Filed: 3/11/2021 10:57 AM

Lisa David, District Clerk

Williamson County, Texas
Michele Rodriguez

21-0342-C395
CAUSE NO. _________

CHAUDHARI PARTNERSHIP §
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§ IN THE _____DISTRICT COURT
§ OF
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Plaintiff § Williamson County - 395th Judicial District Court
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v. § WILLIAMSON COUNTY, TEXAS
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CITY OF AUSTIN, TEXAS §
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Defendant §

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR EMERGENCY RELIEF

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES Chaudhari Partnership, Plaintiff herein, filing this Claim for Declaratory

Judgment and Emergency Relief pursuant to the Texas Uniform Declaratory Judgments Act,

section 37.004(a) of the Texas Civil Practice and Remedies Code, and Article I, Sections 17 and

19 of the Texas Constitution and would show the Court the following:

PARTIES AND SERVICE

1. Plaintiff, Chaudhari Partnership, is a Texas partnership and owner of property

located at 10809 and 10811 Pecan Park Blvd, bldg. 1, Austin, TX 78750.

2. Defendant City of Austin, a municipality, may be served with process by serving

the Clerk of said municipality, at Austin City Hall, 301 W. Second St., Suite 1120, Austin, TX

78701. Service of said Defendant as described above can be effected by personal delivery.

JURISDICTION AND VENUE

Envelope# 51376745
 3. The Court has jurisdiction over the lawsuit because the suit arises under the Texas

Uniform Declaratory Judgments Act, section 37.004(a) Chapter 37 of the Texas Civil Practice

and Remedies Code, and Article I, Sections 17 and 19 of the Texas Constitution. Plaintiff seeks

injunctive relief, monetary relief over $1,000,000, and a declaratory judgment preventing the

consummation of the City of Austin’s purchase without proper notice and compensation for the

loss of value of its properties and easement.

4. This Court's jurisdiction is not precluded by immunity in that the City's

governmental immunity to suit and liability is specifically, clearly, and unambiguously waived

and abolished with respect to Plaintiff's claims for relief.

5. Likewise, this Court's jurisdiction is not precluded by immunity in that the City

has no governmental immunity to suit and/or liability against Plaintiff's claims for the damaging

of its property and property rights under Article I, Sections 17 and 19 of the Texas Constitution,

which state in relevant part: "No person's property shall be taken, damaged or destroyed for or

applied to public use without adequate compensation being made..." and “No citizen of this State

shall be deprived of life, liberty, property, privileges or immunities, or in any manner

disfranchised, except by the due course of the law of the land.”

6. Venue is proper in Williamson County because Plaintiff's property and the City of

Austin’s property at issue are located within this County, and all of the events and/or omissions

giving rise to the claims herein presented occurred within this County.

I. FACTS

7. Plaintiff Chaudhari Partnership owns properties within the current limits of the

City of Austin, Texas, located at 10809 and 10811 Pecan Park Blvd., Austin, TX 78750.

8. On or about February 4, 2021, The City Council of Defendant City of Austin

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voted to approve pursuing the acquisition of Candlewood Suites, also located at 10811 Pecan

Park Blvd., bldg. 2. See Item 61, February 4, 2021 Austin City Council agenda below.:

“Authorize the negotiation and execution of all documents and instruments necessary

or desirable to purchase in fee simple approximately 2 acres of land and a building containing

approximately 47,355 square feet out of Lot 1-A, Block B, including a non-exclusive joint use

access easement over and across 0.081 of an acre of land, more or less, being a portion of Lot

10-A, Block B, both of the Amended Plat of Lot 1 and a Portion of Lot 2, Resubdivision of Lots

7, 8 &9, Block B, Pecan Park, according to the map or plat thereof, recorded in Cabinet Y,

Slides 205-207, Plat Records, Williamson County, Texas; known locally as 10811 Pecan Park

Blvd, Bldg #2, Austin, TX 78750 from Apple Pie Hotels, LLC., A Texas Corporation for a total

amount not to exceed $9,500,000, including closing costs.”

9. Plaintiff is also the co-owner of the “non-exclusive joint use access easement over

and across 0.081 of an acre of land” referenced in the Council item above.

10. Defendant City of Austin’s stated intention is to convert the property, currently a

Candlewood Suites hotel, from commercial use to residential use. See memorandum to Council

dated January 20, 2021: “Re: Staff Recommendation for Hotel Purchases This memo is

intended to provide supplementary information to support Request for Council Action (RCA)

posted for the January 27th City Council Agenda, which relates to the purchase of two existing

hotel properties for conversion into permanent supportive housing for individuals experiencing

chronic homelessness.” (emph. supp.) There was also abundant press coverage of the City’s

actions and its intent.

