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cause no.
Da Vinci Investment Limited Partnership,

048 2 69023 13

Oudicial District Court v.

City of Arlington, Texas, Charlie Parker, c-) rn - Kathryn Wilemon, - > Sheri Capehart, Tarrant CountyF.Texas , Jimmy Bennett, and C.7 rTI -< Michael Glaspie,


defendants. Plaintiff's Original Petition Da Vinci Investment Limited Partnership ("Plaintiff") files this original petition, complaining of the City of Arlington, Texas (the "City"), Charlie Parker, Kathryn Wilemon, Sheri Capehart, Jimmy Bennett, and Michael Glaspie (collectively, "Defendants"). I.
Discovery Level

Plaintiff intends this matter to be conducted pursuant to discovery level 3 and requests that the court enter an appropriate discovery control plan. II. business in Tarrant County, Texas. Defendant City of Arlington is a Texas home-rule municipality located in Tarrant County, Texas, and it may be served with process by serving its city secretary, Mary Supino, at 101 West Abram,

The Parties

Plaintiff is a Texas limited partnership with its principal place of

floor, Arlington, Texas 76010.

interested in developing the property in a first-class manner, with the intent that the ultimate uses of the land would positively reflect on the surrounding community. Because of this intent, Plaintiff voluntarily sought and obtained a zoning change on the commercial portion of the property to "PD," or planned development. In a PD zoning category, property can be developed only in accordance with an approved development plan that meets the City's zoning ordinance for certain listed "Minimum Performance Standards" and "Design Guidelines" (collectively, the "Guidelines") such as architectural details,

landscaping, buffering residential adjacency, and the like. Over several years, Plaintiff developed portions of the property. For example, a portion of the property was developed as residential, single-family housing. A portion was developed as a pharmacy. Another portion was developed as a dry cleaning facility. The latter two commercial tracts were constructed as PD projects, with only minimal development plan approval, as the City approved the development plans on a simplified "concept brief' basis. After these tracts were developed and sold, Plaintiff remained in ownership of one final tract of land (the "Lot"). Plaintiff obtained

commercial zoning on the Lot in 1991 in the category which has now become "PD-CS" category, which is a commercial zoning category that permits certain specified uses as defined in the City's zoning ordinance. One such expressly permitted use is a car wash. Thus, the Lot was legally

permitted to be developed as a car wash, so long as the Guidelines were met. In 2012, Plaintiff contracted with a third-party to purchase the Lot, conditioned upon the City's approval of the contract purchaser's development plan to use the Lot for a car wash. After numerous discussions with City staff, in March of 2013, Plaintiff and the purchaser submitted a formal development plan application for the Lot

for use as a car wash.

After continued discussions with staff, Plaintiff and the purchaser repeatedly amended the development plan and presented a final amended version to the City's planning and zoning commission ("P&Z").
Plaintiff's Original Petition, page 3

The P&Z

received many letters in opposition to the development plan, most of which concerned the actual use of the Lot as a car wash as opposed to the merits of the proposed development plan. In other words, the opposition simply did not want the Lot to be developed into a car wash, regardless of the 1991 zoning or Plaintiff's compliance with the Guidelines. Plaintiff and the Purchaser continued to amend the development plan at the request of the City's staff, and endured the P&Z continuing the hearing of the case four times, which resulted in lengthy delays in presentation of the development plan case to the P86Z. Ultimately, the P&,Z voted against approving the development plan without material discussion on May 15, 2013. Plaintiff appealed to the city council for the City, which agreed to hear the development plan application. At the council level, there were again letters of opposition, focusing on the car wash use issue. One of the opponents was a former chairperson of the P&Z, who testified that he did not want a car wash at the location. A petition in opposition, replete with factual misrepresentations, was also circulated and presented in opposition. Throughout this process, Plaintiff and the purchaser continued to meet with opposition property owners and the City's staff to refine the development plan. By the time the hearing before the city council took place, Plaintiff and the purchaser had presented yet another amended plan that requested zero exceptions to the City's Guidelines. The plan, as presented, met every one of the Guidelines and addressed every concern raised by the City's staff. In fact, the staff report presented to the city council contained zero objections to Plaintiff's development plan. Additionally, the amended development plan addressed substantially every concern expressed by the primary opposition, and it had garnered support from the immediately adjacent homeowners who were initially in opposition. The city council was left to review a

development plan that 1) fully complied with the Lot's zoning classification, 2) fully met every one of the Guidelines in the City's

