Professional Documents
Culture Documents
219-01855-2015
(Consolidated with Cause No. 199-02143-215, Arch Resorts, LLC v. The City of
McKinney, Texas, by Order entered on July 15, 2015)
ARCH RESORTS, LLC,
Plaintiff and CounterDefendant,
v.
THE CITY OF MCKINNEY,
TEXAS,
Defendant, Counter-Plaintiff,
and Third-Party Plaintiff
v.
COLLIN COUNTY, TEXAS,
Third-Party Defendant
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I.
Overview
1.
conferred upon it by either the legislature or the Texas Constitution. City of San
Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex.2003).
3.
commercial buildings permits other than for ensuring compliance with fire codes.
See Tex. Loc. Govt Code 233.063, 233.064. Additionally, while the County
may seek enforcement of a developers failure to comply with the International
Residential Code, the law does not authorize the County to inspect or issue permits
to enforce that Code. See Tex. Loc. Govt Code 233.154, 233.155.
4.
a city has adopted a building code that applies in the ETJ, that the citys building
code controls and the countys building standards have no effect in the citys ETJ.
See Tex. Loc. Govt Code 233.153(c).
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5.
The County and the City, however, have a bona fide dispute over the
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II.
Discovery Plan
7.
Level 3 discovery control plan as provided by Rule 190.3 of the Texas Rules of
Civil Procedure.
III.
Parties
8.
McKinney is
under the
Constitution of the State of Texas, whose City Hall is located at 222 N. Tennessee
Street, McKinney, Texas, in Collin County, Texas. The City operates under a
Home-Rule Charter approved by its citizens pursuant to state law.
9.
the State of Texas, with its county seat located in the City of McKinney, Texas.
The County may be served by serving the County Judge, the Honorable Keith
Self, at 2300 Bloomdale Rd, Suite 4192, McKinney, TX 75071.
IV.
Jurisdiction and Venue
10.
Jurisdiction and venue are proper in this court under Section 15.015 of
the Texas Practice and Remedies Code. In addition, venue is proper in this court
under Section 15.002(1) of the Texas Practice and Remedies Code because Collin
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County, Texas, is the county in which all or a substantial part of the events or
omissions giving rise to the claims occurred.
11.
This court also has jurisdiction over this matter because this third-
party claim includes claims for declaratory relief, injunctive relief, and attorneys
fees. No monetary damages are sought against the County. The County has no
governmental immunity from the claims asserted by McKinney.
12.
which the underlying suit was filed and in which the court issued its August 25,
2016, order (as amended by orders dated September 30, 2016, and October 27,
2016) authorizing the filing of this third-party petition against the County.
V.
Procedural History
11.
LLC (Arch), filed suit against McKinney seeking a declaration of its rights under
the purported building permit power of the County vis--vis the power to
McKinney to issue building permits for an RV park project while Archs property
was located in the Citys ETJ. Arch did not make the County a party to its
declaratory judgment requests.
12.
a declaration of the Citys right to require building permits in the Citys ETJ vis --
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vis the power of the County to issue such permits for the RV park at issue.
McKinney also did not make the County a party to its declaratory judgment
requests.
13.
the City, one of which asserted that the County was an indispensable and necessary
party under Texas Rule of Civil Procedure 39 and that the County must be joined
into the instant proceeding between McKinney and Arch.
14.
By order entered on August 24, 2016, the court granted Archs request
and ordered that that the City either (1) amend its pleadings and defenses to
withdraw its challenges to the validity of the actions of Collin County in issuing
permits to Arch, or (2) name and serve the County as a party in this case prior to
September 30, 2016. The order further expressly authorizes, pursuant to
Tex.R.Civ.P 37, and grants leave of the court for, the City to join Collin County as
a Third-Party Defendant in this proceeding.
extended to October 31, 2016, by order of the court dated September 30, 2016, and
further extended to November 30, 2016, by order of the court dated October 27,
2016.
VI.
Background Facts
15.
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The Property, immediately prior to May 5, 2015, was fully within the
Citys ETJ and is now within the Citys corporate limits as the result of Citys
annexation of the Property on May 5, 2015. The Property was purchased for the
purpose of development as a recreational vehicle (RV) park (RV Project).
