attorney general of texas greg abbott€¦ · attorney work-product privilege under texas rule of...

August 8, 2012

Mr. Warr~rrM.S. Ernst

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

Chief ofthe General Counsel Division C ity/o'f Dallas 1)'00 Marilla Street, Room 7DN

:71:>allas, Texas 75201

Dear Mr. Ernst:

OR20 12-12458

You ask whether certain information is subject to required public disclosure under the Public Information Act (the "Acf'), chapter 552 of the Government Code. Your request was assigned ID# 461361.

The City of Dallas (the ''city") received a request for seven categories of information. You state the requestor will be provided with the opportunity to inspect some of the requested information. You claim the submitted information is excepted from disclosure under sections 552.103, 552.104, 552.107, and 552.111 of the Government Code. 1 We have considered the exceptions you claim and reviewed the submitted representative sample of information. 2

Section 552.103 of the Government Code provides, in part, as follows:

(a) Information is excepted from [required public disclosure] if it is information relating to litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party or to which an officer or

1Aithough you also assert the attorney-client privilege under Texas Rule of Evidence 503 and the attorney work-product privilege under Texas Rule of Civil Procedure 192.5, we note none of the information for which you claim these privileges is subject to section 552.022 of the Government Code. Thus, sections 552.107 and 552.11 I of the Government Code are the proper exceptions to raise, respectively, for your attorney-client and work-product privilege claims in this instance. See generally Open Records Decision No. 676 (2002).

:we assume the "representative sample'' of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 ( 1988), 497 ( 1988). This open records letter does not reach. and therefore does not authorize the withholding of. any other requested records to the extent those records contain substantially different types of infonnation than that submitted to this office.

l'oST 0HICE BOX 12548, i\USTI~. TEXAS 78711-2548 TEL: (512) 463-2100 WWW. TEXASATTORNEYGENHAL.GOV

An Equ.d Employm£nt Oppar~un:ty EmplfJyrr • l'nntrd ar1 Rc(ydcd Ptlprr

Mr. Warren M.S. Ernst-

employee of the state or a political subdivision, as a consequence of the person's office or employment, is or may be a party.

(c) Information relating to litigation involving a governmental body or an officer or employee of a governmental body is excepted from disclosure under Subsection (a) only ifthe litigation is pending or reasonably anticipated on the date that the requestor applies to the officer for public information for access to or duplication ofthe information.

Gov't Code§ 552.1 03(a), (c). A governmental body that claims an exception to disclosure under section 552.103 has the burden of providing relevant facts and documentation sufficient to establish the applicability of this exception to the information that it seeks to withhold. To meet this burden, the governmental body must demonstrate that (I) litigation was pending or reasonably anticipated on the date of its receipt of the request for information and (2) the information at issue is related to the pending or anticipated litigation. See Univ. ofTex. Law Sch. v. Tex. Legal Found., 958 S. W.2d 479 (Tex. App.-Austin I 997, no pet.); Heardv. Houston Post Co., 684 S.W.2d 210 (Tex. App.-Houston [1st Dist.] 1984, writ ref'd n.r.e.). Both elements of the test must be met in order for information to be excepted from disclosure under section 552.103. See Open Records Decision No. 551 at 4 ( 1990).

You state, prior to the date the city received the present request tor information, a lawsuit styled Christopher Bryan Fears v. Sheffield Kadane. et al., Cause No. 12-04834, was pending in the District Court of Dallas County. You state Exhibit C relates to this lawsuit. Based on your representation and our review of the information at issue, we find Exhibit C relates to litigation involving the city that was pending prior to the date the city received the request for information. See Gov't Code 552.103(c) (litigation must be pending or reasonably anticipated at time governmental body receives request tor information). Thus, the city may withhold Exhibit C under section 552.103 of the Government Code.3

We note, however, once the information at issue has been obtained by all parties to the pending litigation through discovery or otherwise, no section 552.103( a) interest exists with respect to the information. See Open Records Decision Nos. 349 (1982), 320 ( 1982). Thus, any information obtained tl·om or provided to all other parties in the pending litigation is not excepted from disclosure under section 552.103(a) and must be disclosed. Further, the applicability of section 552.103(a) ends once the litigation has concluded or is no longer reasonably anticipated. See Attorney General Opinion MW -575 (1982); see also Open Records Decision No. 350 ( 1982).

Section 552.104 of the Government Code excepts from disclosure "information that, if released, would give advantage to a competitor or bidder." Gov't Code§ 552.1 04(a). The

'As our ruling is dispositive, we need not address your remaining arguments against disclosure of this infonnation.

Mr. Warren M.S. Ernst -

purpose of section 552.104 is to protect a governmental body's interests in competitive bidding situations. See Open Records Decision No. 592 ( 1991 ). Moreover, section 552.104 requires a showing of some actual or specific harm in a particular competitive situation; a general allegation that a competitor will gain an unfair advantage will not suffice. Open Records Decision No. 541 at 4 (1990). This office has long held that section 552.104 does not except information relating to competitive bidding situations once a contract is in effect. See. e.g., Open Records Decision Nos. 541, 514 (1988), 306 (1982), 184 (1978), 75 (1975).

You state Exhibit D relates to bid proposals that are still being evaluated by the city. You explain the contract arising from that process has not yet been awarded or executed. You argue until the agreement is finally executed, negotiations with the selected bidder may fail, and thus release of the information at this time could compromise the city's negotiating position if a new bidding process must be conducted. Based on your representations and our review, we conclude you have demonstrated the applicability of section 552.104 to Exhibit D. Accordingly, the city may withhold Exhibit D under section 552.1 04 of the Government Code until such time as a contract has been executed. See Open Records Decision No. 170 at 2 ( 1977) (release of bids while negotiation of proposed contract is in progress would necessarily result in an advantage to certain bidders at expense of others and could be detrimental to public interest in contract under negotiation).

In summary, the city may withhold Exhibit C under section 552.103 of the Government Code and Exhibit D under section 552.104 of the Government Code until such time as a contract has been executed.

This letter ruling is limited to the particular information at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other information or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For more information concerning those rights and responsibilities, please visit our website at http:i\v\V\\ .oag.statc.tx .us/opcn/indl?x orl.php, or call the Office of the Attorney General's Open Government Hotline, toll free, at (877) 673-6839. Questions concerning the allowable charges for providing public information under the Act must be directed to the Cost Rules Administrator of the Office of the Attorney General, toll free, at (888) 672-6787.

s:;t__Q NkkaKanu ~ Assistant Attorney General Open Records Division

NK/bhf

Mr. Warren M.S. Ernst-

Ref: ID# 461361

Enc. Submitted documents

c: Requestor (w/o enclosures)

City of Dallas

CERTIFIED MAIL NO. 7005 2570 0000 1569 0540

June 7, 2012

Honorable Greg Abbott Attorney General of Texas 300 W. 15th Street Clements Building, 12th Floor P.O. Box 12548 Austin, Texas 78711

Re: Request for an Open Records Decision

Dear Mr. Attorney General Abbott:

On May 31, 2012, our office submitted a request for an open records decision to you (Exhibit A) regarding a request by flarold Barker for information pertaining to Arboretum parking.

This office is responsible for representing the legal interests of the city of Dallas ("city"). Our May 31, 2012 submission is incorporated into this submission, including Mr. Barker's request. We listed the exceptions under the Public Information Act, Chapter 552, Texas Government Code (the "Act") which might apply to the requested information in our May 31, 2012 correspondence. In this submission, we shall expand upon and explain the reasons we believe these exceptions apply to the requested information. In our opinion, the requested information is excepted from required public disclosure under Sections 552.103, 552.104, 552.107, and 552.111 of the Act. Under Section 552.301 of the Act, this office now seeks your determination about whether this information is exempt from disclosure. Mr. Barker will be provided with the opportunity to inspect the remaining requested information that is in the city's possession.

On April 30, 2012, Christopher Bryan Fears sued the city and the Dallas Arboretum and Botanical Society Inc. (the "Arboretum"), seeking injunctive relief to enjoin the Defendants from using a portion of White Rock Lake Park for temporary overflow parking (See Exhibit B).