Plaintiff's Original Petition, page 4

ordinance, 3) had support from the immediately adjacent homeowners, and 4) contained no negative comment in the City's staff report. Despite these facts, by the vote of the Defendants, the city council voted to deny the development plan without discussion at the hearing on August 6, 2013. Tellingly, no comments or issues were raised as to any negative impact the proposed development plan might have to the surrounding area's "health, safety, or welfare." Despite full compliance with the City's Guidelines, upon information and belief, this is the first PD development plan application ever denied by the City. In fact, a car wash facility located within the City at the intersection of Cooper and Road to Six Flags was approved on a development plan in PD zoning less than two years previously. In that application, the contract purchaser requested, and was granted, numerous exceptions to the City's Guidelines. That PD development plan application was faced with an approved petition in opposition from the immediately adjacent landowners, but the City nevertheless approved that development plan. Plaintiffs and the purchaser's final development plan as reviewed by the city council was far more restrictive, far more aesthetically appealing, and far less obtrusive to surrounding uses than the one previously approved by the City on Cooper. The only real difference between the result of Plaintiffs application and that of the previously-approved car wash on Cooper seems to have been the identities of the opposition. For the Cooper plan, the opposition was from residents living in duplexes and the community directly behind that facility. For Plaintiffs plan, the opposition was led by a former city councilmember, a former chairman of the City's P&Z, and a host of political donors who used personal and professional influence over Defendants in their attempt to have Plaintiffs development plan wrongfully denied. As a result of this denial, the contract was terminated, and Plaintiff lost the sale of the Lot to the third party. Additionally, the value of the Lot has been virtually destroyed, as it is readily apparent that despite the terms of the City's ordinance, the only development on the Lot that will be allowed will be
Plaintiff's Original Petition, page 5

uses that are specifically approved by the leaders of the influential local opposition. Plaintiff cannot now represent to any potential buyer what is a permitted use for the Lot, as the City has chosen to refuse to allow the Lot to be used for a car wash despite the fact that the applicable zoning ordinance specifically permits the Lot's use as such. Defendants have allowed themselves to be pressured by political influence to arbitrarily refuse Plaintiff's development plan, and in the process, Defendants have destroyed the value of the Lot.


Count One - Unlawful Taking

At the time Plaintiff acquired the Lot, the property was undeveloped land, suitable for development. Plaintiff obtained commercial zoning on the Lot in 1991, and since that time, the Lot has been suitable for development as a car wash under the City's zoning and land use regulations. Plaintiff acquired the property with the intent of commercial development upon the property. As a result of the City's denial of the development plan, Plaintiff can make no economic use of the Lot for the purpose for which Plaintiff acquired it, or for any other purpose. As a consequence of Defendants' acts alleged above, Plaintiffs property has essentially been taken by the City for a public purpose, i.e., open, undeveloped space, without adequate compensation, in violation of article I, 17 of the Texas Constitution. The City's conduct has damaged Plaintiff in an amount within the jurisdictional limits of this court. V. Count Two - Equal Protection Claim

There is no meaningful difference between Plaintiff and the owners of other property located within the same zoning classification who have requested and been granted the right to develop their property as a car wash. Defendants have intentionally and arbitrarily denied Plaintiff's development plan application despite it meeting all aspects of the City's code of ordinances. Defendants have intentionally and arbitrarily denied Plaintiff's development plan based solely upon the influential opposition's objections to

Plaintiff's Original Petition, page 6

the car wash use allowed under the Lot's zoning classification and the City's ordinances. However, the City has failed to pay Plaintiff just compensation for its taking of the Lot. Further, Defendants have arbitrarily and intentionally treated Plaintiff differently from the owners of the Cooper car wash facility, who were permitted to pursue highly lucrative commercial development, while Plaintiff has been relegated to the Lot being delegated to undeveloped open space. Defendants' intentional and arbitrarily different treatment of Plaintiff has denied Plaintiff from equal protection of the law in violation of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. 1983.

VI. Count Three - Substantive Due Process Claim

Defendants' decision to deny Plaintiff's development plan, preventing development of the Lot, was not based on the merits of the requested development plan, but was designed to accede to political pressure from influential persons and campaign donors. Plaintiff's development plan met or exceeded all of the Guideline found in the applicable zoning ordinance, but Defendants nevertheless voted to deny the plan. Defendants' denial of the plan is not rationally related to a legitimate governmental interest, and, therefore, has denied and continues to deny Plaintiff its rights to substantive due process in violation of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. 1983. Further, Defendants' actions, designed to prevent development of the Lot, is not rationally related to a legitimate public interest. Defendant's denial of the development plan is arbitrary and irrational. Defendants' actions have denied and continue to deny Plaintiff its right to substantive due process in violation of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. 1983.

Plaintiff's Original Petition, page 7

Prayer Plaintiff requests that Defendants be cited to appear and answer, and that upon final trial, the court enter judgment in favor of Plaintiff against Defendants, jointly and severally, for: a. b. c. d. actual damages for the taking and damaging of the Lot; pre judgment and post-judgment as allowed by law; reasonable and necessary attorneys' fees and costs of court; and any such further relief to which Plaintiff is justly entitled. Respectfully submitted, JONES HASSETT, P.C.

by: Kelly Jones Texas Bar No. Michael Hassett Texas Bar No. 00796722 440 North Center Arlington, Texas 76011 (817) 265-0440 (817) 265-0440 (fax) ATTORNEYS FOR PLAINTIFFS

Plaintiff's Original Petition, page 8