17.
Between December 9, 2014, and March 25, 2015, Arch filed eight (8)
The Applications call for each site, as well as the office and laundry
room, to be served with water and wastewater facilities. The wastewater facilities
consist of an On-Site Sewage Facility (OSSF). The Applications state the
business is open to the public, will have overnight facilities, have public restrooms
and sale of food.
19.
Between January 13, 2015 and March 31, 2015, the County issued
permits for various aspects of the RV Park development in Phases A and C, and in
Phase B (in part). No permits were issued for Phases D and E of the RV Park
Project.
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20.
standards required for projects in the Citys ETJ, including the Citys subdivision
ordinance and the requirement that development in the Citys ETJ comply with the
Citys building codes and obtain development permits from the City.
21.
obtain building permits, inspections and approvals (and pay related fees) for
development of property, pursuant to its inherent authority as a home-rule city. See
Town of Lakewood Village v. Bizios, 493 S.W.3d. 527, 530-31 (Tex. 2016).
22.
the County on or about March 19, 2002, regarding delegation of approval authority
over subdivision plats and related permits in the Citys ETJ.
The Interlocal
Agreement granted the City exclusive authority to review and approve plats and
related permits for conformance with the Citys subdivision ordinance and related
development ordinances. The pertinent section of the Interlocal Agreement states
that the parties agree that City shall be granted exclusive jurisdiction to regulate
all subdivision plats and approve all related permits in its ETJ in accordance with
Chapter 212 of the Local Government Code, its adopted Subdivision Regulations
or other applicable codes or ordinances, and County shall no longer exercise any of
these functions in the Citys ETJ (emphasis added). [R]elated permits includes
building permits.
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23.
initio and without any legal effect. The Property was in the Citys ETJ at the time
the Applications were made and was not released from the Citys ETJ at any time
prior to its annexation.
24.
Additionally, the County did not have jurisdiction to issue the permits
upon which Arch relies because the County does not the statutory authority to
require commercial buildings permits other than for ensuring compliance with fire
codes. See Texas Local Government Code Chapter 233, Subchapter C.
25.
It is undisputed that (a) the Property was within the Citys ETJ at all
times in which the County issued permits to Arch; (b) through the Interlocal
Agreement with the County, McKinney has exclusive jurisdiction to review plats
and issue related development permits in its ETJ; and (c) Arch has unlawfully
commenced development of the Property for the RV Project in disregard of the
Citys ordinances and in reliance on the Countys issuance of permits.
26.
Arch, through the filing of its lawsuit against McKinney, has created a
justiciable controversy regarding the County as it is clear that Arch asserts that its
Property, which was lawfully annexed by the City in May, 2015, is not subject to
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the Citys laws governing the use and development of land because, prior to the
annexation, Arch received permits for development of the Property from the
County, and that Arch is therefore exempt from the reach of the Citys laws
because of the application of Section 43.002 and Chapter 245, Texas Local
Government Code.
28.
The County, however, did not have jurisdiction to issue the permits
upon which Arch relies because permitting of that nature in the Citys ETJ is
reserved to McKinney by both (a) the terms of the Interlocal Agreement between
the City and the County and (b) the power of home rule cities to require platting
and the obtaining of building and other development permits in their ETJs.
29.
2002 in response to the requirements of House Bill 1445, passed by the 77th
Legislature of the State of Texas, and as amended by House Bill 1204, passed by
the 78th Legislature of the State of Texas, and which bills are now codified at
Texas Local Government Code Chapter 242. As discussed in greater detail below,
the right and authority of the City to enforce its subdivision ordinance and related
building codes in the Citys ETJ is supported by Texas Local Government Code
Chapter 242 and the Citys inherent powers as a home-rule city.
30.
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prepared by the County and entered into by and between the County and
McKinney effective as of March 19, 2002.
provides that the County and the City have agreed that the City has the exclusive
right to enforce its Subdivision Ordinance and related codes in the Citys ETJ.
