# Becky, Ltd. v. the City of Cedar Park, Matt Powell, Stephen Thomas, Lyle Grimes, Lowell Moore, Jon Lux, and Don Tracy > Texas Court of Appeals, 3rd District (Austin) · July 29, 2015 URL: https://www.frixlaw.com/law-library/cases/4070900 ## Case - **Court:** Texas Court of Appeals, 3rd District (Austin) - **Decided:** July 29, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4070900 ## Opinion text ACCEPTED 03-15-00259-CV 6282836 THIRD COURT OF APPEALS AUSTIN, TEXAS 7/29/2015 5:39:39 PM JEFFREY D. KYLE CLERK NO. 03-15-00259-CV FILED IN 3rd COURT OF APPEALS IN THE COURT OF APPEALS AUSTIN, TEXAS FOR THE THIRD DISTRICT OF TEXAS 7/29/2015 5:39:39 PM AUSTIN JEFFREY D. KYLE Clerk BECKY, LTD., Appellant v. THE CITY OF CEDAR PARK, STEPHEN THOMAS, MATT POWELL, MITCH FULLER, LYLE GRIMES, LOWELL MOORE, JON LUX, AND DON TRACY, Appellees. ON APPEAL FROM THE 126TH JUDICIAL DISTRICT COURT OF TRAVIS COUNTY, TEXAS TRIAL COURT CAUSE NO. D-1-GN-14-001293 APPELLEES’ BRIEF BICKERSTAFF HEATH COBBY A. CAPUTO DELGADO ACOSTA LLP State Bar No. 03784650 3711 S. MoPac Expressway ccaputo@bickerstaff.com Building One, Suite 300 Austin, TX 78746 BRADLEY B. YOUNG (512) 472-8021 State Bar No. 24028245 (512) 320-5638 FACSIMILE byoung@bickerstaff.com ATTORNEYS FOR APPELLEES ORAL ARGUMENT REQUESTED IDENTITY OF PARTIES AND COUNSEL The parties and counsel are correctly identified in the Initial Brief of Appellant Becky, Ltd. RECORD REFERENCES The Clerk's Record filed with the Third Court of Appeals on May 6, 2015 will be cited as “CR __,” where the blank refers to the District Clerk’s consecutive page numbering. Appellees’ Appendix will be cited as “Appendix.” Appellant’s Appendix will be cited as “Appellant’s Appendix.” DESIGNATION OF PARTIES The parties shall be referred to as follows: (i) “Appellant” or “Becky” refers to Appellant Becky Ltd.; and (ii) “Appellees” or “the city” refers collectively to Appellees the City of Cedar Park, Stephen Thomas, Matt Powell, Mitch Fuller, Lyle Grimes, Lowell Moore, Jon Lux, and Don Tracy. “Milestone” refers to Milestone Community Builders, LLC, a party to the proceeding below prior to severance. i TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL .............................................................i RECORD REFERENCES .........................................................................................i DESIGNATION OF PARTIES ..................................................................................i TABLE OF CONTENTS .......................................................................................... ii INDEX OF AUTHORITIES.....................................................................................iv STATEMENT OF THE CASE .................................................................................. 2 STATEMENT REGARDING ORAL ARGUMENT ............................................... 2 ISSUES PRESENTED............................................................................................... 3 STATEMENT OF FACTS ........................................................................................ 4 SUMMARY OF THE ARGUMENT ........................................................................ 7 ARGUMENT AND AUTHORITIES ........................................................................ 8 I. Neither the facts that Becky has alleged nor the jurisdictional evidence support subject-matter jurisdiction over Becky’s claims. [Appellant’s Br. at 6-11] ................. 8 II. Both the city and the city council members acting in their official capacities are entitled to governmental immunity ...................................................................... 10 A. Becky has not implicated the ultra vires exception to immunity because the City Council’s decision to contract with Milestone was a discretionary act. [Appellant’s Br. at 12-17] ......................................................... 10 ii B. The UDJA does not waive a city’s governmental immunity from a suit to declare rights under an ordinance. [Appellant’s Br. at 17-19] ...................................... 17 III. Becky lacks standing because it was not a party to the Agreement. [Appellant’s Br. at 19-23] ..................................... 19 IV. Becky’s claims were not ripe because it never submitted a completed plat application to the city for review. [Appellant’s Br. at 24-25] ...................................................... 24 V. Becky’s claims are moot. [Appellant’s Br. at 25-28] ........................ 27 PRAYER .................................................................................................................. 27 CERTIFICATE OF SERVICE ................................................................................ 29 CERTIFICATE OF COMPLIANCE ....................................................................... 30 APPENDIX .............................................................................................................. 31 iii TABLE OF AUTHORITIES Page(s) Cases Bd. of Adjustment of the City of San Antonio v. Wende, 92 S.W.3d 424 (Tex. 2002)................................................................................. 14 Brunson v. Woolsey, 63 S.W.3d 583 (Tex. App.-Fort Worth 2001, no pet.) ....................................... 19 Cadle Co. v. Lobingier, 50 S.W.3d 662 (Tex. App.-Fort Worth 2001, pet. denied)................................. 19 Catalina Dev., Inc. v. County of El Paso, 121 S.W.3d 704 (Tex.2003)................................................................................ 11 City of Corinth v. NuRock Dev., Inc., 293 S.W.3d 360 (Tex. App. – Fort Worth 2009, no pet.)................................... 26 City of Dallas v. Texas EZPAWN, L.P., No. 05-12-01269-CV, 2013 WL 1320513 (Tex. App. – Dallas Apr. 1, 2013, no pet.) (mem. op.)..........................................................................17, 18 City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009) ........................................................................11, 16 City of El Paso v. Maddox, 276 S.W.3d 66 (Tex. App. – El Paso 2008, pet. denied) ..............................25, 26 City of Laredo v. Rio Grande H2O Guardian, No. 04-10-00872-CV, 2011 WL 3122205 (Tex. App. – San Antonio Jul. 27, 2011, no pet.) .....................................................................23, 24 City of New Braunfels v. Tovar, No. 03-14-00693-CV, 2015 WL 2183479 (Tex. App. – Austin May 7, 2015, no pet. h.) ...................................................................................... 15 Coble v. City of Mansfield, 134 S.W.3d 449 (Tex. App. – Fort Worth 2004, no pet.)................................... 26 iv Cokins v. City of Lakeway, No. 03-12-00083-CV, 2013 WL 4007522 (Tex. App. – Austin July 25, 2013, no pet.) (mem. op.) ............................................................................. 10 Creedmoor-Maha Water Supply Corp. v. Tex. Com’n on Envtl. Quality, 307 S.W.3d 505 (Tex. App. – Austin 2010, no pet.) .......................................... 16 DeSoto Wildwood Dev., Inc. v. City of Lewisville, 184 S.W.3d 814 (Tex. App. – Fort Worth 2006, no pet.)................................... 14 Exxon Corp. v. Pluff, 94 S.W.3d 22 (Tex.App.-Tyler 2002, pet. denied) ............................................. 