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CAUSE NO. ______________________

MISSION RESCUE IN THE DISTRICT COURT

Plaintiff vs. ______ JUDICIAL DISTRICT

THE CITY OF SAN ANTONIO

Defendant BEXAR COUNTY, TEXAS

ORIGINAL PETITION FOR DECLARATORY JUDGMENT

Now Comes, Plaintiff, MISSION RESCUE, a Texas non-profit corporation, fi ling this

Original Petition for Declaratory Judgment pursuant to the Texas Declaratory

Judgments Act, Chapter 37 of the Texas Civil Practice and Remedies Code, and for

cause would show the Court the following:

I. DISCOVERY LEVEL

Plaintiff intends that discovery be conducted under level 2.

II. PARTIES AND SERVICE

Plaintiff, Mission Rescue, is an incorporated non-profit formed in the state of

Texas, the purpose of which is to provide assistance to those being displaced through

local gentrification efforts. Plaintiffs principal place of business is in Bexar County,

Texas and appears by and through its undersigned counsel.

The last three digits of Plaintiffs FEIN are 191.

Defendant, City of San Antonio, is a political subdivision and may be served by

personal service on the City Clerk, Leticia M. Vacek at 9800 Airport Blvd. # M063, San

Antonio, Texas 78216.

CIT CML/SAC 1FILED6/9/2014 1:59:56 PMDonna Kay McKinneyBexar County District ClerkAccepted By: Roxanne Mujica

2014CI09133

225TH

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III. JURISDICTION AND VENUE

The subject matter in controversy is within the jurisdiction of the court.

This court has jurisdiction over the parties because Defendant is a Texas political

subdivision.

Venue in Bexar County is proper in this case under 15.002(a)(1) of the Texas

Civil Practice and Remedies Code because this action involves real property by said

Section, and this county is where all of the real property at issue is located.

IV. FACTS

This lawsuit concerns a certain 20.763 acre tract of land located at 1515 Mission

Rd., San Antonio, Texas 78210 (hereinafter referred to as the Mission Property).

Pursuant to City of San Antonio Zoning Case Number Z2014085, the Mission

Property was zoned MH H RIO-4 AHOD (Manufactured Housing Mission Historic River

Overlay-4 Airport Hazard Overlay District). Developer White Conlee, through its

attorney Bill Kaufman, sought to rezone the land IDZ H RIO-4 AHOD (Infill Development

Zone Mission Historic River Improvement Overlay-4 Airport Hazard Overlay District) in

order to build a luxury, mixed use high-density apartment complex on the parcel.

On February 18, 2014, the Zoning Commission met to consider the request for

rezoning of the Mission Property. One individual spoke in opposition to the rezoning on

that day due to questions regarding the notice received or lack thereof. As a result, the

matter was reset to March 18, 2014.

That hearing went forward as scheduled and there were many residents present

in opposition to the rezoning. At that meeting, the participants again complained that

they had not received any notice of the proposed zoning changes and had only become

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aware of the meeting due to their own efforts. A motion was made and seconded to

deny the zoning change, however, there were insufficient votes cast to defeat the

proposal to rezone. Thus, the developer then elected to transfer the matter over to the

San Antonio City Council to decide.

The matter was subsequently heard at the San Antonio City Council Meeting of

April 16, 2014. At that meeting, the participants continued complaining of a general lack

of notice, lack of communication and lack of inclusion in the process. Councilman

Diego Bernal moved to postpone the zoning decision until more information could be

received and exchanged to the residents.

At its regular A Session Meeting on May 17, 2014, the San Antonio City Council

again convened and began consideration of Agenda Item P-2 to decide the zoning

issue affecting over 300 residents at the Mission Trails Mobile Home Park. Numerous

citizens addressed the Council on this Item, including a representative of the residents

of the mobile home community at 1515 Mission Road, who informed the Council that

many of the residents had contracts with the land owner that would preclude or delay

their eviction from the property.

After completion of Citizens testimony, there were a few minutes of perceived

confusion on the part of the council. Shortly thereafter, the Mayor announced the

following:

Mayor Castro: Thank you Ms. Reyna. Councilwoman [Rebecca] Viagran.

Councilwoman Viagran: [said something to Mayor Castro with her microphone turned off, however, visible at the end of her words was executive session. She then turned on her microphone, then looked at Mayor Castro and nodded to him]. Mayor Castro: Thank you very much for your input today. This zoning case, of course is one that we have to give very long and hard deliberation to and which,

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during the course of the hearing four weeks ago, and today, many of the residents who have spoken have given the counsel a lot to think about, and one of those

matters that we have to get to the bottom to, get to the bottom of before we can proceed, is the legal issue that has been brought up regarding the contracts that

have been signed. So, so at this time, - well have the translation in a second - So at this time, we will adjourn to executive session to consider the legal issue of the potential contracts between the trailer park owners or lessees and the land owner

and any impact that that might have on our decision. And we will be back shortly.

Time on Video: 7:26:48 / 09:47:58 Mayor Castro did not say that the Council would be meeting with its attorney. Indeed,

there was no indication that the City Attorney would attend the Councils closed

meeting. The Mayor did not provide any further explanation for the reason the closed

meeting would be held and did not cite any exception to the Open Meetings Act that

would justify a closed meeting.