Exhibit C consists of a representative sample of the requested information that we believe is excepted from disclosure under Section 552.103 of the Act. Exhibit C consists of confidential communications sent between and among attorneys in the City Attorney's Office, city staff, City Councilmembers, members of the city's Park Board, Arboretum staff and Board Members, and the Arboretum's attorneys and consultants. These parties share a common interest concerning the litigation at issue. (See Exhibit C-1 for a list of the parties). These communications were made for the purpose of facilitating the rendition of professional legal services pertaining to issues in which the city and the Arboretum share a common interest and a joint defense. These

OFFICE OF THE CITY ATTORNEY CITY HALl DALLAS, TEXAS 75201 PHONE 214-670-3519 FAX 214-670-0622

June 7, 2012 Honorable Greg Abbott Page2

communications were not intended to be disclosed to third persons other than those to whom disClosure was made in furtherance of the rendition of legal services.

It is our opinion that the information in Exhibit C is exempt from disclosure under Section 552.103 of the Act which exempts from disclosure "information relating to litigation of a civil or criminal nature or settlement negotiations, to which the state or a political subdivision is or may be a party or to which an officer or employee of the state or political subdivision, as a consequence of the person's office or employment, is or may be a party." To claim an exception under Section 552.103 of the Act, litigation must be pending or reasonably anticipated and the information must relate to that litigatioiL Heard vs. Houston Post Co., 684 S.W. 2d 210 (Tex. App.-Houston [1st Dist.] 1984, writ refd n.r.e.). Litigation is currently pending in Christopher Bryan Fears v. Sheffield Kadane, as City Councilman for District 9 of City of Dallas, Mary Brinegar, as President and CEO of Dallas Arboretum and Botanical Society, Inc. and Paul Dyer, as Director of Dallas Park and Recreation Department (See Exhibit B).

The information in Exhibit C is related to the subject matter of the pending litigation, which is about whether the Defendants can use a portion of White Rock Lake Park for temporary overflow parking. Section 552.103 of the Act enables governmental entities to protect their position in litigation by forcing parties seeking information to obtain it through discovery. Open Records Decision No. 551 (1990). This section of the Act was intended to prevent the use of the Open Records Act as a method to avoid discovery rules. Attorney General Opinion JM-1048 (1989).

Furthermore, the marked information in Exhibit C is related to the litigation because it is work product prepared in anticipation of litigation by the city and Arboretum's attorneys, employees and agents. Rule 192.5(a)(l) of the Texas Rules of Civil Procedure defmes work product as "material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party or a party's representatives, including the party's attorneys, consultants, sureties, indemnitors, insurers, employees, or agents .... " Section 552.103 of the Act enables governmental entities to protect their position in litigation by forcing parties seeking information to obtain it through discovery. Open Records Decision No. 551 (1990). This section of the Act was intended to prevent the use of the Open Records Act as a method to avoid discovery rules. Attorney General Opinion JM-1048 (1989).

It is our opinion that the marked information in Exhibit C is also exempt from disclosure under Section 552.111 of the Act, which incorporates Rule 192.5 of the Texas Rules of Civil Procedure (''Rule 192.5"), which encompasses the work product privilege. Rule 192.5 defmes work product as:

(1) material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party or a party's representatives, including the party's attorneys, consultants, sureties, indemnitors, insurers, employees, or agents; or

(2) a communication made in anticipation of litigation or for trial between a party or the party's representatives or among a party's representatives, including the


party's attorneys, consultants, sureties, indenmitors, insurers, employees, or agents.

Therefore, in order to withhold work product from disclosure under Rule 192.5, a governmental body must demonstrate that the material was (1) created for trial or in anticipation of litigation and (2) consists of material or mental impressions prepared or developed by or for a party or a party's representatives. Id. The marked documents in Exhibit C consist of party communications, work product and material prepared in anticipation of litigation by employees and attorneys of the city and the Arboretum.

The marked information in Exhibit C consists of a representative sample of the attorney-client communications contained in the requested information. Exhibit C consists of confidential attorney-client communications sent between and among attorneys in the City Attorney's Office, city staff, members of the city's Park Board, Arboretum staff and Board Members, and the Arboretum's attorneys. It is our opinion that the marked information in Exhibit C is also exempt from disclosure under Section 552.107(1) of the Act which exempts from disclosure "information that the attorney general or an attorney of a political subdivision is prohibited from disclosing because of a duty to the client under the Texas Rules of Evidence, the Texas Rules of Criminal Evidence, or the Texas Disciplinary Rules of Professional Conduct." A governmental body generally may withhold under Section 552.107(1) information revealing client confidences or containing legal advice or opinion. ORD No. 574 (1990). The Texas Rules of Evidence defme the general rule of attorney-client privilege as "a confidential communication made for the purpose of facilitating the rendition of professional legal services to the client." Tex. R. Evid. 503(b)(l). These documents clearly consist of confidential communications made by attorneys to their client for the purpose of rendering professional legal services and communications made by a client to their attorneys for the purpose of seeking professional legal services. Release of these documents would violate the attorney-client privilege by revealing confidential communications made between an attorney and a client for the purpose of facilitating the rendition of professional legal services.

It is our opinion that the information in Exhibit C is also exempt from disclosure under Rule 503(b) of the Texas Rules of Evidence for the same reasons as stated above.

The information in Exhibit D consists of the requested proposals. It is our opinion that the information in Exhibit D is excepted from disclosure under Section 552.104 of the Act which exempts from disclosure "information that, if released, would give advantage to a competitor or bidder. The proposals are still being evaluated by the city and the contract has not yet been awarded. Until a fmal written contract is signed and executed, the recommendation of city staff may change, the recommendation may be rejected by the Dallas City Council, or negotiations with the selected bidder may fail. Release of the information in Exhibit D could compromise the city's negotiating position in the event the Dallas City Council rejects city staffs recommendation and a new bidding process must be conducted. Until the city completes its negotiations with one successful bidder and a contract has been executed, the requested information should remain exempt from disclosure under Section 552.104 of the Act because release of the information in Exhibit D could compromise the city's negotiating position. Your


office has previously held that bid proposals submitted to a governmental body while the bidding is still competitive may be withheld until the contract is awarded (Open Records Decision No. 170 (1977)).

If you have any questions regarding this request for an open records decision please contact me or Assistant City Attorney Heather Silver at 214-670-3519.

Respectfully submitted,.

w~~ Chief of the General Counsel Division

Attachments

c: (with Exhibits A and B only) Thomas P. Perkins, Jr., City Attorney Heather Silver, Assistant City Attorney Carolyn Brescia, Park and Recreation Department Jeri Carter, Public Information Office

Harold Barker

"EXHIBIT A"

May31, 2012

Honorable Greg Abbott Attorney General of Texas 300 W. 15th Street Clements Building, 12th Floor P.O. Box 12548 Austin, Texas 78711

City of Dallas


Dear Mr. Attorney General Abbott:

By email (Exhibit A) received by the city of Dallas ("city") on May 16, 2012, Harold Barker requested information pertaining to Arboretum parking. ·

The city is gathering the requested information that is in its possession and it is anticipated that some of the requested information will be exempt from mandatory disclosure under the Public Information Act, Chapter 552, Texas Government Code (the "Act"). The City Attorney's Office is responsible for representing the legal interests of the city and since we have not been able to review all the requested information, we would assert that certain information contained in Mr. Barker's request may be protected from disclosure under Sections 552.101 through 552.142 of the Act, in particular Sections 552.101, 552.103, 552.107, and 552.111 of the Act. Under Section 552.301 of the Act, this office now seeks your determination about whether this information is exempt from disclosure.

City offices were closed on May 28, 2012 for Memorial Day. Our comments stating the reasons why the Act excepts the requested information from disclosure, and copies of the requested information (or samples if voluminous), will be sent to your office by June 7, 2012, as required by Section 552.301(e) o~the Act.

If you have any questions regarding this request for an open records decision please contact me or Assistant City Attorney Heather Silver at 214-670-3519.

