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NO. ____________________ COLUMBIA PACKING OF TEXAS, LTD. and COLUMBIA PACKING COMPANY, INC.

,
Plaintiffs,

vs. CITY OF DALLAS, TEXAS, THE BOARD OF ADJUSTMENT OF THE CITY OF DALLAS, TEXAS and LLOYD DENMAN, solely in his capacity as the Building Official of the City of Dallas, Texas,
Defendants.

IN THE DISTRICT COURT

DALLAS COUNTY, TEXAS

______ JUDICIAL DISTRICT

PLAINTIFFS ORIGINAL PETITION INCLUSIVE OF REQUEST FOR WRIT OF CERTIORARI, WRIT OF MANDAMUS, AND REQUEST FOR DECLARATORY AND INJUNCTIVE RELIEF Comes now, COLUMBIA PACKING COMPANY OF TEXAS, LTD. and

COLUMBIA PACKING COMPANY, INC., Plaintiffs herein complaining of the CITY OF DALLAS, TEXAS, THE BOARD OF ADJUSTMENT OF THE CITY OF DALLAS, TEXAS and LLOYD DENMAN, solely in his capacity as the Building Official of the City of Dallas, Texas, Defendants and for cause of action would show the Court as follows: Discovery Plan 1. This suit is brought under Discovery Control Plan Level 2 pursuant to

T.R.C.P. 190.3.

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Parties 2. Plaintiff Columbia Packing of Texas, Ltd. is a Texas limited partnership and

is the owner of the real property located at 2807 E. 11 th Street, Dallas, Dallas County, Texas (the Property). Plaintiff Columbia Packing Company, Inc. is a Texas corporation. It operates the Columbia meat processing and distribution business located at that address. The Plaintiffs are hereinafter collectively referred to as either Plaintiffs or Columbia. 3. The City of Dallas, Texas is a municipality established in accordance with the

applicable laws of the State of Texas and is hereinafter referred to as the City. The City may be served with process by serving the City Secretary, Rosa A. Rios, 1500 Marilla Street, Room 5DS, Dallas, Texas 75201. The Board of Adjustment of the City of Dallas, Texas is a board created under the laws of the State of Texas and the Ordinances of the City of Dallas by the City of Dallas (hereinafter referred to as the Board). Service upon said Board of Adjustment may be had by serving Rosa A. Rios, City Secretary, 1500 Marilla Street, Room 5DS, City Hall, Dallas, Texas 75201. Lloyd Denman in his capacity as the Building Official of the City of Dallas is the City official responsible for issuing and revoking certificates of occupancy. He is named in this litigation solely in his official capacity as the Building Official (hereinafter the Building Official). Mr. Denman may be served with process at 320 E. Jefferson Blvd., Room 105, Dallas, Texas 75203. A copy of this Petition is being served upon the Attorney General of the State of Texas pursuant to

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the Declaratory Judgment Act. Jurisdiction and Venue 4. This Court has jurisdiction of all parties to this suit due to their location and

operation in Dallas County, Texas. Further, this Court has jurisdiction over the controversy pursuant to Sections 51A-3.102(e) and 51A-4.703 and A of the Dallas Development Code, Sections 211.011 and 245.006 of the Local Government Code, Section 551.142 of the Government Code of the State of Texas, the Declaratory Judgments Act, Chapter 38 of the Texas Civil Practice & Remedies Code and Article 1, Section 17 of the Texas Constitution. Venue is proper in this Court pursuant to Sections 15.001, 15.011, 15.012, 15.03 of the Texas Civil Practice & Remedies Code. Facts 5. Columbia is the owner and operator of the meat processing and distribution

business known as Columbia Packing located at 2807 E. 11 th Street, Dallas, Dallas County, Texas. As the owner of the Property and the operator of the business located thereon, Columbia is adversely affected by the below described decision of the Board of Adjustment and the below described actions/inactions of the City and is entitled to file this petition. 6. As of the end of 2011, Columbia had operated a slaughterhouse, meat

processing, and distribution center at the Property for over seventy-five (75) years. During that period of time, Columbia had never received a citation from the City alleging that it

