) ........................................ 21
v
Stop the Ordinances Please v. City of New Braunfels,
306 S.W.3d 919 (Tex. App. – Austin 2010, no pet.) ....................................21, 22
Sw. Bell Tel., L.P. v. Emmett,
459 S.W.3d 578 (Tex. 2015) ..................................................................13, 14, 15
Texas Dep’t of Parks & Wildlife v. Miranda,
133 S.W.3d 217 (Tex. 2004) .......................................................................... 9, 10
Texas Dept. of Transp. v. Sefzik,
355 S.W.3d 618 (Tex. 2011) ........................................................................17, 19
Texas Logos, LP v. TxDOT,
241 S.W.3d 105 (Tex. App. – Austin 2007, no pet.) .............................10, 11, 16
Texas Lottery Com’n v. First State Bank of DeQueen,
325 S.W.3d 628 (Tex. 2010) .............................................................................. 17
VanderWerff v. Tex. Bd. of Chiropractic Examiners,
No. 03-12-00711-CV, 2014 WL 7466814 (Tex. App. – Austin
Dec. 18, 2014, no pet.) (mem. op.) ..................................................................... 19
Waco Indep. Sch. Dist. v. Gibson,
22 S.W.3d 849 (Tex. 2000)................................................................................. 25
Will. v. Texas Tech Univ. Health Sciences Ctr.,
No. 10-15-00005-CV, 2015 WL 2452513 (Tex. App. – Waco May
21, 2015, no pet. h.) (mem. op.) ......................................................................... 19
Statutes
TEX. GOV’T CODE § 311.016(1) (Code Construction Act) ...................................... 14
TEX. LOC. GOV’T CODE § 212.009(a) ......................................................................... 6
Chapter 212 of the Texas Local Government Code .................................................. 8
Miscellaneous
City of Cedar Park Code of Ordinances, § 16.02.005 ...................................9, 13, 14
vi
NO. 03-15-00259-CV
IN THE COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS
AUSTIN
BECKY, LTD.,
Appellant
v.
THE CITY OF CEDAR PARK, STEPHEN THOMAS, MATT POWELL, MITCH
FULLER, LYLE GRIMES, LOWELL MOORE, JON LUX, AND DON TRACY,
Appellees.
ON APPEAL FROM THE 126TH JUDICIAL
DISTRICT COURT OF TRAVIS COUNTY, TEXAS
TRIAL COURT CAUSE NO. D-1-GN-14-001293
APPELLEES’ BRIEF
TO THE HONORABLE COURT OF APPEALS:
COME NOW Appellees, the City of Cedar Park, Stephen Thomas, Matt
Powell, Mitch Fuller, Lyle Grimes, Lowell Moore, Jon Lux, and Don Tracy, and
respectfully file this Appellees’ Brief pursuant to Texas Rule of Appellate
Procedure 38.2 and would show the Court the following:
1
STATEMENT OF THE CASE
Appellees disagree with Appellant’s characterization of the nature of the
case. A more accurate statement of the nature of the case is:
Nature of the Case: This is a suit by Becky under the Uniform Declaratory
Judgment Act (UDJA) to challenge the terms of a
development agreement between the city and Milestone.
STATEMENT REGARDING ORAL ARGUMENT
Appellees concur in Becky’s request for oral argument.
2
ISSUES PRESENTED
1. Do Becky’s claims based on the City Council’s discretionary decision
to contract with Milestone fall within the ultra vires exception to
governmental immunity? [Appellant’s Issue No. 1]
2. Does the Uniform Declaratory Judgment Act (UDJA) waive the city’s
governmental immunity from a suit that does not seek to invalidate a
city ordinance but merely seeks a declaration of rights under the
ordinance? [Appellant’s Issue No. 2]
3. Does Becky have standing to challenge a contract to which it is not a
party and that relates to property that Becky does not own?
[Appellant’s Issue No. 3]
4. Are Becky’s speculative claims that it will have to bear the cost of the
extension of Old Mill Road ripe for adjudication, even though the city
has not required Becky to pay for the extension of the road, and Becky
has not submitted sufficient information for the city to determine the
extent to which Becky’s participation in road construction may be
necessary? [Appellant’s Issue No. 4]
5. Are Becky’s claims moot under Save Our Springs Alliance, Inc.
[SOS] v. City of Austin, 149 S.W.3d 674 (Tex. App. – Austin 2004, no
pet.)? [Appellant’s Issue No. 5]
3
STATEMENT OF FACTS
This case is about a future road to a vacant lot. Becky owns a vacant tract
of property in the city (the “Becky tract”).1 Becky wants the city to build a road to
the Becky tract so that Becky can obtain a more favorable price when it sells the
property to a developer. Milestone owns a piece of property adjacent to the Becky
tract that recently went through the city’s platting process.2
Becky contends that the city should have required Milestone to construct a
road called Old Mill Road all the way from Lakeline Boulevard to the Becky tract.3
Instead, the city, acting through its City Council,4 entered into a Unified
Development Agreement (Agreement) with Milestone through which Milestone
agreed to the following: (1) Milestone agreed to dedicate to the city sufficient
right-of-way to extend Old Mill Road from its current terminus at South Lakeline
Boulevard to the edge of Milestone’s property where it abuts the Becky tract; and
(2) Milestone agreed to construct a portion of the Old Mill Road Extension (the
Phase 1 Extension) sufficient to serve the proposed development on Milestone’s
1
CR 53-54 (Affidavit of Sam P. Roberts, Assistant City Manager [Roberts Aff.]), at ¶ 8.
2
Id. at ¶¶ 3, 5.
3
See CR 22 / Appendix A (Unified Development Agreement), at Exhibit C, for a map of
the property that shows the relative locations of Lakeline Boulevard and Phases 1 and 2 of the
Old Mill Road extension.
4
Stephen Thomas, Matt Powell, Mitch Fuller, Lyle Grimes, Lowell Moore, Jon Lux, and
Don Tracy were the members of the City Council at the time that the city entered into the
Agreement. Becky has sued them in their official capacities as city council members.
4
property.5 Although the city required Milestone to dedicate sufficient right-of-way
to meet the city’s possible future needs, the city did not require Milestone to
construct Phase II of Old Mill Road, which would extend the road all the way to
the unplatted, landlocked Becky tract.6
When the city initially filed its plea to the jurisdiction, Becky had not
submitted an application to develop the Becky tract. After the city filed its plea,
however (and presumably in response to the city’s ripeness arguments), Becky did
file a set of development materials. The following timeline summarizes the events
that ensued:7
October 24, 2014: City receives Becky’s preliminary plan
application and final plat application.
