2017-07-31 Original Petition and Application For TRO
2017-07-31 Original Petition and Application For TRO
2017-07-31 Original Petition and Application For TRO
NOW COMES Max Grossman, Plaintiff in the above-captioned cause, and submits this
Original Petition and Application for Temporary Restraining Order and Temporary Injunction. In
I
DISCOVERY
1. Plaintiff requests that this case be conducted as a Level 2 case for the
purposes of discovery in accordance with TEX. R. CIV. P. 190.3. Plaintiff reserves the right to
move this court to enter a discovery control plan order under TEX. R. CIV. P. 190.4.
II
PARTIES1
Paso, Texas.
1
Plaintiff has notified the Texas Historical Commission of this Original Petition and Application for Temporary
Restraining Order and Temporary Injunction and invited the Commission to intervene in this action if appropriate.
El Paso County, Texas, that is organized and operating under the laws of the State of Texas
and is, therefore a political subdivision of the State of Texas. The city may be served with
process by serving Mayor Dee Margo at City Hall, 300 N. Campbell El Paso, Texas 79901,
under the authority of Texas Civil Practice and Remedies Code, section 17.024(b).
III
JURISDICTION AND VENUE
4. This Court has jurisdiction over this Cause pursuant to the Uniform Declaratory
Judgments Act, found at Chapter 37 of the Texas Civil Practice and Remedies Code. The
relief sought is within the jurisdiction of this Court. Venue is proper in El Paso County, Texas,
pursuant to section 191.173(b) of the Texas Natural Resources Code, which provides that
Venue of an action by a citizen lies in the county in which the activity sought to be restrained
is alleged to be taking place. TEX. NAT. RES. CODE 191.174(b). Venue is also proper in
El Paso County, Texas, under section 15.002 of the Texas Civil Practice & Remedies Code,
because all or a substantial part of the acts or omissions giving rise to the claim occurred in
IV
FACTUAL BACKGROUND
5. The City plans to build an arena over El Pasos oldest continuously occupied
downtown neighborhood, Duranguito, also known as Union Plaza. See Declaration of Max
Grossman, attached as Exhibit A and incorporated herein by reference, 12. 2 As part of this
$180 million project, the City has contracted to demolish many historic buildings in the
Duranguito neighborhood. Grossman Decl. 14, App. 6. Over 11 acres could be affected by
2
Duranguito, as used in this petition, refers to the area in figures 5:52 and 5:53 in The Union Plaza Downtown El
Paso Development Archaeological Project: Overview, Inventory and Recommendations, John A. Peterson, Stephen
Mbutu, & Mark D. Willis, eds., ARC Archaeological Technical Report No. 17, for the Sun Metro Transit Authority,
City of El Paso, Texas, Dec. 9, 1998. See Grossman Decl. App. 10.
2
this project, including over 5 acres for the footprint of the proposed Arena. Grossman Decl.
6. In furtherance of its arena project, the City has authorized its agents to acquire
properties in the Duranguito-Union Plaza neighborhood. Grossman Decl. 12, App. 3. The
City has already acquired six properties and has entered into purchase contracts for additional
properties. Grossman Decl. 15, App. 6. For any properties the City is not able to acquire
through negotiated sales, the City has authorized the use of eminent domain and condemnation
7. For the project to proceed, the City requires that the buildings on these
properties be demolished. To this end, the City has included in the contracts a requirement
that vacant buildings be demolished. Grossman Decl. 14. Also in furtherance of this project,
the City has engaged in a systematic program to depopulate the land so that it can be prepared
for construction of the planned arena. It has offered and paid residents relocation incentives
to induce them to vacate their rental properties. Grossman Decl. 14, App. 5.
lawsuit in Travis County, Texas (No. D-1-GN-17-001888) pursuant to Chapter 1205 of the
Government Code, seeking to validate the general obligation bonds that will be used to build
the Arena and to declare that using the bond funds to build an Arena in downtown El Paso is
a valid expenditure under the ordinance authorizing the issuance of the bonds. Grossman Decl.
