Temporary Injunction Denied in Cityplace Sam's Club Case

Categories: Development

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Trammell Crow
Once more, with feeling.

After the conclusion of arguments that started Friday morning, District Judge Phyllis Lister Brown ruled against a neighborhood group seeking a temporary injunction aimed at stopping construction of a 130,000-square-foot Sam's Club store near the intersection of Haskell Avenue and U.S. 75.

The decision means the city can issue building permits for builder Trammel Crow while a lawsuit challenging a zoning that allows the store goes forward.

Members of the East Village Association, the neighborhood group suing the city, showed up decked out in red and wearing "No Mega Store" buttons to hear Trammell Crow's and the city's arguments against granting the injunction. K.C. Bills, a senior associate in Trammell Crow's business unit, testified the company could end up in default on its loans for the development if work was delayed, and he disputed residents' claims that they could be injured if the Sam's Club is built.

Under the loan agreement Trammell Crow entered into to finance construction, it stood to lose at least $5,000 for each day work on the project is delayed. By the end of 2015, Bills said, demolition on the 12-story Xerox building that is on the site needs to be completed. If it isn't Trammell Crow would be in default on its loan, as it would be if it failed to meet several other construction milestones.

Bills also produced a chart showing the sales values per square foot of homes sold near the site both before and after plans for the Sam's Club were revealed in The Dallas Morning News. Values for the homes -- 16 before the announcement and 13 after -- rose slightly, which Jay Madrid, one of Trammell Crow's attorneys, suggested meant the Sam's Club would benefit the neighborhood around it.

Assistant City Attorney Chris Caso asserted that the notice given to residents by the city of the proposed zoning change was good enough, and if neighbors had really wanted to know what was going to be in the development, they should have done more research. Caso even narrated an extended imagined phone call between a resident and Megan Wimer, a senior planner with the city, in which the imaginary resident was easily able to obtain information about the potential Sam's Club.

Despite her repeatedly stating that the process lacked transparency, Judge Brown ruled the burden of evidence required for a temporary injunction had not been met.

Speaking to the neighbors in the courtroom, Brown said: "The court is concerned with the lack of transparency, but the court is bound by the law."

"We're very pleased the court heard all the evidence and followed the law," Scott Dyche, Trammell Crow Co.'s general council said. "We're excited about starting building on this great project."

Despite the setback, Anthony Ricciardelli, the East Village Association's attorney, vowed to fight on.

"This is not the end of the road," he said. Ricciardelli intends to take the case to trial whether he and his clients appeal the temporary injunction ruling or not. Helpful to his cause was Judge Brown's finding that the East Village Association did have proper standing to sue the city on behalf of the residents, something the city and Trammell Crow had disputed.

If the case does go to trial and East Village Association prevails, any development on Trammell Crow's site could conceivably need to be torn down.



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60 comments
citizenjones04
citizenjones04

What's interesting about this whole debacle is that it could easily be resolved if TC would work with the neighborhood to change the design, double deck Sam's, go underground with the parking, provide more green space keeping with the walkability of the area, direct the traffic flow so it doesn't tie up I-75 entrance ramp and direct traffic away from the residential neighborhood.  Instead they dig in and refuse to budge, taking the attitude of screw Dallas, screw the neighborhood, we just want to make our money. I hope it comes back to bite them on the ass in all future development in Dallas.

brentdgardner
brentdgardner

I moved to Uptown to get away from this kind of thing.

Threeboys
Threeboys

Wait a minute. Trammel Crow and Wal Mart won?

Stop it.

citizenjones04
citizenjones04

Here are the requirements for irreparable harm. "First, the injury must be both certain and great; it must be actual and not theoretical. Injunctive relief ‘will not be granted against something merely feared as liable to occur at some indefinite time.’ It is also well settled that economic loss does not, in and of itself, constitute irreparable harm. . . . Implicit in each of these principles is the further requirement that the movant substantiate the claim that irreparable injury is ‘likely’ to occur. Bare allegations of what is likely to occur are of no value since the court must decide whether the harm will in fact occur. The movant must provide proof that the harm has occurred in the past and is likely to occur again, or proof indicating that the harm is certain to occur in the near future."