November 7, 2014: City staff provides comments to Becky’s
engineer.
November 11, 2014: City receives follow-up email from Becky’s
engineer.
November 17, 2014: City staff responds to engineer’s email.
November 18, 2014: Planning and Zoning Commission statutorily
disapproves preliminary plan application
and final plat application without bias
against future consideration, providing
5
CR 53-54 [Roberts Aff.], at ¶ 5.
6
Id. at ¶ 6; see also CR 9-23 / Appendix A (Unified Development Agreement).
7
CR 140-232 (Second Affidavit of Sam P. Roberts, Assistant City Manager [Roberts Aff.
II]).
5
applicant the opportunity to submit revised
drawings that address city staff’s comments.
“Statutory disapproval” is a term that Cedar Park and many other cities use
to address the statutory requirements of section 212.009(a) of the Texas Local
Government Code. Under the statute, the Planning and Zoning Commission must
disapprove a plat application – even a plat application that lacks essential
information – or else it will be considered statutorily approved.8 In this case, the
Planning and Zoning Commission disapproved Becky’s application in order to
provide Becky with additional time to address the city staff’s comments, which
will enable staff to complete its review. The Commission’s November 18, 2014
“statutory disapproval” did not bias future consideration of Becky’s applications.
As illustrated by the November 2014 correspondence between Becky’s
engineer and the city’s planning staff, the city repeatedly informed Becky that it
could not determine whether Becky would be required to construct a roadway to
the Becky tract until Becky provided further information about the nature of its
proposed project.9 That information was not forthcoming prior to the November
18, 2014 Planning and Zoning Commission meeting.10
8
See TEX. LOC. GOV’T CODE § 212.009(a) (“The municipal authority responsible for
approving plats shall act on a plat within 30 days after the date the plat is filed. A plat is
considered approved by the municipal authority unless it is disapproved within that period.”).
9
CR 177-84.
10
CR 140-41 [Roberts Aff. II], at ¶ 7; CR 187-90.
6
The trial court heard the city’s plea to the jurisdiction on December 4, 2014
and granted the plea on December 24, 2014.
SUMMARY OF THE ARGUMENT
In order to implicate the ultra vires exception to governmental immunity, a
plaintiff must make more than a bare assertion that public officials have acted
without authority. The plaintiff must allege facts that, if true, would fall within the
ultra vires exception. Here, the only fact that Becky has alleged is that the City
Council authorized a development agreement with Milestone for the development
of property that Becky does not own.
The ultra vires exception does not apply to discretionary actions. Not only
is the City Council’s decision to enter into a contract discretionary, but the specific
contract term that Becky complains of – a provision that only requires Milestone to
construct Phase 1 of the Old Mill Road extension to Becky’s property – is itself
discretionary per city ordinance. Specifically, the city’s right-of-way ordinance
provides that the city “may” require construction of a roadway depending on the
traffic effects generated by a proposed development.
Contrary to Becky’s assertion, the entirety of Phase II of the Old Mill Road
Extension would not have been built by now but for the city’s development
agreement with Milestone. The fact is that but for the development agreement,
there would not be a dedicated right-of-way connecting Becky’s tract with South
7
Lakeline Boulevard at all, much less a fully constructed road. Whether for reasons
of governmental immunity, standing, or ripeness, the trial court correctly
determined that it lacked jurisdiction over Becky’s claims.
ARGUMENT AND AUTHORITIES
I. Neither the facts that Becky has alleged nor the jurisdictional evidence
support subject-matter jurisdiction over Becky’s claims. [Appellant’s
Br. at 6-11].
Becky begins its “Argument and Authorities” section by entreating the Court
to focus on the facts alleged in its pleadings. Ironically, Becky has not pled facts
that support its allegations, instead describing its lawsuit as follows: “In a nutshell,
Becky asserts that the City, having delegated sole authority to the City’s Planning
Commission to approve plats and grant variances, had no authority, through its
City Council, to grant a variance to Milestone.”11 Becky uses the term “variance”
throughout its briefing. But Becky has not alleged any facts in its pleadings that
would demonstrate that the City Council approved a “variance” as that term is
generally understood.12
11
Appellant’s Br. at 7.
12
The term “variance” as it relates to subdivision regulations is a procedural term of art
defined by Chapter 212 of the Texas Local Government Code and section 12.03.004 of the City
of Cedar Park Code of Ordinances. CR 242-43; Appellant’s Appendix F. Becky concedes that
Milestone never applied for a “variance” as that term is defined in section 12.03.004 or the Local
Government Code. Appellant’s Br. at 10. Despite Becky’s citation to City Code, it appears that
Becky is using the term “variance” more generally to mean any deviation from the city’s
subdivision regulations.
8
Instead, Becky complains that the City Council approved a development
agreement that: (1) did not require Milestone to construct the portion of Old Mill
Road that connects to the Becky tract; and (2) did not require Milestone to
construct “infrastructure improvements” – which Becky defines as the portion of
Old Mill Road that connects to the Becky tract – within one year from the date that
the city approved Milestone’s final plat. Neither of these allegations constitutes a
“waiver, exemption, or variance”13 from the City’s Code of Ordinances. To the
contrary, the City Code specifically provides the city with discretion regarding
whether to require road construction at all, depending in part on whether a roadway
is needed “to offset the traffic effects generated by a proposed development.”14
The City Council’s decision to approve a development agreement that only
required Milestone to construct the portion of Old Mill Road that the city deemed
necessary to serve Milestone’s proposed development was entirely consistent with
this provision.
In Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227-28
(Tex. 2004), the Texas Supreme Court held that a defendants’ plea to the
jurisdiction may implicate the merits of the plaintiff’s cause of action and may
13
Appellant’s Br. at 3.
14
CR 56-57 / Appendix B (City of Cedar Park Code of Ordinances, § 16.02.005). The
City Charter and Code of Ordinances also are publicly available at
http://z2.franklinlegal.net/franklin/Z2Browser2.html? showset=cedarparkset.
9
include evidence. If it does, the Court must review the relevant evidence to
determine if a fact issue exists.15 If the relevant evidence is undisputed or fails to
raise a fact issue, the trial court should grant the plea.16 Here, the city submitted
uncontroverted affidavits and other supporting documentation and requested that
the Court consider it when ruling on the city’s plea to the jurisdiction.17 The Court
therefore may consider the city’s jurisdictional evidence in determining whether
the trial court had subject matter jurisdiction.
