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Cause No. 2019-83384

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Cause No. 2019-83384 12/11/2019 10:51 AM Marilyn Burgess - District Clerk Harris County Envelope No. 39156642 By: Chandra Lawson Filed: 12/11/2019 10:51 AM CAUSE NO. 2019-83384 ALAN ATKINSON § IN THE DISTRICT COURT OF § V. § HARRIS COUNTY, TEXAS § HOUSTON HOUSING AUTHORITY § 61st JUDICIAL DISTRICT § PLAINTIFF’S FIRST AMENDED PETITION FOR DECLARATORY RELIEF AND APPLICATION FOR TEMPORARY AND PERMANENT INJUNCTIONS Plaintiff Alan Atkinson files his First Amended Petition for Declaratory Relief and Application for Temporary and Permanent Injunctions as follows. DISCOVERY 1. Plaintiff requests that discovery in this case be conducted pursuant to Rule 190.3 (Level 2) of the Texas Rules of Civil Procedure. PARTIES 2. Plaintiff Alan Atkinson is an individual resident of Harris County, Texas, and, as a member of the general public, an interested person under § 551.142(a) of the Texas Open Meetings Act (“TOMA”), TEX. GOV’T CODE §§ 551.001 et seq. 3. Defendant Houston Housing Authority (“HHA”) is a public corporation located in Harris County, Texas, and a governmental body under TOMA § 551.001(3). It may be served with process by serving its President, Tory Gunsolley, at 2640 Fountain View Drive, Suite 400, Houston, Texas 77057. JURISDICTION & VENUE 4. Jurisdiction is proper in this Court because the amount in controversy and non- monetary relief sought are within this Court’s jurisdiction. 5. Venue is proper in this Court pursuant to TCPRC § 15.002 (a)(1) and (2) because all or a substantial part of the acts and omissions giving rise to this claim occurred in Harris County, Texas, and because Defendant resides in Harris County, Texas. CONTROVERSY 6. As required by Texas Rule of Civil Procedure 47, Plaintiff seeks monetary relief of $100,000 or less and nonmonetary relief. FACTS 7. HHA was created by the Houston City Council under the U.S. Housing Act of 1937 and enabling state legislation. It is charged with providing decent, safe and sanitary housing for low to moderate income families and individuals. 8. Under TOMA, HHA is required to “give written notice of the date, hour, place, and subject of each meeting held by the governmental body.”1 “The notice must be sufficient to apprise the general public of the subjects to be considered during the meeting.”2 9. Decisions entrusted to governmental bodies such as HHA must be made by the body as a whole at a properly called meeting.3 Except as provided for in the Government Code, “every regular, special, or called meeting of a government body shall be open to the public.”4 1 TEX. GOV’T CODE ANN. § 551.041 2 2018 Open Meetings Handbook, Office of the Attorney General of Texas 3 See Webster v. Texas & Pac. Motor Transp. Co., 140 Tex. 131, 134, 166 S.W.2d 75, 76 (1942). 4 TEX. GOV’T CODE ANN. § 551.002. 2 10. Any “final action, decision, or vote” by HHA “may only be made in an open meeting that is in compliance with the notice provisions.”5 HHA is also required to “prepare and keep minutes or make a recording of each open meeting.”6 Any action taken by HHA in violation of the Open Meetings Act is “voidable.”7 11. The typical HHA meeting notice contains only resolution numbers and vague descriptions of the business to be conducted. Then, sometime after posting a notice – either just before, during, or even after the meeting – HHA makes a meeting packet available. That packet contains the agenda, the minutes from the prior meeting for approval, and, sometimes, the resolutions to be acted upon at the meeting. It is only through this packet, if the resolutions are included, that a member of the general public may be able to ascertain the subject of the resolutions to be considered at the meeting. Many of these resolutions are never discussed in public session but instead are acted upon without discussion after an Executive (Closed) Session 12. HHA’s agenda for its June 17, 2019, meeting listed “Resolution No. 3063 – Memorandum of Understanding with the NRP Group.” Houston Housing Authority Board of Commissioners Meeting, June 17, 2019 Packet, attached as Exhibit B, at 4. HHA then passed Resolution No. 3063 at its June 17, 2019, meeting following a closed session. June 17, 2019 Meeting Minutes, contained in Houston Housing Authority Board of Commissioners Meeting, July 16, 2019 Packet, attached as Exhibit C, p. 11. 13. For some reason, HHA did not include Resolution 3063 or the memorandum recommending passage of Resolution 3063 in its after-the-fact meeting packet, so the general 5 TEX. GOV’T CODE ANN. § 551.102 6 TEX. GOV’T CODE ANN. § 551.021 7 TEX. GOV’T CODE ANN. § 551.141 3 public could not ascertain from that packet the subject of Resolution 3063 that was considered and approved at the June 17th meeting. Ex. B, pp. 20-21 (skipping from 3062 to 3064). 