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CAUSE NO. ______________________
MISSION RESCUE § IN THE DISTRICT COURT
vs. § ______ JUDICIAL DISTRICT
THE CITY OF SAN ANTONIO §
Defendant § BEXAR COUNTY, TEXAS
ORIGINAL PETITION FOR DECLARATORY JUDGMENT
Now Comes, Plai ntiff, MISSION RESCUE, a Texas non-profit corporation, fi ling this
Original Petition for Declaratory Judgment pursuant to the Texas Declaratory
Judgments Act, Chapter 37 of the Texas Civil Practice and Remedies Code, and for
cause would show the Court the following:
I. DISCOVERY LEVEL
Plaintiff intends that discovery be conducted under level 2.
II. PARTIES AND SERVICE
Plaintiff, Mission Rescue, is an i ncorporated non-profit formed in the state of
Texas, the purpose of which is to provide assistance to those being displaced through
local gentrification efforts. Plaintiff’s pri ncipal place of busi ness is i n Bexar County,
Texas and appears by and through its undersigned counsel.
The last three digits of Plaintiff’s FEIN are 191.
Defendant, City of San Antonio, is a political subdivision and may be served by
personal service on the City Clerk, Leticia M. Vacek at 9800 Airport Blvd. # M063, San
Antonio, Texas 78216.
CIT CML/SAC 1
6/9/2014 1:59:56 PM
Donna Kay McKinney
Bexar County District Clerk
Accepted By: Roxanne Mujica
III. JURISDICTION AND VENUE
The subject matter in controversy is within the jurisdiction of the court.
This court has jurisdiction over the parties because Defendant is a Texas political
Venue in Bexar County is proper in this case under 15.002(a)(1) of the Texas
Civil Practice and Remedies Code because this action involves real property by said
Section, and this county is where all of the real property at issue is located.
This lawsuit concerns a certain 20.763 acre tract of land located at 1515 Mission
Rd., San Antonio, Texas 78210 (hereinafter referred to as the “Mission Property”).
Pursuant to City of San Antonio Zoning Case Number Z2014085, the Mission
Property was zoned MH H RIO-4 AHOD (Manufactured Housing Mission Historic River
Overlay-4 Airport Hazard Overlay District). Developer White Conlee, through its
attorney Bill Kaufman, sought to rezone the land IDZ H RIO-4 AHOD (Infill Development
Zone Mission Historic River Improvement Overlay-4 Airport Hazard Overlay District) in
order to build a luxury, mixed use high-density apartment complex on the parcel.
On February 18, 2014, the Zoning Commission met to consider the request for
rezoni ng of the Mission Property. One individual spoke in opposition to the rezoni ng on
that day due to questions regardi ng the notice received or lack thereof. As a result, the
matter was reset to March 18, 2014.
That heari ng went forward as scheduled and there were many residents present
in opposition to the rezoni ng. At that meeting, the participants again complained that
they had not received any notice of the proposed zoning changes and had only become
aware of the meeting due to their own efforts. A motion was made and seconded to
deny the zoni ng change, however, there were insufficient votes cast to defeat the
proposal to rezone. Thus, the developer then elected to transfer the matter over to the
San Antonio City Council to decide.
The matter was subsequently heard at the San Antonio City Council Meeting of
April 16, 2014. At that meeting, the participants continued complai ning of a general lack
of notice, lack of communication and lack of i nclusion in the process. Councilman
Diego Bernal moved to postpone the zoni ng decision until more information could be
received and exchanged to the residents.
At its regular A Session Meeting on May 17, 2014, the San Antonio City Council
again convened and began consideration of Agenda Item P-2 to decide the zoning
issue affecti ng over 300 residents at the Mission Trails Mobile Home Park. Numerous
citizens addressed the Council on this Item, including a representati ve of the residents
of the mobile home community at 1515 Mission Road, who i nformed the Council that
many of the residents had contracts with the land owner that would preclude or delay
their eviction from the property.
After completion of Citi zens’ testimony, there were a few minutes of perceived
confusion on the part of the council. Shortly thereafter, the Mayor announced the
Mayor Castro: Thank you Ms. Reyna. Councilwoman [Rebecca] Viagran.
Councilwoman Viagran: [said somethi ng to Mayor Castro with her microphone
turned off, however, visible at the end of her words was “executi ve session”. She
then turned on her microphone, then looked at Mayor Castro and nodded to him].
Mayor Castro: Thank you very much for your input today. This zoning case, of
course is one that we have to gi ve very long and hard deliberation to and which,
duri ng the course of the hearing four weeks ago, and today, many of the residents
who have spoken have given the counsel a lot to thi nk about, and one of those
matters that we have to get to the bottom to, get to the bottom of before we can
proceed, is the legal issue that has been brought up regarding the contracts that
have been signed. So, so at this time, - we’ll have the translation i n a second - So at
this time, we wi ll adjourn to executive session to consider the legal issue of the
potential contracts between the trailer park owners or lessees and the land owner
and any impact that that might have on our decision. And we will be back shortly.
Time on Video: 7:26:48 / 09:47:58
Mayor Castro did not say that the Council would be meeti ng with its attorney. Indeed,
there was no i ndication that the City Attorney would attend the Council’s closed
meeting. The Mayor did not provide any further explanation for the reason the closed
meeting would be held and did not cite any exception to the Open Meetings Act that
would justify a closed meeting.