Neither the facts alleged nor the evidence submitted in this case implicate
the approval of a “variance” under the Cedar Park Code of Ordinances. Therefore,
even if true, none of the facts that Becky, Ltd. has alleged actually support its legal
claims.
II. Both the city and the city council members acting in their official
capacities are entitled to governmental immunity.
A. Becky has not implicated the ultra vires exception to immunity
because the City Council’s decision to contract with Milestone
was a discretionary act. [Appellant’s Br. at 12-17]
15
Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227-28 (Tex. 2004).
16
Id.
17
CR 38, 40 (“The City hereby incorporates by reference and for all purposes the
affidavits and other supporting documentation included in the attached Appendix and asks the
Court to consider it when ruling on the City’s plea to the jurisdiction.”). In a concurring opinion
in Cokins v. City of Lakeway, No. 03-12-00083-CV, 2013 WL 4007522, at *5 (Tex. App. –
Austin July 25, 2013, no pet.) (mem. op.), Chief Justice Jones explained that in order for the
Court to consider evidence as part of a jurisdictional challenge under Texas Department of Parks
& Wildlife v. Miranda, 133 S.W.3d 217 (Tex.2004), the party challenging jurisdiction must
request that the court consider evidence when ruling on the plea. That is what the city did here.
10
Governmental immunity bars suits that seek to control government action.18
A suit seeks to control government action when the judgment would effectively
direct or control a government official in the exercise of his or her discretionary
statutory authority.19 The Texas Supreme Court has recognized a limited exception
to the doctrine of governmental immunity when the plaintiff has alleged that
governmental officials have acted without legal authority or failed to perform a
purely ministerial act.20 An action is not ultra vires, however, when it falls within
the governmental official’s exercise of discretion.21
Here, governmental immunity bars Becky’s claims because they seek to
invalidate the city’s development agreement with Milestone.22 A city council’s
decision to enter into a contract is a discretionary, legislative decision that is not
subject to attack through the ultra vires exception to immunity from suit.23 On
18
Texas Logos, LP v. TxDOT, 241 S.W.3d 105, 118 (Tex. App. – Austin 2007, no pet.).
19
Id.
20
City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009).
21
See Texas Logos, 241 S.W.3d at 118.
22
CR 191, 192 (Pl.’s 2nd Am. Pet.) (“By this suit, Plaintiffs challenge the validity of a
Unified Development Agreement (the “Agreement”) by and between Cedar Park and Milestone
as an ultra vires act of the City Council.”).
23
See, e.g, Catalina Dev., Inc. v. County of El Paso, 121 S.W.3d 704, 706 (Tex.2003)
(holding newly elected commissioners court immune from suit where it “acted within its
discretion to protect the perceived interests of the public” in rejecting contract approved by
predecessor).
11
September 12, 2013, the City Council voted unanimously to authorize the City
Manager to execute the Agreement.24 That is the only action by the City Council
that Becky has identified. Although Becky’s petition does allege that the approval
or disapproval of a plat is a ministerial function,25 none of Becky’s causes of action
challenge the Planning and Zoning Commission ‘s action approving Milestone’s
plat. Nor has Becky sued the commissioners in their official capacities.
Instead, Becky has sued the council members in their official capacities
based on their approval of the Agreement. Because that was a discretionary
decision, the trial court lacked subject matter jurisdiction over Becky’s claims
against the city council members.
Although Becky concedes that the City Council has the discretion to contract
generally, Becky alleges that the council exceeded its discretionary authority as to
this particular contract by including a term that required Milestone to construct the
Phase I extension of Old Mill Road but did not mandate the construction of Phase
II all the way to the Becky property. Even taken at face value, Becky’s argument
fails. Becky has not and cannot point to a provision in the City’s Code of
Ordinances that makes the construction of a roadway mandatory in this situation.
Instead, Becky directs the Court to general language in the subdivision ordinance
24
CR 59-71 (Minutes of September 12, 2013 meeting of the Cedar Park City Council).
25
CR 191, 193.
12
that refers to the completion of an undefined set of “required subdivision
improvements.”26
The applicable portion of the City Code is section 16.01.005 of the city’s
transportation regulations, “Dedication of right-of-way.”27 Subsections (a) through
(c) describe the circumstances under which a developer must dedicate right-of-way
as part of the platting process. Those provisions apply only “[i]f the director of
planning determines that all or portion of the right-of-way is needed to
accommodate additional traffic expected to be generated by the proposed
development.”28 It is undisputed from the city’s jurisdictional evidence that the
Agreement required Milestone to dedicate sufficient right-of-way to reach the
Becky development.29 Even this provision is discretionary: not every proposed
development will require a dedication of right-of-way because not every proposal
will create sufficient additional traffic.
Becky’s real complaint, however, is addressed by subsection (d), which
applies to roadway construction:
26
See, e.g., Appellant’s Br. at 2 (citing City of Cedar Park Code of Ordinances §§
12.15.003(b) and (c) / Appellant’s Appendix G).
27
CR 55-57 / Appendix B.
28
Id. at § 16.02.005(a).
29
See CR 52-54 [Roberts Aff.], at ¶¶ 3-5.
13
In addition to the dedication of right-of-way, the city may
require the construction of a roadway improvement or
may assess a fee instead of requiring construction of a
roadway improvement to offset the traffic effects
generated by a proposed development.30
Just as the use of the word “shall” evidences the mandatory nature of a duty
imposed by a legislative act,31 the use of the word “may” “creates discretionary
authority or grants permission or power.”32 Not every development requires a new
road to offset traffic effects generated by the proposed development. And by
providing that the decision maker is to be the “city” generally, the City Council has
reserved to itself the ultimate discretion of whether to require roadway
construction.33 In the instant case, that council manifested that discretion through
the terms of the Agreement.34
The cases Becky cites are distinguishable. In Sw. Bell Tel., L.P. v. Emmett,
459 S.W.3d 578 (Tex. 2015), Southwestern Bell alleged that the governing body of
30
CR 56-57/Appendix B (City of Cedar Park Code of Ordinances, § 16.02.005(d))
(emphasis added).
31
Sw. Bell Tel., L.P. v. Emmett, 459 S.W.3d 578, 588 (Tex. 2015).
32
TEX. GOV’T CODE § 311.016(1) (Code Construction Act); Bd. of Adjustment of the City
of San Antonio v. Wende, 92 S.W.3d 424, 430 (Tex. 2002) (“Courts use the same rules that are
used to construe statutes to construe municipal ordinances.”).
