`
`DALLAS-DC-19-07054-CLR-VOL001.pdf:
`VOLUME 1 OF 1
`Trial Court Cause No. DC-19-07054
`Appellate Case No. 05-20-00190-CV
`In the 14th District Court of Dallas County, Texas
`Honorable ERIC MOYE' Judge Presiding
`________________________________________________________________________
`
`CHRIS CARTER AND KAREN PIERONI, Appellant(s)
`Vs.
`DALLAS CITY PLAN COMMISSION AND CITY OF DALLAS, Appellee(s)
`
`Appealed To The
`Court Of Appeals For The 5TH District Of
`Texas, At Dallas, Texas
`
`
`Attorney for Appellant(s):
`
`NAME:
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`ADDRESS:
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`TELEPHONE NO.:
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`FAX NO.:
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`E-MAIL ADDRESS:
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`SBOT NO.:
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`ATTORNEY FOR:
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`*
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`NORRED LAW PLLC
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`* WARREN V. NORRED
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`*
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`*
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`*
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`*
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`*
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`515 E. BORDER ST. ARLINGTON TX 76010
`
`817-704-3984
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`817-524-6686
`
`WNORRED@NORREDLAW.COM
`
`24045094
`
`*
`
`PLAINTIFFS
`
`Delivered To The Court Of Appeals
`For The 5TH District Of Texas,
` At Dallas, Texas
`
`On the 12th day of February, 2020
`
`FELICIA PITRE
`DISTRICT CLERK
`DALLAS COUNTY, TEXAS
`
`
`By SHELIA BRADLEY, Deputy District Clerk
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`Page 1
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`DC-19-07054
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`IN THE DISTRICT COURT
`
`OF
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`DALLAS COUNTY, TEXAS
`
`§
`
`§§§
`
`§§§
`
`§
`
`CHRIS CARTER, ET AL
` VS.
`CITY OF DALLAS, ET AL
`
`Document
`
`COVER
`
`INDEX
`
`CAPTION
`
`DOCKET SHEET
`
`INDEX
`
`File Date
`
`February 12, 2020
`
`February 12, 2020
`
`February 12, 2020
`
`February 12, 2020
`
`Page
`
`1 - 1
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`2 - 3
`
`4 - 4
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`5 - 9
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`PLAINTIFFS ORIGINAL PETITION, APPLICATION FOR
`TEMPORARY RESTRAINING ORDER, AND TEMPORARY
`INJUNCTION
`
`May 20, 2019
`
`10 - 314
`
`DEFENDANTS' PLEA TO JURISDICTION AND, IN THE
`ALTERNATIVE, ORIGINAL ANSWER
`
`June 05, 2019
`
`DEFENDANTS SUPPLEMENT TO THEIR PLEA TO THE
`JURISDICTION
`
`June 06, 2019
`
`DEFENDANTS RESPONSE TO PLAINTIFFS
`APPLICATION FOR A TEMPORARY INJUNCTION
`
`ORDER DENYING PLAINTIFFS APPLICATION FOR
`TEMPORARY INJUNCTION
`
`MOTION TO TRANSER
`
`June 06, 2019
`
`June 10, 2019
`
`June 12, 2019
`
`ADITIONAL ARGUMENT IN SUPPORT OF DEFENDANTS
`
`January 10, 2020
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`315 - 319
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`320 - 508
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`509 - 522
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`523 - 523
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`524 - 527
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`528 - 534
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`Page 2
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`PLEA TO THE JURISDICTION
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`RESPONSE TO DEFENDANTS PLEA TO JURISDICTION
`
`January 16, 2020
`
`ORDER ON PLEA TO THE JURISDICTION
`
`PLAINTIFF S NOTICE OF APPEAL
`
`PLAINTIFF S DESIGNATION OF RECORD TO BE
`INCLUDED ON APPEAL
`
`COST BILL
`
`CLERKS CERTIFICATE
`
`January 17, 2020
`
`February 10, 2020
`
`February 10, 2020
`
`February 12, 2020
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`February 12, 2020
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`535 - 580
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`581 - 582
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`583 - 584
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`585 - 587
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`588 - 588
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`589 - 589
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`Page 3
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`
`
`THE STATE OF TEXAS
`COUNTY OF DALLAS
`
`In the 14th District Court 0f Dallas County, Texas, the Honorable ERIC MOYE', Judge
`Presiding, the following proceedings were held and the following instruments and other
`
`papers were filed in this cause, t0 Wit:
`
`Trial Court Cause N0.: DC-19-07054
`
`CHRIS CARTER, et al
`
`vs.
`CITY OF DALLAS, et a1
`
`IN THE 14TH DISTRICT COURT
`OF
`DALLAS COUNTY, TEXAS
`
`Page 4
`
`
`
`CHRIS CARTER, et a1
`vs.
