2005-353ORDINANCENO. ZODJ --3~~
AN ORDINANCE OF THE CITY OF DENTON, TEXAS, DENYING THE REQUEST OF JNC
PARTNERS DENTON, LLC DATED NOVEMBER 1, 2005 FOR INCLUSION IN A THREE-
YEAR ANNEXATION PLAN RELATED TO ANNEXATION CASE NO. A05-0002; DECLINING
ITS REQUEST FOR ARBITRATION; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City proposes to annex approximately 5,800 acres of land (the "Annexation
Area"), in Denton Annexation Case No. A05-0002; and
WHEREAS, JNC Partners Denton, LLC ("JNC") filed a written petition dated October 4,
2005, pertaining to approximately 1,900 acres of land within the Annexation Area owned by JNC
(the "JNC Property"), requesting that the JNC Property be included in a three-year annexation plan
under Subchapter C of Chapter 43 of the Texas Local Government Code (the "JNC Petition"); and
WHEREAS, on October 18, 2005, pursuant to Ordinance No. 2005-323 (the "Prior
Ordinance"), the City Council denied the JNC Petition; and
WHEREAS, all of the terms, conditions, and findings contained in the Prior Ordinance are
incorporated herein by reference; and
WHEREAS, on November 1, 2005, JNC delivered to the City Council a new petition, a copy
of which is attached hereto and made a part hereof by reference as Exhibit "A" (the "New Petition"),
requesting reconsideration of the City Council's decision in the Prior Ordinance and requesting
arbitration if the City Council does not reverse its decision; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The findings and recitations contained in the preamble of this ordinance are
true and correct and are incorporated herein by reference.
SECTION 2. The City Council hereby makes the following additional findings:
a. Items 1 through 8 on pages 2 and 3 of the New Petition were proposed prior to December
31, 2002, and were either completed or withdrawn prior to that date.
b. Items 1 through 8 on pages 2 and 3 of the New Petition relate to properties within
Denton's Extraterritorial Jurisdiction ("ETJ"), but that are located a considerable distance
from the Annexation Area.
c. Items 4 and 5 on page 2 of the New Petition were withdrawn by the City and the
annexations were not completed.
d. Item 7 on page 2 of the New Petition was not an involuntary annexation, as the property
Page 1
owner changed it to a voluntary annexation prior to the initiation of the annexation.
e. Item 9 on page 3 of the New Petition is incorrect, as the City did not propose or initiate
an involuntary annexation along Corbin Road.
The "Ash Grove Cement" proposed annexation referenced in Item 10 on page 2 of the
New Petition was withdrawn by the City Council on November 1, 2005, and was not
completed.
SECTION 3. The City Council hereby denies the New Petition. The New Petition fails to
identify involuntary annexations showing that the City of Denton proposes to circumvent the
requirements of Section 43.052 of the Texas Local Government Code, by separately annexing two or
more areas described in Subsection (h)(1) of that section.
SECTION 4. The City Council hereby declines to enter into arbitration as requested in the
New Petition, as JNC fails to make a prima facie showing that the proposed annexation falls within
the scope of Subsection 43.052(i) of the Texas Local Government Code.
SECTION 5. This ordinance shall take effect immediately from and after its passage and
approval.
PASSED AND APPROVED this the ~ day of 2005.
EULINE BROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY "A I TU A
BY: CA N-N
APPROVED AS TO LEGAL
EDWIN M. SNYDE-M CITY
BY:
Page 2
HUGHES, LUCE LLP
ATrORNEYS AND COUNSELORS
Exhibit A
November 1, 2005
1717 Main Street, Suite 2800
Dallas, Texas 75201
214.939.5500
214.939.5849 (fax)
Misty.Ventura@HughesLuce.com
Misty Ventura
214.939.5462
VIA HAND DELIVERY
City of Denton
c/o City of Denton City Council
(Mayor Euline Brock, Perry McNeill, Charlye Heggins,
Pete Kamp, Jack Thomson, Bob Montgomery, and Joe Mulroy)
215 E. McKinney
Denton, Texas 76201
Re: Proposed annexation of approximately 5,800 acres (the "Annexation
Area") located within the extraterritorial jurisdiction ("ETJ") of the
City of Denton (the "City") pursuant to the City's proposed North
Denton Annexation, A05-0002, including approximately 1,900 acres
owned by JNC Partners Denton, LLC (the "JNC Property")
Dear Mayor and Council Members:
Hughes & Luce, LLP, represents JNC Partners Denton, LLC, the owner of the
JNC Property. This letter addresses issues created by the City's plans to annex the JNC
Property, and is with reservation of any and all rights and remedies my client has
regarding that proposed annexation.