13. Plaintiff Grossman, among others, appeared in that lawsuit and challenged the proposed
expenditure. Id. The matter was tried to the 201st Judicial District Court, the Honorable Amy
Clark Meachum presiding, on July 17 and 18, 2017. Grossman Decl. 16. The trial court
ruled from the bench that the City could use the bond proceeds to build a new facility in
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downtown El Paso but that the facility could not be a sports arena, as currently planned.
Grossman Decl. 16, App. 7. The trial court set a hearing for entry of judgment on August 1,
2017, at 2 pm. Grossman Decl. 17, App. 8. As part of her bench ruling, the trial court noted
that the temporary injunction currently in placewhich prohibits the City from demolishing
any structures within the proposed footprint of its Arenawill likely be dissolved upon entry
9. Many of the buildings the City has or will cause to be demolished as part of its
arena project have historical and architectural significance. Grossman Decl. 18-22, 24.
Based on an archeological survey commissioned by the City of El Paso for the Sun Metro
Transit Authority and carried out by a team of experts led by John A. Peterson, Stephen
Mbutu, and Mark D. Willis, seven buildings within the so-called Master Planning Area of
the arena project area are recommended to be added to the National Register of Historic
sites. Id.; see also id. App. 10. The 1998 survey concluded that many of the buildings within
Union Plaza provide good examples of period architecture. Overall, almost 20 buildings
Union Plaza, representing a wide range of character and styles, have been determined to meet
the Secretary of the Interiors criteria for inclusion on the National Register of Historic
Places. Grossman Decl. App. 10. The survey also states that The Union Plaza, part of the
original Ponce de Leon ranch (El Pasos first community), contains historic sites and buildings
that are potentially in danger of being impacted by construction during redevelopment. Id.
Further, although it did not identify any prehistoric sites, the survey concluded that potential
3
The basis for the Temporary Injunction issued in the Travis County litigation is distinct from the relief sought here.
The Travis County injunction was based on allegations that the City was illegally expending bond proceeds in building
a sports arena, instead of a Multi-Purpose Performing Arts and Entertainment Center, as approved by the voters, in
downtown El Paso. Grossman Decl. 13, 17.
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for historic archaeological sites remains considerable. Id.
10. Yet, the City has endeavored to prevent a comprehensive architectural survey
the adjacent barrios, including the 28 Trost buildings 4 and numerous other architectural
treasures surviving in downtown El Paso. Grossman Decl. 23. Despite the Citys opposition,
however, El Paso County has taken up the survey project, which is currently under way, and
there is a high likelihood that a Duranguito National Register District will be established, that
V
CAUSES OF ACTION
Declaratory Judgment
herein.
12. A court of record within its jurisdiction has power to declare rights, status, and
other legal relations whether or not further relief is or could be claimed. An action or
proceeding is not open to objection on the ground that a declaratory judgment or decree is
prayed for. The declaration may be either affirmative or negative in form and effect, and the
declaration has the force and effect of a final judgment or decree. TEX. CIV. PRAC. & REM,
13. A person interested under a deed, will, written contract, or other writings
constituting a contract or whose rights, status, or other legal relations are affected by a statute,
4
Henry C. Trost was one of the most iconic architects of the American Southwest. He was already well-known in the
southwest when he came to El Paso in 1903. He designed the El Paso School of Mines (now the University of Texas-
El Paso), El Paso High School, and numerous public and private buildings all across El Paso and the Southwest.
5
municipal ordinance, contract, or franchise may have determined any question of construction
or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a
declaration of rights, status, or other legal relations thereunder. Id. 37.004(a) (emphasis
added).
14. The Texas Antiquities Code, found in Chapter 191 of the Texas Natural
Resources Code, imposes mandatory notice requirements for projects on public lands.
Specifically, section 191.0525(a) requires that a person 5 primarily responsible for a project
located on local public land must notify the Texas Historical Commission, which then must
determine if the site requires protection or if an archeological survey is necessary. TEX. NAT.