`CITY 0F DALLAS, et a1
`
`Related Cases
`DC-18-05460 (OTHER)
`
`FELICIA PITRE, DISTRICT CLERK
`DOCKET SHEET
`CASE No. Dc—19—o7054
`§
`§
`§
`§
`CASE INFORMATION
`
`14th District Court
`Location:
`Judicial Officer: MOYE', ERIC
`05/17/2019
`Filed 0n:
`
`Case Type: OTHER (CIVIL)
`Case Flags: DISCOVERY LEVEL 2
`DAMAGES: LEVEL 1
`
`DATE
`
`CASE ASSIGNMENT
`
`Current Case Assignment
`Case Number
`Court
`Date Assigned
`Judicial Officer
`
`DC-19-07054
`14th District Court
`05/1 7/20 1 9
`MOYE', ERIC
`
`PARTY INFORMATION
`
`PLAINTIFF
`
`Carter, Chris
`9523 Highedge Drive
`Dallas, TX 75238
`
`Pieroni, Karen Ann
`292 7 Renaissance Circle
`Dallas, TX 75287
`
`DEFENDANT
`
`City of Dallas
`1500 Marilla Street, Room 7DN
`Dallas, TX 75201
`
`Dallas City Plan Commission
`I500 Marilla Street, Room 7DN
`Dallas, TX 75201
`
`Lead Attorneys
`NORRED, WARREN
`Retained
`817-704-3984(W)
`wnorred@norredlaw.com
`NORRED, WARREN
`Retained
`817-704-3984(W)
`wnorred@norredlaw.com
`
`ESTEE, CHARLES STEVEN
`Retained
`214-670-3519(W)
`CHARLES.ESTEE@DALLASCITYHALL.COM
`
`ESTEE, CHARLES STEVEN
`Retained
`214-670-3519(W)
`CHARLES.ESTEE@DALLASCITYHALL.COM
`
`EVENTS & ORDERS OF THE COURT
`PLAINTIFF Carter, Chris
`Payment Receipt # 33203-2019-
`DCLK
`FILING FEES (CIVIL)
`Charge
`NEW CASE FILED (OCA) - CIVIL
`05/17/2019 E ORIGINAL PETITION
`
`DATE
`
`05/17/2019
`
`05/17/2019
`
`PLAINTIFF Carter, Chris
`
`INDEX
`
`(292.00)
`
`292.00
`
`PLAINTIFFS’ ORIGINAL PETITION, APPLICATIONFOR TEMPORARYRESTRAINING
`ORDER, AND TEMPORARYINJUNCTION
`ENOTICE 0F HEARING / FIAT
`
`PAGE 1 OF 5
`
`Printed 0n 02/12/2020 at I 1:44 AM
`
`Page 5
`
`
`
`FELICIA PITRE, DISTRICT CLERK
`DOCKET SHEET
`CASE No. Dc—19—o7054
`Notice ofHearing — Applicationfor TRO
`
`05/17/2019
`
`05/20/2019
`
`ENON-SIGNED PROPOSED ORDER/JUDGMENT
`TEMPORARYRESTRAINING ORDER
`TRO HEARING (2:00 PM) (Judicial Officer: MOYE‘, ERIC)
`Events: 05/ 17/2019 ORIGINAL PETITION
`05/17/2019 NOTICE OF HEARING / FIAT
`05/17/2019 NON-SIGNED PROPOSED ORDER/JUDGMENT
`05/20/2019 APPLICATION - TEMPORARY RESTRAINING ORDER
`WARRENNORRED (81 7—704-3984)
`
`05/20/2019 fl APPLICATION — TEMPORARY RESTRAINING ORDER
`Amended Petition and TRO
`EORDER - DENY
`TRO
`
`05/20/2019
`
`05/30/2019
`
`05/30/2019
`
`06/05/2019
`
`VACATION LETTER
`Party: ATTORNEY NORRED, WARREN
`ENOTICE 0F HEARING / FIAT
`APPLICAT10NFOR TEMPORARYINJUNCTION
`06/05/2019 E ORIGINAL ANSWER - GENERAL DENIAL
`Party: DEFENDANT City of Dallas; DEFENDANT Dallas City Plan Commission
`EPLEA T0 JURISDICTION
`DEFTS
`06/05/2019 E MISCELLANOUS EVENT
`
`Party: DEFENDANT City 0f Dallas; DEFENDANT Dallas City Plan Commission
`FILING OF THELANDMARK COMMISSIONRECORD REGARDING CASE N0. CD 189-
`007(LC)
`
`06/05/2019 E MISCELLANOUS EVENT
`
`Party: DEFENDANT City ofDallas
`RE: ATTACHMENT 3- 7
`EPLEA To JURISDICTION
`DEFENDANTS' SUPPLEMENT TO THEIR PLEA T0 THE JURISDICTION
`ERESPONSE
`DEFENDANTS ' RESPONSE T0 PLAINTIFFS 'APPLICATIONFOR A TEMPORARY
`INJUNCTION
`Temporary Injunction (10:45 AM) (Judicial Officer: MOYE', ERIC)
`Events: 05/20/2019 APPLICATION - TEMPORARY RESTRAJNING ORDER
`05/30/2019 NOTICE OF HEARING / FIAT
`06/06/2019 RESPONSE
`PLTF—30M—SETBY—MARIE ANDERSON—81 7— 704—3984 CC REQ
`EORDER — DENY
`P/TEMP INJUNCTION
`
`06/06/2019
`
`06/06/2019
`
`06/10/2019
`
`06/10/2019
`
`Vol./Book 0,
`Page 0 opages
`
`Vol./Book 0,