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was in violation of any applicable City Codes, the Dallas Development Code, any other City ordinance, rule or regulation or any county, state or federal law of regulation. Throughout that time as improvements were made to the Property, Columbia applied for and received from the City various permits for items such as installation of underground storage tanks, propane tanks, construction of additional improvements, installations of new freezer/coolers, adding offices, etc. Acknowledging and approving all of these actions on August 17, 1993, the City and the Building Official issued CO #9308171055 to Columbia for a nonconforming slaughterhouse use. Although the Certificate of Occupancy indicates the use was slaughterhouse, the actual use included also the meat processing and distribution operation which are permitted uses in IR zoning. A true and correct copy of that Certificate of Occupancy is marked Exhibit 1, attached hereto and incorporated herein by reference. 7. The reason the slaughterhouse is shown to be a nonconforming use is that the

Property is zoned Industrial Research (IR). Although the meat packing and distribution use are permitted uses in IR zoning, a slaughterhouse (i.e., the slaughtering of animals, fish or poultry) is considered an industrial (inside) potentially incompatible use under the Dallas Development Code and it is not a permitted use in IR zoning. The slaughterhouse use at the Property was a legal nonconforming use as defined by the Dallas Development Code in that the slaughterhouse was lawfully established under the rules and regulations in force

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at the time the slaughterhouse began operation and although the slaughterhouse had been in regular use from that time until January, 2012, the use did not conform to the requirements of the Dallas Development Code subsequently enacted after the slaughterhouse began operation. Specifically, according to the City, in 1965, the City rezoned the property whereby slaughterhouse was no longer a use permitted by right. 8. In January, 2012, the City asserted that waste from the slaughterhouse had

been improperly discharged into Cedar Creek rather than being discharged into the sanitary sewer system. As compared to the City which was routinely and intentionally flushing animal waste and other contaminates from the City-owned Dallas Zoo into Cedar Creek, Columbia asserted this discharge was a result of an infrastructure failure (i.e., a clogged pipe). Those issues are ongoing with the City. They are germane to the present action only to the extent they form the basis for the Citys efforts to deny Columbia its legal right to continue its permitted meat processing/distribution uses on the property after Columbia voluntarily discontinued the operation of the nonconforming slaughterhouse at the Property as of January 19, 2012. 9. In order that the Certificate of Occupancy would more correctly reflect the

reality of its operation, Columbia applied for and obtained an amended Certificate of Occupancy from the City. That Certificate of Occupancy dated February 16, 2012 reflects the entire 70,000 square feet of improvements and reflects the other permitted operations

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beyond the nonconforming slaughterhouse. That CO also signed by Building Official Denman is marked Exhibit 2, attached hereto and incorporated herein by reference. Board Action 10. On March 19, 2012, the City initiated action before the Board of Adjustment

to set a compliance date for the nonconforming slaughterhouse use (i.e., a date by which the slaughterhouse use must discontinue operation) pursuant to the provisions of 51A4.704(a)(1) of the Dallas Development Code. Columbia was advised by the Board on March 23, 2012 that it had assigned the Citys request BDA No. 112-047, that a public hearing would be held on April 18 th , that the purpose of the hearing was for the Board to determine if there was a need for expedited compliance and that if this is the decision of the Board, the City will schedule a second hearing when the Board will determine a compliance date. See Board Amortization Rule of Procedure 9(b). A true and correct copy of the Notice to Columbia and the Amortization Procedures of the Board is marked Exhibit 3, attached hereto and incorporated herein by reference. 11. Although Columbia believed and continues to believe it is entitled to continue

to operate under its existing CO, in order to confirm and make clear its intention to not reinstate the slaughterhouse use which had already been terminated as of January 19, 2012, but to continue the remaining permitted meat processing and distribution uses, Columbia on March 27, 2012 again filed an application to amend its Certificate of Occupancy. At the