33
See DeSoto Wildwood Dev., Inc. v. City of Lewisville, 184 S.W.3d 814, 826 (Tex. App.
– Fort Worth 2006, no pet.) (recognizing that cities express themselves through actions of the
City Council in a meeting duly assembled).
34
CR 53 [Roberts Aff.], at ¶¶ 3-6; see also CR 9-23 / Appendix A (Agreement), at ¶¶ 2-
3, 10.
14
a water district exceeded its authority under a statute that provided that certain
types of public infrastructure relocations “shall be done at the sole expense of the
district or water supply corporation unless otherwise agreed to in writing.”35 The
Supreme Court held that the legislature’s use of the word “shall” indicated that the
commissioners’ duty under the statute to provide for payment of infrastructure
relocations was mandatory.36 Therefore, the individual commissioners were not
immune from suit against them in their official capacities alleging that the actions
they took to shift those costs to the utility were ultra vires.37
Similarly, City of New Braunfels v. Tovar, No. 03-14-00693-CV, 2015 WL
2183479 (Tex. App. – Austin May 7, 2015, no pet. h.) involved a suit by a police
officer against the members of a municipal civil service commission in their
official capacities. Tovar alleged that the commissioners acted ultra vires when
they failed to award him additional seniority points on his civil service exam as
mandated by a statute that provided, “The grade that must be placed on the
eligibility list for each police officer or fire fighter shall be computed by adding the
applicant’s points for seniority to the applicant’s grade on the written
35
Sw. Bell Tel., L.P. v. Emmett, 459 S.W.3d 578, 588 (Tex. 2015).
36
Id.
37
Id.
15
examination[.]”38 The Court held that because Tovar was suing to enforce a
mandatory right under the statute, Tovar had properly invoked the ultra vires
exception to governmental immunity.39 Here, Becky has pointed to no such
mandatory, ministerial duty on the part of the council members because no such
duty exists.
There has been no waiver of the city’s governmental immunity under the
ultra vires exception for at least one other reason. “[T]he ultra vires rule is subject
to important qualifications. Even if such a claim may be brought, the remedy may
implicate immunity” if it constitutes anything other than prospective relief.40 A
suit that seeks to control state action by invalidating a contract is retrospective in
nature.41 Here, Becky wants the Court to declare that “the City Council’s action in
granting a variance through the Agreement was ultra vires, rendering at least that
portion of the Agreement void.”42 Therefore, even assuming, for the sake of
argument, that the City Council’s decision to contract with Milestone were a
38
City of New Braunfels v. Tovar, No. 13-14-00693-CV, 2015 WL 2183479, at *1-2
(Tex. App. – Austin May 7, 2015, no pet. h.) (emphasis added).
39
Id. at *4.
40
Heinrich, 284 S.W.3d at 373-76.
41
Texas Logos, 241 S.W.3d at 120-21 (distinguishing impermissible suit to invalidate a
contract from permissible suits to compel state official and agencies to comply with their
statutory authority).
42
Appellant’s Br. at 8.
16
ministerial act, the remedy that Becky is seeking would constitute impermissible
retrospective relief. Governmental immunity still would bar Becky’s claims
against the city.
“[B]are conclusions . . . are not sufficient—the pleader must allege facts that
affirmatively demonstrate the trial court's subject-matter jurisdiction.”43 Becky
cannot conjure subject matter jurisdiction merely by invoking the phrase “ultra
vires.” Rather, Becky must at a minimum direct the Court to some ministerial duty
created by statute or possibly ordinance that the city council members have
exceeded. Because Becky has not alleged facts that, if true, would amount to an
ultra vires act by the named council members, there has been no waiver of the
city’s governmental immunity.
B. The UDJA does not waive a city’s governmental immunity from a
suit to declare rights under an ordinance. [Appellant’s Br. at 17-
19]
Alternatively, Becky argues that the UDJA waives governmental immunity
from its claims against the city because Becky is seeking a declaration to construe
rights under city ordinances. The Texas Supreme Court considered and rejected
this argument in Texas Dept. of Transp. v. Sefzik, 355 S.W.3d 618 (Tex. 2011).
There, the Court held, “The UDJA does not waive the state’s sovereign immunity
43
Creedmoor-Maha Water Supply Corp. v. Tex. Com’n on Envtl. Quality, 307 S.W.3d
505, 525 (Tex. App. – Austin 2010, no pet.) (emphasis in original).
17
when the plaintiff seeks a declaration of his or her rights under a statute or other
law.”44 The Court held that because Sefzik was not challenging the validity of a
statute but only a state agency’s actions under it, there was no waiver of immunity
from his claims.45 In this case, Becky wants the court to “determine the parties’
rights, status, and legal relations under those ordinances.”46 The UDJA does not
waive the city’s governmental immunity from these types of claims.
Becky’s reliance on Texas Lottery Com’n v. First State Bank of DeQueen,
325 S.W.3d 628 (Tex. 2010) is misplaced.47 The appellant in City of Dallas v.
Texas EZPAWN, L.P., No. 05-12-01269-CV, 2013 WL 1320513, at * 3 (Tex. App.
– Dallas Apr. 1, 2013, no pet.) (mem. op.) made the same argument that Becky
makes here. But as the Dallas Court of Appeals explained:
The issue in [Texas Lottery Commission] was whether
provisions of the Texas Uniform Commercial Code
conflicted with provisions of the Texas Lottery Act and,
consequently, rendered the provisions of the Texas
Lottery Act ineffective. Although the court used
language like “statutory interpretation” and “statutory
construction,” it was undisputed that the lawsuit
challenged the validity of the provisions of the Texas
44
Texas. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621 (Tex. 2011).
45
Sefzik, 355 S.W.3d at 622.
46
Appellant’s Br. at 19.
47
See id. at 18.
18
Lottery Act and did not simply seek an interpretation of
the statute.48
The court of appeals held that because EZPAWN sought only the interpretation of
an ordinance and a declaration of its rights under it, those allegations affirmatively
negated the trial court’s subject matter jurisdiction.49
Similarly, in Lone Star College Sys. v. Immigration Reform Coalition of
Texas (IRCOT), 418 S.W.3d 263 (Tex. App. – Houston [14th Dist. 2013, pet.
denied), which Becky also cites, the appellant both sought an interpretation and
asserted the invalidity of Texas statutes.50 In a more recent opinion, Saifi v. City
of Texas City, No. 14-13-00815-CV, 2015 WL 1843540 (Tex. App. – Houston
[14th Dist.] Apr. 23, 2015, no pet.) (mem. op.), the Fourteenth Court of Appeals
affirmed that the UDJA does not waive a city’s governmental immunity to the
extent a plaintiff is merely seeking a declaration of rights under a statute or
ordinance.51
48
City of Dallas v. Texas. EZPAWN, L.P., No. 05-12-01269-CV, 2013 WL 1320513, at *
3 (Tex. App. – Dallas Apr. 1, 2013, no pet.) (mem. op.) (citations omitted).