After approximately 40 minutes, five or six Council Members returned to the

Public Meeting Chambers. Several took their seats on the dais while others stood and

talked in groups of 2 or 3. After approximately two minutes, Mayor Castro left the

Chamber and soon returned with three other Council Members, including

Councilwoman Viagran. The Mayor then announced as follows:

8:08:42 Mayor turns on his microphone: Thank you very much for your patience. We will now resume the City Council meeting. We have returned from Executive

Session, no action was taken during executive session. Councilwoman Viagran.

Despite massive amounts of confusion and many unanswered questions remaining,

the following City Council members voted in favor of the rezoning: Rebecca Viagran,

Ron Nirenberg, Cris Medina, Ray Lopez, Mike Gallagher and Joe Krier.

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V. LEGAL AUTHORITY

Open Meetings Act

Texas law requires that every regular, special, or called meeting of a

governmental body shall be open to the public, except as provided by this chapter. Tex.

Govt Code Ann 551.041(2004). Further, Sec. 551.041 requires a governmental body

to give written notice of the date, hour, place, and subject of each meeting held by the

governmental body. Id.

Although the Texas Rules allow for exceptions to this requirement, the valid

reasons for causing meetings to be held in secret is narrowly tailored to avoid the hiding

of matters to which the public should be privy. More specifically, the law states as

follows:

SUBCHAPTER D. EXCEPTIONS TO REQUIREMENT THAT MEETINGS BE OPEN

Sec. 551.071. CONSULTATION WITH ATTORNEY; CLOSED MEETING. A

governmental body may not conduct a private consultation with its attorney except:

(1) when the governmental body seeks the advice of its attorney about:

(A) pending or contemplated litigation; or

(B) a settlement offer; or

(2) on a matter in which the duty of the attorney to the governmental body under the Texas Disciplinary Rules of Professional Conduct of the State Bar of

Texas clearly conflicts with this chapter.

Tex. Govt Code Ann 551.071(2004).

In addition, the law requires that if a closed meeting is allowed under Texas

law, the presiding officer must publically (1) announce that a closed meeting will be held

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and (2) identify the section or sections of the law under which the closed meeting is to

be held. Tex. Govt Code Ann 551.071(2004).

San Antonio Unified Development Code

The city code mandates that any change in rezoning requires notice shall be sent to

each owner, as indicated by the most recently approved municipal tax roll, of real

property, within two hundred (200) feet of the property. San Antonio Unified

Development Code, Article IV, 35-403.

VI. APPLICATION FOR DECLARATORY JUDGMENT

As alleged in detail in the Factual Allegations of this complaint, which are

incorporated herein, the City Council, the governing body of the Defendant City of San

Antonio, and Council Members, in their official capacities as members of the governing

body of Defendant, deliberated on Ordinance 2014-05-15-0355 in a closed meeting in

violation of the Texas Open Meeting Act, Texas Government Code, 551.0001 et seq.

This Court possesses the power to declare the rights, status and validity for

matters relating to zoning decisions, and consequently, it has jurisdiction to determine

the enforcement of the zoning ordinance passed by the City of San Antonio on May 17,

2014.

Plaintiff further contends that in addition to violations of the Open Meetings Act, the

zoning decision at issue in this matter is void because pursuant to state and local law,

adherence to the notice requirements was not met. This includes failing to notify at

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least one or more real property owners within 200 feet of the Mission Property of the

proposed zoning change. As a result, in accordance with chapter 37 of the Texas Civil

Practice and Remedies Code, Plaintiff requests that this Court determine whether the

May 17, 2014 rezoning ordinance as to the Mission Property is unenforceable and void

because its enactment violates the zoning laws of the City of San Antonio and the state

of Texas.

ATTORNEYS FEES

It was necessary for Plaintiff to retain the undersigned counsel to protect and

enforce their rights with respect to the validity and enforcement of the zoning ordinance.

Plaintiff requests attorneys fees pursuant to Texas Civil Practice and Remedies Code,

37.009.

VII. PRAYER

WHEREFORE, Plaintiff respectfully prays that Defendant be cited to appear and

answer herein, and that on final trial hereof, declaratory judgment be granted for Plaintiff

and against Defendant as follows:

a. Declare the Ordinance 2014-05-15-0355 null and void as provided by Texas

Government Code Section 551.141;

b. Plaintiff seeks monetary relief of $100,000.00 or less and non-monetary relief.

c. Upon final hearing, find the Defendant liable for reasonable and necessary

attorneys fees; including all fees incurred by Plaintiff herein; including all fees

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necessary in the event of an appeal of this cause to the Court of Appeals and

the Supreme Court of Texas;

d. Award Plaintiff costs of Court; and

e. Award Plaintiff such other relief to which it is entitled.

Respectfully Submitted,

THE HENNING FIRM

By: ___/s/ by Nicole Elizalde Henning__

Nicole Elizalde Henning Texas Bar No. 24013054 435 W. Nakoma, Suite 101

San Antonio, Texas 78216 Tel. (210) 563-7828

Fax. (210) 563-7829

CIVIL RIGHTS LEGAL DEFENSE & EDUCATIONAL FUND, INC.

Marisa Y. Salazar State Bar No. 24085813 519 Culebra Rd.

San Antonio, Texas 78201 Tel. (210) 334-5209

Fax. (210) 492-1601