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direction of the City, Columbia amended that application and filed additional supporting documentation. The City was specifically advised of the Board hearing set for April 18, 2012 and Columbias desire to resolve any zoning questions prior to the hearing. The City acknowledged that fact, but then more than ten (10) days later unilaterally and inexplicably claimed the applications as either withdrawn or incomplete and advised Columbia that it was no longer processing these efforts to confirm and clarify the status of Columbias continuing conforming meat processing and distribution uses. Columbia believes the application of March 27, 2012 was properly filed and remains valid and enforceable under Chapter 245 of the Local Government Code. Nonetheless in an effort to move the process forward, Columbia made yet another application on April 17, 2012. On information and belief, the City has taken no action on that application in the subsequent ten (10) days. 12. The only item regarding Columbia for which the City and the Board gave the

public notice required by Section 551.041 of the Government Code was Application . . . for a compliance date for a nonconforming use. Columbia and the public were advised that the purpose of the Boards April 18 th public hearing was first, only to determine whether continued operation of the then nonconforming slaughterhouse use will have an adverse effect on nearby properties and, then secondly if and only if the Board determined that continued operation of the slaughterhouse use will have an adverse effect, the Board shall proceed to establish a compliance date for the nonconforming use (at a subsequent

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public hearing). See Public Notice/Agenda and Report of the Building Official and the Board, a true and correct copy of which is marked Exhibit 4, attached hereto and incorporated herein by reference. 13. Prior to the hearing, Columbia presented to the Board its Affidavit setting

forth the facts that it had voluntarily discontinued the nonconforming slaughterhouse use on January 19, 2012, that it would not reinstate the nonconforming slaughterhouse use and that it voluntarily waived and relinquished any right to operate the slaughterhouse use. That affidavit was accepted into evidence by the Board without objection. Accordingly, the need for a hearing and/or for the Board to establish a compliance date for the termination of the slaughterhouse use had been rendered moot since the nonconforming use had already been terminated. Therefore, Columbia objected to the hearing and/or the City going forward with its evidence. Columbia urged there was no issue for the Board to consider as there was no longer a nonconforming use for which the Board needed to consider establishment of a compliance date. That objection was overruled. At the conclusion of the hearing, the Board undertook two (2) actions neither of which were authorized or within the scope of the notice given either to the public or to Columbia 1 . First, the Board found the continued operation of the slaughterhouse will have an adverse effect on nearby property (despite the
1

Prior to the Board hearing, Columbia repeatedly asked for the form of the motions which counsel had prepared for the Board to make certain same were not objectionable. Counsel claimed it could not because it did not know what motions would be made.

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fact that it had already been discontinued) and rather than then setting a subsequent hearing at which time it would establish a compliance date; instead set an immediate compliance date of April 18, 2012. Secondly, the Board, although this issue had been neither publicly noticed nor was it properly before it, moved to revoke Columbias Certificate of Occupancy. Even if properly noticed, this action is beyond the powers of the Board. As set forth in 51A-3.102(d), a decision to revoke a Certificate of Occupancy is to be made by the Building Official pursuant to Chapter 52, Section 306.13. A true and correct copy of the Memorandum of the Board Action which was filed in the Office of the Board of Adjustment on April 19, 2012 is marked Exhibit 5, attached hereto and incorporated herein by reference. 14. The City takes the position that the Boards termination of the slaughterhouse

and the revocation of the Certificate of Occupancy effects not merely the nonconforming slaughterhouse use which was before the Board, but rather all uses on the Property. On April 19, 2012, the City and the Building Official ordered Columbia to cease all operations on the Property including the administrative operations which the City has specifically advised the Board had been continuing since January with the full knowledge of, and no objections from, the City. In response on April 20, 2012, Columbia applied for a temporary Certificate of Occupancy in order that it might continue those administrative operations. Although a temporary Certificate of Occupancy is something which the City can and does