`Page 0 1 pages
`
`PAGE 2 OF 5
`
`Printed 0n 02/12/2020 at I 1:44 AM
`
`Page 6
`
`
`
`FELICIA PITRE, DISTRICT CLERK
`DOCKET SHEET
`CASE No. 13019—07054
`06/12/2019 EMOTION — TRANSFER — N0 CHANGE 0F VENUE
`Party: PLAINTIFF Carter, Chris; PLAINTIFF Pieroni, Karen Ann
`ENOTICE 0F HEARING / FIAT
`P/M/TRANSFER — N0 CHANGE 0F VENUE
`06/14/2019 E RESPONSE
`EOPINION
`MEMORANDUM OPINION
`06/1 7/20 1 9 ECOA - CORRESPONDENCE LETTER
`06/17/2019 a 5TH COA ORDER
`06/17/2019 ECOA - CORRESPONDENCE LETTER
`EOPINION
`MEMORANDUM OPINION
`06/17/2019 E 5TH COA ORDER
`06/17/2019 ECOA - CORRESPONDENCE LETTER
`
`06/12/2019
`
`06/17/2019
`
`DEFENDANTS' RESPONSE T0 PLAINTIFFS' MOTION T0 TRANSFER
`
`DENY
`
`06/17/2019
`
`ORDER DENYRELATORS PETITIONFOR WRIT 0FMANDAMUS
`
`Vol./Book 0,
`Page 0 2pages
`
`06/19/2019
`
`06/19/2019
`
`06/19/2019
`
`CANCELED Motion - Transfer (1 1:00 AM) (Judicial Officer: MOYE‘, ERIC)
`REQUESTED BYATTORNEY/PRO SE
`30 MINS - M/TRANSFER - N0 CHANGE 0F VENUE FILED 06/12/19 - SETBYMARIE
`ANDERSON - 81 7- 704-3984
`ERETURN 0F SERVICE
`EXECUTED SUBPOENA - JOEYZAPATA
`ERETURN 0F SERVICE
`EXECUTED SUBPOENA — ELAINE HILL
`
`06/21/2019
`
`EOPINION
`MEMORANDUM OPINION
`06/21/2019 m 5TH COA ORDER
`06/21/2019 E 5TH COA ORDER
`06/26/2019 E 5TH COA ORDER
`
`ORDER DENYEMERGENCYMOTIONSTAY
`
`ORDER DENYRELATORS’PETITIONFOR WRIT 0FMANDAMUS & DENYRELATORS‘
`PETITIONFOR WRIT OFINJUNCTION
`
`ORDER DENYRELATOR ’S PETITIONFOR WRIT 0FMANDAMUSAND DENY
`RELA TOR'S PETITIONFOR WRIT 0F INJUNCTION
`
`PAGE 3 OF 5
`
`Printed 0n 02/12/2020 at I 1:44 AM
`
`Page 7
`
`
`
`FELICIA PITRE, DISTRICT CLERK
`DOCKET SHEET
`CASE No. Dc—19—o7054
`
`06/26/2019
`
`06/28/2019
`
`07/02/2019
`
`EOPINION
`MEMORANDUM OPINION
`ENOTICE 0F HEARING / FIAT
`P/TICE 0F TRANSFER
`NOTE - CLERKS
`COURT. COPYRECD VIA USPS - INADMIN TRAY
`
`07/15/2019 E Motion - Transfer (2:30 PM) (Judicial Officer: MOORE, MARICELA)
`Events: 06/12/2019 MOTION - TRANSFER - N0 CHANGE OF VENUE
`06/28/2019 NOTICE OF HEARING / FIAT
`30M, P/M/TRANSFER, MARIE, 81 7- 704-3984, CC REQ’D
`EORDER - DENY
`MOTION TO TRANSFER
`ENOTICE 0F TRIAL
`AND L VL 2 5/0 MAILED
`12/13/2019 E SCHEDULING ORDER
`
`07/15/2019
`
`12/13/2019
`
`LEVEL 2
`
`VoZ/Book 0,
`Page 0 I pages
`
`Vol/Boak 0,
`Page o 2pages
`
`12/30/2019
`
`01/03/2020
`
`01/10/2020
`
`VACATION LETTER
`Party: ATTORNEY NORRED, WARREN
`01/03/2020 fl CERTIFICATE 0F CONFERENCE
`DEFT—PLEA T0 JURISDICTION
`ENOTICE 0F HEARING / FIAT
`PLEA T0 JURISDICTION
`NOTE - CLERKS
`COURTESY COPY 0NDEF/PLEA T0 JURISDICTION
`
`01/10/2020 E MISCELLANOUS EVENT
`
`Party: DEFENDANT City of Dallas; DEFENDANT Dallas City Plan Commission
`ADITIONAL ARGUMENTIN SUPPORT 0FDEFENDANTS’PLEA T0 THE JURISDICTION
`
`01/13/2020
`
`01/16/2020
`
`01/17/2020
`
`EDESIGNATION 0F EXPERT WITNESS(ES)
`PLT
`ERESPONSE
`PLTF/RESPONSE T0 DEF/PLEA T0 JURISDICTION
`Q Plea to Jurisdiction (1 1:00 AM) (Judicial Officer: MOYE', ERIC)
`Events: 01/03/2020 CERTIFICATE 0F CONFERENCE
`01/10/2020 MISCELLANOUS EVENT
`01/16/2020 RESPONSE
`06/05/2019 PLEA T0 JURISDICTION
`06/06/2019 PLEA T0 JURISDICTION
`DEFT—30M—SETBY—LISA PENNEY—214—670—561 7 CC REQ
`
`PAGE 4 OF 5
`
`Printed 0n 02/12/2020 at I 1:44 AM
`
`Page 8
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`
`
`FELICIA PITRE, DISTRICT CLERK
`DOCKET SHEET
`CASE No. Dc—19—o7054
`
`01/17/2020 E ORDER - MISC.