After approximately 40 mi nutes, fi ve or si x Council Members returned to the
Public Meeting Chambers. Several took their seats on the dais while others stood and
talked i n groups of 2 or 3. After approximately two minutes, Mayor Castro left the
Chamber and soon returned with three other Council Members, i ncluding
Councilwoman Viagran. The Mayor then announced as follows:
8:08:42 Mayor turns on his microphone: Thank you very much for your patience. We
will now resume the City Council meeting. We have returned from Executive
Session, no action was taken during executive session. Councilwoman Viagran.
Despite massive amounts of confusion and many unanswered questions remaini ng,
the following City Council members voted in favor of the rezoni ng: Rebecca Viagran,
Ron Nirenberg, Cris Medina, Ray Lopez, Mike Gallagher and Joe Krier.
V. LEGAL AUTHORITY
Open Meetings Act
Texas law requires that “every regular, special, or called meeting of a
governmental body shall be open to the public, except as provided by this chapter. ” Tex.
Gov’t Code Ann §551.041(2004). Further, Sec. 551.041 requires a governmental body
to give written notice of the date, hour, place, and subject of each meeting held by the
governmental body. Id.
Although the Texas Rules allow for exceptions to this requirement, the valid
reasons for causing meeti ngs to be held in secret is narrowly tailored to avoid the hiding
of matters to which the public should be privy. More specifically, the law states as
SUBCHAPTER D. EXCEPTIONS TO REQUIREMENT THAT MEETINGS BE OPEN
Sec. 551.071. CONSULTATION WITH ATTORNEY; CLOSED MEETING. A
governmental body may not conduct a private consultation with its attorney except:
(1) when the governmental body seeks the advice of its attorney about:
(A) pending or contemplated litigation; or
(B) a settlement offer; or
(2) on a matter in which the duty of the attorney to the governmental
body under the Texas Disciplinary Rules of Professional Conduct of the State Bar of
Texas clearly conflicts with this chapter.
Tex. Gov’t Code Ann §551.071(2004).
In addition, the law requires that if a closed meeting is allowed under Texas
law, the presiding officer must publically (1) announce that a closed meeting will be held
and (2) identify the section or sections of the law under which the closed meeting is to
be held. Tex. Gov’t Code Ann §551.071(2004).
San Antonio Unified Development Code
The city code mandates that any change in rezoning requires “notice shall be sent to
each owner, as indicated by the most recently approved municipal tax roll, of real
property, withi n two hundred (200) feet of the property. San Antonio Unified
Development Code, Article IV, § 35-403.
VI. APPLICATION FOR DECLARATORY JUDGMENT
As alleged i n detail in the Factual Allegations of this complaint, which are
incorporated herein, the City Council, the governi ng body of the Defendant City of San
Antonio, and Counci l Members, in their official capacities as members of the governing
body of Defendant, deliberated on Ordinance 2014-05-15-0355 in a closed meeti ng in
violation of the Texas Open Meeting Act, Texas Government Code, 551.0001 et seq.
This Court possesses the power to declare the rights, status and validity for
matters relating to zoni ng decisions, and consequently, it has jurisdiction to determine
the enforcement of the zoning ordi nance passed by the City of San Antonio on May 17,
Plaintiff further contends that i n addition to violations of the Open Meeti ngs Act, the
zoning decision at issue i n this matter is void because pursuant to state and local law,
adherence to the notice requirements was not met. This includes failing to notify at
least one or more real property owners withi n 200 feet of the Mission Property of the
proposed zoning change. As a result, i n accordance with chapter 37 of the Texas Civil
Practice and Remedies Code, Plaintiff requests that this Court determine whether the
May 17, 2014 rezoning ordinance as to the Mission Property is unenforceable and void
because its enactment violates the zoni ng laws of the City of San Antonio and the state
ATTORNEY’ S FEES
It was necessary for Plai ntiff to retain the undersigned counsel to protect and
enforce their rights with respect to the validity and enforcement of the zoni ng ordinance.
Plaintiff requests attorneys fees pursuant to Texas Civil Practice and Remedies Code, §
WHEREFORE, Plaintiff respectfully prays that Defendant be cited to appear and
answer herei n, and that on final trial hereof, declaratory judgment be granted for Plaintiff
and against Defendant as follows:
a. Declare the Ordinance 2014-05-15-0355 null and void as provided by Texas
Government Code Section 551.141;
b. Plaintiff seeks monetary relief of $100,000.00 or less and non-monetary relief.
c. Upon final hearing, find the Defendant liable for reasonable and necessary
attorneys fees; including all fees incurred by Plaintiff herein; including all fees
necessary in the event of an appeal of this cause to the Court of Appeals and
the Supreme Court of Texas;
d. Award Plaintiff costs of Court; and
e. Award Plaintiff such other relief to which it is entitled.
THE HENNING FIRM
By: ___/s/ by Nicole Elizalde Henning__
Nicole Elizalde Henning
Texas Bar No. 24013054
435 W. Nakoma, Suite 101
San Antonio, Texas 78216
Tel. (210) 563-7828
Fax. (210) 563-7829
CIVIL RIGHTS LEGAL DEFENSE &
EDUCATIONAL FUND, INC.
Marisa Y. Salazar
State Bar No. 24085813
519 Culebra Rd.
San Antonio, Texas 78201
Tel. (210) 334-5209
Fax. (210) 492-1601