49
Id.
50
Lone Star Coll. Sys. v. Immigration Reform Coal. of Texas (IRCOT), 418 S.W.3d 263,
271 (Tex. App. – Houston [14th Dist.] 2013, pet. denied).
51
Saifi v. City of Texas City, No. 14-13-00815-CV, 2015 WL 1843540, at *3 (Tex. App.
– Houston [14th Dist.] Apr. 23, 2015, no pet.) (mem. op.).
19
It is well-settled following Sefzik that the UDJA does not waive a city’s
governmental immunity from a suit that merely seeks the interpretation of a
statute or ordinance.52 Therefore, there has been no wavier of the city’s immunity
in this case.
III. Becky lacks standing because it was not a party to the Agreement.
[Appellant’s Br. at 19-23]
A person has standing to sue when he is personally aggrieved by an alleged
wrong.53 Without a breach of a legal right belonging to a plaintiff, that plaintiff
has no standing to litigate.54 Only the person whose primary legal right has been
breached may seek redress for an injury.55 The alleged injury must be “concrete
and particularized, not merely conjectural or hypothetical.56 “Without breach of a
52
See, e.g., Williams v. Texas Tech Univ. Health Sciences Ctr., No. 10-15-00005-CV,
2015 WL 2452513, at *2 (Tex. App. – Waco May 21, 2015, no pet. h.) (mem. op.) (recognizing
that UDJA does not waive immunity where appellant only challenged interpretation of university
policy and did not challenge validity of municipal ordinance or statute); VanderWerff v. Tex.
Bd. of Chiropractic Examiners, No. 03-12-00711-CV, 2014 WL 7466814, at *3 n. 4 (Tex.
App. – Austin Dec. 18, 2014, no pet.) (mem. op.) (“Appellant’s petition does not challenge
the validity of any statutes . . . [T[he UDJA does not waive sovereign immunity when a
plaintiff seeks a declaration of his rights under a statute.”).
53
Nootsie Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 661 (Tex.1996).
54
Exxon Corp. v. Pluff, 94 S.W.3d 22, 27 (Tex.App.-Tyler 2002, pet. denied); Cadle Co.
v. Lobingier, 50 S.W.3d 662, 669–70 (Tex. App.-Fort Worth 2001, pet. denied); Brunson v.
Woolsey, 63 S.W.3d 583, 587 (Tex. App.-Fort Worth 2001, no pet.).
55
Nobles v. Marcus, 533 S.W.2d 923, 927 (Tex.1976) (defrauded party only can bring
suit to set aside deed obtained by fraud).
56
Save Our Springs Alliance, Inc. [SOS] v. City of Dripping Springs, 304 S.W.3d 871,
878 (Tex. App. – Austin 2010, pet. denied).
20
legal right belonging to the plaintiff no cause of action can accrue to his benefit.”57
The court has no jurisdiction over a claim made by a plaintiff who lacks standing
to assert it.58
In cases analogous to this one, the courts of appeals have declined to
recognize that a third party has standing to challenge a city’s decision to enter into
a development agreement with a neighboring property owner. In Save Our Springs
Alliance, Inc. [SOS] v. City of Dripping Springs, 304 S.W.3d 871 (Tex. App. –
Austin 2010, pet. denied), for example, SOS sought various declarations to
invalidate development agreements between the city and private property owners.
This Court held that because neither SOS nor its members had an interest in the
properties that were the subject of the development agreements, SOS lacked
standing.59
Similarly, in Schechter v. Wildwood Developers, LLC, 214 S.W.3d 117
(Tex. App. – El Paso 2006, no pet.), plaintiff sued the city for a declaration that the
city’s approval of a subdivision plat was void because it did not comply with the
city’s ordinances. Specifically, plaintiff alleged that construction of the planned
subdivision as depicted on the challenged plat would cause a decrease in his
57
Nobles, 533 S.W.2d at 927.
58
Heckman v. Williamson County, 369 S.W.3d 137, 150 (Tex. 2012).
59
SOS, 304 S.W.3d at 882.
21
property values. The court held that none of plaintiff’s complaints about his
neighbor’s property were based on or related to plaintiff’s rights, status, or legal
relationship under a statute, ordinance, contract or franchise.60 Therefore, the trial
court lacked subject matter jurisdiction over plaintiff’s claims.61
Here, Becky is in the same position as the plaintiffs in SOS and Schechter.
Like the plaintiffs in those cases, Becky seeks various declarations regarding
Milestone’s property – property to which Becky has not alleged any ownership
interest. At most, Becky alleges that the city’s actions in relation to Milestone’s
property will result in a decrease in value of Becky’s property. This was the
standing argument considered and rejected by the court in Schechter.62
In Stop the Ordinances Please v. City of New Braunfels, 306 S.W.3d 919
(Tex. App. – Austin 2010, no pet.), plaintiffs, an association of business owners
who rented inner tubes and beverage coolers, challenged four city ordinances: (1)
an ordinance regulating volume drinking devices (the “beer bong” ordinance); (2)
an ordinance regulating five-ounce containers (the “jello shot” ordinance); (3) an
ordinance regulating the consumption of alcohol in public parks (the “parks”
ordinance); and (4) an ordinance regulating coolers and containers exceeding
60
Schechter v. Wildwood Developers, LLC, 214 S.W.3d 117, 121-22 (Tex. App. – El
Paso 2006, no pet.).
61
Id.
62
See id.
22
sixteen quarts (the “cooler” ordinance). Of those four ordinances, this Court held
that plaintiffs lacked standing to challenge the first three because those ordinances
did not impose any direct restrictions on the plaintiffs and because plaintiffs did
not plead facts demonstrating injury from the challenged restrictions: “Although
[plaintiffs] broadly complain of lost revenues they ‘attribute’ to the ordinances
collectively, these bare conclusions are insufficient to affirmatively demonstrate
their standing.”63 The Court did, however, hold that plaintiffs had standing to
challenge the cooler ordinance because plaintiffs had alleged that they purchased
coolers to rent to customers and that the city’s ordinance rendered those coolers
valueless.