`
`Vol./Book 0,
`Page o, 2 pages
`
`SUSTAIN INPART/OVERRULE INPARTPLEA/JURISDICTION
`@MOTION _ QUASH
`Party: DEFENDANT City of Dallas; DEFENDANT Dallas City Plan Commission
`ENOTICE 0F APPEAL — CT. 0F APPEALS
`Party: PLAINTIFF Carter, Chris; PLAINTIFF Pieroni, Karen Ann
`Plaintifl's Notice oprpeal - DESIGNATIONREQUESTED AT TIME OFACCEPTANCE
`EXTENDED TO 10AM 2/12/2020
`
`01/28/2020
`
`02/10/2020
`
`02/12/2020
`
`02/12/2020
`
`03/04/2020
`
`05/12/2020
`DATE
`
`02/ 10/2020 E REQUEST CLERK PREPARE RECORD
`02/10/2020 EMOTION _ DISMISS
`
`Plaintiff's Designation ofRecord to be Included on Appeal
`
`Party: DEFENDANT City of Dallas; DEFENDANT Dallas City Plan Commission
`NOTE - CLERKS
`REPORTERS REQUESTINCLUDED - COURTREPORTER NOTIFIED
`NOTE - CLERKS
`PREPARING CLERKS RECORD
`EMofion — Dismiss (11:15 AM) (Judicial Officer; MOYE', ERIC)
`Events: 02/10/2020 MOTION - DISMISS
`DEBBIE (214-671-5055) I5MIN& CC REQ
`Q Non Jury Trial (9:30 AM) (Judicial Officer: MOYE', ERIC)
`
`FINANCIAL INFORMATION
`
`PLAINTIFF Carter, Chris
`Total Charges
`Total Payments and Credits
`Balance Due as of 2/12/2020
`
`292. 00
`292. 00
`0.00
`
`PAGE 5 OF 5
`
`Printed 0n 02/12/2020 at 11:44 AM
`
`Page 9
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`
`
`Cause No. DC-19-07054
`
`vs.
`
`Chris Carter, Karen Ann Pieroni, §
`Plaintiffs,
`§
`§
`§
`§
`§
`§
`§
`
`Dallas City Plan Commission,
`City of Dallas,
`Defendants.
`
`FILED
`DALLAS COUNTY
`5/20/2019 5:26 AM
`FELICIA PITRE
`DISTRICT CLERK
`Kellie Juricek
`
`In the District Court
`
`14th
`____ Judicial District
`
`Dallas County, Texas
`
`PLAINTIFFS’ ORIGINAL PETITION,
`APPLICATION FOR TEMPORARY RESTRAINING ORDER,
`AND TEMPORARY INJUNCTION
`
`To the Honorable Judge:
`
`Come now, Chris Carter and Karen Ann Pieroni, Plaintiffs in the above-
`
`styled cause, and file this Original Petition complaining of Dallas City Plan
`
`Commission and the City of Dallas.
`
`Summarizing, Plaintiffs allege herein that the Dallas City Plan Commission
`
`has failed to perform duties regarding an application to demolish a historical
`
`monument in Pioneer Cemetery, allowing an incomplete application to be
`
`processed improperly and provided insufficient notice to the public, violating the
`
`Open Meetings Act, discriminating against protected speech, failing to give notice
`
`to the Texas Historical Commission as required by the Texas Antiquities Code, and
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`denying citizens public participation in violation of the Texas Anti-SLAPP Law.
`
`This Court should require dismissal of the improper application.
`
`Carter, et al. v. Dallas City Plan Commission
`
`Page 1
`
`Page 10
`
`
`
`DISCOVERY
`
`Plaintiffs intend to conduct discovery under Level 2 pursuant to Rule 190.3.
`
`I.
