2005-323
ORDINANCE NO. 2005-.32:3
AN ORDINANCE OF THE CITY OF DENTON, TEXAS, DENYING THE PETITION OF JNC
PARTNERS DENTON, LLC DATED OCTOBER 4, 2005 FOR INCLUSION IN A THREE-YEAR
ANNEXATION PLAN RELATED TO ANNEXATION CASE NO. A05-0002; AND PROVIDING
AN EFFECTIVE DATE.
WHEREAS, the City proposes to annex' approximately 5,800 acres ofland (the "Annexation
Area"), Denton Annexation Case No. A05-0002; and
WHEREAS, the Annexation Area consists primarily of vacant or sparsely settled land; and
contains not more than 61 parcels that are occupied by one or more dwelling units; and
WHEREAS, the City has not annexed any land since December 31,2002, except by consent
of the property owner; and
WHEREAS, the City does not propose to separately involuntarily annex two or more areas
containing 100 or more separate tracts ofland on which one or more residential dwellings are located
on each tract; and
WHEREAS, the City has provided notice of public hearings to property owners, utilities and
railroads within the Annexation Area, pursuant to Tex. Loc. Gov't Code, chapter 43, subchapter C-I,
("subch. C-l ") as authorized by Tex. Loc. Gov't Code section 43.052(h); and
WHEREAS, the City Council has conducted two public hearings on October 4, 2005 and
October 11,2005, and prepared and made available a service pl~n for the Annexation Area in
accordance with subch. C-I; and
WHEREAS, the City Council finds that there are good and sufficient planning reasons for
annexing the Annexation Area at this time; and
WHEREAS, JNC Partners Denton, LLC ("JNC") filed a written petition dated October 4,
2005, pertaining to approximately I ,900 acres of land within the Annexation Area owned by JNC
(the "JNC Property"), a copy of which is attached hereto and made a part hereof as Exhibit "A" (the
"Petition");
WHEREAS, it appears that the JNC Property presently is primarily vacant, unoccupied ranch
land; and
WHEREAS, JNC has also petitioned the City for consent to create a Water Control and
Improvement District for purposes of providing water and wastewater services to support intensive
development of its land; and
WHEREAS, the Petition requests that the JNC Property be included III a three-year
,
Page 1
annexation plan under Subchapter C of Chapter 43 of the Texas Local Government Code; NOW,
THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION I. The findings and recitations contained in the preamble of this ordinance are
true and correct and are incorporated herein by reference. In addition, the City Council hereby makes
the following findings which are true and correct:
a. The Annexation Area consists of only one area, and it contains fewer than 100 separate
tracts of land on which one or more residential dwellings are located on each tract.
b. The Petition fails to allege that the City of Denton proposes to separately annex two or
more areas described in a. above.
c. The Petition fails to identify any facts supporting JNC's contention that the Annexation
Area should be annexed pursuant to a three-year annexation plan.
SECTION 2. The City Council hereby denies the Petition. The Petition fails to allege that
the City of Denton proposes to circumvent the requirements of Section 43.052 of the Texas Local
Government Code by separately annexing two dr more areas described in Subsection 43.052(h)(I) of
that section.
SECTION 3. This ordinance shall take effect immediately from and after it passage and
approval.
PASSED AND APPROVED this the Lftftday of &fl1b/)f A" , 2005.
~~cL
EULINE BROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
EDW~~AA::EY
BY: /
,
Page 2
Exhibit A
"
HUGHES I iueE LLP
AlTORNEYS AND COUNSELORS
1717 Main Street, Suite 280D
Dailas, Texas 75201
214.939.5500
214.939.5849 (fax)
October 4, 2005
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 located within the
extraterritorial jurisdiction. ("ED") 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 certain issues created by recently announced plans
to annex the JNC Property and is with reservation of any and all rights and remedies
my client has regarding that proposed annexation.
Denton's Annexation Strategy.
In 1999, the 76th Texas Legislature amended Chapter 43 of the Texas Local
Government Code by, among other changes, requiring that Texas cities prepare three-
year annexation plans. The purpose of this requirement is to allow time for formal long
range planning, careful evaluation of the economic consequences of annexation, and
valuable input from the affected parties. The process provides for a three-year
annexation cycle with respect to areas identified for annexation in order to make such
evaluations and determinations.