citizenjones04
citizenjones04

The temporary injunction was denied because East Village Association failed to show irreparable harm which must be present in order for the judge issue the injunction. However, she appeared to agree with the association that the City and TC deceived the neighborhood residents, although she put it in much nicer words, she even apologized to the Association members.  I suspect at trial the Association will win this case. The neighbors did all they were suppose to do, inquired with city officials as to what was being rezoned, met with TC and their representatives and were deceived by both. One has to wonder how much of a kickback Dallas Cothrum from Masterplan paid to Megan Wimer. The conceptual plan was defective, yet she approved it, she mislead residents and apparently just rubber stamped what Dallas Cothrum gave her.  Why would that be? TC is taking a big risk if they decide to move forward until this is resolved by trial.

jmckee3
jmckee3

There is no question in my mind that TC acted unethically on this but the larger question to me is if it changed the end result and I don't think it did. Where were the Medranos on this? Barely a peep out of either one of them and it's not surprising, were they really going to go to bat for some of the most affluent home owners in their struggling district? Turn away a lot of low skill jobs next to a giant public housing project? Where is the neighborhood precedent? What is there now is some big boxes and drive-throughs and you would have to be extremely charitable to say the most recent apartment complexes are anything resembling walkable or urban. And the demographics of Sam's Club are surprisingly affluent, it's mostly educated and middle/upper-middle class shoppers, they weren't exactly building a Big Lots. Because there is already a Big Lots right down the block. 

becoolerifyoudid
becoolerifyoudid

I think TC is going to win this one, just like they did with Timber Creek.  But this case shows that reform is needed for the notice process.


I don't see that big boxes require a separate notice regardless of whether it is in a PDD- that should be changed.


The proposed text of the ordinance should be prepared and available online before notice is sent out.  The notice could give the url and case number.  It's the 21st century, let's use the technology available (but don't use the guys that DPD used).


After a hearing typically there will be proposed changes to the ordinance text, those should be posted on line and a notice card with the url and case number again.  Then a specific period for comment (2 weeks, 30 days?) followed by the usual voting procedures.


Developer wants to slip in new language 3 months later?  Go back to the beginning and start over.

holmantx
holmantx topcommenter

If a cop pulls you over and demands a bribe, are you both equally at fault if you pay him?

In Mexico, it's called La Mordita - The Bite.

And you will pay it.

Here we call it paying for access and you have to have a badge.  On the elected side they're called Lobbyists.  Politicians are Lobbyists in waiting these days.  Why else would politicians put up with the aggravation of being a Public Servant?  It's the pay off.  No bucks, no Buck Rogers. They're "facilitators" you see. It's the narcotic of choice.

Then on down the food chain it's monkey see monkey do.  You have former city "staff" facilitators who know how the "process" works, like the ones Crow had to pay on the Sam's Club fiasco to get it approved.  No telling where all that money went but HEY! I'm not saying the former (the pimp) paid the current (staff hookers) under the table for the John (Crow).  Why else would "Staff" put up with the aggravation of being a Public Servant all those years?  It's the pay off.  No bucks, no Buck Rogers. They're "facilitators" you see.  They office right across the street.  I even hear tell they got a desk or two in City Hall.  Which begs the question, where's Mary? (ha!).   And what is she being paid for?

Heeeerre's JOHNNY!

So yeah.  If a politician goes rogue and wants to be paid directly without having to negotiate that pesky "wink 'n nod" kabuki fan dance everyone else has to engage in, then he broke the rules by God!

As far as Johnny goes, he approached the John and demanded money.  And Johnny didn't have something the John wanted, if you know what I mean.

Johnny was there to stop the John from getting what he wanted.  

The only difference is Johnny cut in line.  He should have quit and become a "facilitator" since he knows how the "process" works.

Like former "Staff".

Crow would not have gotten their variance had they not paid "facilitators", which is the only lesson that shines through this Mexican Hat Dance. 

d-may
d-may

This is actually ok. TC is not ready to move forward with construction yet, and likely won't be until after the trial anyway. But that's the real big news. The judge acknowledged and supported a lawsuit -which is the real thing that is actually going to end this. 


The neighbors will have their day in court. This was actually a pretty big victory for the neighborhood association, injunction or not. 