19 Heckman v. Williamson County, 369 S.W.3d 137 (Tex. 2012) .............................................................................. 20 Lone Star College Sys. v. Immigration Reform Coalition of Texas (IRCOT), 418 S.W.3d 263 (Tex. App.-Houston [14th Dist.] 2013, pet denied) ........................................................................................................... 18 Nobles v. Marcus, 533 S.W.2d 923 (Tex.1976)................................................................................ 20 Nootsie Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659 (Tex.1996)................................................................................ 19 Robinson v. Parker, 353 S.W.3d 753 (Tex. 2011) .............................................................................. 26 Saifi v. City of Texas City, No. 14-13-00815-CV, 2015 WL 1843540 (Tex. App. – Houston [14th Dist.] Apr. 23, 2015, no pet.) (mem. op.) ............................................18, 19 Save Our Springs Alliance, Inc. [SOS] v. City of Austin, 149 S.W.3d 674 (Tex. App. – Austin 2004, no pet.) ................................3, 21, 27 Save Our Springs Alliance, Inc. [SOS] v. City of Dripping Springs, 304 S.W.3d 871 (Tex. App. – Austin 2010, pet. denied) .............................20, 24 Schechter v. Wildwood Developers, LLC, 214 S.W.3d 117 (Tex. App. – El Paso 2006, no pet.) ........................................ 21 v Stop the Ordinances Please v. City of New Braunfels, 306 S.W.3d 919 (Tex. App. – Austin 2010, no pet.) ....................................21, 22 Sw. Bell Tel., L.P. v. Emmett, 459 S.W.3d 578 (Tex. 2015) ..................................................................13, 14, 15 Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) .......................................................................... 9, 10 Texas Dept. of Transp. v. Sefzik, 355 S.W.3d 618 (Tex. 2011) ........................................................................17, 19 Texas Logos, LP v. TxDOT, 241 S.W. 3d 105 (Tex. App. – Austin 2007, no pet.) .............................10, 11, 16 Texas Lottery Com’n v. First State Bank of DeQueen, 325 S.W.3d 628 (Tex. 2010) .............................................................................. 17 VanderWerff v. Tex. Bd. of Chiropractic Examiners, No. 03-12-00711-CV, 2014 WL 7466814 (Tex. App. – Austin Dec. 18, 2014, no pet.) (mem. op.) ..................................................................... 19 Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849 (Tex. 2000)................................................................................. 25 Williams v. Texas Tech Univ. Health Sciences Ctr., No. 10-15-00005-CV, 2015 WL 2452513 (Tex. App. – Waco May 21, 2015, no pet. h.) (mem. op.) ......................................................................... 19 Statutes TEX. GOV’T CODE § 311.016(1) (Code Construction Act) ...................................... 14 TEX. LOC. GOV’T CODE § 212.009(a) ......................................................................... 6 Chapter 212 of the Texas Local Government Code .................................................. 8 Miscellaneous City of Cedar Park Code of Ordinances, § 16.02.005 ...................................9, 13, 14 vi NO. 03-15-00259-CV IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AUSTIN BECKY, LTD., Appellant v. THE CITY OF CEDAR PARK, STEPHEN THOMAS, MATT POWELL, MITCH FULLER, LYLE GRIMES, LOWELL MOORE, JON LUX, AND DON TRACY, Appellees. ON APPEAL FROM THE 126TH JUDICIAL DISTRICT COURT OF TRAVIS COUNTY, TEXAS TRIAL COURT CAUSE NO. D-1-GN-14-001293 APPELLEES’ BRIEF TO THE HONORABLE COURT OF APPEALS: COME NOW Appellees, the City of Cedar Park, Stephen Thomas, Matt Powell, Mitch Fuller, Lyle Grimes, Lowell Moore, Jon Lux, and Don Tracy, and respectfully file this Appellees’ Brief pursuant to Texas Rule of Appellate Procedure 38.2 and would show the Court the following: 1 STATEMENT OF THE CASE Appellees disagree with Appellant’s characterization of the nature of the case. A more accurate statement of the nature of the case is: Nature of the Case: This is a suit by Becky under the Uniform Declaratory Judgment Act (UDJA) to challenge the terms of a development agreement between the city and Milestone. STATEMENT REGARDING ORAL ARGUMENT Appellees concur in Becky’s request for oral argument. 2 ISSUES PRESENTED 1. Do Becky’s claims based on the City Council’s discretionary decision to contract with Milestone fall within the ultra vires exception to governmental immunity? [Appellant’s Issue No. 1] 2. Does the Uniform Declaratory Judgment Act (UDJA) waive the city’s governmental immunity from a suit that does not seek to invalidate a city ordinance but merely seeks a declaration of rights under the ordinance? [Appellant’s Issue No. 2] 3. Does Becky have standing to challenge a contract to which it is not a party and that relates to property that Becky does not own? [Appellant’s Issue No. 3] 4. Are Becky’s speculative claims that it will have to bear the cost of the extension of Old Mill Road ripe for adjudication, even though the city has not required Becky to pay for the extension of the road, and Becky has not submitted sufficient information for the city to determine the extent to which Becky’s participation in road construction may be necessary? [Appellant’s Issue No. 4] 5. Are Becky’s claims moot under Save Our Springs Alliance, Inc. [SOS] v. City of Austin, 149 S.W.3d 674 (Tex. App. – Austin 2004, no pet.)? [Appellant’s Issue No. 5] 3 STATEMENT OF FACTS This case is about a future road to a vacant lot. Becky owns a vacant tract of property in the city (the “Becky tract”).1 Becky wants the city to build a road to the Becky tract so that Becky can obtain a more favorable price when it sells the property to a developer. Milestone owns a piece of property adjacent to the Becky tract that recently went through the city’s platting process.2 Becky contends that the city should have required Milestone to construct a road called Old Mill Road all the way from Lakeline Boulevard to the Becky tract.3 Instead, the city, acting through its City Council,4 entered into a Unified Development Agreement (Agreement) with Milestone through which Milestone agreed to the following: (1) Milestone agreed to dedicate to the city sufficient right-of-way to extend Old Mill Road from its current terminus at South Lakeline Boulevard to the edge of Milestone’s property where it abuts the Becky tract; and (2) Milestone agreed to construct a portion of the Old Mill Road Extension (the Phase 1 Extension) sufficient to serve the proposed development on Milestone’s 1 CR 53-54 (Affidavit of Sam P. Roberts, Assistant City Manager [Roberts Aff.]), at ¶ 8. 2 Id. at ¶¶ 3, 5. 3 See CR 22 / Appendix A (Unified Development Agreement), at Exhibit C, for a map of the property that shows the relative locations of Lakeline Boulevard and Phases 1 and 2 of the Old Mill Road extension. 4 Stephen Thomas, Matt Powell, Mitch Fuller, Lyle Grimes, Lowell Moore, Jon Lux, and Don Tracy were the members of the City Council at the time that the city entered into the Agreement. Becky has sued them in their official capacities as city council members. 