`
`II. CLAIMS FOR RELIEF
`
`Plaintiffs seek damages within the Court’s jurisdictional limits.
`
`Plaintiffs seek monetary relief of $100,000 or less, and non-monetary relief.
`
`III. PARTIES
`
`Plaintiff, Chris Carter, an individual, is a resident of Dallas County, Texas.
`
`Plaintiff, Karen Ann Pieroni, an individual, resides in the City of Dallas and
`
`1.
`
`2.
`
`3.
`
`4.
`
`5.
`
`pays property taxes to the City of Dallas, located in Denton County.
`
`6.
`
`Defendant, Dallas City Plan Commission (“CPC”),
`
`is a municipal
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`subdivision of the City of Dallas created to make recommendations to the Dallas
`
`City Council on planning and zoning matters, and may be served with process by
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`serving the Interim Dallas City Attorney, Christopher J. Caso, at Dallas City Hall,
`
`1500 Marilla Street, Room 7DN, Dallas, Texas 75201 or wherever he may be
`
`found.
`
`7.
`
`Defendant, the City of Dallas (“City”), is a municipality in the State of
`
`Texas and may be served with process by serving the Interim Dallas City Attorney,
`
`Christopher J. Caso, as described above.
`
`
`
`
`
`Carter, et al. v. Dallas City Plan Commission
`
`
`Page 2
`
`Page 11
`
`
`
`IV. JURISDICTION AND VENUE
`
`This Court has subject matter jurisdiction over this appeal pursuant to
`
`8.
`
`Section 51A-4.501(p) of the Dallas City Code (Historic Overlay District).
`
`9.
`
`This Court has subject matter jurisdiction over Plaintiffs’ First Amendment
`
`claim because Texas district courts have general jurisdiction and may hear claims
`
`regarding the First Amendment.
`
`10. Plaintiffs have standing in that this is a facial constitutional challenge to the
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`City Resolution and thus, any and every application of the challenged resolution
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`creates an impermissible risk of suppression of ideas. Further, there is a live
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`controversy between the parties in that Defendants are attempting to remove the
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`Confederate Monument in Pioneer Park (“Monument”) pursuant to the City
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`Resolution. Finally, the case is justiciable in that this Court’s declaration that the
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`Resolution is unconstitutional would satisfy the Plaintiffs’ requested relief and
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`prevent the removal of the Monument.
`
`11. Plaintiff Pieroni also has taxpayer standing, as she owns property in the City
`
`of Dallas upon which she pay taxes, and the events described herein will result in
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`hundreds of thousands of taxpayer dollars spent without proper authority.
`
`12. This Court has subject matter jurisdiction over the lawsuit for the alleged
`
`violations of the Texas Open Meetings Act (TOMA) because plaintiffs are
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`interested persons as defined by Sec. 551.142(a) of the Texas Government Code.
`
`Carter, et al. v. Dallas City Plan Commission
`
`
`Page 3
`
`Page 12
`
`
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`13. This Court has jurisdiction under TEX. NAT. RES. CODE § 191.173(a),
`
`because the Court has jurisdiction for restraining orders and injunctive relief.
`
`14. Venue is mandatory in Dallas County in that Pioneer Cemetery is located in
`
`Dallas, Texas and all or a substantial part of the events giving rise to the Plaintiffs’
`
`claims occurred in Dallas, Texas.
`
`FACTS
`
`15. Pioneer Cemetery is a site of historical interest in Dallas, recognized as a
`
`V.
`
`State Archeological Landmark and marked with Texas Historical Marker No.
`
`68181, which was posted by the Texas Historical Commission ("THC") in 1994.
`
`See Op. Att’y Gen. H-620 at 5 (1974).
`
`16. Pioneer Cemetery holds a 60’ Confederate monument (“Monument”)
`
`created by Frank Teich and dedicated in 1896. Originally located at Old City Park,
`
`the Monument was relocated to Pioneer Park in 1961. The cemetery holds at least
`
`ten other sites of historic interest, creating one of the largest historically protected
`
`areas in Texas, and currently holds THC markers for distinguished judges, past
`
`Dallas Mayors, senators, and the founder of the Dallas Morning News.
`
`17. On October 10, 2001, the Pioneer Cemetery was nominated to be an historic
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`district under the Dallas City Code to protect all structures within the defined area
`
`and establish 1849-1921 as the Period of Historic Significance.
`
`
`1 The documentation regarding this marker is available by the THC website at the
`https://atlas.thc.state.tx.us/Details/5113006818/print
`
`Carter, et al. v. Dallas City Plan Commission
`
`
`Page 4
`
`Page 13
`
`
`
`18. On May 22, 2002, the City adopted Ordinance No. 24938 (the District
`
`Designation Ordinance), which established the Pioneer Cemetery Historic Overlay
`
`District No. 114 (“District”) comprising about four acres, graves, and structures,
`
`including but not limited to the Monument, and extended protection to the District
`
`provided by Dallas City Code Section 51A-4.501 (the Historic District Protection
`
`Ordinance), which applies to all City historic overlay districts. Exhibit A.