Montemalone
Montemalone topcommenter

This just proves how screwed up Dallas is.

There's a subway stop next to this land. There's an exisiting high rise office building. What should be built is more high density buildings. HIgh rise apartments/condos and offices. 

Instead, bulldoze the existing tower and turn it into a car farm.

Of course, anybody that thought Crow wouldn't get exactly what they want has only to look at all those tress at Skillman and Northwest Hwy. Oops.

And don't forget the century old live oaks at Maple and Oak Lawn. Oh, wait. Those are now behind a security wall accessible only to Crow execs and the hand selected tenants.

I would love to see just one example of a Sams warehouse improving the surrounding neighborhood.


kduble
kduble

"Values for the homes -- 16 before the announcement and 13 after -- rose slightly, which Jay Madrid, one of Trammell Crow's attorneys, suggested meant the Sam's Club would benefit the neighborhood around it."

It's a fallacy of logic not to include a control group. Home values went up near the site of the proposed Sam's. Home values went up where Sam's were closing. Home values went up where there was no Sam's in sight. The only values that matter would be comparisons with properties in the city as a whole.

holmantx
holmantx topcommenter

WTF is this?

"Caso even narrated an extended imagined phone call between a resident and Megan Wimer, a senior planner with the city, in which the imaginary resident was easily able to obtain information about the potential Sam's Club."

Apparently there's no rules of evidence at hearings?

I'm surprised Crow didn't bring in the Marine Corps Band playing the Sound of Music.

Free BBQ on the courthouse lawn.

WylieH
WylieH

@citizenjones04 Very true.  Unfortunately, my impression of the Dallas Trammell Crow team is that they lack sophisticated development expertise.  Instead, their primary focus is on obtaining major zoning variances from City staff, which then allows them to have a competitive edge by building large, relatively mediocre but profitable properties that only they appear to be able to get through the zoning process... somehow.

WylieH
WylieH

@Threeboys No, the case is headed to trial, and the Judge made it clear she takes a very dim view of the City and Trammell Crow's behavior, so far.

WylieH
WylieH

@jmckee3 Let me outline the false statements in that single post:

1)  "most affluent home owners in their struggling district" - Wrong... go look at the houses.

2)  "low skill jobs next to a giant housing project"- Wrong... the closest public housing project is over a half mile away.

3)  "where is the neighborhood precedent?"  In 2004, the City Council passed a resolution that stated that retail over 100,000 square feet had the potential to do great harm to surrounding property owners and therefore required special scrutiny via the SUP process.


4)  "What is there now is some big boxes and drive-throughs"  this was all built prior to the 2004 City Council resolution and change in zoning.  If rezoning was sought today, the project would likely be required to be built to current design and zoning standards

5)  "you would have to be extremely charitable to say the most recent apartment complexes are anything resembling walkable or urban"  - False, the Inland America and Hanover projects recently completed adjacent to the property are built hard up against the street and were constructed in anticipation of the emerging walkable neighborhood.  You can easily confirm this by simple visual inspection.  The patios of the Inland America units now face the prospect of being adjacent to the Sam's loading docks, while the Hanover residents are going to have a large surface parking lot virtually right outside their windows."

Don't disagree with your comment about the Sam's Club target demographic... don't understand the point you are trying to make.

holmantx
holmantx topcommenter

@jmckee3

How do you reconcile the "Form Based Zoning" regulation which was introduced in 2009 on this area?

It's like that regulation does not exist.  That the old zoning parameters we all deal with supercede the "form Based Zoning" overlay, which is quite enforceable and exists precisely to deny what Crow wants.

All Crow did was write 30 pages paying homage to the Form Based Zoning requirement, then went with a single-use Big Box in excess of 100,000 square feet, which is not allowed under the form based zoning ordinance.  MU-3 my ass.  There's a new sheriff in town.

Why even pass the ordinance if the specific intent of it, which governs the redevelopment of this area of urban core, is completely ignored?

Everyone assumes it is voluntary and Staff can recommend waiving it.  They can't.  It's why the Staff recommendation was conditional.  Conditional upon Crow's ultimate plan conform to the Form Based Zoning regulation called "ForwardDallas!".

Think about why "Staff" conditioned it.  Because they knew a 150,000 SF Big Box variance is not possible under the new Form-Based Zoning ordinance that controls the redevelopment of this tract.