4 property.5 Although the city required Milestone to dedicate sufficient right-of-way to meet the city’s possible future needs, the city did not require Milestone to construct Phase II of Old Mill Road, which would extend the road all the way to the unplatted, landlocked Becky tract.6 When the city initially filed its plea to the jurisdiction, Becky had not submitted an application to develop the Becky tract. After the city filed its plea, however (and presumably in response to the city’s ripeness arguments), Becky did file a set of development materials. The following timeline summarizes the events that ensued:7 October 24, 2014: City receives Becky’s preliminary plan application and final plat application. November 7, 2014: City staff provides comments to Becky’s engineer. November 11, 2014: City receives follow-up email from Becky’s engineer. November 17, 2014: City staff responds to engineer’s email. November 18, 2014: Planning and Zoning Commission statutorily disapproves preliminary plan application and final plat application without bias against future consideration, providing 5 CR 53-54 [Roberts Aff.], at ¶ 5. 6 Id. at ¶ 6; see also CR 9-23 / Appendix A (Unified Development Agreement). 7 CR 140-232 (Second Affidavit of Sam P. Roberts, Assistant City Manager [Roberts Aff. II]). 5 applicant the opportunity to submit revised drawings that address city staff’s comments. “Statutory disapproval” is a term that Cedar Park and many other cities use to address the statutory requirements of section 212.009(a) of the Texas Local Government Code. Under the statute, the Planning and Zoning Commission must disapprove a plat application – even a plat application that lacks essential information – or else it will be considered statutorily approved.8 In this case, the Planning and Zoning Commission disapproved Becky’s application in order to provide Becky with additional time to address the city staff’s comments, which will enable staff to complete its review. The Commission’s November 18, 2014 “statutory disapproval” did not bias future consideration of Becky’s applications. As illustrated by the November 2014 correspondence between Becky’s engineer and the city’s planning staff, the city repeatedly informed Becky that it could not determine whether Becky would be required to construct a roadway to the Becky tract until Becky provided further information about the nature of its proposed project.9 That information was not forthcoming prior to the November 18, 2014 Planning and Zoning Commission meeting.10 8 See TEX. LOC. GOV’T CODE § 212.009(a) (“The municipal authority responsible for approving plats shall act on a plat within 30 days after the date the plat is filed. A plat is considered approved by the municipal authority unless it is disapproved within that period.”). 9 CR 177-84. 10 CR 140-41 [Roberts Aff. II], at ¶ 7; CR 187-90. 6 The trial court heard the city’s plea to the jurisdiction on December 4, 2014 and granted the plea on December 24, 2014. SUMMARY OF THE ARGUMENT In order to implicate the ultra vires exception to governmental immunity, a plaintiff must make more than a bare assertion that public officials have acted without authority. The plaintiff must allege facts that, if true, would fall within the ultra vires exception. Here, the only fact that Becky has alleged is that the City Council authorized a development agreement with Milestone for the development of property that Becky does not own. The ultra vires exception does not apply to discretionary actions. Not only is the City Council’s decision to enter into a contract discretionary, but the specific contract term that Becky complains of – a provision that only requires Milestone to construct Phase 1 of the Old Mill Road extension to Becky’s property – is itself discretionary per city ordinance. Specifically, the city’s right-of-way ordinance provides that the city “may” require construction of a roadway depending on the traffic effects generated by a proposed development. Contrary to Becky’s assertion, the entirety of Phase II of the Old Mill Road Extension would not have been built by now but for the city’s development agreement with Milestone. The fact is that but for the development agreement, there would not be a dedicated right-of-way connecting Becky’s tract with South 7 Lakeline Boulevard at all, much less a fully constructed road. Whether for reasons of governmental immunity, standing, or ripeness, the trial court correctly determined that it lacked jurisdiction over Becky’s claims. ARGUMENT AND AUTHORITIES I. Neither the facts that Becky has alleged nor the jurisdictional evidence support subject-matter jurisdiction over Becky’s claims. [Appellant’s Br. at 6-11]. Becky begins its “Argument and Authorities” section by entreating the Court to focus on the facts alleged in its pleadings. Ironically, Becky has not pled facts that support its allegations, instead describing its lawsuit as follows: “In a nutshell, Becky asserts that the City, having delegated sole authority to the City’s Planning Commission to approve plats and grant variances, had no authority, through its City Council, to grant a variance to Milestone.”11 Becky uses the term “variance” throughout its briefing. But Becky has not alleged any facts in its pleadings that would demonstrate that the City Council approved a “variance” as that term is generally understood.12 11 Appellant’s Br. at 7. 12 The term “variance” as it relates to subdivision regulations is a procedural term of art defined by Chapter 212 of the Texas Local Government Code and section 12.03.004 of the City of Cedar Park Code of Ordinances. CR 242-43; Appellant’s Appendix F. Becky concedes that Milestone never applied for a “variance” as that term is defined in section 12.03.004 or the Local Government Code. Appellant’s Br. at 10. Despite Becky’s citation to City Code, it appears that Becky is using the term “variance” more generally to mean any deviation from the city’s subdivision regulations. 8 Instead, Becky complains that the City Council approved a development agreement that: (1) did not require Milestone to construct the portion of Old Mill Road that connects to the Becky tract; and (2) did not require Milestone to construct “infrastructure improvements” – which Becky defines as the portion of Old Mill Road that connects to the Becky tract – within one year from the date that the city approved Milestone’s final plat. Neither of these allegations constitutes a “waiver, exemption, or variance”13 from the City’s Code of Ordinances. To the contrary, the City Code specifically provides the city with discretion regarding whether to require road construction at all, depending in part on whether a roadway is needed “to offset the traffic effects generated by a proposed development.”14 The City Council’s decision to approve a development agreement that only required Milestone to construct the portion of Old Mill Road that the city deemed necessary to serve Milestone’s proposed development was entirely consistent with this provision. In Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227-28 (Tex. 2004), the Texas Supreme Court held that a defendants’ plea to the jurisdiction may implicate the merits of the plaintiff’s cause of action and may 13 Appellant’s Br. at 3. 14 CR 56-57 / Appendix B (City of Cedar Park Code of Ordinances, § 16.02.005). The City Charter and Code of Ordinances also are publicly available at http://z2.franklinlegal.net/franklin/Z2Browser2.html? showset=cedarparkset. 