FILED

1/5/2018 9:06 AM
Donna Kay McKinney
CIT - SAC2
Bexar County District Clerk
Accepted By: Marc Garcia

2018CI00202
CAUSE NO. _________________

EDWARD I. HILL, ROBERT E.

HECKENDORN, CRAIG M.
LUITJEN, ROGER FUENTES,
IN THE DISTRICT COURT
WESLEY A. PIEPER, ESTHER W.
HICKS, WILLIAM A. MCDOWELL,

Plaintiffs,
OF BEXAR COUNTY, TEXAS
vs.

THE CITY OF FAIR OAKS RANCH, 45TH

______ JUDICIAL DISTRICT
TEXAS

Defendant.

ORIGINAL PETITION OF PLAINTIFFS HILL, ET. AL.

TO THE HONORABLE JUDGE OF THIS COURT:

Edward I. Hill, Robert E. Heckendorn, Craig M. Luitjen, Roger Fuentes, Wesley A.

Pieper, Esther W. Hicks, William A. McDowell, (“Plaintiffs”) bring this action seeking a

declaratory judgment voiding the annexation of property owned by Plaintiffs, and illegally

annexed by the City of Fair Oaks Ranch, Texas. This claim is brought under the Texas

Uniform Declaratory Judgment Act and pursuant to Chapter 37 of the Texas Civil Practices

& Remedies Code. Plaintiffs seek a declaration of the rights and other legal obligations of

all parties to this dispute. Actual controversy exists between Plaintiffs and the City of Fair

Oaks Ranch (“FOR”) regarding whether the annexation of the properties at issue are void

ab initio or otherwise invalid or unenforceable.

In support of this action, Plaintiffs would show the following:

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 DISCOVERY CONTROL PLAN

1. Plaintiffs pray the Court enter a level three discovery plan in these proceedings

pursuant to TEX. R. CIV. P. 190.3.

PARTIES AND SERVICE

2. Plaintiffs own and reside on properties that were illegally annexed due to actions

taken by the City of FOR that were void ab initio, and are aggrieved and adversely affected

by those annexations due to the therefore illegal imposition of FOR’s taxation and zoning

controls over Plaintiffs’ properties. Plaintiffs’ counsel of record is:

Roger B. Borgelt
Borgelt Law
614 S. Capital of Texas Hwy.
Austin, TX 78746
O: 512.600.3467
M: 512.870.7533
E: [email protected]

3. Defendant, the City of Fair Oaks Ranch, Texas, (“FOR”) is a municipality

located, in part, in Bexar County in the State of Texas. FOR may be served with citation

by serving the City Attorney, Charles E. Zech, at 2517 N. Main Avenue, San Antonio,

Texas 78212. Plaintiffs request that the Clerk of this Court serve the City of Fair Oaks

Ranch pursuant to TEX. R. CIV. P. 106(a)(1).

JURISDICTION AND VENUE

4. The subject matter in controversy is within the jurisdictional limits of this court.

5. This court has jurisdiction over the parties because Defendant is located in

Texas.

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 6. Venue in Bexar County is proper in this cause because all or a substantial part

of the events or omissions giving rise to this lawsuit occurred in this county, Plaintiffs are

primarily residents of this county, and Defendant FOR is partially located in this county.

FACTUAL AND PROCEDURAL BACKGROUND

7. Plaintiffs challenge FOR’s fast-track annexations under FOR Ordinances No.

2017-14, 2017-15, 2017-16, 2017-17, 2017-18, 2017-19, 2017-20, 2017-21,2017-22,

2017-23 and 2017- 24, which were all finally adopted by the Fair Oaks Ranch City Council

on November 29, 2017, all with identical effective dates, also of November 29, 2017. A

true and correct copy of Ordinance 2017-14 is attached as Exhibit A as illustration. These

annexations were the first and only involuntary annexations by FOR since it attained Home

Rule City status in May, 2017.

8. FOR Ordinance No. 2017 – 14 was among those ordinances finally adopted on

November 29, 2017. See Exhibit A. That ordinance attempted to annex, in pertinent part,

a roughly triangular section of land consisting of approximately 103.93 acres. The section

connected land that was only contiguous to the existing City of FOR on one side for

purposes of annexation, and is less than 1000 feet wide at its narrowest point.

9. FOR became a Home Rule City on approximately May 6, 2017, and did not have

legal authority, prior to calendar year 2017, to involuntarily annex any properties under

Subchapter C of Chapter 43 of the Texas Local Government Code.

10. Plaintiffs never requested or agreed to any annexation, and as a home rule city,

FOR had no authority to annex properties in excess of 10% more than its geographic area

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at the beginning of calendar year 2017, absent such a request, pursuant to Texas Local

Government Code section 43.055(a).