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routinely issue in a matter of hours as of the filing of this petition a week later, a temporary Certificate of Occupancy has still not been issued. Writ of Certiorari 15. In accordance with Section 211.011(c) of the Local Government Code,

Plaintiffs petition this Court for a Writ of Certiorari directed to the Board to submit a verified return to Plaintiffs counsel within ten (10) days containing a complete record of the Defendants actions regarding the Citys request for the establishment for a compliance date for a nonconforming use, Board of Adjustment Case No. 112-047 and/or the

revocation of Columbias Certificate of Occupancy. 16. Plaintiffs would show the Court that the decision of the Board in Case No.

112-047 is illegal and void for the following reasons: (a) The Board lacked jurisdiction to set a compliance date as the Boards

powers are limited to bringing about the discontinuous of a nonconforming use and/or determining whether continued operation of a nonconforming use would have an adverse effect on nearby properties. Prior to the Boards hearing, the nonconforming use had permanently discontinued operations: there was no nonconforming use about which the Board could make findings regarding continued operations and/or establish a compliance date. (b) The Board erred as a matter of law in holding the public hearing and/or

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establishing a compliance date regarding then non-existent nonconforming use. (c) The decisions of the Board in establishing a compliance date and

immediately revoking Plaintiffs rights to conduct any operation on its Property violated both the Open Meetings provision of the Texas Government Code and the Board of Adjustment Rules of Procedure for Amortization of Nonconforming Uses and thus, was contrary to law and in violation of the Plaintiffs due process rights. (d) The Board erred as a matter of law in moving to revoke Columbias

Certificate of Occupancy as that issue was not properly before the Board. The decision to revoke a CO lies with the Building Official not the Board of Adjustment. (e) The decision of the Board was under the record before it was illegal,

arbitrary and not supported by the evidence properly before it with regard to revocation of Columbias Certificate of Occupancy. Writ of Mandamus/Injunction 17. The public hearing of the Board of Adjustment on April 18, 2012 was not

called in accordance with Chapter 551 of the Texas Government Code to discuss the revocation of Columbias Certificate of Occupancy and/or to discontinue to operate its conforming uses. Therefore, in accordance with Texas Government Code Section 551.142, Plaintiffs petition this Court for a mandatory injunction reversing the decision of the Board due to the Boards violation of the Texas Open Meetings laws.

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18.

Additionally, Plaintiffs would show the Court that the City of Dallas and its

Building Official has previously approved and authorized Plaintiffs meat processing and distribution uses under its existing Certificate of Occupancy and that as recently as February 12, 2012 the Building Official had amended the Certificate of Occupancy to reflect the fact that multiple uses were being conducted on the property; both the now discontinued nonconforming use and the conforming uses 2 . As seen by the Building Officials

amendments to the Certificate of Occupancy on February 12, 2012, an existing CO can and has been amended by the City. However, for reasons unrelated to the zoning process, Plaintiffs are being held to a different standards in the revocation of their Certificate of Occupancy, in the refusal of the City to recognize Plaintiffs rights to continue their ongoing, conforming operations, in the Citys refusal to process the application for amendments filed March 27, 2012 and/or the Citys failure to process Plaintiffs request for a temporary Certificate of Occupancy. These actions leave Plaintiffs with no legal use for its Property and deprives Columbia of all economically-viable use of the Property. As such, these actions/inactions constitute a regulatory taking of Plaintiffs property in violation of