9 include evidence. If it does, the Court must review the relevant evidence to determine if a fact issue exists.15 If the relevant evidence is undisputed or fails to raise a fact issue, the trial court should grant the plea.16 Here, the city submitted uncontroverted affidavits and other supporting documentation and requested that the Court consider it when ruling on the city’s plea to the jurisdiction.17 The Court therefore may consider the city’s jurisdictional evidence in determining whether the trial court had subject matter jurisdiction. Neither the facts alleged nor the evidence submitted in this case implicate the approval of a “variance” under the Cedar Park Code of Ordinances. Therefore, even if true, none of the facts that Becky, Ltd. has alleged actually support its legal claims. II. Both the city and the city council members acting in their official capacities are entitled to governmental immunity. A. Becky has not implicated the ultra vires exception to immunity because the City Council’s decision to contract with Milestone was a discretionary act. [Appellant’s Br. at 12-17] 15 Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227-28 (Tex. 2004). 16 Id. 17 CR 38, 40 (“The City hereby incorporates by reference and for all purposes the affidavits and other supporting documentation included in the attached Appendix and asks the Court to consider it when ruling on the City’s plea to the jurisdiction.”). In a concurring opinion in Cokins v. City of Lakeway, No. 03-12-00083-CV, 2013 WL 4007522, at *5 (Tex. App. – Austin July 25, 2013, no pet.) (mem. op.), Chief Justice Jones explained that in order for the Court to consider evidence as part of a jurisdictional challenge under Texas Department of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex.2004), the party challenging jurisdiction must request that the court consider evidence when ruling on the plea. That is what the city did here. 10 Governmental immunity bars suits that seek to control government action.18 A suit seeks to control government action when the judgment would effectively direct or control a government official in the exercise of his or her discretionary statutory authority.19 The Texas Supreme Court has recognized a limited exception to the doctrine of governmental immunity when the plaintiff has alleged that governmental officials have acted without legal authority or failed to perform a purely ministerial act.20 An action is not ultra vires, however, when it falls within the governmental official’s exercise of discretion.21 Here, governmental immunity bars Becky’s claims because they seek to invalidate the city’s development agreement with Milestone.22 A city council’s decision to enter into a contract is a discretionary, legislative decision that is not subject to attack through the ultra vires exception to immunity from suit.23 On 18 Texas Logos, LP v. TxDOT, 241 S.W. 3d 105, 118 (Tex. App. – Austin 2007, no pet.). 19 Id. 20 City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009). 21 See Texas Logos, 241 S.W. 3d at 118. 22 CR 191, 192 (Pl.’s 2nd Am. Pet.) (“By this suit, Plaintiffs challenge the validity of a Unified Development Agreement (the “Agreement”) by and between Cedar Park and Milestone as an ultra vires act of the City Council.”). 23 See, e.g, Catalina Dev., Inc. v. County of El Paso, 121 S.W.3d 704, 706 (Tex.2003) (holding newly elected commissioners court immune from suit where it “acted within its discretion to protect the perceived interests of the public” in rejecting contract approved by predecessor). 11 September 12, 2013, the City Council voted unanimously to authorize the City Manager to execute the Agreement.24 That is the only action by the City Council that Becky has identified. Although Becky’s petition does allege that the approval or disapproval of a plat is a ministerial function,25 none of Becky’s causes of action challenge the Planning and Zoning Commission ‘s action approving Milestone’s plat. Nor has Becky sued the commissioners in their official capacities. Instead, Becky has sued the council members in their official capacities based on their approval of the Agreement. Because that was a discretionary decision, the trial court lacked subject matter jurisdiction over Becky’s claims against the city council members. Although Becky concedes that the City Council has the discretion to contract generally, Becky alleges that the council exceeded its discretionary authority as to this particular contract by including a term that required Milestone to construct the Phase I extension of Old Mill Road but did not mandate the construction of Phase II all the way to the Becky property. Even taken at face value, Becky’s argument fails. Becky has not and cannot point to a provision in the City’s Code of Ordinances that makes the construction of a roadway mandatory in this situation. Instead, Becky directs the Court to general language in the subdivision ordinance 24 CR 59-71 (Minutes of September 12, 2013 meeting of the Cedar Park City Council). 25 CR 191, 193. 12 that refers to the completion of an undefined set of “required subdivision improvements.”26 The applicable portion of the City Code is section 16.01.005 of the city’s transportation regulations, “Dedication of right-of-way.”27 Subsections (a) through (c) describe the circumstances under which a developer must dedicate right-of-way as part of the platting process. Those provisions apply only “[i]f the director of planning determines that all or portion of the right-of-way is needed to accommodate additional traffic expected to be generated by the proposed development.”28 It is undisputed from the city’s jurisdictional evidence that the Agreement required Milestone to dedicate sufficient right-of-way to reach the Becky development.29 Even this provision is discretionary: not every proposed development will require a dedication of right-of-way because not every proposal will create sufficient additional traffic. Becky’s real complaint, however, is addressed by subsection (d), which applies to roadway construction: 26 See, e.g., Appellant’s Br. at 2 (citing City of Cedar Park Code of Ordinances §§ 12.15.003(b) and (c) / Appellant’s Appendix G). 27 CR 55-57 / Appendix B. 28 Id. at § 16.02.005(a). 29 See CR 52-54 [Roberts Aff.], at ¶¶ 3-5. 13 In addition to the dedication of right-of-way, the city may require the construction of a roadway improvement or may assess a fee instead of requiring construction of a roadway improvement to offset the traffic effects generated by a proposed development.30 Just as the use of the word “shall” evidences the mandatory nature of a duty imposed by a legislative act,31 the use of the word “may” “creates discretionary authority or grants permission or power.”32 Not every development requires a new road to offset traffic effects generated by the proposed development. And by providing that the decision maker is to be the “city” generally, the City Council has reserved to itself the ultimate discretion of whether to require roadway construction.33 In the instant case, that council manifested that discretion through the terms of the Agreement.34 The cases Becky cites are distinguishable. In Sw. Bell Tel., L.P. v. Emmett, 459 S.W.3d 578 (Tex. 2015), Southwestern Bell alleged that the governing body of 30 CR 56-57/Appendix B (City of Cedar Park Code of Ordinances, § 16.02.005(d)) (emphasis added). 