14. HHA’s agenda for its July 16, 2019, meeting included “Resolution No. 3074 - Authorization of acquisition of the EADO 800 Apartment Site.” Ex. C., p. 4. HHA then passed Resolution No. 3074 at its July 16, 2019, meeting following a closed session, by a vote of 4-2-0. July 16, 2019 Meeting Minutes, contained in Houston Housing Authority Board of Commissioners Meeting, August 27, 2019 Packet, a true and correct copy of which is attached hereto as Exhibit D, p. 17. 15. Resolution 3074 and the July 9, 2019, memorandum recommending its passage, provided to the public only shortly before, at or after the July 16 meeting, gave details about that resolution. Exhibit C, at 107-114. Resolution No. 3074 relates to a memorandum of understanding and a purchase contract assignment for property described as the “EADO 800 Apartments.” Id. at 109. Exhibit A to the memorandum is a legal description of the property to which the MOU and purchase contract relate, identifying it as 21.680 acres of land. Id. at 110-115. The memorandum provides” “Under the Purchase Contract . the latest that closing can occur is in mid-September” and “NRP proposes that the Purchase Agreement be assigned to HHA so that HHA can proceed to acquire the Property prior to expiration of the Purchase Contract.” Id. at 108. 16. On November 19, 2019, the Court issued a temporary restraining order, precluding further substantive action on Resolution Nos. 3063 and 3074 on the basis that there had not been proper notice of the subjects of Resolutions 3063 and 3074 in advance of the meetings at which they were approved. 17. On November 26, 2019, in order to “cure” the defects giving rise to the temporary restraining order, HHA held a meeting to ratify Resolutions Nos. 3063 and 3074. Houston 4 Housing Authority Special Board of Commissioners Meeting, November 26, 2019 Packet, attached as Exhibit K, pp. 3-4. Resolution No. 3063 was ratified via Resolution No. 3116, and Resolution No. 3074 was ratified via Resolution No. 3117. Exhibit K, pp. 3-4. 30-44. 18. Again, Resolution No. 3063 and its supporting memorandum have never been provided to the public. However, the memorandum regarding Resolution No. 3116, which ratified Resolution No. 3063, was included in the November 26, 2019 Board Packet. Exhibit K, pp. 31- 36. That memorandum provides little detail regarding Resolution No. 3063, except to say that it authorized “the President and CEO to finalize negotiations with The NRP Group for the development in East Downtown on a parcel of land on and around 800 Middle Street.” Attached to that memorandum is the exact same legal description of a 21.680-acre parcel of land as was attached to the memorandum regarding Resolution No. 3074. 19. In short, Resolutions No. 3063 and 3074, ratified by Resolutions No. 3116 and 3117 (the “Resolutions”), authorized HHA to take certain actions in connection with the acquisition of a 21.680-acre parcel of land at or around 800 Middle Street. 20. Upon information and belief, HHA has acted pursuant to these Resolutions, including negotiations for the purchase of the 21.680-acre parcel of land, and entering into agreements with various private individuals and entities in connection with that 21.680-acre parcel of land. But HHA, under the guise of these Resolutions, has also been taking these same actions— without proper authorization—in connection with the acquisition of highly contaminated land which it is seeking to sneak into the deal, separate and apart from the 21.680-acre parcel of land. 21. The Resolutions allow HHA to conduct this activity in connection with the 21.680- acre parcel of land identified in the legal descriptions attached to the respective memoranda. 5 However, HHA has been actively seeking to purchase an additional approximately six acres of land adjacent to that for which it has given no notice and for which it has received no authorization. 22. During the November 26, 2019 Special Board Meeting, HHA President Tory Gunsolley publicly stated that Resolution No. 3117, ratifying Resolution No. 3074, involved the purchase of 28 acres of land for the housing project, not just the 21.680-acre parcel of land that is the subject of the Resolutions disclosed to the public. Upon information and belief, Gunsolley has made similar representations in private to, among others, the president of the homeowners’ association for the neighborhood bordering the south side of this property. 23. There are two parcels of land adjacent to the 21.680-acre parcel, which together total roughly six acres. These parcels are: a) a 5.12-acre tract comprising HCAD ## 013 168 000 0001, 013 169 000 0001, and 013 170 000 0001; and b) a 1.7-acre tract comprises HCAD #036 256 000 0001 (the “Unauthorized Properties”).
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