`
`19. On September 6, 2017, the City adopted a resolution “to remove all public
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`Confederate monuments” from the City and established the Mayor’s Task Force on
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`Confederate Monuments. An excerpt of that Resolution is attached as Exhibit B; a
`
`relevant excerpt provided here:
`
`SECTION 1. That the display of public Confederate monuments and
`the names of public places, including parks, and streets named for
`Confederate figures do not promote a welcoming and inclusive city
`and, thus, are against the public policy of the city of Dallas.
`SECTION 2. That, to accomplish the removal of these public
`Confederate monuments and symbols and the renaming of public
`places, including parks, and streets, the city council supports the
`Mayor’s Task Force on Confederate Monuments (“Task Force”),
`which is made up of a diverse group of city leaders who will provide
`recommendations to the city council . . .
`SECTION 7. That the city manager is hereby authorized to transfer
`funds or appropriate funds from excess revenue, as necessary, to
`remove all public Confederate monuments.
`SECTION 9. That this resolution shall take effect on September 6,
`2017, and it is accordingly so resolved.
`
`City Resolution, Exhibit B.
`
`Carter, et al. v. Dallas City Plan Commission
`
`
`Page 5
`
`Page 14
`
`
`
`20. The City Landmark Commission (CLC), a quasi-judicial body of Dallas
`
`responsible for processing Certificate of Appropriateness applications within
`
`Dallas historic districts and individually designated structures operates according
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`to rules of procedure revised on February 25, 2009, as enabled by the Dallas City
`
`Code, Ch. 51A, Sec. 51A-3.103(d)(4).2
`
`21. Minutes3 from the CLC meeting held October 1, 2018, show adoption of its
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`2019 calendar, which is kept online for those filing applications to the CLC4 and
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`attached as Exhibit C; the relevant portion is shown below:
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`2 These rules are admissible to this Court as a hearsay exception as a public document, located
`online at https://dallascityhall.com/government/meetings/DCH%20Documents/landmark-
`commission/CommissionRules.pdf.
`3 https://dallascityhall.com/government/meetings/DCH%20Documents/landmark-commission/10-01-
`18_LMC_Mins.pdf (see p.27).
`4https://dallascityhall.com/departments/sustainabledevelopment/historicpreservation/HP%20Documents/A
`pplications%20Page/2019%20Calendar%20Deadlines.pdf
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`Carter, et al. v. Dallas City Plan Commission
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`Page 6
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`Page 15
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`
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`22. The process for obtaining approval of an application for Certificate of
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`Demolition posted by the CLC on its website and faithfully repeated above
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`includes a deadline of February 7, 2019 for applicants to submit complete
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`applications to be considered by the CLC at its regularly scheduled March 4, 2019
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`hearing. The process to obtain approval also requires a neighborhood task force
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`meeting held between February 12th and 15th of 2019. After these steps, the CLC’s
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`staff conducts its review of any applications and makes tentative recommendations,
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`on February 18, 2019. The last step is a CLC hearing which occurs on the first
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`Monday of each month, March 4, 2019 in this case.
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`23. On February 20, 2019, Jennifer Scripps, on behalf of the City’s Office of
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`Cultural Affairs, signed a single-page application form for a Certificate of
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`Demolition of the Confederate Monument and attached her affidavit with no other
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`supporting documents. A true and correct copy of the application signed by
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`Jennifer Scripps is attached hereto as Exhibit D. The City of Dallas, Parks and
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`Recreation Department is listed as the current owner of Pioneer Cemetery and not
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`the Office of Cultural Affairs.
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`24. On February 20, 2019, the CPC (acting for the CLC) date-stamped and
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`accepted the City of Cultural Affairs Office’s application as filed and assigned it
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`the file number CD189-007 (LC). Exhibit D.
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`Carter, et al. v. Dallas City Plan Commission
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`
`Page 7
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`Page 16
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`
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`25. That same day, Joey Zapata, the Assistant Manager of the City of Dallas sent
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`a memo to the Director of the City’s Sustainable Development and Construction
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`Department unlawfully requesting that the City of Cultural Affairs Office’s
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`application be scheduled for the March 4, 2019, CLC hearing despite the late filing
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`and incomplete application. See Exhibit E. When asked by Plaintiff Carter why the
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`backdating occurred, Kris Sweckard provided this explanation:
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`
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`26. Plaintiff then sent an email to Mr. Zapata (attached as Exhibit Q):
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`Carter, et al. v. Dallas City Plan Commission
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`Page 8
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`Page 17
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`
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`From the memo and emails above, Defendants have made clear that they will
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`brook no pesky interference or welcome any citizen examination of what they plan
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`to do with the Monument.
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`27. On February 21, 2019 Joey Zapata signed the single-page application form
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`on behalf of the City Manager’s Office and attached his affidavit with no other
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`supporting documents. A true and correct copy of the application form with the
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`notarized signature of Joey Zapata, the Assistant City Manager, along with the
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`notarized signature of Jennifer Scripps is attached as Exhibit F.
`
`28.