The purpose of this letter is two-fold. First, in light of the evidence presented
below, we would request that the City reconsider its denial of our request that the
Annexation Area be included in the City's three-year annexation plan. Second, we
hereby request arbitration of this dispute pursuant to Texas Local Government Code
§43.052(i) and Hughes v. City of Rockwall, 153 S.W.3d 709 (Tex. App.-Dallas 2005)
(attached).
The City Has Failed to Take Action to Include the Annexation Area In Its Three Year
Annexation Plan.
On September 2, 2005, by notice sent to property owners in the Annexation Area,
the City proposed to annex the Annexation Area under Section 43.052(h)(1) of the Texas
Local Government Code (the "(h)(1) exception"). On October 5, 2005, and pursuant to
Texas Local Government Code § 43.052(i), JNC Partners Denton, LLC, petitioned the
015815.00010:934537.02
HUGHES, LUCE LLP
ATTORNEYS AND COUNSELORS
City of Denton
November 1, 2005
Page 2
City to include the Annexation Area in the City's three-year annexation plan. On
October 18, 2005, the City denied the request by approving Ordinance No. 2005-323 and
thereby failed to take action to include the Annexation Area in its three-year annexation
plan.
Denton Has Proposed to Use The (h)(1) Exception At Least Eleven Times Since
September 1, 1999.
The City has proposed, since September 1, 1999, to separately annex the
following eleven areas using the (h)(1) exception:
1. On or about January 9, 2001, the City proposed to involuntarily annex
approximately 668 acres of the "Ryan Road/Country Club Road" area
under the (h)(1) exception.
2. On or about February 20, 2001, the City proposed to involuntarily annex
approximately 534. acres of the "US 377/I-35W" area under the (h)(1)
exception.
3. On or about April 3, 2001, the City proposed to involuntarily annex the
"Blagg Road" area under the (h)(1) exception.
4. On or about July 24, 2001, the City proposed to involuntarily annex the
"Masch Branch Road" area under the (h)(1) exception.
5. On or about July 24, 2001, the City proposed to involuntarily annex the
"AGF Ranch" area under the (h)(1) exception.
6. On or about July 24, 2001, the City proposed to involuntarily annex the
"Robson Ranch North" area under the (h)(1) exception.
7. On or about April 17, 2001, the City proposed to involuntarily annex a
portion of the "Hunter Ranch" property under the (h)(1) exception.
8. On or about August 14, 2001, the City proposed to involuntarily annex
approximately 104 acres owned by the TRIO Operating Company under the
(h)(1) exception.
015815.00010:934537.02
HUGHES, LUCE LLP
ATTORNEYS AND COUNSELORS
City of Denton
November 1, 2005
Page 3
9. On or about October 1, 2003, the City proposed to involuntarily annex the
"Corbin Road" area under the (h)(1) exception.
10. On or about August 24, 2004, the City proposed to involuntarily annex the
"AshGrove Cement" area under the (h)(1) exception.
11. On or about October 4, 2005, the City proposed to involuntarily annex the
JNC Property and other neighboring tracts under the (h)(1) exception.
The City's serial use of the (h)(1) exception violates § 43.052 of the Texas Local
Government Code.