RES. CODE 191.0525(a), (b). Section 191.0525(d) further provides that a project for a city
requires advance project review only if the project affects a cumulative area larger than five
acres or disturbs a cumulative area of more than 5,000 cubic yards, whichever measure is
triggered first, or if the project is inside a designated historic district or recorded archeological
site. TEX. NAT. RES. CODE 191.0525(d). If the Texas Historical Commission determines
that an archeological survey is necessary at the project location, the project may not
commence until the archeological survey is completed. TEX. NAT. RES. CODE 191.0525(b).
Section 191.173(a) empowers a citizen of the State of Texas to maintain an action for
restraining orders and injunctive relief to restrain and enjoin violations or threatened
15. As described above, the Citys planned downtown arena project triggers the
5
Person includes a governmental subdivision such as the City. Oncor Elec. Delivery Co. LLC v. Dallas Area Rapid
Transit, 369 S.W.3d 845, 851 & n.17 (Tex. 2012) (explaining that Since the adoption of the Code Construction Act
in 1967, the Legislature has instructed that in construing its codes, the word person includes the government or
governmental subdivision or agency unless the statute or context . . . requires a different definition. (citing TEX.
GOVT CODE 311.005(2))).
6
Citys responsibility to notify and receive approval from the Texas Historical Commission as
provided in section 191.0525. Yet, in violation of this provision, and with full knowledge of
its obligations, see Declaration of Harry W. Clark, attached as Exhibit B and incorporated
herein by reference, neither the City nor any other person associated with the arena project
has not notified the Texas Historical Commission of the planned arena project or sought
16. As established above, the Citys planned $180 million arena project will require
the demolition of more than five acres, including the Duranguito-Union Plaza area, El Pasos
oldest continuously occupied downtown neighborhood, including many buildings that the
Citys own 1998 archeological survey identified as historically and architecturally significant
and worthy of protection. The 1998 survey recommended that seven buildings within the City
of El Pasos so called Master Planning Area be added to the National Register of Historic
sites. The survey concluded that many of the buildings within Union Plaza provide good
and style in the Union Plaza have been determined to meet the Secretary of the Interiors
criteria for inclusion on the National Register of Historic Places. The report also states that
The Union Plaza, part of the original Ponce de Leon ranch (El Pasos first community),
contains historic sites and buildings that are potentially in danger of being impacted by
construction during redevelopment. Further, although it did not identify any prehistoric
sites, the report concluded that potential for historic archaeological sites remains
considerable. Moreover, the City is also aware that El Paso County is currently engaged in
an archeological survey project in the area, the likely result of which is that a Duranguito
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National Register District will be established.
17. Thus, the City is well aware that its arena project will destroy many historically
significant buildings, triggering its obligation under section 191.0525 to notify the Texas
Historical Commission and to refrain from its activities endangering those buildings unless
18. The City has entered into purchase contracts for properties in the Duranguito-
Union Plaza neighborhood. As a first step in preparing the land for construction, the City has
included in several of these contracts a requirement that the seller demolish vacant buildings.
19. To ensure that as many buildings as possible are vacant and ready to be
demolished, the City has offered and paid residents relocation incentives if they agree to
20. The property in question is public land as defined in the applicable provisions
of the Administrative Code because it is owned or controlled by the City. See 13 TEX.
ADMIN. CODE 29.4(25) (Public lands--means non-federal public lands that are owned or
controlled by the State of Texas or any of its political subdivisions.). The contracts for
purchase of real property in the Duranguito-Union Plaza area give the City an equitable
interest in the property sufficient to constitute ownership for the purposes of section 29.4(25)
of Administrative Code and public land for purposes of section 191.0525. See, e.g., Comerica
Acceptance Corp. v. Dallas Cent. Appraisal Dist., 52 S.W.3d 495, 497 (Tex. App.Dallas
2001, pet. denied) (en banc) (explaining that owner means a person or entity holding legal
title to the property, or holding an equitable right to obtain legal title to the property
(emphasis added)). Further, by requiring the sellers to demolish the buildings in preparation
for the arena project, the City is exercising control over the property. Indeed, by requiring the
8
demolition, the City is breaking ground on the project that will necessarily be public land
pursuant to the very same sales contract that requires the demolition. Moreover, the pending
sales contracts prevent the sellers from altering the property in ways inconsistent with the
Citys conditions of sale, transferring the property to another party, or otherwise exercising
the rights of an owner. The City has also offered and paid residents relocation incentives to
vacate their rental properties by a date certain. Thus, City is directing the operations of the
premises. As a result, even if the City currently lacks legal title to some of the properties,
a) the City is required to properly notify the Texas Historical Commission and
take any and all other actions in compliance with section 191.0525 of the
Texas Natural Resources Code.