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`Jennifer Scripps and Joey Zapata signed the application with notarized
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`signatures prior to attaching required supporting documents to the application,
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`though the Dallas City Code states that only complete applications are accepted:
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`Dallas Code § 51A-4.501(h)(2)
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`29. Confirming the above, the application itself states under Application
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`Deadline: “This form along with any supporting documentation must be filed by
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`
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`Carter, et al. v. Dallas City Plan Commission
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`
`Page 9
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`Page 18
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`
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`the first Thursday of each month by 12:00 noon . . . Incomplete applications cannot
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`be reviewed and will be returned to you for more information . . .” Id.
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`30. The CLC is obligated to issue a letter within ten days of an incomplete
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`application for a certificate for demolition that information is missing. Id. No such
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`letter appears in the record; the City ignored the missing documentation, and
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`illegally considered the incomplete application.
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`31. On March 4, 2019, the CLC held its regularly scheduled March 2019
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`hearing, at which it heard and approved the application for the Certificate of
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`Demolition, CD189-007 (LC). The City’s application had no supporting
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`documentation of any kind until March 4, 2019, the same day as the hearing.
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`Exhibits D, F. The CLC’s March 4, 2019 agenda incorrectly dates the submission
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`of the application for the Certificate of Demolition, CD189-007 (LC) as February
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`7, 2019. A true copy of the March 4, 2019 Agenda is attached as Exhibit G.
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`32. Additionally, Commissioner Seale admitted that she expected to see the
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`application in April:
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`Carter, et al. v. Dallas City Plan Commission
`
`
`
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`Page 10
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`Page 19
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`
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`See p.84, lines 2-5 of the Transcript of the hearing, available online at
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`https://dallascityhall.com/government/meetings/DCH%20Documents/plan-
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`commission/05-16-19-Appeal/Transcript.pdf.
`
`33. When the CLC unlawfully rushed the consideration of the City’s application
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`in violation of the process rules, the public was deprived of sufficient notice and
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`opportunity to timely analyze the City’s application.
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`34. After the application was illegally approved, the City’s Office of
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`Procurement Services held a solicitation meeting to seek interested and qualified
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`consulting firms that can provide removal and archival storage services for the
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`Confederate Monument in Pioneer Cemetery. A true and correct copy of
`
`Solicitation No. BKZ1900009779 is attached hereto as Exhibit H. The City’s due
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`date for competitive bids from contractors for the removal was April 11, 2019.
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`35. During the CLC appeal hearing, Plaintiff Carter presented his brief, an
`
`excerpt of which is attached as Exhibit O, which contains the same evidence as
`
`discussed herein, and also discusses constitutional challenges to the process.
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`36. Also during the CLC appeal, Plaitiff Peironi had provided her brief (attached
`
`as Exhibit P, which contained expert opinion concerning the subject monument.
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`The Defendants offered no expert opinion on this matter. Plaintiffs assert that an
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`expert is needed and can provide guidance and opinion that is not available from
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`Carter, et al. v. Dallas City Plan Commission
`
`
`Page 11
`
`Page 20
`
`
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`appointed committee members who are on the Landmark Committee and CPC
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`because they have friends on the City Council of Dallas.
`
`37. Being appointed to a board does not make a person a subject matter expert
`
`on the subject. For a non-expert to find that a monument that is more than a
`
`hundred years old and is not contributing while actual experts say that it does
`
`contribute is to beg credulity.
`
`38. Additionally, the City’s argument was rife with incorrect statements which
`
`are wrong to the any observer, e.g., the City stated that “The district’s historic
`
`significance and character have no historic reference or significance to the Civil
`
`War.” A casual walk around Pioneer Cemetery finds that many of the gravestones
`
`of the founding fathers of Dallas have Confederate insignia on them. The
`
`monument was moved to Pioneer Cemetery because it fits exactly with the
`
`character of the cemetery environment.
`
`39. Allison Reeves, a member of the CLC when Ordinance No. 24938 was
`
`passed in 2002, testified at the CLC hearing in support of a motion to deny the
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`City’s application. She explained there are unquestionably unmarked graves at
`
`under and around the Pioneer Cemetery Confederate Monument, and removing the
`
`Monument without disturbing the graves would be impossible. She also testified
`
`that the intent of the CLC in passing Ordinance No. 24938 was to, inter alia,
`
`Carter, et al. v. Dallas City Plan Commission
`
`
`Page 12
`
`Page 21
`
`
`
`protect the Confederate Monument in Pioneer Cemetery. Her Affidavit and
`
`testimony in front of the CLC is attached hereto as Exhibit I.
`
`40. On April 1, 2019, Chris Carter timely filed an appeal of the CLC’s decision
`
`to approve Certificate of Demolition, CD189-007 (LC), resulting in the CPC
`
`hearing on May 16. See Exhibit J. On May 16, 2019, the CPC heard Carter’s
`
`appeal of the CLC’s decision to approve Certificate of Demolition, CD189-007
`
`(LC) and then affirmed the CLC’s decision. See Exhibit K.