Here, the terms of the Agreement only apply to the development of the
Milestone property. Like the business owners’ challenges to the beer bong, shot
glass, and parks ordinances in Stop the Ordinances Please, Becky lacks standing to
challenge the validity of the Agreement because Becky has not pled facts
demonstrating the Agreement imposes any direct restriction or regulatory burden
on the Becky tract. Nor has Becky sufficiently pled facts demonstrating injury
from the Agreement. Although Becky broadly complains of a hypothetical loss of
property value that it attributes to the Agreement with Milestone, this bare
conclusion is insufficient to affirmatively demonstrate standing. Unlike the
63
Stop the Ordinances Please v. City of New Braunfels, 306 S.W.3d 919, 929-30 (Tex.
App. – Austin 2010, no pet.).
23
business owners’ challenge to the cooler ordinance in Stop the Ordinance Please,
nothing in the language of the Agreement regulates Becky’s property in any way.
Regarding the issue of damages, Becky’s assertion that but for the
Agreement, the Old Mill Road extension to the Becky tract would be built by now
defies logic. First, the reasons that the Becky tract is landlocked are geography
and the Cedar Park real estate market, not city council action. Further, as
discussed above, the city’s decision regarding whether to require construction of a
road is discretionary. Becky does not allege that Milestone had an approved plat
on file prior to the date of the Agreement that required road construction (it did
not). So in reality, without the agreement, there would be no dedication of right-
of-way from Lakeline Boulevard to the Becky tract, there would be no Milestone
plat on file, and the Milestone tract would be just like the Becky tract – a vacant
piece of land.
City of Laredo v. Rio Grande H2O Guardian, No. 04-10-00872-CV, 2011
WL 3122205 (Tex. App. – San Antonio Jul. 27, 2011, no pet.) is thus
distinguishable because Becky has not alleged any actual harm. In City of Laredo,
an association challenged a city’s decision to rezone a piece of property from R-1
(Single-Family Residential) to M-1 (Light Manufacturing). The court of appeals
held that the plaintiff association had standing because its members were nearby
property owners who alleged they would suffer various environmental injuries as a
24
result of the changed use.64 Here, although Becky is a nearby property owner, that
is where the similarity ends. The injury that Becky has alleged is that the
Agreement made Becky’s property less valuable because it did not require
Milestone to construct Phase II of Old Mill Road. This does not meet the
“concrete and particularized injury” requirement for standing.65 If anything, the
Agreement would have made Becky’s property more valuable by providing for the
construction of Phase I of Old Mill Road and providing for the public right-of-way
connecting to Becky’s property.
Because Becky has failed to allege a particularized interest in Milestone’s
property or a concrete injury resulting from the Agreement, the trial court properly
dismissed Becky’s claims against the city for want of jurisdiction.
IV. Becky’s claims were not ripe because it never submitted a completed
plat application to the city for review. [Appellant’s Br. pp. 24-25]
A case is not ripe when its resolution depends on events that have not yet
occurred, and ripeness is a threshold issue that implicates subject matter
jurisdiction.66 A plaintiff must demonstrate a concrete injury in order for a
justiciable controversy to exist and to avoid premature adjudication of factually
64
City of Laredo v. Rio Grande H2O Guardian, No. 04-10-00872-CV, 2011 WL
3122205, at *4-5 (Tex. App. – San Antonio Jul. 27, 2011, no pet.)
65
See SOS, 304 S.W.3d at 878.
66
Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851-853 (Tex. 2000).
25
undeveloped claims. Therefore, a plea to the jurisdiction is an appropriate vehicle
to challenge the non-justiciability of a claim due to a lack of ripeness.67
A case that is almost directly on point is City of El Paso v. Maddox, 276
S.W.3d 66 (Tex. App. – El Paso 2008, pet. denied). In that case, plaintiff was a
developer who owned a tract of landlocked property. Plaintiff bought the property
with the understanding that the city would require under its subdivision regulations
the construction of a road to plaintiff’s property across neighboring development.
Instead, the city amended its subdivision ordinance to delete the requirement that
subdivisions such as the one adjacent to plaintiff’s property construct public streets
to provide access to the neighboring property. Plaintiff sued the city for a
regulatory taking, even though plaintiff never had submitted a subdivision
application or any other type of development plan for plaintiff’s own property and,
therefore, the city never had made a final decision with respect to plaintiff’s
property. The court of appeals held that the trial court lacked jurisdiction over
plaintiff’s claims on the basis of ripeness:
We conclude that the City has not been given an
opportunity to make a final decision on Appellees' access
to its property and Appellees have not presented evidence
establishing that submitting a development plan or
seeking a variance would have been futile. Accordingly,
67
Id.
26
we reverse the order of the trial court denying the City's
plea to the jurisdiction[.]68
“Although a claim is not required to be ripe at the time of filing, if a party cannot
demonstrate a reasonable likelihood that the claim will soon ripen, the case must
be dismissed.”69
Here, although Becky has made some attempt to ripen its claims, nothing
significant has changed since plaintiff filed its original petition in May 2014. The
fact is, the city has not taken a final action on the merits of Becky’s application.
Any final action that city staff may ultimately recommend to the Planning and
Zoning Commission will depend on whether plaintiff submits the required
revisions to the city and what those revisions contain. Any final action that the
Commission may take will depend on the votes of the commissioners acting as a
legislative body. Becky’s fears about what the city may or may not require after
plaintiff has addressed the comments provided by the city planning staff, at which
68
City of El Paso v. Maddox, 276 S.W.3d 66, 75 (Tex. App. – El Paso 2008, pet. denied);
see also City of Corinth v. NuRock Dev., Inc., 293 S.W.3d 360, 369-70 (Tex. App. – Fort Worth
2009, no pet.) (holding developer’s request for injunctive relief not ripe to prevent city from
“arbitrarily and capriciously applying ordinances and variances” as to developer’s property);
Coble v. City of Mansfield, 134 S.W.3d 449, 458-59 (Tex. App. – Fort Worth 2004, no pet.)
(holding developer’s claim for damages not ripe because developer had not completed
subdivision process and city had not made final decision as to applicability of roadway ordinance
to developer’s property).
69
Robinson v. Parker, 353 S.W.3d 753, 755 (Tex. 2011).
27
point the planning department will be able to complete its review process, are still
entirely speculative.
In sum, the Court lacks jurisdiction over this lawsuit because the threatened
harm claimed by plaintiff - that it may be required to construct a portion of a road
– turns on events that have not occurred and may never occur in the future.