11. The entire subdivision, including all of Plaintiff’s properties as well as the

Candlewood Suites, is subject to a deed restriction stating:

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 19. DEVELOPMENT OF THIS SUBDIVISION IS RESTRICTED TO USES OTHER
THAN RESIDENTIAL.
See plat note 19, amended plat recorded January 29, 2004. All subsequent deeds, as well

as the joint use access easement, are subject to this restriction of record.

12. Plaintiff never received any written or verbal notice of any kind from the City

regarding its anticipated purchase or change of use of the adjoining property and jointly owned

access easement.

13. Plaintiff has invested a total of $23,200,000 in its properties, which have a combined

appraised value of $28,000,000. The proposed use of the adjoining property and jointly owned

easement for residential purposes will diminish Plaintiff’s reasonable investment backed

expectations for its investment and impair its use of the jointly owned easement.

II. GROUNDS FOR EMERGENCY RELIEF

14 Plaintiff’s application for emergency relief is authorized by Texas Civil Practice and

Remedies Code 65.011.

15. Plaintiffs ask the Court to order the City of Austin to cease any further action

toward pursuing purchase of the property, as its proposed change in use of the joint use access

easement to residential use will cause Plaintiff to be in violation of the deed restrictions.

Plaintiff seeks to enforce existing law as provided by Sections 3.01 and 5.01 of the joint use

access easement. Further, the proposed change in use constitutes a regulatory taking of

Plaintiff’s real property and easement rights without compensation.

16. It is probable that Plaintiff will recover from Defendant after a trial on the merits

because Plaintiff has met all elements of its claim for relief.

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 17. If Plaintiff’s’ request is not granted, harm is imminent because the effective date of

the agenda item adopted by Council was February 4, 2021 and the Council anticipates acting

within a 90-day period set aside to conduct due diligence.

18. The harm that will result if this relief is not granted is irreparable because

Plaintiff will be forced to allow violation of the joint use access easement deed restrictions on

its jointly owned easement. Plaintiff will also lose its investment backed expectations in the

value of both its properties and its share of the easement. Plaintiffs have no adequate remedy at

law because Defendant’s duty to comply with the Council’s direction is imminent, and once the

purchase is completed it cannot be undone.

III. ARGUMENT AND RELIEF REQUESTED

19. The deed restriction prohibiting residential use applies to the joint use access

easement. "Restrictive covenant" means any covenant, condition, or restriction contained in a

dedicatory instrument, whether mandatory, prohibitive, permissive, or administrative. TEX.

PROP. CODE §202.001(4); All dedicatory instruments must be recorded in the real property

records of each county in which the property to which they relate is located and have no effect

until they are recorded. TEX. PROP. CODE §202.006(a)&(b). Plat notes are used to create

restrictions that are to run with the land and be enforceable by area lot owners, or otherwise are

clearly intended to confer valuable rights. Detailed plat notes, such as this one excluding

residential use, are utilized as a vehicle to convey information beyond the establishment of lots,

blocks and sections and lay out subdivisions for the extension of public infrastructure. See

Raman Chandler Props., L.C. v. Caldwell's Creek Homeowners Ass’n, Inc., 178 S.W.3d 384

(Tex. App.—Fort Worth 2005, pet. denied) (plat states that certain private open space will be

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owned and maintained by an owners' association as defined in separately recorded restrictions);

Anderson v. McRae, 495 S.W2d 351, 359 (Tex. App.—Texarkana 1973, no writ) (recreation

areas designated on a plat for the exclusive use of subdivision lot owners deemed to became

part of the deed by incorporation by reference). The general rule is that restrictive covenant can

typically be enforced by “any interested property owner” whose property was intended by the

grantor to benefit from the restrictive covenant. Giles v. Cardenas, 697 S.W.2d 422, 427 (Tex.

App.–San Antonio 1985, writ ref’d n.r.e.). Plaintiff seeks both injunctive and declaratory relief,

that as co-owner of the joint use access easement, residential use of that easement is prohibited

by deed restriction.

20. Pursuant to the Texas Constitution, Article I, Section 17, Plaintiff is entitled to

adequate compensation for the actions of the City that have damaged or destroyed its property.