31 Sw. Bell Tel., L.P. v. Emmett, 459 S.W.3d 578, 588 (Tex. 2015). 32 TEX. GOV’T CODE § 311.016(1) (Code Construction Act); Bd. of Adjustment of the City of San Antonio v. Wende, 92 S.W.3d 424, 430 (Tex. 2002) (“Courts use the same rules that are used to construe statutes to construe municipal ordinances.”). 33 See DeSoto Wildwood Dev., Inc. v. City of Lewisville, 184 S.W.3d 814, 826 (Tex. App. – Fort Worth 2006, no pet.) (recognizing that cities express themselves through actions of the City Council in a meeting duly assembled). 34 CR 53 [Roberts Aff.], at ¶¶ 3-6; see also CR 9-23 / Appendix A (Agreement), at ¶¶ 2- 3, 10. 14 a water district exceeded its authority under a statute that provided that certain types of public infrastructure relocations “shall be done at the sole expense of the district or water supply corporation unless otherwise agreed to in writing.”35 The Supreme Court held that the legislature’s use of the word “shall” indicated that the commissioners’ duty under the statute to provide for payment of infrastructure relocations was mandatory.36 Therefore, the individual commissioners were not immune from suit against them in their official capacities alleging that the actions they took to shift those costs to the utility were ultra vires.37 Similarly, City of New Braunfels v. Tovar, No. 03-14-00693-CV, 2015 WL 2183479 (Tex. App. – Austin May 7, 2015, no pet. h.) involved a suit by a police officer against the members of a municipal civil service commission in their official capacities. Tovar alleged that the commissioners acted ultra vires when they failed to award him additional seniority points on his civil service exam as mandated by a statute that provided, “The grade that must be placed on the eligibility list for each police officer or fire fighter shall be computed by adding the applicant’s points for seniority to the applicant’s grade on the written 35 Sw. Bell Tel., L.P. v. Emmett, 459 S.W.3d 578, 588 (Tex. 2015). 36 Id. 37 Id. 15 examination[.]”38 The Court held that because Tovar was suing to enforce a mandatory right under the statute, Tovar had properly invoked the ultra vires exception to governmental immunity.39 Here, Becky has pointed to no such mandatory, ministerial duty on the part of the council members because no such duty exists. There has been no waiver of the city’s governmental immunity under the ultra vires exception for at least one other reason. “[T]he ultra vires rule is subject to important qualifications. Even if such a claim may be brought, the remedy may implicate immunity” if it constitutes anything other than prospective relief.40 A suit that seeks to control state action by invalidating a contract is retrospective in nature.41 Here, Becky wants the Court to declare that “the City Council’s action in granting a variance through the Agreement was ultra vires, rendering at least that portion of the Agreement void.”42 Therefore, even assuming, for the sake of argument, that the City Council’s decision to contract with Milestone were a 38 City of New Braunfels v. Tovar, No. 13-14-00693-CV, 2015 WL 2183479, at *1-2 (Tex. App. – Austin May 7, 2015, no pet. h.) (emphasis added). 39 Id. at *4. 40 Heinrich, 284 S.W.3d at 373-76. 41 Texas Logos, 241 S.W.3d at 120-21 (distinguishing impermissible suit to invalidate a contract from permissible suits to compel state official and agencies to comply with their statutory authority). 42 Appellant’s Br. at 8. 16 ministerial act, the remedy that Becky is seeking would constitute impermissible retrospective relief. Governmental immunity still would bar Becky’s claims against the city. “[B]are conclusions . . . are not sufficient—the pleader must allege facts that affirmatively demonstrate the trial court's subject-matter jurisdiction.”43 Becky cannot conjure subject matter jurisdiction merely by invoking the phrase “ultra vires.” Rather, Becky must at a minimum direct the Court to some ministerial duty created by statute or possibly ordinance that the city council members have exceeded. Because Becky has not alleged facts that, if true, would amount to an ultra vires act by the named council members, there has been no waiver of the city’s governmental immunity. B. The UDJA does not waive a city’s governmental immunity from a suit to declare rights under an ordinance. [Appellant’s Br. at 17- 19] Alternatively, Becky argues that the UDJA waives governmental immunity from its claims against the city because Becky is seeking a declaration to construe rights under city ordinances. The Texas Supreme Court considered and rejected this argument in Texas Dept. of Transp. v. Sefzik, 355 S.W.3d 618 (Tex. 2011). There, the Court held, “The UDJA does not waive the state’s sovereign immunity 43 Creedmoor-Maha Water Supply Corp. v. Tex. Com’n on Envtl. Quality, 307 S.W.3d 505, 525 (Tex. App. – Austin 2010, no pet.) (emphasis in original). 17 when the plaintiff seeks a declaration of his or her rights under a statute or other law.”44 The Court held that because Sefzik was not challenging the validity of a statute but only a state agency’s actions under it, there was no waiver of immunity from his claims.45 In this case, Becky wants the court to “determine the parties’ rights, status, and legal relations under those ordinances.”46 The UDJA does not waive the city’s governmental immunity from these types of claims. Becky’s reliance on Texas Lottery Com’n v. First State Bank of DeQueen, 325 S.W.3d 628 (Tex. 2010) is misplaced.47 The appellant in City of Dallas v. Texas EZPAWN, L.P., No. 05-12-01269-CV, 2013 WL 1320513, at * 3 (Tex. App. – Dallas Apr. 1, 2013, no pet.) (mem. op.) made the same argument that Becky makes here. But as the Dallas Court of Appeals explained: The issue in [Texas Lottery Commission] was whether provisions of the Texas Uniform Commercial Code conflicted with provisions of the Texas Lottery Act and, consequently, rendered the provisions of the Texas Lottery Act ineffective. Although the court used language like “statutory interpretation” and “statutory construction,” it was undisputed that the lawsuit challenged the validity of the provisions of the Texas 44 Texas. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621 (Tex. 2011). 45 Sefzik, 355 S.W.3d at 622. 46 Appellant’s Br. at 19. 47 See id. at 18. 18 Lottery Act and did not simply seek an interpretation of the statute.48 The court of appeals held that because EZPAWN sought only the interpretation of an ordinance and a declaration of its rights under it, those allegations affirmatively negated the trial court’s subject matter jurisdiction.49 Similarly, in Lone Star College Sys. v. Immigration Reform Coalition of Texas (IRCOT), 418 S.W.3d 263 (Tex. App. – Houston [14th Dist. 2013, pet. denied), which Becky also cites, the appellant both sought an interpretation and asserted the invalidity of Texas statutes.50 In a more recent opinion, Saifi v. City of Texas City, No. 14-13-00815-CV, 2015 WL 1843540 (Tex. App. – Houston [14th Dist.] Apr. 23, 2015, no pet.) (mem. op.), the Fourteenth Court of Appeals affirmed that the UDJA does not waive a city’s governmental immunity to the extent a plaintiff is merely seeking a declaration of rights under a statute or ordinance.51 48 City of Dallas v. Texas. EZPAWN, L.P., No. 05-12-01269-CV, 2013 WL 1320513, at * 3 (Tex. App. – Dallas Apr. 1, 2013, no pet.) (mem. op.) (citations omitted). 