Respectfully submitted,

WARREN ERNST Chief of the General Counsel Division

Attachments

May 31,2012 Honorable Greg Abbott Page2

c: Thomas P. Perkins, Jr., City Attorney Heather Silver, Assistant City Attorney Carolyn Brescia, Park and Recreation Department Jeri Carter, Public Information Office

Harold Barker

June7, 2012

Harold Barker

----


Dear Mr. Barker:

This letter responds to your open records request received by the city of Dallas 9n May 16, 2012 for information pertaining to Arboretum parking. Some of the requested documents have been sent to the Attorney General for an 9pen records decision regarding their release. A copy of the letter to the Attorney General is enclosed for your information. The Park and Recreation Department wiU provide you with the reproduction cost for the requested information by June 13, 2012. Please contact Carolyn Brescia at 214-670-3059 to arrange a time to inspect the releasable information.

you have any questions regarding this matter please contact me or Assistant City Attorney Heather Silver at 214-670-3519.

Sincerely,

WARREN M. S. ERNST Chief of the General Counsel Division

Attachments

c: Thomas Perkins, Jr., City Attorney Heather Silver, Assistant City Attorney Carolyn Brescia, Park and Recreation Department Jeri Carter, Public Information Office

----Original Message-----From: Hal Barker [mailto:[email protected]] Sent: Wednesday, May 16, 2012 11:27 AM To: OpenRecords Cc: Brescia, Carolyn Subject: Texas Public Information Request May 16 2012

This is a request under the Texas Public Information Act for the following records.

Please provide me with access to physically examine these records as well as a stated cost for copying of these records.

Harold Barker

This request is filed for records with the following units: I

Business Development & Procurement Services.

Park and Recreation

Business Development & Procurement Services Records

Subject A: Request For Proposals, Financial Feasibility Study, BLZ 1237, or similarly described Proposal, relating to the solicitation of proposals for Arboretum parking, with a primary cutoff date of May 2, 2012, for submission.

Request 1: A copy of all proposals filed in response to the Request for Proposals, Feasibility Study, BLZ 1237, or similarly described proposal, and all related documents including emails with Park and Recreation, the Dallas Arboretum, Dallas

1

Park Board, or City staff relating to the Request for Proposals, as well as any contracts let for services under the Financial Feasibility Study.

--------------------------------------------------------------------------------------

Park and Recreation Department

Subject B: Email from Mary Brinegar to Paul Dyer et al, April 4, 2012, obtained in a previous Open Records Request, portion below.

***

"We are on the consent agenda for tomorrow as #5. This allows us to park on Winfrey Point for up to 400 cars and to charge for parking. This was the approach discussed in the evening meeting at City Hall. Ed Perrin has worked out the legal details with Christine Lanners etc. In talking to Merrie Spaeth's office they suggested we not delay this but go forward with it tomorrow. There is significant protection in the wording saying it will be at the direction of the Park Department. We will then ask if questioned, that before doing anything we would have a consultation with three respected botanic organizations as to how best to do it and then get this information to the Park Department. I am also copying the Spaeth office to see ifthey suggest any more wordsmithing on the Winfrey Statement. Please let me know your thoughts. Mary"

"Mary Brinegar" "President and Chief Operating Officer" "Dallas Arboretum and Botanical Garden"

***

Request 2: Any documents, emails, or other communications reduced to writing, including minutes, sworn minutes, audio recordings, and notes relating to the evening meeting at City Hall described in "This was the approach discussed in the evening meeting at City Hall."

Request 3: Any list of persons attending the "evening meeting at City Hall," including any security logs, emails, or other documents that would show or tend to show attendence at this meeting, including any quorum or lack of quorum in order to conduct public business, including documents that would show or tend to show the date and time of the meeting and persons attending. This request should also include any documents or emails that would indicate who knew of the "evening meeting" at City Hall.

This request should also include any documents that would clarify what was meant by the sentence "There is significant protection in the wording saying it will be at the direction of the Park Department."

In addition, please provide any documents or communications that might have triggered an explanation and botanical investigation noted in the sentence "We will then ask if questioned, that before doing anything we would have a consultation with three respected botanic organizations as to how best to do it and then get this information to the Park Department."

The following was a page from the email above, apparently described as either Winfrey Statement. doc or Press on Parking.doc

***

"The Dallas Arboretum has been asked by the Park and Recreation Department to provide interim and emergency management if needed, and as directed by them, of the Winfrey Point area for up to 400 cars. The Arboretum has been asked to do this because of their experience in this field and ability to provide clearance for those needing special access. With so many instances of parking problems in the Winfrey Point area recently by those using the Lake and Park facilities, this approach will be in place while the city completes and has input on an overall plan to address the needs of the western (sic) side of White Rock lake. The garden will be given permission to charge for parking in the area during its oversight period, allowing a number of spaces to be set aside that are free to the public in adjoining areas. The Arboretum has been asked to work with the Park Department staff reserving the Winfrey Point facility as well as the management of the little leagues using the area to make sure that planned activities are addressed and their participants have special access. Once again, this procedure is being put in place at this time to address how an emergency can be handled so that the city's needs can be addressed quickly, if needed, at a future date .. "

"If asked''

"If there needs to be any mowing or grading of the areas needed the garden will seek advice from three respected organizations in the botanic world for recommendations on how to handle this, in the best way and will inform the Park Department before action takes place .. "

***

Request 4: Any documents, emails or other communications that would show or tend to show that the City of Dallas, its' agents, Boards, or other authorized to act on behalf of the City of Dallas requested of the Dallas Arboretum the following: "The Dallas Arboretum has been asked by the Park and Recreation DepartiJ'lent to provide interim and emergency management if needed, and as directed by them, of the Winfrey Point area for up to 400 cars. The Arboretum has been asked to do this because of their experience in this field and ability to provide clearance for those needing special access."

This Request 4 should include all documents, em ails, or other communications between City of Dallas officials, including members of any Boards, Committees, elected officials, or agents, that would document that the City of Dallas requested the Arboretum "to provide interim and emergency management" of Winfrey Point. This request should Include any and all communications by any Board members directly to the Arboretum using personal email accounts outside the CIS system of the City of Dallas. This request should also include all communications subsequent to the Apri14 Brinegar email that would bring into doubt or question the assertion that the City of Dallas requested the Arboretum to handle general parking and emergency parking at Winfrey Point or elsewhere.

Request 4 should include all records that would show or tend to show what the City defined as "emergency management," including any management of Winfrey Point during or after a civil emergency such as terrorism, insurrection, or natural event defined as an "emergency." Include any documents from Board Meetings, Committee Meetings, or any meeting covered under the Texas Open Meetings Act in which the City asked the Arboretum "to provide interim and emergency management."

If no documents exist to satisfy Request 4, please so state that no documents exist.

****

"We will then ask if questioned, that before doing anything we would have a consultation with three respected botanic organizations as to how best to do it and then get this information to the Park Department . I am also copying the Spaeth office to see if they suggest any more wordsmithing on the Winfrey Statement. Please let me know your thoughts. Mary"

**** \ '

Request 5: Any documents, emails, or other communications in the possession of the City of Dallas relating to the statement "We will then ask if questioned, that before doing anything we would have a consultation with three respected botanic organizations as to how best to do it and then get this information to the Park Department ."

This Request 5 should include the results of the consultations in the possession of the City of Dallas, agents, employees, or Board members with the "three respected botanic organizations" noted in the quote in Request 5. In addition, please provide any emails or documents in the possession ofthe City of Dallas, agents, employees, or Board members, relating to the "Spaeth" organization involvement in the Winfrey Point matter.

Subject C: Conduct of scientific investigation of lands at Winfrey Point including environmental impacts statements or

investigations.

Request 6: Any documents, em ails, or other communications in the possession of the City of Dallas relating to scientific examination of lands at Winfrey Point by persons, including Robert O'Kennon, Dr. Smiens, or any other person, including Texas state officials, federal officials, or others qualified to conduct scientific examinations or regulatory investigations.

This request under Request 6 should include any requests for services, contracts, results of contracts, any reports relating to soils, vegetation, wildlife, and any scientific conclusions, including any press releases relating to the scientific examination of Winfrey Point and environs, and any environmental impact statements relating to Winfrey Point.

Subject D: A previous Open Records/Public Information Request was filed on April 5, 2012, and documents were obtained.

Request 7: Any documents, emails, or other communications in the possession of the City of Dallas or in the possession of persons acting in a role representing the City of Dallas relating to any actions taken by the City on or after April 5, 2012, to date of this request, relating to the Dallas Arboretum and Winfrey Point, including Park Board deliberations, communications between Park Board members with regard to the Arboretum and the issues relating to the Arboretum and Winfrey Point, and communications to third parties relating to the Arboretum and Winfrey Point, including communications to or from Officers and Directors of the Dallas Arboretum.