Injunctive Relief
herein.
action for restraining orders and injunctive relief to restrain and enjoin violations or
9
24. As described above, the Citys actions with respect to the arena project and the
public land in the Duranguito-Union Plaza area trigger the notice requirements of section
25. Plaintiff asks the Court to order the City to properly notify the Texas Historical
Commission and take any and all other actions in compliance with section 191.0525 of the
Texas Natural Resources Code. Plaintiff further asks the Court to enjoin the City, its affiliates,
agents, attorneys, employees, contractors, servants, and all those with knowledge of the
injunction to immediately cease entering into new contracts related to this project unless and
until the City has complied with all requirements of the Texas Antiquities Code and received
approval from the Texas Historical Commission to proceed. New contracts include any new
contracts between the City and residents for relocation incentives or assistance. Plaintiff also
asks the Court to enjoin the City from issuing permits for the demolition of buildings in the
Master Planning Area of the proposed new downtown arena or elsewhere in the Duranguito
neighborhood, as defined in figures 5:52 and 5:53 of the Citys own 1998 architectural survey
of the neighborhood.
VI
ATTORNEY FEES
26. Pursuant to Texas Civil Practice and Remedies Code section 37.009, Plaintiff
is entitled to recover costs of litigation and reasonable attorney fees incurred in bringing this
suit.
VII
APPLICATION FOR TEMPORARY RESTRAINING ORDER
AND TEMPORARY INJUNCTION
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28. Plaintiffs application for a temporary restraining order is authorized by section
191.173(a) of the Texas Natural Resources Code, which provides that A citizen of the State
of Texas may bring an action in any court of competent jurisdiction for restraining orders and
injunctive relief to restrain and enjoin violations or threatened violations of this chapter, and
for the return of items taken in violation of the provisions of this chapter. TEX. NAT. RES.
CODE 191.173(a). Plaintiff Max Grossman is a citizen of the State of Texas and brings this
action because the Citys actions and planned actions, including but not limited to, the
order to construct a new downtown arena, without having first notified and received approval
from the Texas Historical Commission, violate section 191.0525 of the Texas Natural
Resources Code.
29. Section 191.0525(a) requires that a person 6 primarily responsible for a project
located on local public land must notify the Texas Historical Commission, which then must
determine if the site requires protection or if an archeological survey is necessary. TEX. NAT.
RES. CODE 191.0525(a), (b). Section 191.0525(d) further provides that a project for a city
requires advance project review only if the project affects a cumulative area larger than five
acres or disturbs a cumulative area of more than 5,000 cubic yards, whichever measure is
triggered first, or if the project is inside a designated historic district or recorded archeological
site. TEX. NAT. RES. CODE 191.0525(d). If the Texas Historical Commission determines
that an archeological survey is necessary at the project location, the project may not
6
Person includes a governmental subdivision such as the City. Oncor Elec. Delivery Co. LLC v. Dallas Area Rapid
Transit, 369 S.W.3d 845, 851 & n.17 (Tex. 2012) (explaining that Since the adoption of the Code Construction Act
in 1967, the Legislature has instructed that in construing its codes, the word person includes the government or
governmental subdivision or agency unless the statute or context . . . requires a different definition. (citing TEX.
GOVT CODE 311.005(2))).
11
commence until the archeological survey is completed. TEX. NAT. RES. CODE 191.0525(b).