49 Id. 50 Lone Star Coll. Sys. v. Immigration Reform Coal. of Texas (IRCOT), 418 S.W.3d 263, 271 (Tex. App. – Houston [14th Dist.] 2013, pet. denied). 51 Saifi v. City of Texas City, No. 14-13-00815-CV, 2015 WL 1843540, at *3 (Tex. App. – Houston [14th Dist.] Apr. 23, 2015, no pet.) (mem. op.). 19 It is well-settled following Sefzik that the UDJA does not waive a city’s governmental immunity from a suit that merely seeks the interpretation of a statute or ordinance.52 Therefore, there has been no wavier of the city’s immunity in this case. III. Becky lacks standing because it was not a party to the Agreement. [Appellant’s Br. at 19-23] A person has standing to sue when he is personally aggrieved by an alleged wrong.53 Without a breach of a legal right belonging to a plaintiff, that plaintiff has no standing to litigate.54 Only the person whose primary legal right has been breached may seek redress for an injury.55 The alleged injury must be “concrete and particularized, not merely conjectural or hypothetical.56 “Without breach of a 52 See, e.g., Williams v. Texas Tech Univ. Health Sciences Ctr., No. 10-15-00005-CV, 2015 WL 2452513, at *2 (Tex. App. – Waco May 21, 2015, no pet. h.) (mem. op.) (recognizing that UDJA does not waive immunity where appellant only challenged interpretation of university policy and did not challenge validity of municipal ordinance or statute); VanderWerff v. Tex. Bd. of Chiropractic Examiners, No. 03-12-00711-CV, 2014 WL 7466814, at *3 n. 4 (Tex. App. – Austin Dec. 18, 2014, no pet.) (mem. op.) (“Appellant’s petition does not challenge the validity of any statutes . . . [T[he UDJA does not waive sovereign immunity when a plaintiff seeks a declaration of his rights under a statute.”). 53 Nootsie Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 661 (Tex.1996). 54 Exxon Corp. v. Pluff, 94 S.W.3d 22, 27 (Tex.App.-Tyler 2002, pet. denied); Cadle Co. v. Lobingier, 50 S.W.3d 662, 669–70 (Tex. App.-Fort Worth 2001, pet. denied); Brunson v. Woolsey, 63 S.W.3d 583, 587 (Tex. App.-Fort Worth 2001, no pet.). 55 Nobles v. Marcus, 533 S.W.2d 923, 927 (Tex.1976) (defrauded party only can bring suit to set aside deed obtained by fraud). 56 Save Our Springs Alliance, Inc. [SOS] v. City of Dripping Springs, 304 S.W.3d 871, 878 (Tex. App. – Austin 2010, pet. denied). 20 legal right belonging to the plaintiff no cause of action can accrue to his benefit.”57 The court has no jurisdiction over a claim made by a plaintiff who lacks standing to assert it.58 In cases analogous to this one, the courts of appeals have declined to recognize that a third party has standing to challenge a city’s decision to enter into a development agreement with a neighboring property owner. In Save Our Springs Alliance, Inc. [SOS] v. City of Dripping Springs, 304 S.W.3d 871 (Tex. App. – Austin 2010, pet. denied), for example, SOS sought various declarations to invalidate development agreements between the city and private property owners. This Court held that because neither SOS nor its members had an interest in the properties that were the subject of the development agreements, SOS lacked standing.59 Similarly, in Schechter v. Wildwood Developers, LLC, 214 S.W.3d 117 (Tex. App. – El Paso 2006, no pet.), plaintiff sued the city for a declaration that the city’s approval of a subdivision plat was void because it did not comply with the city’s ordinances. Specifically, plaintiff alleged that construction of the planned subdivision as depicted on the challenged plat would cause a decrease in his 57 Nobles, 533 S.W.2d at 927. 58 Heckman v. Williamson County, 369 S.W.3d 137, 150 (Tex. 2012). 59 SOS, 304 S.W.3d at 882. 21 property values. The court held that none of plaintiff’s complaints about his neighbor’s property were based on or related to plaintiff’s rights, status, or legal relationship under a statute, ordinance, contract or franchise.60 Therefore, the trial court lacked subject matter jurisdiction over plaintiff’s claims.61 Here, Becky is in the same position as the plaintiffs in SOS and Schechter. Like the plaintiffs in those cases, Becky seeks various declarations regarding Milestone’s property – property to which Becky has not alleged any ownership interest. At most, Becky alleges that the city’s actions in relation to Milestone’s property will result in a decrease in value of Becky’s property. This was the standing argument considered and rejected by the court in Schechter.62 In Stop the Ordinances Please v. City of New Braunfels, 306 S.W.3d 919 (Tex. App. – Austin 2010, no pet.), plaintiffs, an association of business owners who rented inner tubes and beverage coolers, challenged four city ordinances: (1) an ordinance regulating volume drinking devices (the “beer bong” ordinance); (2) an ordinance regulating five-ounce containers (the “jello shot” ordinance); (3) an ordinance regulating the consumption of alcohol in public parks (the “parks” ordinance); and (4) an ordinance regulating coolers and containers exceeding 60 Schechter v. Wildwood Developers, LLC, 214 S.W.3d 117, 121-22 (Tex. App. – El Paso 2006, no pet.). 61 Id. 62 See id. 22 sixteen quarts (the “cooler” ordinance). Of those four ordinances, this Court held that plaintiffs lacked standing to challenge the first three because those ordinances did not impose any direct restrictions on the plaintiffs and because plaintiffs did not plead facts demonstrating injury from the challenged restrictions: “Although [plaintiffs] broadly complain of lost revenues they ‘attribute’ to the ordinances collectively, these bare conclusions are insufficient to affirmatively demonstrate their standing.”63 The Court did, however, hold that plaintiffs had standing to challenge the cooler ordinance because plaintiffs had alleged that they purchased coolers to rent to customers and that the city’s ordinance rendered those coolers valueless. Here, the terms of the Agreement only apply to the development of the Milestone property. Like the business owners’ challenges to the beer bong, shot glass, and parks ordinances in Stop the Ordinances Please, Becky lacks standing to challenge the validity of the Agreement because Becky has not pled facts demonstrating the Agreement imposes any direct restriction or regulatory burden on the Becky tract. Nor has Becky sufficiently pled facts demonstrating injury from the Agreement. Although Becky broadly complains of a hypothetical loss of property value that it attributes to the Agreement with Milestone, this bare conclusion is insufficient to affirmatively demonstrate standing. Unlike the 63 Stop the Ordinances Please v. City of New Braunfels, 306 S.W.3d 919, 929-30 (Tex. App. – Austin 2010, no pet.). 