It is not unusual for the City to issue a single CO to an owner who is operating multiple uses on a single property. By way of example, but not limitation, a hotel use may also include ballrooms, a health spa, restaurants, bars, etc. The City does not require a separate CO for each of those uses even though each of those uses standing alone would be a separate use recognized by the City (i.e., the ballroom rented out for receptions is a commercial amusement/dance hall; the spa is a health studio; the bar is an alcoholic beverage establishment, etc.). Should the hotel elect to close the bar or in fact lose the right to legally operate the bar, the City has never taken the position that the hotel would somehow lose the right to continue to be either a hotel or a ballroom, etc.
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Article 1, Section 17 of the Texas Constitution. Plaintiffs would show that the City and Building Official are required to consider the approval, disapproval or conditional approval of Plaintiffs applications for a Certificate of Occupancy or a temporary Certificate of Occupancy solely on the basis of the rules, regulations and ordinances in effect and as interpreted and applied for all similarly situated applicants. Plaintiffs would show the Court that the City and the Building Official are not doing so and that pursuant to Chapter 245 of the Local Government Code and Sections 3 and 19 of Article 1 of the Texas Constitution, the City and the Building Official should be compelled by Writ of Mandamus to issue any and all permits required by the City of Dallas or its Building Official to reflect that Plaintiffs are entitled to continue all conforming uses on the Property. 19. Pursuant to the provisions of 37.009 of the Texas Civil Practice & Remedies

Code and/or Section 551.142 of the Texas Government Code, Plaintiffs seeks an award of costs of litigation including reasonable attorneys fees. Prayer WHEREFORE, premises considered, Plaintiffs request that the Defendants be cited to appear and show cause and that: (1) this Court enter an Order for Certiorari commanding the Board of

Adjustment to make a certified copy of the entire record in Board of Adjustment Case No. 112-047 and transmit the copy with papers within its possession and a certified copy of the

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bill of costs to Plaintiffs counsel within ten (10) days after the date of service hereof; (2) upon final trial of this cause, this Court: (a) enter a Writ of Mandamus and mandatory injunction reversing

the decision of the Board of Adjustment due to the Boards violation of the Texas Open Meetings Act; (b) reverse the decision of the Board of Adjustment, finding such

decision was improper, illegal, not authorized by law and not reasonably supported by substantial evidence; (c) find and determine that Defendant City and Denman in his

capacity as Building Official have violated Plaintiffs rights under Sections 3 and 19 of Article 1 of the Texas Constitution and that they are estopped to deny issuance to Plaintiffs of all necessary approvals and/or Certificates of Occupancy for the continued operations of Plaintiffs current conforming uses and that a Writ of Mandamus and mandatory injunction shall issue whereby Defendants City and Denman be ordered to affirmatively grant permits acknowledging Plaintiffs meat processing and distribution operations as conforming permitted uses in furtherance of all requirements of the Development Code of the City of Dallas; (d) enter a judgment that the actions of the Defendants constituted

a taking of Plaintiffs property with adequate compensation in violation of Section 17,

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Article 1 of the Texas Constitution; (e) (f) grant judgment for Plaintiffs reasonable and necessary costs; such other and further relief at law or in equity which Plaintiffs

may show themselves justly entitled. Respectfully submitted,

_________________________________ Roger Albright (Bar No. 009 745 80) Law Offices of Roger Albright 3301 Elm Street Dallas, Texas 75226-2562 214.939.9222 214.939.9229 (Telecopier) E-mail: ralaw@rogeralbright.com COUNSEL FOR PLAINTIFFS

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VERIFICATION STATE OF TEXAS COUNTY OF DALLAS

BEFORE ME, personally appeared, Roger Albright, who being by me duly sworn, did state under oath, that he is counsel for the Plaintiffs in the above-entitled and numbered cause, that he has read the Plaintiffs Original Petition Inclusive of Request for Writ of Certiorari, Writ of Mandamus and Request for Declaratory and Injunctive Relief and that every statement of fact contained in the foregoing Petition is within his personal knowledge and is true and correct.

_________________________________ Roger Albright

SUBSCRIBED AND SWORN TO before me on this the ______ day of April, 2012.

_________________________________ NOTARY PUBLIC, in and for State of Texas

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