30. The Citys $180 million arena project will affect more than five acres of public
land. The property in question is public land as defined in the applicable provisions of the
Administrative Code because it is owned or controlled by the City. See 13 TEX. ADMIN.
CODE 29.4(25) (Public lands--means non-federal public lands that are owned or controlled
by the State of Texas or any of its political subdivisions.). The City owns already at least 6
properties in the Duranguito-Union Plaza area and has entered into contracts for purchase of
real property, giving the City an equitable interest in the property sufficient to constitute
ownership for the purposes of section 29.4(25) of Administrative Code and public land for
purposes of section 191.0525. See, e.g., Comerica Acceptance Corp. v. Dallas Cent.
Appraisal Dist., 52 S.W.3d 495, 497 (Tex. App.Dallas 2001, pet. denied) (en banc)
(explaining that owner means a person or entity holding legal title to the property, or
holding an equitable right to obtain legal title to the property (emphasis added)). Moreover,
the City, through its use of eminent domain and condemnation powers, can obtain legal title
to the land. Further, by requiring the sellers to demolish the buildings in preparation for the
arena project, the City is exercising control over the property. Indeed, by requiring the
demolition, the City is breaking ground on the project that will necessarily be public land
pursuant to the very same sales contract that requires the demolition. Moreover, the pending
sales contracts prevent the sellers from altering the property in ways inconsistent with the
Citys conditions of sale, transferring the property to another party, or otherwise exercising
the rights of an owner. The City has also offered and paid residents relocation incentives to
vacate their rental properties by a date certain. Thus, City is directing the operations of the
premises. As a result, even if the City currently lacks legal title to some of the properties,
12
the properties are nonetheless public land as defined in the Code.
31. In violation of section 191.0525, the City has not notified the Texas Historical
Commission about the arena project or otherwise sought or received approval from the
Commission to proceed.
32. Plaintiff asks the Court to order the City to properly notify the Texas Historical
Commission and take any and all other actions in compliance with section 191.0525 of the
Texas Natural Resources Code. Plaintiff further asks the Court to enjoin the City, its affiliates,
agents, attorneys, employees, contractors, servants, and all those with knowledge of the
injunction to immediately cease entering into new contracts related to this project unless and
until the City has complied with all requirements of the Texas Antiquities Code and received
approval from the Texas Historical Commission to proceed. New contracts include any new
contracts between the City and residents for relocation incentives or assistance. Plaintiff also
asks the Court to enjoin the City from issuing permits for the demolition of buildings in the
33. Plaintiff has a probable right to the declaratory and injunctive relief requested
following a final hearing. City of El Paso v. Caples Land Co., 408 S.W.3d 26, 37-38
(Tex. App.El Paso 2013, pet. denied) (An applicant for a temporary injunction need not
show that it will prevail at trial in order to establish the probable right of recovery element.
Instead, the applicant must plead a cause of action and present some evidence that tends to
sustain it.).
34. If Plaintiffs application is not granted, harm is imminent. As noted, the City
has already entered into multiple contracts that call for the demolition of historic buildings in
the Duranguito neighborhood in the footprint of the planned arena project. Further, the City
13
has issued at least seven permits for demolition in and adjacent to the relevant area. While
the City is currently restrained by court order from demolishing any structures within the
2017. Media reports indicate that the City plans to commence demolition as soon as the
injunction is lifted. Grossman Declaration 25, App. 12. And citizens have observed
indicators of the immediate demolition of the area: utility lines removed, boarded windows,
and markings on sidewalks of gas lines and the like. See Declarations of Gilbert Guillen,
reference. Thus, the demolition is imminent and will proceed unless this Court grants
Plaintiffs application.
35. The harm that will result if the temporary restraining order is not issued is
irreparable because the Citys plans order the demolition and destruction of historical
buildings that are, by their very nature, irreplaceable. Indeed, this is precisely why the
Antiquities Code requires advance project review of such proposed projects. Further, the
harm that will result if the temporary restraining order is not issued is also irreparable because
36. Plaintiff also has no adequate remedy at law because the damages are
incalculable.