Failure to give proper notice is a symptom.  The death knell is the Form Based Zoning, which bars the use and cannot be waived.

WylieH
WylieH

@becoolerifyoudid Listen to what the judge said yesterday.... strong chance the City and TC end up losing at trial.

City of Dallas has a long and proud history of getting slapped down at Dallas County District Court.

mavdog
mavdog topcommenter

@Montemalone 

you are confusing Trammell Crow Company, who is developing the Sam's, and Crow Holdings, who developed the old Parkland Hospital site at Maple and Oak Lawn.

TCC is a part of CBRE, Crow Holdings is the private investment group of the Trammell Crow family. The Crow family has nothing to do with Trammell Crow Company today.

citizenjones04
citizenjones04

@kduble  Plus, the data they provided only took into account sq. footage size of the homes on the land. No consideration given to land value of the neighborhood. Wylie H hit it on the head "Also, you would need to adjust the sample set to control for home size, condition, location, etc." Some locations are more desirable than others, depending on who the neighbors are.  Some of the neighbors you couldn't pay me enough to live next to, others, would be delighted to have them as a neighbor now matter what part of town it was. The folks with homes facing this mess will certainly lose home value.  Plus Hanover. The apartments facing this mess will certainly have to rent for less.

WylieH
WylieH

@kduble Exactly.  It was faulty logic, for the reason you outline.  Also, you would need to adjust the sample set to control for home size, condition, location, etc.

Very sloppy reasoning on TC's part... but they aren't the sharpest tools in the shed.

citizenjones04
citizenjones04

@holmantx  The plaintiff attorney should have acted the part where Masterplan paid her off to rubberstamp this. It's just as viable an argument as was Caso's.

WylieH
WylieH

I have no doubt that Megan Wimer played her role "perfectly" in the imaginary phone call.

WylieH
WylieH

@holmantx @citizenjones04 This is what the trial is for.... what citizenjones outlined is the requirement for injunctive relief, which is a MUCH higher standard that what the residents will need when this gets to trial.

citizenjones04
citizenjones04

@becoolerifyoudid @citizenjones04  from what I heard she said EVA members failed to prove irreparable harm, not that there was not any irreparable harm.  I don't recall any evidence being presented to prove that so that must be why she ruled the way she did. I wouldn't be surprised if EVA comes back with the proof again seeking the TI.

jmckee3
jmckee3

@holmantx @jmckee3 I reconcile it with the fact that it is a shovel ready project with good demographics that will bring much needed jobs and tax revenue into a district that has struggled for decades that will likely not have broad district opposition but support if a media campaign happened.


Do you really, really think district 2 was in a position to turn this down? 

becoolerifyoudid
becoolerifyoudid

@WylieH @becoolerifyoudid  I didn't get a chance to hear what (or how) the judge said anything.  I'm also not familiar with this judge.


Although I do agree with you about the City getting slapped down in District Court. 

WylieH
WylieH

@citizenjones04 @kduble Inland America is also going to get hammered on the value of their project... they have apartments sitting on the street with patios that are now going to be facing the Sam's Club loading dock and truck access route.

On a smaller scale, a couple of poor families are going to have a truck service lane that actually will wrap around their free-standing duplex...

holmantx
holmantx topcommenter

@citizenjones04 @holmantx

Ha! 

"ah, bailiff, please dim the lights." 

I just get this mental picture of Crow and the City doing some kind of cheezy hand shadow skit against a courtroom wall with the plaintiff lawyer doing the Mr. Bill voice.

holmantx
holmantx topcommenter

@WylieH

she should start a 900 number line and advertise on the Backpage.

Along with all the former "staff" who troll for anyone who'll slip 'em a fin for 20 minutes worth of work.