Instead of preparing a considered, well-reasoned three-year annexation plan, the
City chose to ignore this requirement by adopting an Annexation Plan, on December 31,
1999, that states that the City "has determined that any anticipated annexations in the
foreseeable future will be exempt from the annexation plan and other provisions of
Senate Bill 89 pursuant to [certain] exemptions as set forth in Section 43.052(h)." In
952000.01423,929433.03
HUGHES I LUCE LLP
ATTORNSYS ANO COUNSELORS
City of Denton
October 4, 2005
Page 2
other words, the City's three-year annexation plan is no plan at all, in contravention of
the will of the 76th Texas Legislature.
Section 43.052(h)(1) states that Section 43.052 does not apply to the area proposed
for annexation "if the area contains fewer than 100 separate tracts of land on which one
or more residential dwellings are located on each tract." The purpose of the (h)(l)
exception is to provide a limited exception to the required three-year annexation plan,
not to make the use of such exception the rule.
In direct response to plans by my client to develop the JNC Property, the City
plans to use the (h)(l) exception to annex the JNC Property and other property totaling
approximately 5,800 acres. If the requirement to prepare a three-year annexation plan is
to have any meaning, the City should not invoke the (h)(l) exception every time
development is proposed in the City's ETJ.
The Annexation Plan Should Be Amended.
The Local Government Code does provide a safeguard against the approach the
City has taken. Section 43.Q~2(i) provides that a municipality may not circumvent the
requirements of Section 43.052 by separately annexing two or more areas under the
(h)(l) 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.
Yet, the City's annexation policy is 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. As a result, rather than planning for annexations, the City
reacts to proposed plans for development by annexing property pursuant to the (h)(l)
exception.
Under these circumstances, INC Partners Denton, LLC, hereby petitions the City
to include the INC Property in the City's formal, three-year annexation plan as
required under Chapter 43 of the Local Government Code and respectfully requests that
the City respond to this request within the next five days.
,
952000.01423:929433.03
HUGHES I LUCE LLP
ATTORNEYS ANO COUNSELORS
City of Denton
October 4,2005
Page 3
The City's Proposed Service Plan: One-Size-Fits-AlI?
The proposed service plan for the area to be annexed is inadequate. The "one-
size-fits-all" service plan fails in several important respects to comply with Section
43.056 and the changes in annexation law mandated by the 76th Texas Legislature. By
way of example (and there are others):
1. The service plan does not provide for the full extension of municipal
services (e.g., water and sewer). Instead, it states that such services will
only be provided "at the initial expense of the property owner." This
contravenes Local Government Code Section 43.056(f)(2), which states that
" a service plan may not require a landowner in the area to fund the capital
improvements."
2. The service plan states that police and fire services will be provided upon
the effective date of the annexation, but the plan makes no provision for
extra personnel or equipment to actually service the area. This risks
dilution of existing emergency services, which violates Local Government
Code Section 43.056(f)(3) ("a service plan may not provide services in the
area in a manner that would have the effect of reducing... the level of fire
and police protection and emergency medical services provided" to the
rest of the city).
3. The plan provides that "no construction of public improvements is
contemplated as a result of this annexation that would begin within two
and a half (21/2) years after the effective date of the annexation." This
violates Local Government Code Section 43.056(b)'s requirement that "full
municipal services" be extended to the annexed area within 21/2 years of
the annexation.
As such, the service plan fails to show how the City purports to fund and
provide full municipal services to the JNC Property within 2'/2 years of annexation. The
City's apparent intent is demonstrated by the service plan's content: immediate City
control over zoning and code enforcement and the absence of meaningful discussion of
the City's obligations to timely provide full municipal services
We respectfully request that the City deliver a well-reasoned, thoughtful and
economically viable service plan that complies with statutory requirements, not a one-
size-fits-all, fonn service plan.
952000.01423:929433.03
HUGHES I LUCE UP
ATTORNEYS ANO COUNSELORS
City of Denton
October 4, 2005
Page 4
TNC Partners Denton, LLC Wishes to Work Cooperatively With the City.
JNC Partners Denton, LLc, intends to work with, not against, the City of Denton.
I highlight the issues in this letter not to offend the City Council or the City staff, but to
focus your attention on the very serious circumstances my client and your citizens are
facing. The City's actions to date may force us to take measures to protect the JNC
Property from an unlawful annexation. Our hope is to, instead, amicably resolve this
matter.
There is a way to remedy the situation: add the JNC Property to a three-year
annexation plan, deliver a proper, sensible service plan and otherwise comply with the
requirements of State law.
Thank you for your prompt attention to this matter.
Respectfully,
1:!J ~L,
cc: City of Denton City Secretary
Attorney General Greg Abbott
Senator Craig Estes
952000.01423:929433.03