37. In any event, proof of a violation of a statute alone establishes a case for
injunctive relief. See, e.g., San Miguel v. City of Windcrest, 40 S.W.3d 104, 108 (Tex. App.
San Antonio 2000, no pet.) (A city seeking to enjoin a violation of its zoning ordinance,
however, need not prove that a violation would cause injury to it or its residents. Similarly,
14
an act that violates a statute or city ordinance may be enjoined without a showing that the
38. Plaintiff is willing to post a reasonable surety bond pursuant to Texas Rules of
Civil Procedure 684. Only a low bond is warranted here. As Rule 684 provides, where the
State, such as the City, and the political subdivision has no pecuniary interest in the suit and
no monetary damages, the amount of the bond shall be fixed by the Court. TEX. R. CIV. PROC.
684; Maples v. Mascletech Inc., 74 S.W.3d 429, 431 (Tex. App.Amarillo 2002, no pet.)
(explaining that bond determination should be made on a case-by-case basis and rests within
the sound discretion of trial court). Here, the City will not be economically harmed by the
restraining order because it remains well ahead of the schedule planned for this project, which
originally did not call for construction related to this facility improvement until 2020.
Grossman Decl. 13, App. 5 (City brochures stating that the project is in its infancy and that
a yet-formed project team will develop a schedule for design and construction). Moreover,
even after unreasonably accelerating this project timeline in late 2016, the City did not expect
to complete property acquisition before August 2017. Id. Thus, even if enjoined from
proceeding during the pendency of this action, the City will still be able to proceed on or ahead
of schedule. More importantly, however, section 191.173 of the Texas Natural Resources
Code empowers a citizen to seek restraining orders and injunctive relief to enforce section
191.0525. Setting a high bond would thwart the intent of section 191.173(a). For the
foregoing reasons, Plaintiff requests that the Court set a bond of $100 that does not prevent
Plaintiff access to the justice system or thwart the intent of section 191.173(a).
39. Plaintiff asks the Court to set his application for a temporary injunction for a
15
hearing, and after the hearing, issue a temporary injunction against the City.
VIII
JURY DEMAND
40. Plaintiff requests a jury trial and tenders the appropriate fee with this petition.
IX
RULE 47(c) STATEMENT
41. Pursuant to Texas Rule of Civil Procedure 47(c)(2), Plaintiff states that he is
seeking monetary relief of $100,000 or less and non-monetary relief in this lawsuit.
X
PRAYER
Plaintiff respectfully requests that the Court enter a temporary restraining order,
temporary injunction, and permanent injunction ordering that the City, its agents, employees,
Plaintiff further respectfully requests that the Court enter a temporary restraining order, temporary
injunction, and permanent injunction ordering that the City, through its agents, employees,
d) properly notify the Texas Historical Commission and take any and all other actions
in compliance with section 191.0525 of the Texas Natural Resources Code.
Plaintiff further prays for such other and further relief and orders to which he may be justly entitled
at law or in equity.
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Dated: July 31, 2017
Respectfully submitted,
Harriet ONeill
LAW OFFICE OF HARRIET ONEILL /s/ Lisa Bowlin Hobbs
919 Congress Avenue, Suite 1400 Lisa Bowlin Hobbs
Austin, Texas 78701 KUHN HOBBS PLLC
Telephone: 512-944-2222 3307 Northland Drive, Suite 310
Facsimile: 512-476-6441 Austin, Texas 78731
[email protected] Telephone: 512-476-6003
Facsimile: 512-476-6002
J. Eduardo Cadena [email protected]
Attorney and Counselor at Law
CADENA LAW FIRM, P.C. Frank Ainsa
5809 Acacia Circle AINSA HUTSON LLP
El Paso, Texas 79912 5809 Acacia Circle
(915) 845-4440 - Office El Paso, Texas 79912
(915) 845-4441 - Facsimile Telephone: 915-845-5300
[email protected] Facsimile: 915-845-7800
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