Plaintiff seeks recovery of its actual damages of loss of value of its properties and share of the

easement in this suit.

21. Pursuant to Article I, Section 17 of the Texas Constitution, Plaintiff seeks its

actual damages because the regulatory taking imposed by the City will be of a permanent

nature and is of a regulatory nature. No physical intrusion or occupation of property is required

for a taking claim under the Texas Constitution, pursuant to which this claim is made.

22. The action by the City is allegedly for the express benefit of the public and for the

ostensible benefit of the health, safety and welfare of the public. The City has reduced the value

of Plaintiff’s property and share of easement, without providing Plaintiff adequate

compensation for the loss of its property rights in the easement or compensation for the loss of

property value to its properties.

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 23. Article I, §17 of the Bill of Rights of the Texas Constitution states, in relevant

part: "No person's property shall be taken, damaged or destroyed for, or applied to public use

without adequate compensation being made ..." A municipality must not abuse its powers to

impose specific actions on a property for the supposed benefit of the municipality without

compensating the landowner for the loss of fair market value imposed. The actions of the City

are a regulatory taking of Plaintiff’s real property and Plaintiff prays that the Court order

Defendant to pay Plaintiff fair compensation for that regulatory taking.

24. Defendant has failed and refused to afford Plaintiff due process in the form of

public notice, hearings, recognition of its vested rights, and taking of property rights and

values, in blatant disregard for Plaintiff's well-established rights. Defendant has taken these

actions to deprive Plaintiff of its property with actual knowledge of the violations it was

committing with blatant disregard for the rights of protection afforded to Plaintiff under the

U.S. and Texas Constitutions. Article I, section 19 of the Texas Constitution states: “No citizen

of this State shall be deprived of life, liberty, property, privileges or immunities, or in any

manner disfranchised, except by the due course of the law of the land.”

25. Defendant is imposing an unlawful land use upon Plaintiff and its properties

in a manner that does not comply with due process protections required under state law to

determine and prevent unconstitutional takings. The imposition of these unlawful actions,

and their related devaluations, and takings of Plaintiff's property rights have been carried out

by the Cityin violation of the concept of constitutional protections due to the City's desire to

justify a proposed illegal use of property.

26. These actions executed by the City and its officers and agents, to carry out a

taking of Plaintiff's property and a substantial devaluation of said property without providing

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Plaintiff any due process or compensation that is mandated by law to be complied with in the

evaluation of takings of private property. This devaluation and avoidance of the due process of

law was taken by the City in a manner that was willful, deliberate, malicious, or with reckless

disregard for Plaintiff’s clearly established constitutional and property rights. Defendant

subjected and caused Plaintiff to be subjected to a deprivation of its rights to due process and

equal protection by taking and devaluing Plaintiff's property without notice or having the

opportunity for a hearing as required by law.

27. Due process requires minimally, the right to notice and the opportunity to be heard

such as that allowed and normally provided through the Texas Local Government Code. Defendant

deprived Plaintiff of its equal protection and due process rights by changing its and Plaintiff’s

land use without regard to the dedicatory instrument prohibiting such use. Plaintiff requests the

Court to strike down all actions taken by the City that were done in violation of Plaintiff's due

process protection afforded by the Texas and U.S. Constitutions.

28. Section 37.004(a) of the Texas Civil Practice and Remedies Code allows the

Court to construe the application of the City’s ordinance adopting the purchase of Candlewood

Suites for residential use to these facts. Plaintiff seeks a declaratory judgment that the City of

Austin’s purchase of Candlewood Suites is invalid to the extent it seeks to convert the jointly

owned easement to a residential use not that is not allowed by the dedicatory instruments.

29. Pursuant to Section 37.009 of the Texas Civil Practice and Remedies Code, and

Article I, §17 and §19 of the Texas Constitution, request is made for all costs and reasonable and

necessary attorney's fees incurred by Plaintiff 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.

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 PRAYER

WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that declaratory judgment

pursuant to section 37.004(a) of the Texas Civil Practice and Remedies Code be granted, and that

Plaintiff be awarded injunctive relief, its actual damages for the unconstitutional regulatory

taking as described above, costs and reasonable and necessary attorney's fees, and for such other

and further relief that may be awarded at law or in equity.

Respectfully submitted,

_/s/ Roger B. Borgelt

Roger B. Borgelt
Borgelt Law
State Bar No. 02667960
614 S. Capital of Texas Hwy.
Austin, Texas 78746
Tel: 512/600-3467
E-mail: roger@borgeltlaw.com