All they need is a booth and a hole in the bathroom wall.

citizenjones04
citizenjones04

@WylieH @holmantx @citizenjones04  I suspect that EVA can and will come up with the proof necessary. If the hearing had not been carried over until Monday, TC would have not presented their false assertion that property values risen since the announcement of Sam's being built there, and the judge would have granted the TI.  But without any evidence to counter their assertion, she had to rule there was no irreparable harm proven.

citizenjones04
citizenjones04

@jmckee3 much needed low paying jobs that Walmart is famous for? It is not shovel ready.  They wouldn't be ready to even begin construction until late 2015. Absolutely district 2 was in a position to turn this down, however Pauline Medrano was busy working on getting her next gig as County Treasurer and ignored this development that will decide what direction the area and the City moves towards. The City will lose millions in tax revenue if this property isn't developed in accordance with the ForwardDallas Vision and the character of this walkable neighborhood will be destroyed. Traffic will be a nightmare around that area if Sam's is built there.  Good luck getting on I75 at the Haskell entrance. The neighbors will have to have the streets blocked to prevent the cutting through their neighborhood that is sure to happen.

holmantx
holmantx topcommenter

@jmckee3 @holmantx

None of that matters even if true, which it is not.  At issue is the arbitrary waiving of the development code, the elements of which "Staff" conditionally sought political cover if somebody objected pointed out the obvious, which I just did.

That is one of the more expensive tracts in a HOT redevelopment zone that would have been developed with a far more intense use delivering the intent of the Form Based Zoning.  

But that was summarily thrown out the window for a quick kill by Crow.  They got weak and went for the fast buck why?  Because Crow, like the rest of the big brokerage houses, are busted.  They've been laying off brokers and eating each other since the crash (2008). It's been a war zone among the national shops.

Upon reflection, this thing really does need to go to a jury, and if Crow's under enough monetary pressure to develop before it's decided, then they can make Sam's Club whole.  I suspect that, if the lawsuit goes forward, Sam's will just put the kabosh on further exposure until Crow gets this settled.  And I also suspect that if Crow is as broke as I think they are, they need this project worse than Sam's does.  Far worse.

pinckneybledsoe
pinckneybledsoe

@WylieH @citizenjones04 @kduble Yes one home there is going to be right dab in the middle. More than likely they have no idea what is going to be built there. My sources tell me the owner is in a nursing home.  TC has probably tried to buy that property too but is unable to due to the owners inability to take care of business at the moment.

pinckneybledsoe
pinckneybledsoe

@WylieH @citizenjones04 @holmantx Maybe Kathy Nealy will spill the beans on the corruption at city hall too. I would love to see that. Just watch, in a few years you will see Megan Wimer working at Masterplan. That's their MO. If she doesn't get caught up into some type of corruption charges first.  Everybody know Dallas Cothrum has dirty hands. Hopefully it will come out soon too.


mavdog
mavdog topcommenter

@holmantx 

Because Crow, like the rest of the big brokerage houses, are busted.

wow holman, you couldn't be more wrong, today's earnings report on CBRE...

Revenue for the quarter totaled $2.1 billion, an increase of 22% from $1.7 billion in the second quarter of 2013. Excluding selected charges, net income rose 17% to $118.7 million from $101.8 million in the second quarter of 2013, while adjusted earnings per diluted share improved 16% to $0.36 from $0.31 in the prior-year period

  • https://finance.yahoo.com/news/cbre-group-inc-reports-strong-200500682.html
  • if one had put money in CBRE stock last year, they would have a 56% return on their investment...not too shabby.
  • mavdog
    mavdog topcommenter

    @holmantx 

    Because Crow, like the rest of the big brokerage houses, are busted. They've been laying off brokers and eating each other since the crash (2008). It's been a war zone among the national shops

    absolutely wrong. you need to look at the earnings reports by CBRE and JLL, they are not only profitable today they are adding employees.Revenues and profit are increasing quarter to quarter.

    You are right that TCC went with a Sam's Club and pads in order to make a quick buck, they could have easily gone the direction of a more mixed use, higher density project. But going with a higher density project would require more time, more invested capital, but with higher costs of carry and project infrastructure... and the ROI may not have been as good as a simple Sam's Club with pads.

    holmantx
    holmantx topcommenter

    @mavdog @holmantx

    Then you are aware of the TC  subsidiary's performance and the measure of this fiasco on the client (Sam's) and how it impacts the standing of the unit's Dallas leadership within CBRE?