Denton's Stated Policy Of Reactionary Involuntary Annexation Is Not In Accordance
With Generally Accepted Municipal Planning Principles and Practices
As noted in our previous letter, the City's "annexation plan" is really no plan at
all. Instead, it is the City's stated policy to assess "on a case-by-case basis the
annexation of areas in the extraterritorial jurisdiction (ETJ) when significant
developments are proposed, occurring, or likely to occur in the near future." City of
Denton Ord. No. 94-150. The City has further stated that "annexation should be used as
a tool to manage undesirable growth." Memorandum from Dave Hill to the Mayor and
City Council Members, July 20, 2001. Rather than preparing a true three-year
annexation plan to manage growth within its ETJ, the City waits for development to be
proposed, then institutes involuntary annexation proceedings against the property.
This is not sound planning. Such a process does nothing to produce rational,
effective municipal boundaries. Instead, it results in rag-tag, gerrymandered
boundaries that snake from development to development, omitting vast areas of land
in-between. Reactionary annexation also circumvents the will of the Legislature that
owners of areas to be annexed be given sufficient time to anticipate and plan for the
annexation. Reactionary annexation results in unwise management of municipal
growth, gerrymandered municipal boundaries, and unfair treatment of landowners
within the City's ETJ.
The Annexation Plan Should Be Amended.
The Local Government Code provides a safeguard against the approach the City
has taken. Section 43.052(1) provides that a municipality may not circumvent the
015815.00010:934537.02
HUGHES, LUCE LLP
ATTORNEYS AND COUNSELORS
City of Denton
November 1, 2005
Page 4
requirements of Section 43.052 by proposing to separately annex two or more areas
under the (h)(1) exception if no reason exists under generally accepted municipal
planning principles and practices for separately annexing the areas. In other words, the
(h)(1) exception cannot be used merely to circumvent the statutorily required three-year
annexation plan.
Not only has the City proposed to separately annex at least eleven properties
using the (h)(1) exception, the City's stated annexation policy is to annex in reaction to
proposed development within the City's ETJ. Such a reactionary scheme is not in
accordance with generally accepted municipal planning principles and practices; as
such, the City's actions violate Section 43.052 of the Local Government Code.
In light of this evidence, INC Partners Denton, LLC, requests that the City
reconsider its decision and include the INC Property in the City's formal, three-year
annexation plan as required under Chapter 43 of the Local Government Code. /NC
Partners Denton, LLC, respectfully requests that the City respond to this request no
later than November 15, 2005.
INC Partners Denton LLC Requests Arbitration of This Dispute
JNC Partners Denton, LLC, requested that the Annexation Area be included in
the City's three-year annexation plan. The City failed to take the necessary action to
include the Annexation Area in the City's plan. Texas Local Government Code §
43.052(1) gives JNC Partners Denton, LLC, the right to request and receive arbitration of
this dispute. Hughes v. City of Rockwall, 153 S.W.3d 709 (Tex. App.-Dallas 2005)
(attached).
INC Partners Denton, LLC, hereby requests arbitration as provided by Texas
Local Government Code §43.052(i). Please provide a list of arbitrators that are
acceptable to the City no later than November 15, 2005, the time period described in
Texas Local Government Code § 43.0564(b,) so that we may reach an agreement, if
possible, as to the arbitrator who will determine this dispute. Should we be unable to
reach an agreement regarding the arbitrator by November 15, 2005, as required by Texas
Local Government Code §43.0564(b), we ask that the City immediately request a list of
seven neutral arbitrations from the American Arbitration Association or the Federal
Mediation and Conciliation Service as the statute provides. We also ask that we be
copied on any communications between the City and the American Arbitration
015815.00010:934537.02
HUGHES i LUCE LLP
MORNEYS AND COUNSELORS
City of Denton
November 1, 2005
Page 5
Association or the City and the Federal Mediation and Conciliation Service regarding
the list of arbitrators.
Res ectf lly,
Misty Vi tura
cc: City of Denton City Secretary
Attorney General Greg Abbott
Darlia Hobbs, Citizens Against Forced Annexation
Enclosure
015815.00010:934537.02