23 business owners’ challenge to the cooler ordinance in Stop the Ordinance Please, nothing in the language of the Agreement regulates Becky’s property in any way. Regarding the issue of damages, Becky’s assertion that but for the Agreement, the Old Mill Road extension to the Becky tract would be built by now defies logic. First, the reasons that the Becky tract is landlocked are geography and the Cedar Park real estate market, not city council action. Further, as discussed above, the city’s decision regarding whether to require construction of a road is discretionary. Becky does not allege that Milestone had an approved plat on file prior to the date of the Agreement that required road construction (it did not). So in reality, without the agreement, there would be no dedication of right- of-way from Lakeline Boulevard to the Becky tract, there would be no Milestone plat on file, and the Milestone tract would be just like the Becky tract – a vacant piece of land. City of Laredo v. Rio Grande H2O Guardian, No. 04-10-00872-CV, 2011 WL 3122205 (Tex. App. – San Antonio Jul. 27, 2011, no pet.) is thus distinguishable because Becky has not alleged any actual harm. In City of Laredo, an association challenged a city’s decision to rezone a piece of property from R-1 (Single-Family Residential) to M-1 (Light Manufacturing). The court of appeals held that the plaintiff association had standing because its members were nearby property owners who alleged they would suffer various environmental injuries as a 24 result of the changed use.64 Here, although Becky is a nearby property owner, that is where the similarity ends. The injury that Becky has alleged is that the Agreement made Becky’s property less valuable because it did not require Milestone to construct Phase II of Old Mill Road. This does not meet the “concrete and particularized injury” requirement for standing.65 If anything, the Agreement would have made Becky’s property more valuable by providing for the construction of Phase I of Old Mill Road and providing for the public right-of-way connecting to Becky’s property. Because Becky has failed to allege a particularized interest in Milestone’s property or a concrete injury resulting from the Agreement, the trial court properly dismissed Becky’s claims against the city for want of jurisdiction. IV. Becky’s claims were not ripe because it never submitted a completed plat application to the city for review. [Appellant’s Br. pp. 24-25] A case is not ripe when its resolution depends on events that have not yet occurred, and ripeness is a threshold issue that implicates subject matter jurisdiction.66 A plaintiff must demonstrate a concrete injury in order for a justiciable controversy to exist and to avoid premature adjudication of factually 64 City of Laredo v. Rio Grande H2O Guardian, No. 04-10-00872-CV, 2011 WL 3122205, at *4-5 (Tex. App. – San Antonio Jul. 27, 2011, no pet.) 65 See SOS, 304 S.W.3d at 878. 66 Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851-853 (Tex. 2000). 25 undeveloped claims. Therefore, a plea to the jurisdiction is an appropriate vehicle to challenge the non-justiciability of a claim due to a lack of ripeness.67 A case that is almost directly on point is City of El Paso v. Maddox, 276 S.W.3d 66 (Tex. App. – El Paso 2008, pet. denied). In that case, plaintiff was a developer who owned a tract of landlocked property. Plaintiff bought the property with the understanding that the city would require under its subdivision regulations the construction of a road to plaintiff’s property across neighboring development. Instead, the city amended its subdivision ordinance to delete the requirement that subdivisions such as the one adjacent to plaintiff’s property construct public streets to provide access to the neighboring property. Plaintiff sued the city for a regulatory taking, even though plaintiff never had submitted a subdivision application or any other type of development plan for plaintiff’s own property and, therefore, the city never had made a final decision with respect to plaintiff’s property. The court of appeals held that the trial court lacked jurisdiction over plaintiff’s claims on the basis of ripeness: We conclude that the City has not been given an opportunity to make a final decision on Appellees' access to its property and Appellees have not presented evidence establishing that submitting a development plan or seeking a variance would have been futile. Accordingly, 67 Id. 26 we reverse the order of the trial court denying the City's plea to the jurisdiction[.]68 “Although a claim is not required to be ripe at the time of filing, if a party cannot demonstrate a reasonable likelihood that the claim will soon ripen, the case must be dismissed.”69 Here, although Becky has made some attempt to ripen its claims, nothing significant has changed since plaintiff filed its original petition in May 2014. The fact is, the city has not taken a final action on the merits of Becky’s application. Any final action that city staff may ultimately recommend to the Planning and Zoning Commission will depend on whether plaintiff submits the required revisions to the city and what those revisions contain. Any final action that the Commission may take will depend on the votes of the commissioners acting as a legislative body. Becky’s fears about what the city may or may not require after plaintiff has addressed the comments provided by the city planning staff, at which 68 City of El Paso v. Maddox, 276 S.W.3d 66, 75 (Tex. App. – El Paso 2008, pet. denied); see also City of Corinth v. NuRock Dev., Inc., 293 S.W.3d 360, 369-70 (Tex. App. – Fort Worth 2009, no pet.) (holding developer’s request for injunctive relief not ripe to prevent city from “arbitrarily and capriciously applying ordinances and variances” as to developer’s property); Coble v. City of Mansfield, 134 S.W.3d 449, 458-59 (Tex. App. – Fort Worth 2004, no pet.) (holding developer’s claim for damages not ripe because developer had not completed subdivision process and city had not made final decision as to applicability of roadway ordinance to developer’s property). 69 Robinson v. Parker, 353 S.W.3d 753, 755 (Tex. 2011). 27 point the planning department will be able to complete its review process, are still entirely speculative. In sum, the Court lacks jurisdiction over this lawsuit because the threatened harm claimed by plaintiff - that it may be required to construct a portion of a road – turns on events that have not occurred and may never occur in the future. V. Becky’s claims are moot. [Appellant’s Br. at 25-28] The trial court lacked subject matter jurisdiction over Becky’s claims against the city based on the doctrines of governmental immunity, standing, and ripeness. The city also has asserted that the trial court lacked jurisdiction based on the doctrine of mootness pursuant to Save Our Springs Alliance, Inc. [SOS] v. City of Austin, 149 S.W.3d 674 (Tex. App. – Austin 2004, no pet.). Here, because the City Council validly approved the Agreement,70 any claim by Becky that the City Council acted without authority is moot. PRAYER For these reasons, Appellees, the City of Cedar Park, Stephen Thomas, Matt Powell, Mitch Fuller, Lyle Grimes, Lowell Moore, Jon Lux, and Don Tracy, respectfully request that the Court of Appeals affirm the decision of the trial court and for such other relief, at law or in equity, to which Appellees shall show themselves justly entitled. 70 CR 59-71 (Minutes of September 12, 2013 Cedar Park City Council Meeting). 