V. Becky’s claims are moot. [Appellant’s Br. at 25-28]
The trial court lacked subject matter jurisdiction over Becky’s claims against
the city based on the doctrines of governmental immunity, standing, and ripeness.
The city also has asserted that the trial court lacked jurisdiction based on the
doctrine of mootness pursuant to Save Our Springs Alliance, Inc. [SOS] v. City of
Austin, 149 S.W.3d 674 (Tex. App. – Austin 2004, no pet.). Here, because the
City Council validly approved the Agreement,70 any claim by Becky that the City
Council acted without authority is moot.
PRAYER
For these reasons, Appellees, the City of Cedar Park, Stephen Thomas, Matt
Powell, Mitch Fuller, Lyle Grimes, Lowell Moore, Jon Lux, and Don Tracy,
respectfully request that the Court of Appeals affirm the decision of the trial court
and for such other relief, at law or in equity, to which Appellees shall show
themselves justly entitled.
70
CR 59-71 (Minutes of September 12, 2013 Cedar Park City Council Meeting).
28
Respectfully submitted,
BICKERSTAFF HEATH
DELGADO ACOSTA LLP
3711 South MoPac Expressway
Building One, Suite 300
Austin, Texas 78746
(512) 472-8021 Telephone
(512) 320-5638 Facsimile
Cobby A. Caputo
State Bar No. 03784650
ccaputo@bickerstaff.com
By: /s/ Bradley B. Young
Bradley B. Young
State Bar No. 24028245
byoung@bickerstaff.com
ATTORNEYS FOR APPELLEES
29
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing document has
been served via electronic filing service provider, email, facsimile, and/or Certified
Mail Return Receipt Requested to all parties of record on this the 29th day of July,
2015.
Elizabeth G. Bloch
Husch Blackwell LLP
111 Congress Avenue, Suite 1400
Austin, Texas 78701-4093
(512) 472-5456
(512) 479-1101 (FAX)
Heidi.bloch@huschblackwell.com
Leonard B. Smith
P.O. Box 684633
Austin, Texas 78768
(512) 914-3732
(512) 532-6446 (FAX)
lsmith@leonardsmithlaw.com
ATTORNEYS FOR APPELLANT
/s/ Bradley B. Young
Bradley B. Young
State Bar No. 24028245
byoung@bickerstaff.com
30
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I certify that this
Brief has been prepared in a conventional typeface no smaller than 14-point for
text and 12-point for footnotes. I also certify that this response brief complies with
the word count limitations contained in Texas Rule of Appellate Procedure
9.4(i)(2) because, excluding contents identified in Rule 9.4(i)(1), it contains 6039
words. I relied on the computer-generated word count of Microsoft Word, which
is the software used to prepare this brief.
/s/ Bradley B. Young
Bradley B. Young
State Bar No. 24028245
byoung@bickerstaff.com
31
APPENDIX
A. Unified Development Agreement (pp 9-23 of the clerk’s record)
B. City of Cedar Park Code of Ordinances Section 16.02.005
32
APPENDIX A
UNIFIED DEVELOPMENT AGREEMENT
THIS lJNIFIED DEVELOPMENT AGREEMENT (this "Agreement'') is entered into to be effective as of
October 7, 2013 (the "Effective Date"), by and between .MJLESTONE COMMUNITY BU1LDERS, LLC, a
Texas limited liability company ("Milestone"), and the CITY OF CEllAR PARK, TEXAS (the "City").
Milestone and the City are referred to hereinafter individuaHy as a "P:uty" and collectively as the "Parties."
RECITALS
A. Milestone has submitted to. and is processing with, the City, the following applications relating to
that certain real property, located in Williamson County, Texas and within the boundaries of the City, as described
on Exhibit "A", attached hereto and incorporated herein by reference (the "Property"): (i) a subdivision plat
pursuant to \Vhich the Property and adjacent 8.408-acre commercial tract will be subdivided into four (4) lots (City
Case No. FP-13-004), referred to herein as the "Plat;" and (ii) two (2) site plans of the Property, referred to herein
as the "Site Plans," pursuant to which Milestone will constmct, in two (2) distinct phases of approximately 62 units
(City Case No. SD-13-000 19) and 141 units (City Case No. SD-13-00026), respectively, a total of approximately
two hundred three (203) townhome units. The condominium project to be constmcted on the Property pursuant to
the Site Plans is referred to herein as the "Project"
B. In connection with the Project, LAKELINE FUND, LTD., a Texas limited partnership
("Lakeline Fund"), has contractually agreed with Milestone that it win dedicate right-of-way to the City, and
Milestone will design, permit and construct and contribute to the cost of various on-site and off-site transpmtation
improvements that benefit the Project and adjacent/nearby properties (the "Tr.ansportafion Improvements").
C. The Patties now desire to enter into this Agreement, subject to the tenns and conditions set forth
hereinbelow, to provide for unified development of the Project on the Propexiy and the funding and development of
the Transportation Improvements in c01mection therewith.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual covenants hereinafter contained, and
of other good and valuable consideration the receipt, sufficiency and adequacy of which the Parties mutua!ly
acknowledge, Milestone hereby declares that, upon its acquisition of the Property, the Prope1ty shall be subject to
the following covenants, conditions, and restrictions, which shall nm with the Property and bind aU Parties and
successors in interest, and the Parties hereby agree to the following:
l. Unified Develomnent. For purposes of review, modification, or approval of the Site Plans by the
City, the Property will be constructed as a unified development, regardless ofthe Propmiy being comprised of two
(2) lots upon recordation of the Plat in the Official Public Records of Williamson County, Texas. A current copy of
the Plat is attached hereto as Exhibit "B". Any proposed modifications to the Property or any portion of either lot
therein will be construed as a modification to a single site, requiring review of the Property in accordance with the
provisions of the City's Code of Ordinances and this Agreement. This section applies to, but is not limited to,
drainage, detention and/or water quality inliastructure relating to the Prope1ty.