`
`41. Carter now brings this appeal of the CPC’s decision to the District Court
`
`pursuant to Section 51A-4.501(p) of the Dallas City Code, based on the CPC’s
`
`failure to follow Dallas Code (violates a statutory or ordinance provision), failure
`
`to meet even a substantial evidence rule, and the case should have been remanded
`
`back to the CPC because to examine the new testimony that was not available
`
`during the Landmark Commission’s hearing because it was illegally conducted too
`
`soon. Carter also seeks dismissal of the application to demolish based on an anti-
`
`SLAPP motion to dismiss, as the illegal timing of the hearing deliberately denied
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`the right of Defendants to petition.
`
`
`
`
`
`
`
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`
`
`
`Carter, et al. v. Dallas City Plan Commission
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`
`Page 13
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`Page 22
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`
`
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`A. Historic Overlay District. Section 51A-4.501 of the Dallas City Code
`
`VI. LEGAL AUTHORITY
`
`42. Section 51A-4.501 of the Dallas City Code (attached as Exhibit N) protects
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`historical sites and governs how they can be altered, demolished, or removed. An
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`individual seeking a certificate for demolition or removal must submit a complete
`
`application before its consideration,.
`
`(2) Application. A property owner seeking demolition or removal of a
`structure on a property subject to the predesignation moratorium or a
`structure in a historic overlay district must submit a complete application for
`a certificate for demolition or removal to the landmark commission. Within
`10 days after submission of an application, the director shall notify the
`applicant in writing of any additional documentation required. The
`application must be accompanied by the following documentation before it
`will be considered complete:
`(A) An affidavit in which the owner swears or affirms that all
`information submitted in the application is true and correct.
`(B) An indication that the demolition or removal is sought for one
`or more of the following reasons:
`(i) To replace the structure with a new structure that is more
`appropriate and compatible with the historic overlay district.
`(ii) No economically viable use of the property exists.
`(iii) The structure poses an imminent threat to public health
`or safety.
`(iv) The structure is non-contributing to the historic overlay
`district because it is newer than the period of historic
`significance.
`
`
`Dallas Code § 51A-4.501(h)(2) (emphasis added).
`
`43. Besides the basic information described in Section 51A-4.501(h)(2), an
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`application must include documents reflecting the owner’s specific goal. For a
`
`Carter, et al. v. Dallas City Plan Commission
`
`
`Page 14
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`Page 23
`
`
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`certificate of demolition asserting that a structure is non-contributing to the historic
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`overlay district, additional documents are required:
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`(F) For an application to demolish or remove a structure that is
`noncontributing to the historic overlay district because the
`structure is newer than the period of historic significance:
`(i) Documentation that the structure is noncontributing to the
`historic overlay district.
`(ii) Documentation of the age of the structure.
`(iii) A statement of the purpose of the demolition.
`
`
`Dallas Code § 51A-4.501(h)(2)(F).
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`44. An owner can provide additional
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`information and
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`the Landmark
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`Commission can request additional information. Dallas Code § 51A-4.501(G), (H).
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`45. The Landmark Commission holds a public hearing within 65 days only after
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`a complete application is submitted; the property owner must provide “clear and
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`convincing evidence” to support the application to prevail.
`
`(B) Within 65 days after submission of a complete application, the
`landmark commission shall hold a public hearing and shall
`approve or deny the application. If the landmark commission does
`not make a final decision within that time, the building official
`shall issue a permit to allow the requested demolition or removal.
`The property owner has the burden of proof to establish by clear
`and convincing evidence the necessary facts to warrant favorable
`action by the landmark commission.
`
`Dallas Code § 51A-4.501(h)(3)(B) (emphasis added).
`
`
`
`
`Carter, et al. v. Dallas City Plan Commission
`
`
`Page 15
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`Page 24
`
`
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`46. The Landmark Commission can only approval an application to alter an
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`historic site after making specific findings based on the reason for the alteration.
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`The required findings for an assertion of “noncontributing” is detailed:
`
`(D) The landmark commission must deny an application to
`demolish or remove a structure that is noncontributing to the
`historic overlay district because it is newer than the period of
`historic significance unless it finds that:
`(i) the structure is non-contributing to the historic overlay
`district;
`(ii) the structure is newer than the period of historic
`significance for the historic overlay district; and
`(iii) demolition of the structure will not adversely affect the
`historic character of the property or the integrity of the
`historic overlay district.
`
`
`Dallas Code § 51A-4.501(h)(D).
`
`47. Any interested party may appeal the Landmark Commission’s ruling.
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`(5) Appeal. The chair of the landmark commission shall give verbal
`notice of the right to appeal at the time a decision on the application is
`made. If the applicant is not present at the hearing, the director shall
`inform the applicant of the right to appeal in writing within 10 days
`after the hearing. Any interested person may appeal the decision of the
`landmark commission to the city plan commission by filing a written
`notice with the director within 30 days after the date of the decision of
`the landmark commission. If no appeal is made of a decision to
`approve the certificate for demolition or removal within the 30-day
`period, the building official shall issue
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