This request should include any signed contracts with the Dallas Arboretum to conduct parking at Winfrey Point, any document relating to negotiations for the Arboretum to conduct parking at Winfrey Point, and any plans that would give authority to the Arboretum to occupy any portion or portions of Winfrey Point for the use of the Arboretum.

Subject E: Public Access to the Dallas Arboretum via East Lawther Drive

Request 8: Any documents, em ails, or other communications in the possession of the City of Dallas or in the possession of persons acting in a role representing the City of Dallas relating to talks, discussions, deliberations, and/or granting of right of access to East Lawther Drive for the purpose of individual persons entering the Arboretum directly from White Rock Lake Park and/or East Lawther Drive for the purpose of attending functions, weddings, events, or generally entering the Arboretum as a paid visitor through access from White Rock Lake Park.

4

"EXHIBIT B"

NO.

CHRISTOPHER BRYAN FEARS Plaintiff,

v.

SHEFFIELD KADANE, AS CITY COUNCILMAN FOR DISTRICT 9 OF CITY OF DALLAS, MARY . BRINEGAR, AS PRESIDENT AND CEO OF DALLAS ARBORETUM AND BOT ANI CAL SOCIETY, INC. AND PAUL DYER, AS DIRECTOR OF DALLAS PARK AND RECREATION DEPARTMENT Defendants.

APPLICATION AND AFFIDAVIT FOR TEMPORARY RESTRAINING ORDER AND TEMPORARY INJUNCTION

I. Parties.

a. P.laintiff, CHRISTOPHER BRYAN FEARS, an Individual whose address is

1144 Bally Mote Dr. Dallas, TX 75218, makes this Application· and Affidavit for Temporary

Restraining Order and Temporary Injunction.

b. The last three numbers of Christopher Bryan Fears's driver's license number ·

are ·236. The last three numbers of Christopher Bryan Fears's social security number are ·1 16.

c. Defendant SHEFFIELD KADANE, an Individual who is a~dent ofTexas,

is the City Councilman for Distri~t 9 of the CITY OF DALLAS, and may be served with proces$ at

his office at the following address: 1500 Marilla St, Dallas, TX 7520 L Service of said Defendant as

-describe_d above can be effected by certified mail, return receipt requested.·

FEARS v. CITY OF DAllAS, ET Al. 1

\

d. Defendant MARY BRINEGAR, an Individual who is a~esident ofTexas, is

the President and CEO of DALLAS ARBORETUM AND BOTANICAL SOCIETY, INC., a Texas

corporation, and may be served with process· at her office at the following address: Dallas

Arboretum and Botanical Garden. 8525 Garland Rd., Dallas, TX 7 5218. Service of said Defendant

as described above can be effected by certified mail, return receipt requested.

e. Defendant PAUL DYER, an Individual who is a resident of Texas, is the

Director of DALLAS PARK AND RECREATION DEPARTMENT, a City of Dallas Department,

and may be served with process at his office at the following address: 830 E. Lawther Dr., Dallas,

TX 75218. Service of said Defendant as described above can be effected by certified mail, return

receipt requested.

2. Discovery. Plaintiff affinnatively pleads that discovery should be conducted at Level

1, in accordance with a tailored discovery plan under Tex. Civil Proc. Rul~ 190.4.

3. Facts . •

The Defendants are in the process of constructing three parking lots on the grounds of a

residential, public park in the City of Dallas at Winfrey Point on White Rock Lake, as more

particularly identified on EXHIBIT - A, attached hereto, Map of White Rock Lake and proposed

parking areas.

These park grounds are contiguous with several neighborhoods, and are currently a natural

habitat for native Texas wildlife, recognized as endangered by the Texas Fish and Wildlife

Department. See. EXHIBIT- B, attached hereto, Affidavit of Susan Rebecca Rader.

The City ofDallas owns the property. The property and park activities are maintained by the

FEARS v. CITY OF DALLAS, ET AL. 2

Dallas Park and Recreation Department. The proposed parking lots would be wholly operated by the

Dallas Arboretum and Botanical Society, Inc. ("Arboretum~'). The Arboretum is using its privat~

contractors to clear the area for the purpose of putting in these parking. lots ..

The Defendants intend for the parking lots to accommodate at least 400 vehicles. The area is

strictly zoned residential and parking lots are not permitted under the Dallas City Code, Article iv,

Zoning Regulations. See EXHIBIT --:C, attached hereto, City of Dallas Zoning Maps.

There were n~ official, public hearings or proper notice to the neighbors prior to the

commencing of this project. Defendants have not made clear their whole intentions, and at this time

it is not known by the community what the construction will fully entail. See EXHIBIT - D,

attached hereto, Affidavit of Edward Barker.

Any development on this property, home to the endangered Blackland Prairie ecosystem, will

cause irreparable damage to the wildlife regardless oftlie full extent of development should vehicles

be permitted to park there. For example, currently migratory birds have moved to the area to nest,

and the known remnants of the Blackland Prairies are only 1/10% of their former acreage across

Texas due to development. EXHIBIT- B.

The neighborhoods surrounding the proposed parking lots, which are currently abutting a

natura) habitat, will be within 100 yards or less of a 400 vehicle parking lot, dramatically changing

the nature and feel of the area, and creating a dangerous condition for the children who live there.

Residents of the neighborhoods have an expectation of use and enjoyment of their property, which

will be interfered with by this dramatic change in use. See EXHIBIT - E, attached hereto, Affidavit

of Christopher Bryan Fears.


Alternative parking options are available to the Defendants, both legal and not a nuisance,

and Defendants have been given notice of these options. The City has refused to enforce parking

laws to restrain this type of use, and the Dallas Police Department has indicated that it has been

instructed by Defendants to not enforce these laws on the land at Winfrey Point EXHIBIT- D.

4. Grounds.

Plaintiff will suffer ~mmediate and ~eparable injury, loss, or damage if Defendants' conduct

described above is not enjoined for these reasons:

a. The land at Winfrey Point has already been damaged by vehicular and

foot traffic in excess of zoning, accepted city guidelines for maintenance

of the area, and practical considerations. See EXHIBIT F, hereto

attached, Affidavit of Harold Barker; See also EXHIBITS- B, 0, E.

b. The proposed change in the use of the land will cause damage to the

wildlife, which cannot be cured.

c. The threat of harm to children in the area caused by excessive foot

and vehicular traffic cannot be mitigated.

d. The density of the use with its accompanying noise and traffic will

permanently alter the nature and character of the area

e. The construction of this parking lot constitutes a nuisance.

f. The use is illegal and in violation of the Texas Parks and Wildlife

Code, Title 5, Chapter 88, Section 88.008 and an injunction is proper

under Section 88.012. making it illegal to removed native and endangered


. .

wildlife from public land.

g. The use is illegal and in violation of the Dallas City Code, Article IV,

Zoning Regulations, as the area is zoned residential.

h. The use is illegal and in violation of the Texas Administration Code,

Title 43, Section 2.9, requiring a public hearing before a major change in

use of a publically owned park.

1. The use is illegal and in violation of the Endangered Species Act of

1973 and other federal laws intended to protect the environment and

wildlife.

J· The use is illegal and in violation ofthe MigratoryBirdActofl918,

16 u.s.c. 703.

Therefore, Plaintiff does not have an adequate remedy at law. Plaintiff has exercised due

diligence in prosecuting this claim. The iqjury to Plaintiff if Defendants continue the conduct

described above would outweigh any injury the restraining order and injunction might cause

Defendants, and issuance of the restraining order and injunction would not disserve the public

interest.

The only adequate, effective, and complete relief to the plaintiff is to restrain the defendant

from further engaging in certain proscribed activities, as set forth below. Pursuant to Tex. R Civ. p.