    WylieH
    WylieH

    @mavdog @holmantx Also, TC lacks sufficient development expertise to pull off sophisticated development.  Their core expertise is being able to extract favorable development entitlements from the City of Dallas, rather than actually understanding how to maximize the value of a given project.

    mavdog
    mavdog topcommenter

    @holmantx 

    Then you are aware of the TC subsidiary's performance

    just what was outlined in the earnings release:

    Development projects in process totaled $4.8 billion, down 2%, or $100 million, from year-end 2013, and the inventory of pipeline deals totaled $1.9 billion, up 27%, or $400 million, from year-end 2013.

    $4.8 Billion is a heck of a lot of SF, and the pipeline looks pretty solid

    and the measure of this fiasco on the client (Sam's) and how it impacts the standing of the unit's Dallas leadership within CBRE?

    Looks like the "unit's Dallas leadership" is on their way to delivering the project. Which will make the tenant, Wal Mart, happy.

    While some of us might bitch and moan about the aesthetics, the fact is TCC is going to do well financially. TCC (and CBRE) will make a lot of money.

    which is what this discussion is all about, remember someone's comment about "big brokerage houses" like CBRE being "busted"?

    bwhahahaha.

    mavdog
    mavdog topcommenter

    @WylieH

    TC lacks sufficient development expertise to pull off sophisticated development.

    I'm not sure if this is a fair statement, TCC has developed some very high finish office and also some high density residential projects, they also built a very dense retail project in Houston that stacks a Costco with other retailers on multiple levels. The expertise is there in their shop to do a good project that fits the area.

    That is what is so disappointing about this fiasco, if TCC had done a project such as the one in Houston the neighborhood would not be so upset. But TCC went the lazy route, the "make a quick buck" route, and setttled on a Sam's they can flip out of easily at a low cap rate, and simple single tenant pads that they will get done in a snap.

    mavdog
    mavdog topcommenter

    @holmantx 

    What does Wynne Jackson or Jackson Shaw (which is still alive and developing BTW) have to do with "big brokerage houses" that you mentioned? answer: nothing.

    second, you failed to address the error in what you wrote, that "Crow" is "busted". they aren't, and neither is their parent, CBRE.

    you wrote an inaccurate accusation. it is flat out wrong.

    JLL didn't buy Staubach's retail unit, either. CBRE has been buying firms for a couple of decades, that's how they became the largest in the world. Both these firms are profitable. they are NOT "busted" by any stretch.

    ScottsMerkin
    ScottsMerkin topcommenter

    @mavdog @holmantx As someone in the know, I can promise you that TCC and CBRE are doing just fine, and just not locally, the Global business is coming back.  Trammell is about to break ground on another development at Pearl and Woodall where the Chase branch sits.  There are many other projects in the works.  And I cant tell you the last time they laid someone off.  They have been hiring like crazy and CB's property management business is booming, signing new outsourcing agreements with clients monthly

    WylieH
    WylieH

    @mavdog Interesting... the local TC folks don't come across as particularly impressive.  I'll have to take a look at the Houston project.  Agreed about the residents, their demands are actually pretty modest--- they just want a more rationally planned project.

    holmantx
    holmantx topcommenter

    @mavdog @holmantx

    June 16 2008 (Bloomberg) -- Jones Lang LaSalle Inc., the world's second-largest commercial real estate broker, agreed to buy the Staubach Co. for $613 million to expand its tenant representation business. Jones Lang will pay $123 million in cash, $100 million in stock and the balance over five years in cash, the companies said today in a statement. Dallas-based Staubach, founded by former National Football League star Roger Staubach, helps tenants find office, retail and industrial space.


    JLL left out their retail unit.



    WylieH
    WylieH

    @mavdog @WylieH Greenway Commons looks like a sensible, high profit development.  How do we encourage TC to fire their Dallas people and bring in the Houston team to develop a more profitable, sensible project and bring an end to the litigation?

    mavdog
    mavdog topcommenter

    @WylieH 

    I believe that bus has already left the station....

    becoolerifyoudid
    becoolerifyoudid

    @mavdog @WylieH  Not necessarily.  TC is losing money while this is tied up in litigation, EVA hasn't even begun to see how expensive litigation can be (discovery is always one of the most expensive phases).  Maybe the Court appoints a strong mediator that gets TC to make a business decision and EVA to see that the only certainty for them is an avalanche of attorney bills. 

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