28 Respectfully submitted, BICKERSTAFF HEATH DELGADO ACOSTA LLP 3711 South MoPac Expressway Building One, Suite 300 Austin, Texas 78746 (512) 472-8021 Telephone (512) 320-5638 Facsimile Cobby A. Caputo State Bar No. 03784650 ccaputo@bickerstaff.com By: /s/ Bradley B. Young Bradley B. Young State Bar No. 24028245 byoung@bickerstaff.com ATTORNEYS FOR APPELLEES 29 CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing document has been served via electronic filing service provider, email, facsimile, and/or Certified Mail Return Receipt Requested to all parties of record on this the 29th day of July, 2015. Elizabeth G. Bloch Husch Blackwell LLP 111 Congress Avenue, Suite 1400 Austin, Texas 78701-4093 (512) 472-5456 (512) 479-1101 (FAX) Heidi.bloch@huschblackwell.com Leonard B. Smith P.O. Box 684633 Austin, Texas 78768 (512) 914-3732 (512) 532-6446 (FAX) lsmith@leonardsmithlaw.com ATTORNEYS FOR APPELLANT /s/ Bradley B. Young Bradley B. Young State Bar No. 24028245 byoung@bickerstaff.com 30 CERTIFICATE OF COMPLIANCE Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I certify that this Brief has been prepared in a conventional typeface no smaller than 14-point for text and 12-point for footnotes. I also certify that this response brief complies with the word count limitations contained in Texas Rule of Appellate Procedure 9.4(i)(2) because, excluding contents identified in Rule 9.4(i)(1), it contains 6039 words. I relied on the computer-generated word count of Microsoft Word, which is the software used to prepare this brief. /s/ Bradley B. Young Bradley B. Young State Bar No. 24028245 byoung@bickerstaff.com 31 APPENDIX A. Unified Development Agreement (pp 9-23 of the clerk’s record) B. City of Cedar Park Code of Ordinances Section 16.02.005 32 APPENDIX A UNIFIED DEVELOPMENT AGREEMENT THIS lJNIFIED DEVELOPMENT AGREEMENT (this "Agreement'') is entered into to be effective as of October 7, 2013 (the "Effective Date"), by and between .MJLESTONE COMMUNITY BU1LDERS, LLC, a Texas limited liability company ("Milestone"), and the CITY OF CEllAR PARK, TEXAS (the "City"). Milestone and the City are referred to hereinafter individuaHy as a "P:uty" and collectively as the "Parties." RECITALS A. Milestone has submitted to. and is processing with, the City, the following applications relating to that certain real property, located in Williamson County, Texas and within the boundaries of the City, as described on Exhibit "A", attached hereto and incorporated herein by reference (the "Property"): (i) a subdivision plat pursuant to \Vhich the Property and adjacent 8.408-acre commercial tract will be subdivided into four (4) lots (City Case No. FP-13-004), referred to herein as the "Plat;" and (ii) two (2) site plans of the Property, referred to herein as the "Site Plans," pursuant to which Milestone will constmct, in two (2) distinct phases of approximately 62 units (City Case No. SD-13-000 19) and 141 units (City Case No. SD-13-00026), respectively, a total of approximately two hundred three (203) townhome units. The condominium project to be constmcted on the Property pursuant to the Site Plans is referred to herein as the "Project" B. In connection with the Project, LAKELINE FUND, LTD., a Texas limited partnership ("Lakeline Fund"), has contractually agreed with Milestone that it win dedicate right-of-way to the City, and Milestone will design, permit and construct and contribute to the cost of various on-site and off-site transpmtation improvements that benefit the Project and adjacent/nearby properties (the "Tr.ansportafion Improvements"). C. The Patties now desire to enter into this Agreement, subject to the tenns and conditions set forth hereinbelow, to provide for unified development of the Project on the Propexiy and the funding and development of the Transportation Improvements in c01mection therewith. AGREEMENT NOW, THEREFORE, in consideration of the premises and the mutual covenants hereinafter contained, and of other good and valuable consideration the receipt, sufficiency and adequacy of which the Parties mutua!ly acknowledge, Milestone hereby declares that, upon its acquisition of the Property, the Prope1ty shall be subject to the following covenants, conditions, and restrictions, which shall nm with the Property and bind aU Parties and successors in interest, and the Parties hereby agree to the following: l. Unified Develomnent. For purposes of review, modification, or approval of the Site Plans by the City, the Property will be constructed as a unified development, regardless ofthe Propmiy being comprised of two (2) lots upon recordation of the Plat in the Official Public Records of Williamson County, Texas. A current copy of the Plat is attached hereto as Exhibit "B". Any proposed modifications to the Property or any portion of either lot therein will be construed as a modification to a single site, requiring review of the Property in accordance with the provisions of the City's Code of Ordinances and this Agreement. This section applies to, but is not limited to, drainage, detention and/or water quality inliastructure relating to the Prope1ty. 2. Ri2:ht~of-Way Dedication. Milestone covenants and agrees with the City that it will enforce the tenns of its purchase contract with Lakeline Fund so as to cause to be dedicated the City, to be owned, operated and maintained by the City upon completion and acceptance by the City, the right-of-way for the extension of Old Mill Road, said right·of-way measuring fi·om si>..1:y-four feet (64') to seventy feet (70') in width and twelve hundred ten linear feet (121 0'), as more particularly depicted on Exhibit "CEirfH3S PUND TWO, LTD BY INSTRUMENT OF RECORD !N VOLUME 1581, PAGE 520 Of THE DEED RECORDS OF WlLLIAMSON COUNTY, TEXAS; AND TRACT Fetm l.miN(i 0.441 OF ONE ACRE OUT OF A 1.081 ACRE TRA(Yf OPLAND CONVEYED TO PROPERTIES FUND T\\"0, l:.m HY lNSTRU.!viENT OF RECORD IN DOC. NO. 2008004670 OF THE Off!CJAL PU13LJC RECORDS OF WJLUA\\·fSON COUNTY, TEXAS, AND BEING MORE COJ\·1l'LETBL Y DI~SCRlntUJ BY METES AND BOUNDS AS FOLLO\VS: COMMDNCJNG l'lt a 1/2 inch iron roebar found for tl>e smllhwcst Ci line of the 26.001 acre tract and 1he easl line of Lo1 2, Block A, Caspita, Section l\V, for a tntal distance of 613.97 feel to a Ji2 inch iron rebar found for the northwest comer of the- 26.0{1 J ncre !rf\'JilHnmson County, Texns, from w1Jich n :5/8 inch iron rebat' i(nmct fhr tmd angle poini in tlJc north line DfLot 1, Block A, Caspila, Section T>No and !he sm1th line of said Lot 2, Lodge J>t Lakeline VH1age, SectiOJi H, bears South 69"2&'W" West a distance nf 194.65 fi;d (record~ South 69"28'10" West a distaJlceofl94.65 f~;-et); 'fl!ENG!.~ Norlll 72"34'24" E~s\ (r~;I;onl • North 12"36'.5 1" East), along th~ norlh linc {lf !he 26.001 acre tract and the soutllline of Lot 2, Lodge al Lalu;linc Vilbgc, Section ll, n distam;e of 239.97 fe-el (rfsaid remainder of a 237.31i acre tract the following three {3) courses: J. North 64"57'32" E41 '05"' Enst 11 dista11te of 6.64 feet) to an iron rebar found fnr the southcnsl ct\mcr oft he 0.30 of one acre tract, t11c l\Oi1he-llst con1cr (Jf the- 26.00 I acre !ract, ;:md being the common norllJcrly comer of' Lots !33 and 134, Riviera Sp1>fngs Subdivision, a subdivision of record in C.abinet B, Slides !67-169 t come!' of sal(J Hl.349 Mre lrf Lot !81, Riviera Springs Subdivision No. 2, fmm which " 11?. im~h iron wbar found for an angle polm in the east line of snid Col J, Bh>et: B, Lniclinc Commons Subdivision Md belng the soulhwcs! comer of Lot 184, Riviera Springs Subdivlslon No.2, bears South 21 "00'2.:2" East a distance f curv;1ture ln the west line of Lot 1, Block B, L~keline CommOilS Subdivision and the n7'02" \Vest a distnncc of 9.21 feet to a calculated point at the inter.;;ectiM of s lOJ49 :~err; tr Norlh 49°!! 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