§ 680 et seq. and Tex. Civ. Prac. & Rem. Code§ 65.001 et seq., and in order to preserve the status

quo during the pendency of this action, the plaintiff seeks a temporary restraining order, an~ on

hearing, a temporary and permanent injunction, ordering and immediately restraining the defendant,

FEARS v. CllY OF DALLAS, ET Al. 5

. .

including the defendant's agents~ servants,. employees, independent contractors, attorneys,

representatives, and ~hose persons or entities in active concert or participation with them

(collectively, the "Restrained Parties") from constructing and/or using the land identified on

EXillBIT A, attached hereto, as a parking lot, including the clearing of the land, mowing of the

grass, placement of gravel or flexbase, earth moving, pouring of concrete or black top, placement of

barriers, or altering the land with any artificial material or products.

5. Prayer.

Plaintiff prays that-

a. without notice to Defendants, the Court issue a temporary restraining order

restraining Defendants and their officers, agents, servants, and employees from directly or indirectly

causing the hann complained of above;

b. the Court set a date and time for a hearing on this application for a temporary

injunction;

c. Defendants be cited to appear and answer;

d. after hearing, the Court issue a temporary injunction enjoining Defendants and

their officers, agents, servants, and employees from directly or indirectly causing the enjoined hann

during the pendency of this action;

e. Plaintiff be granted reasonable expenses incurred in obtaining the restraining

order and injunction; and

f. Plaintiff be granted all further relief to which Plaintiff may be entitled.


..

FEARS v. CllY OF DALLAS, ET Al.

Respectfully submitted,

COHEN & ZWERNER, LLP

By/1--_____..,--ROBERT D. COHEN, ESQ. Texas Bar No. 04508700 211 North Record Suite450 Dallas, Texas 75202 Tel. (214) 748-0681 Fax. (214) 742-7313 Attorney for Plaintiff Christopher Bryan Fears

FEARS NACHA WA TI, PLLC

Texas BarNo 4925 Greenv· Suite 715 Dallas, Texas 75206 Tel. (214) 890-0711 Fax. (214) 890-0712 Attorney for Plaintiff Christopher Bryan Fears

7

' ..

CERTDnCATEOFCONFERENCE

On 30 April, 2012, Plaintiffs attempted to call each of the Defendants, Sheffield Kadane, Paul Dyer,

and Mazy Brinegar, to notify them that we would be seeking a Temporary Restraining Order this

date, and were unable to reach any of them.

SIGNED THIS DATE, April30, 2012.

VERIFICATION

ROBERT D. COHEN, ESQ. Attorney for Plaintiff

. HOBREN, ESQ. ____ ttomey for Plaintiff

BEFORE ME, the undersigned authority, on this day personally appeared Christopher Bryan

Fears, who swore on oath that the following facts are true:

"I am Plaintiff in this cause. I have personal knowledge of the facts stated above, and they

are true and correct."

Affiant

-SIGNED under oath before me on ~1, c:?t7£t.

N~ FEARS v. CITY OF DALLAS, ET AL. 8

..

AFFIDAVIT IN SUPPORT OF TEMPORARY RESTRAINING ORDER AND TEMPORARY INJUNCTION

\

STATE OF TEXAS

COUNTY OF DALLAS .._. ·-

PERSONALLY came and appeared before me, the undersigned Notary, the within named SUSAN REBECCA RADER, who is a resident of DALLAS County, State of TEXAS, and makes this her statement and Affidavit in Support of Temporary Restraining Order and Temporary Injunction, upon oath and affirmation ofbelief and personal knowledge that the following matters, facts and things set forth are true and correct to the best of her knowledge:

I. I am of sound mind, have legal capacity to make this Affidavit and have personal knowledge of the facts recited to herein.

2. I am a wildlife biologist and, as a member of the Texas Master Naturalist

Group, member ofthe White RockLake Task Force. As such I am intimately familiar with the species of plants, birds, mammals, insects, and other wildlife that inhabit the area at Winfrey Point, the southeast bank of White Rock Lake.

3. The Blackland Prairies is one of the most endangered ecosystems in North America. It once covered more than 12 million acres ofthe Texas landscape and has been reduced to less than 1/10% of its fonner range. Only an estimated 5,000 acres remain in their historic condition in terms of plant species.

4. All habitats in this ecoregion are threatened by rapid population growth in most of the ecoregion and accompanying conversion to urban and pasture, fragmentation and decreasing land parcel size.

5. Further, Austin chalk, typical of the White Rock Creek area geology,

supports a distinct prairie community. More than 300 species of prairie grasses and wildflowers have been catalogued within these prarie clusters along the lake. All four native blackland prairie grass communities are rare. Many tall grass prairie birds have already declined drastically due to land conversion and

AFFIDAVIT IN SUPPORT OF TEMPORARY RESTRAINING' ORDER AND TEMPORARY INJUNCTION

1

/

fragmentation in other areas ofBlackland Prairie, and the region is threatened as an important stopover habitat for migratory songbirds and wintering raptors.

6. Scientists and environmentalists from the Texas Land Conservancy, Botanical Research Institute of Texas, Texas Parks and Wildlife Department ("TPWD''), and Audubon have recognized the rarity of the Blackland Prairie remnant and suggested Its preservation. In fact, the TPWD has listed the Blackland Prairie as a Tier I- High Priority Ecoregion for conservation efforts, with only 1.52% of the ecoregion in public and nonprofit conserved land.

1. The organizations providing time and expertise to developing awareness, education and management strategies to ensure the survival of the prairies include the North Texas Chapter of the Texas Master Naturalist Program, Dallas Parks and Recreation Department, Texas Parks and Wildlife, Dallas Historic Tree Coalition, Dallas Audubon Society, Dallas County Lepidopterist's Society, and Dallas County- Texas Agricultural Extension Service.

8. I nominated the City of Dallas for the Texas Lone Star Land Steward Awards for its care of the White Rock Lake habitats in both 2004 and 2005. The City of Dallas was given the award in 2005 as selected to be a model of land stewardship, the first urban city park to be given the award.

9. A representative from the City of Dallas and a representative from the Dallas Park and Recreation Department affirmatively accepted nomination for the award in both 2004 and 2005.

I 0. The City has been operating under a wildlife management plan for the Blackland Prairie remnants existing around White Rock Lake, as prepared by the North Texas Chapter oftlie Texas Master Naturalist Program using established -guidelines as recommended from the Native Prairie Association of Texas, Lady .Bird Johnson Wildflower Center, Texas Parks and Wildlife, Texas Agricultural Extension Service, Texas Nature Conservancy, Heard Museum, and the Ft. Worth Nature Center.

11. This Affidavit is being given to establish that the Dallas Arboretum and Botanical Society, Inc. has been given permission by the City of Dallas, by way of the Dallas Park and Recreation Department, to use the undeveloped land at AFFIDAVIT IN SUPPORT OF TEMPORARY RESTRAINING 2 ORDER AND TEMPORARY INJUNCTION

. .. ..

Winfrey Point as a temporary parking Jot, endangering the Blackland Prairie ecosystem and the wildlife it sustains.

12. Further, the Dallas Arboretum and Botanical Society, Inc. has made it clear to me personally that it intends to follow through with its plan to use Winfrey Point as a parking area, and the Dallas Park and Recreation Department has affirmed it approves and encouraged the private handling of the parking situation by the Dallas Arboretum.

13. I have personally attempted to use political alternatives, community advocacy and other communications avenues to prevent the proposed parking at Winfrey Point and thus prevent the destruction of the Blackland Prairie ecosystem. I have experienced no positive results or indication of a change in plans to convert the area:.

14. The issuance of the requested Temporary Restraining Order and Temporary Injunction is the only thing that will preserve the status quo of Winfrey Point as a preservation of native Texas wildlife and organized destruction of the habitat is imminently to begin.

FURTHER AFFIANT SA YETH NOT

DATED this the.2£)_day of~\ , 20J..2_

~<~;!.£~ Signature of Affiant

SWORN to subscribed before me, this3~ay ~,ez:L

_My Commission Expires:


, 20/:2

3

.'~ . . .

• He~hts and Floor Ratio related to principal uses allowed in district.

• No change in District regulations for the following districts: A R-5 R-7.5, R-10, R-13, R-16, R-1/2ac, R-1ac, TH-1, TH-2, TH-3, 0, MH, P, CA-1, CA·2.

-e.g. retail districts have heights and FAR that accommodate .all types of retail uses.