More particularly, Paragraph No. 1 of the Interlocal Agreement reads as follows:
1.
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the regulation of subdivision plats and related permits to the City. Paragraph No. 4
of the Interlocal Agreement also clarifies that the expansion or contraction of the
Citys ETJ shall not require amendment of the Interlocal Agreement; that the
City shall continue to be granted exclusive jurisdiction to regulate plats and
approve related permits in its ETJ regardless of expansion or contraction of the
ETJ; and that the County has jurisdiction of areas outside the Citys ETJ. See
Interlocal Agreement, Paragraph No. 4.
33.
or prohibits the Citys authority and exclusive jurisdiction to enforce its building,
fire and construction-related codes in the ETJ.
development permits in the Citys ETJ should have been returned by the County to
Arch, and the County should have requested Arch to submit those development
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applications instead to McKinney for its review and possible approval. In any
event, as the County was without jurisdiction to issue the permits, the permits are
void ab initio and they cannot be used to justify any use of the Property as an RV
park as either continued or beginning, as such are contemplated under Texas
Local Government Code 43.002(a).
35.
37.
Remedies Code (the Texas Uniform Declaratory Judgments Act), the City
requests that the court find, declare, and decree the following:
a.
The City has the lawful authority to require development permits in its
ETJ, and requires that such permits be obtained to develop in the
Citys ETJ.
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b.
c.
d.
Archs Property was located within the Citys ETJ at the time Arch
made development applications with the County;
e.
The City has properly exercised its authority to extend the application
and enforcement of its subdivision ordinance to its ETJ, and to require
building permits and other development permits in its ETJ;
f.
g.
h.
The County did not have jurisdiction to issue the permits upon which
Arch relies because the County does not have the statutory authority
to require commercial buildings permits other than for ensuring
compliance with fire codes. See Texas Local Government Code
Chapter 233, Subchapter C.
i.
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j.
The permits issued by the County were and are void and do not
legally authorize Arch to commence and continue the ongoing
construction activities on the Property;
k.
The City be awarded its reasonable and necessary attorneys fees and
costs pursuant to the provisions of the Texas Declaratory Judgment
Act;
l.
m.
Chapter 245 of the Texas Local Government Code does not authorize
Arch to continue and complete the RV Project in accordance with the
Applications and corresponding permits issued and approved by the
County; and
n.
38.
and Remedies Code, the award of costs and reasonable and necessary attorneys
fees through trial and appeal as are equitable and just.
VIII.
Count Two: REQUEST FOR PERMANENT INJUNCTION
39.
40.
After a full disposition on the merits, the City requests that the court
enter a permanent injunction enjoining the County from issuing building permits
for development occurring in the Citys ETJ.
CITY OF MCKINNEYS ORIGINAL THIRD-PARTY PETITION
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IX.
CONDITIONS PRECEDENT
41.
action and recover the relief requested herein have been performed, have occurred,
or have been waived.
42.
judgment claims and for injunctive relief. Consequently, McKinney has standing to
assert this third-party petition.
WHEREFORE, PREMISES CONSIDERED, Third-Party Plaintiff City
of McKinney, Texas, requests the following relief:
(1)
above;
(2) A permanent injunction enjoining the County, its agents, servants, and
employees, and anyone acting in its behalf or in concert with it, from issuing
building permits for development occurring in the Citys ETJ without express
written consent by the City;
(3) All costs of court and reasonable and necessary attorneys fees
through trial and all levels of appeal; and
(4)
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Respectfully submitted,
BROWN & HOFMEISTER, L.L.P.
740 East Campbell Road, Suite 800
Richardson, Texas 75081
(214) 747-6100 Telephone
(214) 747-6111 Telecopier
Robert F. Brown
State Bar No. 03164725
By:
CERTIFICATE OF SERVICE
A copy of the foregoing document was served by electronic service upon
counsel for Plaintiff and Counter-Defendant, Mr. Arthur J. Anderson, Winstead
PC, 500 Winstead Building, 2728 N. Harwood Street, Dallas, Texas 75201, on this
16th day of November, 2016.
/s/ Robert F. Brown
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