11. FOR has annexed an area greater than 10% of its previous total geographic

area, and in fact closer to 20% of that number. It’s area prior to the November 29, 2017

annexations, on January 1, 2017, was 6565 acres. See Exhibit B, FOR Public Information

Act response. Its current area is approximately7893 acres, which can be calculated by

adding the acreage from the 11 adopted annexation ordinances referenced above. This is

an increase in geographic area of 20.23% in calendar year 2017.

ERRORS OF FAIR OAKS RANCH

FOR Exceeded Maximum Annual Annexation Limit

12. Plaintiffs would show that FOR exceeded its legal authority by knowingly

and/or intentionally failing to comply with the relevant provisions of the Texas Local

Government Code, including specifically annexing multiple properties in excess of its

annual 10% increase in geographic area maximum, rendering them void.

13. Plaintiffs would show that FOR, via the purported annexations including

Plaintiffs’ properties, has exceeded its statutory maximum size, in violation of Texas Local

Government Code section 43.055(a).

14. The adoption of all of the annexation ordinances simultaneously effective on

November 29, 2017, added approximately 1328 acres to the City of FOR on one day in

2017. Its area prior to that adoption was 6565 acres, per Exhibit B. This is just over a

20% growth in area on the same day last year, making those annexations void under Texas

Local Government Code section 43.055(a).

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 15. Plaintiffs would also show that they have never requested or consented to

annexation of their properties, and thus any such purported annexations occurred absent

any statutory authority of FOR to do so under 43.055(a)1,3 or 4, and are therefore void

pursuant to Texas Local Government Code section 43.055 (a).

FOR Annexed in Violation of Width Requirement

16. Plaintiffs would show that some of Plaintiffs’ properties have not been legally

annexed in a manner meeting minimum width requirements as required by section

43.054(a) of the Texas Local Government Code, and are therefore void. See Exhibit A,

FOR Ordinance No. 2017 -14, also known as Area 10.

17. Texas Local Government Code Sec. 43.054 expressly prohibits strip annexation.

Specifically, Sec. 43.054 (a) provides that "[a] municipality with a population of less than

1.6 million may not annex a publicly or privately-owned area, including a strip of area

following the course of a road ..., unless the width of the area at its narrowest point is at

least 1,000 feet." FOR does not have a population of at least 1.6 million. As shown by

Exhibit C, FOR’s annexation maps, FOR has described Area 10 as being less than 1,000

feet wide at its narrowest point. Plaintiffs assert that it is in fact at one point less than 181

feet wide.

18. Under Texas Local Government Code Section 43.054(b), FOR can avoid the

prohibition against strip annexation only if (1) FOR’s boundaries were contiguous to Area

10 on two sides (here it is contiguous only 1 side, see Exhibit C); (2) the annexation was

initiated on the written petition of the owners or of a majority of the qualified voters of the

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Area (not true here); or (3) the Area abutted or was contiguous to another jurisdictional

boundary (no other abutting municipal boundary, See Exhibit C). None of the exceptions

set forth in Section 43.054(b) apply. Therefore, FOR has exceeded the annexation

authority delegated to it by the Legislature, and its annexation of Area 10 is void.

RELIEF REQUESTED

20. Plaintiffs would show the proper available remedy is a judgment of void ab

initio on the annexation of the properties at issue. Plaintiffs request that after trial the

Court grant a permanent injunction enjoining the application and enforcement of FOR

Ordinances No. 2017-14, 2017-15, 2017-16, 2017-17, 2017-18, 2017-19, 2017- 20, 2017-

21, 2017-22, 2017-23 and 2017-24, and FOR's purported annexations of these areas.

Additionally, pursuant to Section 37.009 of the Texas Civil Practice and Remedies Code,

request is made for all costs and reasonable and necessary attorney's fees incurred by

Plaintiffs herein, including all fees necessary in the event of an appeal of this cause to the

Court of Appeals and the Supreme Court of Texas, as the Court deems equitable and just.

PRAYER

WHEREFORE, Plaintiffs request that they have judgment against the Defendant,

City of Fair Oaks Ranch, declaring the annexation of their properties to be void ab initio

or otherwise providing for the de-annexation of their properties, that Plaintiffs be

refunded all ad valorem taxes which may be paid for the period since the purported

annexation, that Plaintiffs have and recover their attorney fees from Defendant, and

Plaintiffs be granted such other and further relief to which they may be justly entitled.

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Plaintiffs respectfully request that citation issue and that Defendant City of Fair Oaks

Ranch be served as requested above, and that this Court issue a judgment awarding

Plaintiffs their costs of suit, and award such other and further relief to which Plaintiffs

may be entitled in law or equity.

Dated: January 5, 2018

Respectfully submitted,

_/s/ Roger Borgelt

Roger B. Borgelt
Borgelt Law
614 S. Capital of Texas Hwy.
Austin, TX 78746
O: 512.600.3467
M: 512.870.7533
E: [email protected]
SBN: 02667960