• Added provisions for reduced height of structures when next to SF, 0, TH, districts for eaCh foot in height over 26' buildings must be 3 feet further away from low density I

residential development • Nonresidential districts revised to focus the uses and design standards on the purpose of the district

e No residential uses allowed in nonresidential districts except fOr mixed use districts.

e The following charts sum~rize distric.ts i!l Chapter 51 A. Please note lhat many districts have stgmficant changes in permitted height. density I and coverage.

SETBACKS ~$ PRIMARY Uses DISTRICT 1-F;nJ ;;;-... -:-;;.- Density Height Lot

eo~era;• ............ , ..... I

1 Dwelling Unit A(A~ 50' I 20'151] 24' 10% Agricultural and residential uses Agricu ural I

3Acres

I R-1ac(A) 1 Dwelling Unit 40' I ~0' 36' 40",{, Single family residential uses Residential 1 Acres

I I

R-1/2ac(A) 1 Dwelling Unit 40' I 10' 36' 40% Single family residential uses Residential . 112 Al:ies

I

j R-16~) I

• 35' I Residen' I

10' 1 DweUing~~tCil 16.000sq. 30' 40% Single family residential uses

! R-13~ I

1 Dwelling~~~" Single family residential uses Residen 30' I 8' 13,000 sq. 30' 45%

...J I

~ ; . I 1 Dwelling Unit z R-10(A) 30' I G' 10,000 sq. ft. 30' 45% Single family residential uses UJ Residential I 0

I c;; R-7.5(A) 1 DweUing Unit w 25' I 5' 30' 45% Single family residential uses a:: Residential

I 7,500 sq. ft.

R-5(A) I 1 DweUing Unit 20' 1 5' 30' 45% Single family residential uses

Residential I

5,000 sq. ft.

D(A) I 1 Dwelling Unit

~ 25' 1 5' 36' 60% Duplex and single family uses

Duplex I 6,000sq. ft.

! TH-1(A) I 6DU

~~ Townhouse 0' I 0'

Acre 36' 60% Single family residential uses

g ' TH-2(A) I ~ Townhouse 0' I 0'

9DU 36' 60% Single family residential uses - I Acre

• ~ ·+~~3~~Jse I 12DU p.~~rt Single family residential uses 0' I 0' Acre 36' ·60%

Resloentlal 1

OOIE:~cxnfdionsll'IFIY~ Ccl'lsa:.dtb Dallas DeYek:u 1 a d<:'AxB. c..

(13)

SE~CKS -·· DISTRICT ~ront

1 eiRe;; Density Height lot a= PRIMARY!'·.

lcov"" '"~~" mo11ro~ Uses .. ·~ .

~ CH 0' I 0' 18DU

36' Proximit

Single-familY and

Clustered Housing • I Per Acre 60% y Slope multifamily residential

I~ uses

I I M'IA lot 3,000 1q It

~~ MF-1(A) '

I, DOCllq It • E Proximit 15'1 15' 1.~00-1 Bll 36' 60% Multifamily residential

Multifamily residential t.eoo-2BR y Slope

~ ! J • 201uq fleaaudd BF uses

I~ I Min lol1,000 1q II

1-

I~ MF-2(A) 15'1

BOO~q ft. E Proximlt · Multifamily residential z I 15' 1,000 ·1 BR 36' 60% UJ Multifamily resident)al 1.200·2BR y Slope 0

I 150 lq It 8liCh edd B~ uses

u; I~ -, I Min lal6,000 1q ft Proximity

w MF-3(A) 15' I 4501q l· E Stope Muhifamily residential;

" 0 10' SOD ·I Bll 90' 60% u.rorni-;~c

J: Multifamily reslden~l I 550-2BR supporting limited retail and

J + 50 sq ft each add BR "'

,_..., personal service uses

.,.;; ...... :-~~~ MF-4(A)

i I Proxlmitt_ ~~~~ 15'1 10'

·w~~~'g 240' 80% U·fomlSe~

Multifamily residential;

Multifamily residential 32S·2BR supporting limited retail and I I I• 50 lq II each edd BR Towerspacin!l

., ............. ,service uses

MH(A) . I I 20' I 10'

1 OUI 24' 20% Proximity Manufactured

Mobile home I 4,000 sq ft Slope homes

I I 'a~j~ce~. 3(1 ~;;•1 NO(A)

15'l OTHER: 0.5 Floor 2 stones 50% Office

Neighborhood office 1 Area Ratio Visual

I ~;;u;l'l· intrusion

L0-1. I 20'a~~~~.

1.0 si~ies Ptoximlly Slope Office; retail and

I 15' : to OTHER:

U.fcnn 18lback

Umited office - 1 FAR 80% Tower spacfng personal service

No Min. Visual in!rusion uses as limited uses

I 20' ~•-L0-2 I to "~~!""":~". 1.5

95' P!ClOimi\y Slope Office; retail and ·stories

U.form hlbad<

Limited office - 2 I 15' I OTHER: FAR 80% Tower opac:ing personal service I NoMfn.

ViiUal inlruslon uses as limited uses

L0-3 1 ·I 20' a~~~~. 115' Office; retail and

1.75 Prol<imil)oSiope

I~ 15' Ito OTHER: 9 stories 80%

WonnW\beek personal service ...J limited offiCe - 3 FAR :::.= ~

I I NoMin. uses as limited uses

~ M0-1 I I 20' adjacent 135' Prol<irnity Slope Office; lodging; retail and

w 15' I to 2.0 110 storie! U.fonn NibliCk

0 Mid-range office - 1 I OTHER: FAR 80% Tower~ personal service uses as

Ci) No Min. Villlal inlnllioo limited uses

w I

a: M0-2 . 120'~~~t. 3.0 !1 ~:es

Pro.rimiiY Slope Office; lodging; retail and z ' 15' I to oTHER; 80%

U.lorm Hlback personal service uses as 0 Mid-range office - 2 FAR

TDMI!s~

z I No Min. Visual iltnalon limited uses

GO(A) 120'~~~. 27ft Office; lodging; retail and to _-.; 4.0 120 storie!

Proximily Slope

General offiCe 15' I OTHER: 80% U.form selbeCk personal service uses as : FAR TowerspacinO

I NoMin. lfrsual in!Mion limited uses

NS(A) I 1 20' ;adjacent. 30' Proximity Retail and personal

15, I to 0.5 2 stories 40% Slope service; and Neighborhood service I OTHER: FAR VIsual

No Min. ·-. . office uses

IJ CR 1 20' BC!i~~~. 0.75 54' Proximity Retail and personal

15' I to OTHER: overall 4 stories 60% Slope service; and Community retail. I NoMin. 0.5 office ,:::~ office uses

RR I I 20' a~jace~t 1.5 70' Retail and personal

Regional retail 15' I to,......,..,,...,, overall 5 stories 80%

Proxllftlty Sial* service; and ! I OTHER: 0.5 office

Worm se1bllck

No Min. Vltual inWalon office uses

NOIE;Attiicnala::ll'dfilli"l¥iU'h CalsUtl-e Dalas ~CMe.

/1 Jl '

... • .. e. ...

,_SETBACK~ Density Lot b---=-• PRIMARY DISTRICT F tiS'deJR FAR n~I~IIL P~o~v "l' planaaras Uses

~~~1--C~S~~-------f-r-:_~~·;_2~~~a~d~=:~:-~~~o·~75=w~e=~~u~-----+----~~P~rooo~~·m~~~r~~orrr~nm~e~~~~lla~na-.u-~~;n--~~~; o·. on I to residential o.s 45' · SO% Slope service; supporting retail COMMERCIAL m.nor OTHER: oftlceJiodgingf 3 stories Visual ·and personal service, and SERVICE I No Min. retail combined intrusion office

r --.~.~,.;;.;:-.;;t: ~-•.

I ~ 30'adjacent 1.0overan Proximity '""'"'"'" ... '; --

LI 15• I to residential o.75 office/retail 7fl SO% Slope distribution and storage; 1 ;;;;; Light 1 OTHER: 0.5 retaft 5 stories Visual supporting office and

1-~;~~~,~~~.~~---------~--;-~N~o~M=m~.-+---------+-----r-----t~nl~ru~~~or-+~r~~~il~~~~~----~ I;? r

1 30' a~J~cent. 2.0 overan Proximity Industrial; wholesale

I(~ I R 15• to'""'"'""""' 0.75 office/retail 1.., ~~:>:,~~ 80% Slope distribution and storage; Ill Industrial I OTHER: 0.5 retail I"''""'""~ VISual supporting office and

l~u~~lJ~~l_------4---l'~N~o~M~ln.~--------~---+----~~in~uu~s~lo~n~~~b~il ________ ~--~ 15' I 30' adjacent 2.0 overall Proximity Industrial; wholesale

IM r.r. on 1 to residential 0.75 office/retail 11 fl 80% Slope distribution and storage; 1 ,-.. Industrial mlllor OTHER: 0.5 retail 8 stones Visual porti ffi 1 ._, 1 No Min. sup ng o ce and retail

CA -1(A) Cenkal area • 1

CA -2(A) Central area - 2

MU -1 Mlxeduse-1

I r.r I 0'

Any 20.0 FAR legal

r I

I o· I

I 20.0 FAR

height

Any legal height

l 90' 2fl adjacent 0.8 base 7 stories

15• I to residential 1.0 max 120•

1 OTHER: + bonus for 9 stories No Min. residential with retail

100%

100%

80%

All but the heaviest industrial uses

All but the heaviest industrial uses