2. Ri2:ht~of-Way Dedication. Milestone covenants and agrees with the City that it will enforce the
tenns of its purchase contract with Lakeline Fund so as to cause to be dedicated the City, to be owned, operated and
maintained by the City upon completion and acceptance by the City, the right-of-way for the extension of Old Mill
Road, said right·of-way measuring fi·om si>..1:y-four feet (64') to seventy feet (70') in width and twelve hundred ten
linear feet (121 0'), as more particularly depicted on Exhibit "CEirfH3S PUND TWO, LTD BY INSTRUMENT OF RECORD !N VOLUME 1581, PAGE
520 Of THE DEED RECORDS OF WlLLIAMSON COUNTY, TEXAS; AND TRACT Fetm
l.miN(i 0.441 OF ONE ACRE OUT OF A 1.081 ACRE TRA(Yf OPLAND CONVEYED TO
PROPERTIES FUND T\"0, l:.m HY lNSTRU.!viENT OF RECORD IN DOC. NO. 2008004670
OF THE Off!CJAL PU13LJC RECORDS OF WJLUA\\·fSON COUNTY, TEXAS, AND BEING
MORE COJ\·1l'LETBL Y DI~SCRlntUJ BY METES AND BOUNDS AS FOLLO\VS:
COMMDNCJNG l'lt a 1/2 inch iron roebar found for tl>e smllhwcst C<)nler (lf :;Hid 26.001 acre Irae!,
!he southeast comer of Lot 2, Bind' A, Cnspi\H, S~:-ction Tv,:o, n subdivision of record ln Cabinet
AA, Slide.s 289-290 uf th;; Plat Records of \Vi!liam~ou County, Tt:Xi line of the 26.001 acre
tract and 1he easl line of Lo1 2, Block A, Caspita, Section l\V<1, ~n,
for a tntal distance of 613.97 feel to a Ji2 inch iron rebar found for the northwest comer of the-
26.0{1 J ncre !r<~c!, !he !JOr(h~,:ii:s( comer of Lot 1, Blod: /\, Caspita, Sec:-liOI) Two, f\'JilHnmson County, Texns, from w1Jich n :5/8 inch iron rebat' i(nmct
fhr tmd angle poini in tlJc north line DfLot 1, Block A, Caspila, Section T>No and !he sm1th line of
said Lot 2, Lodge J>t Lakeline VH1age, SectiOJi H, bears South 69"2&'W" West a distance nf
194.65 fi;d (record~ South 69"28'10" West a distaJlceofl94.65 f~;-et);
'fl!ENG!.~ Norlll 72"34'24" E~s\ (r~;I;onl • North 12"36'.5 1" East), along th~ norlh linc {lf !he
26.001 acre tract and the soutllline of Lot 2, Lodge al Lalu;linc Vilbgc, Section ll, n distam;e of
239.97 fe-el (r<:cord- 240.07 l'i;et) to fsaid
remainder of a 237.31i acre tract the following three {3) courses:
J. North 64"57'32" E<~st H dislunce of765.82 feet (recn!'d- Nor!h 66"(}!}'()5" Et1S\ a dls!Mcc
of7.U5.77 feet) to :a 112 Inch iron i't:llHr R11md;
:Z. N(lrth 72"00'5,1'' Em;( n distance of210.58 feet (re-t(Jfd- North 73'T2.'40" Ea£t a distance
;__lf 2 HL75 feet) to <1 J/2 inch imn rebar set witl1 plastic cap which reads "HASEIJNE
TNC" for the northv.asl corner of the 0.30 of OM ncre 1ruct;
J. South 20"38'04" f-flSi a tlishi1Hl~1 of 6,64 feet (record - South 19(>41 '05"' Enst 11 dista11te of
6.64 feet) to an iron rebar found fnr the southcnsl ct\mcr oft he 0.30 of one acre tract, t11c
l\Oi1he-llst con1cr (Jf the- 26.00 I acre !ract, ;:md being the common norllJcrly comer of' Lots
!33 and 134, Riviera Sp1>fngs Subdivision, a subdivision of record in C.abinet B, Slides
!67-169 t
come!' of sal(J Hl.349 Mre lrf Lot !81, Riviera Springs
Subdivision No. 2, fmm which " 11?. im~h iron wbar found for an angle polm in the east line of
snid Col J, Bh>et: B, Lniclinc Commons Subdivision Md belng the soulhwcs! comer of Lot 184,
Riviera Springs Subdivlslon No.2, bears South 21 "00'2.:2" East a distance <)f 3!7,(i9 fee\ (Nl.:Ord -
South 20"59'04" Eas.f a dislance of31 7.66 feet);
THENCE SNlth 69"00'31" W<::st (r<,c-ord - South 69,61'09" West), alon,g the south lim\ of the
10349 acre tract ;.mrl the nm1l1llne oft.o1 l.. Blocl\ B, Lakc!int\ Commons Subdivision, a f curv;1ture ln the west line of Lot 1, Block B, L~keline CommOilS
Subdivision and the n7'02" \Vest a distnncc of 9.21 feet to a calculated point at the inter.;;ectiM of s<1id
2KJni11g pilrcc! iinll adopted by !he City of Cedar Pl.1r-k (:ity Council in Ordinanc-e Z07·04-
01-22-12.C of the City of Ce{lar Park Code of Ordinances with the west Hue of !hi>
lOJ49 :~err; tr Norlh 49°!! '49" West a distance of362.?l fee(;
THENCE North 48"'46'49" East, crossing through the l 0.349 acre tract and along the zoning
parcel line mloptcd by tl1c City of Cedar Park City Goundl in OrdinmW<: ZQ7-0+0l-22-l2.C of
the City of Cedar Park Code of Ordinance~, n di:;t
whk:h r.,:'lldS "BASELINE INC";
3. South 67"3.5'44" Wes! fl distance of 677.69 feel to a 112 inch iron reba!' set with plastic Cl:lj/
w·hich reads '~BASEUN6 INC.";
4. S<)Uih S4'-'l0'3B" \Vt.1st:; dist~tnC{! of96.20 feet to the POINT OF DEGlNNlNG.
This parcel contains 29.1 R4 ncres ofJattd, more or l::ss, out ofihe Rachel Saul Survey, Abstract
No. 551 :md !ht~ Richard Duty Survey, Ahstract No. 183, both in \Vlll1<~mson Ct;1mty, Tt;XHs,
Bearing Basis: Texas State Planf!. Coordlmw.~ S)'s!cm, Ccniml Zone, NAD 83/93 HARN.
/ ~· J-(} friLl
~ ~ ~-:!.4tf11Z11<..
J. SCOTT LAS\VELL
REGISTERED PROFESSIONAL LAND SURVEYOR
STATE OF TEXAS NO. 5583
{W0593672.9}
18
EXHIDIT "B';
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{W0593672.9}
21
EXHIBIT "C'>
OLD MILL ROAD EXTENSION
OLD MILL ROAD EXTENSION
REl!IDWJW. COWi:CTOfl I
1--------------~-----``·--------------------4
{W0593672.9}
22
DEPICTION OF SALES TRAILER PARKING LOCATION
TEMPORARY SAU:S TRAIU:R EXHIBIT
I
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