~~~~ Office; retail and personal ~=i~=':. Service; lodging; residential

~ I 20'' ~ .. :sft:..ft, 135'

~ I to .... !S~i1d:-"ie~nlil"IJI' 1'6 base 10 stories Proximity~ Office; retail and personal

I o;._ ;:_N;e;..:, service;

I~ MU- 2 ,. 2.0max 180'

Mixed use . 2 1 !1 I OTHER: +bonus for 14 stories 1 No Min. residential wtlh relail

~~-----------~~-----;-------+~-;~--+-----~--------------~

80% ~=!:as!! lodging; and residential

MU-3 Mixeduse-3

MC -1 Multiple commercial- 1

I 20' adjacent 3.2 base Pfoxlmity ~ Office; retail and personal

15, 1 to residential 4.0 max , .,n ~?.?::~. 80% worm MlbaCk service; lodging; residential;

I OTHER: +bonus for , ... v ""''""• IQWVr_:spa"'!''l trade center No Min. residential Visuai intnJsbi

15' f 2fl a"ls_,t . ~~mlty Slope Urban I to ."'_':~~":'::~~ 0.8 base 7rt eo% u.rorm setbaCk F I OTHc::a 1.0max 5storles Towerspacing

orm ~: VISUal intnrsion 1 NoMin.

Office; retaH and personal service; lodging

~ ·g MC - 2 uZan II ~0' adjacent 0.8 base , _?~ .... - 80% ~= Offi~lce; retaH and personal '= Form OTHER: 1.0 max ~'""'"' Tower spacing serv ~ ~~-M-u~_·_~e_co_~ ___ ~_a_l--2--r---;I __ N_o_M_m_.~~------~r----;r-----r~--~-~-~---M-r-lo_d_g_ing ______________ ~ 8 15' 1 2fl a~~~~. Prox!INty ~~

II MC - 3 Urban I to • ..,.U.,IIUCI' 1.2 base 115' 80% lJ.form selbaCk Office; retahnd personal

Multiple commercial·· 3 Form I OTHER: 1.5 malt 9 stories Tower spacing service; lodging No Min. VISual inlrU$Ion

~~~----------4-1-5'-~~,-2fl~.~~~~~~-------4----r----r~---~-.r--~~T-------------~ · MC - 4 Urban to residenlialt 1.6 base 135' BO% u-rorm~ Office; retail and personal

Mult:..'D commercial. 4 Form I OTHER: 2.0 max 10 stories Tower spacing service; lodging .,.... 1 No Min. VISUal Intrusion

P(A) Parking

Surface parking

~ .. ·. .

&~,b~-T AFFIDA VIT IN SUPPORT OF TEMPORARY RESTRAINING . D

ORDER AND TEMPORARY INJUNCTION

STATE OF TEXAS

COUNTY OF DALLAS

PERSONALLY came and appeared before me, the undersigned Notary, the within named EDWARD BARKER, who is a resident of DALLAS County, State of TEXAS, and makes this his/her statement and General Affidavit upon oath and affirmation of belief and personal knowledge that the following matters, facts and things set forth are true and correct to the best of his/her knowledge:

1. I am of sound mind, have legal capacity to make this affidavit and have personal knowledge of the facts recited to herein.

2. I reside at 9191 Garland Road, Apt. #1126, Dallas, TX 75218, such that my residence abuts the land at Winfrey Point on White Rock Lake. I have a personal e interest in preserving the ecological nature ofthe area as a user of the public park.

3. I have personally observed the destruction caused to the Winfrey Point habitat by current parking practices and city acquiescence and participation in encouraging the use of the Blackland Prairie as a make shift parking lot.

4. i spoke to Chief Perez of the Dallas Police Department on Monday April 2, 2012 at 7:30A.M., concerning phone calls I placed to 911 two weekends in a row resulting in police refusal to issue citations. I was informed at that time that a meeting would be held, not open to the public, during the week.

5. I had a conversation with the Dallas Police Department on April9, 2012 for an outcome of an administrative· meeting, in which I was told by Lt. Ham, DPDNE, on Friday April 7th,, that the City Manager, Chief of Police, Park Board, and Park Department decided not to enforce the laws on the books.

6. I have documented a long, written history of parking abuses for fee paid commercial events along E. Lawther Dr.


1

-- -·~ -

7: I have attempted to use political alternatives, community advocacy and other communications avenues to prevent the proposed parking at Winfrey Point and thus prevent the destruction of the Blackland Prairie ecosystem. I have experienced no positive results or indication of a change in plans to convert the area

8: This Affidavit is being given to establish that the Dallas Arboretum and Botanical Society, Inc. has been given permission by the City of Dallas, by way of the Dallas Park and Recreation Department, to use the undeveloped land at Winfrey Point as a temporary parking lot, endangering the Blackland Prairie ecosystem and the wildlife it sustains.

9. Further, the Dallas Arboretum and Botanical Society, Inc. has made it clear to me personally that it intend~ to follow through with its plan to use Winfrey Point as a parking area, and the Dallas Park and Recreation Departinent has affirmed it

. approves and encouraged the private handling of the parking situation by the Dallas Arboretum.


My Commission Expires:

2

.I AFFIDAVIT IN SUPPORT OF TEMPORARY RESTRAINING &.~\~f\

ORDER AND TEMPORARY INJUNCTION E.

STATE OF TEXAS

COUNTY OF DALLAS

PERSONAL~ Y came and appeared before me, the undersigned Notary, the within named CHRISTOPHER BRYAN FEARS, who is a resident of DALLAS County, State of TEXAS, and makes this his statement and General Affidavit upon oath and affirmation of belief and personal knowledge that the following matters, facts and things set forth are true and correct to the best of his knowledge:

1. I am of sound.mind, have legal capacity to make this affidavit and have personal knowledge of the facts recited to herein.

2. My family and I reside a~ 1144 Bally Mote Dr., Dallas, TX 75218. We have one child, and my neighbors have children. My property is within 100 yard,s of the proposed parking lot at Winfrey Point on White Rock Lake. I have a personal interest in preserving the safety and unique ecological nature of the area, a wildlife habitat, as a landowner and user of the public park.

J.. I have personally observed the destruction caused to the Winfrey Point · habitat by current parking practices and city acquiescence and participation in encouraging the use of the Blackland Pr~rie as a make shift parking lot.

4. I have personally attempted to use political alternatives, community advocacy and other communications avenues to prevent the proposed parking at Winfrey Point and thus prevent the destruction ofthe Blackland Prairie ecosystem. I have experienced no positive results or indication of a change in plans to convert the area.

5. This Affidavit is being given to establish that the Dallas Arboretum and Botanical Society, Inc. has been given permission by the City of Dallas, by way of the Dallas Park and Recreation Department, to use the undeveloped land at Winfrey Point as a temporary parking lot, endangering the Blackland Prairie e ecosystem and the wildlife it sustains. AFFIDAVIT IN SUPPORT OF TEMPORARY RESTRAINING ORDER AND TEMPORARY INJUNCTION

1

·' 6. Further, the Dallas Arboretum and Botanical Society, Inc. has made it clear to me personally that it intends to follow through with its plan to use Winfrey Point as a parking area, and the Dallas Park and Recreation Department has affirmed it approves and encouraged the private handling· of the parking situation by the Dallas Arboretum.

7. The issuance of the requested Temporary Restraining Order and Temporary Injunction to stop the construction of this parking lot is the only thing that will preserve the status quo of Winfrey Point as a safe place for the neighborhood children and a nature reserve of native Texas wildlife.

8. Further, the organized destruction of the habitat is imminent as construction will begin this week.

FUR TilER AFFIANT SA YETH NOT

SWORN to subscribed before me, this.31-s. day ___&;e __ z:=tt. ___ ,, 20/ ~

. My Commission Expires:


2

AFFIDAVIT IN SUPPORT OF TEMPORARY RESTRAINING ~)(rt\Sr"\ ORDER AND TEMPORARY INJUNCTION

STATE OF TEXAS

COUNTY OF DALLAS

F

PERSONALL ~came and appeared before me, the undersigned Notary, the within named HAROLD BARKER, who is a resident of DALLAS County, State of TEXAS, and makes this his statement and Affidavit in Support of Temporary Restraining Order an:d Temporary Injunction, upon oath and affirmation of belief and personal knowledge that the following matters, facts and things set forth are true and correct to the best of his knowledge:

1. I am of sound mind, have legal capacity to make this affidavit and have personal knowledge of the facts rec-ited to herein.

2. I reside at 9191 Garland Road, Apt. #1126, Dallas,.TX 75218, such that my residence abuts the land at Winfrey Point on White Rock Lake. I have a personal interest in preserving the ecological nature of the area as a user of the public park.

3. I have personally observed the destruction caused to the Winfrey Point habitat by current parking practices and city acquiescence and participation in encouraging the use of the Black.land Prairie as a make shift parking lot

4. I have personally attempted to use political alternatives, community adyocacy and other communications avenues to p~vent the proposed parking at

Winfrey Point and thus prevent the destruction of the Blackland Prairie ecosystem. I have experienced no positive results or indication of a change in ·plans to convert

the area.

5. This Affidavit is being given to establish that the Dallas Arboretum and Botanical Society, Inc. has been given permission by the City of Dallas, by way of the Dallas Park and Recreation Department, to use the undeveloped land at Winfrey Point as a temporary parking lot, endangering the Blackland Prairie ecosystem and the wildlife it sustains.


1

. .. . . ..

6. Further, the Dallas Arboretum and Botanical Society, Inc. has made it clear to me that it intends to follow through with its plan to use Winfrey Point as a parking area, and the Dallas Park and Recreation Department has affinned it approves and encouraged the private handling of the parking situation by the Dallas Arboretum.


FURTHER AFFIANT SA YETH NOT

DATED this the3° day of ~(iJR\t_ , 20 (2...

(JQ~ Signature: of Affiant

SWORN to subscribed before me, this 3t''1"ay ~---' 20/_-<. .

My Commission Expires:


2

§ 26.001. Protected Land; Notice of Taking, TX PARKS & WILD§ 26.001

for Public Hearing);

(5} A project requires the taking of public land designated and used as a park, recreation area, wildlife refuge, historic site or scientific area. as covered in the Parks and Wildlife Code. §§ 26.001 et seq, or requires the taking of private land designated and used as an historic site. The state public hearing requirement applies whether or not there is a finding the taking is de minimis under federal law.

(6} A project requiring a public hearing under Transportation Code. § 203,021.

(7) An aviation project requiring a residential or commercia) relocatio!l.

(8} In accordance with Transportation Code. § 201.604, between one and nine individuals submit a written request for a hearing and the district is unable to address the concerns of the individuals, or if ten or more individuals submit a written request for a hearing. Notwithstanding the preceding sentence, a public hearing is not required if a· public hearing has already been held concerning the project, or if the hearing requests are received after the environmental document for the project is approved.

(9) A project requires the taking of private land encumbered by an agricultural conservation easement purchased under Natural Resources Code, Chapter 183.

(c) Documents available for public inspection. The district shall make available to the public at designated locations for no Jess than 30 days before a public hearing the maps, drawings, environmental studies and documents concerning the project. For an ElS project the district shall make available the DEIS fur 45 days.

(d) Notice of public hearing.

(I) A notice shall contain the information listed in this paragraph.

(A) Time, date, and location of the hearing.

(B) A description of the projec~ termini, need and purpose, improvements, and right of way needs.

(C) A reference to maps, drawings, environmental studies and documents, and any other information about the project that is available for public inspection at the designated locations.

(D) A reference to the potential for relocation of residences and businesses and the availability of relocation assistance for displaces.

(E) A statement that written comments may be presented for a period of I 0 days after the hearing.

(F) The address where written comments may be submitted.

(G) Whether the project encroaches on a floodplain, wetland. or a sole-source aquifer recharge zone.

(H) A statement, if applicable, that the project will require the taking of public land designated and used as a park, recreation area, wildlife refuge, historic site, or scientific area, and whether the taking is de minimis under federal law.

(I) A statement, if applicable, that the project will require the taking of land protected by an agricultural conservation easement. ·

(J) A statement that provision will be made for persons with special communication or physical needs related to the public hearing if requested.

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§ 26.001. Protected Land; Notice of Taking, TX PARKS & WILD§ 26.001

Footnotes 1 We cite to the current code for convenience. when there has been no substantive change since th~ cause of action accrued.

2. According to the City's summary-judgment evidence, the parks and recreation department discussed the batting cage proposal at several J)ublic: meetings. In addition; the Walkcts admit thai they attended "numerous" city council meetings at which the issue was addressed. Their complaint is that a hearing was not held in accordance with the tctmS set'forth in section 26.001. See Tex. Parks & Wild.Code Ann. § 26,001 (West 2002). · ·

The appellate court stated: The lease is to Zachry, Trustee, but for whom he is trustee is not known. Zachry agreed to erect a parlcing garage capable of accommodating from 900 to 1200 vehicles. But upon completion of the structure, Zachry, without the consent of lessor, may assign the agreement and he is then completely released and discharged from any fw1her liability. Eithct Zachry, Trustee, or his assigns may sublet the premises without consent of the City, but in such event the lessee or the assignee will still be liable on the lease. Zachry, Trustee, is given the right to mortgage the leasehold upon the sub-surtac:c to the part and all the improvements; and in the event of his default, such leasehold may be sold. The City reserves ~o powcts nor rights concerning the rates or policy of the operations for forty years. but at the end of that tim~ the property will all revert to the City. In other · words, for forty years, the City is not going to provide for or m~ntain a public improvement because during all that time Zacbry, Trustee, will be providing an.uncontrolled private parking business.

The surrendct of all controls over the facility for forty years takes from the enterprise its public nature, which is tbe essence of the gi?Jieral power upon which the City relies. Once surrendered, it ceases to be a public improvement. . Zachry v. Citv ofSon AnrO!!io, 296 S.W.2d 299. 303 CTex.Civ.App.-San Antonio 19561 affd, 151 Tex. 551. 305 S.W.2d 558 rum ..

We note tbat a change in usc to parkland would now be governed by chapter 26 of the parks and wildlife code. See Tex Parks & Wild.CodeAnn. § 26.001. ·

See Act of March 19, 1913, 33d Leg., R.S., c:h. 152, 1913 Tex. Gen. Laws, 326, 326-27 (repealed 19117) (current version·at Thx. Loc. Gov't Code Ann. § 253 00 I).

43TAC§2.9 Tex. Admin. Code tit. 43, § 2.9

§ 2.9. Public Involvement-Public Hearing

(a) Purpose. A public hearing is held to present project alternatives and to encourage and solicit public comment The hearing is held after location and design studies are developed and the environmental document is considered technicaUy complete and approved as a full ~sclosure document suitable for public review by the environmental division. For a federal-aid project. the public hearing shall be held after FHW A determines the environmental document is considered technically complete and approved as a full disclosure. (b) Public: hearing required. A district shall hold a public hearing if one or more of the paragraphs in this subsection af'Piyto the project

(I) A project with substantial public interest or controversy.

(2) ~ EIS project.

(3) A high-profile project.

(4) A request ~or bearing is received under§ 2.8 of this subchapter (relating to Public Involvement-Opportunity

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