Daphne Scarbrough 2007 Metro Lawsuit

7/31/2019 Daphne Scarbrough 2007 Metro Lawsuit

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CAUSE NO. __

DAPHNE SCARBROUGH,Plaintiff

IN THE DISTRICT COURT

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VS.

THE METROPOLITAN TRANSITAUTHORITY OF HARRIS COUNTY,

Defendant.

PLAINTIFF'S ORIGINAL PETITION AND SUIT FORDECLARATORY JUDGMENT

TO THE HONORABLE JUDGE OF THIS COURT:

Plain tiff, DAPHNE SCARBROUGH, hereby files this suit alleging claims and causes of

action for Breach of Contract, Declaratory Judgmen t and Constitutional Impairment of Contract

against Defendant, THE METROPOLITAN TRANSIT AUTHORITY OF HARRIS COUNTY,

(hereinafter "Metro") and in support shows as follows:

I .

THE CONTROVERSY

1. Plaintiff files this suit because Metro is not complying with Resolution 2003-93

approved in Special Election on November 4, 200 3 relating to the acquisition, construction,

repair, equipping, improvement or extens ion of Metro's transit authority system (hereinafter

"Resolution''). Despite their non-compliance with the Resolution, Metro has announced that it

intends to en!er into a contract for the construction of a substantial portion of METRORail in the

amount of at least one billion dollars . Metro has failed to comply with the Resolution by: I) its

tInanc ing for the METRORail; 2) its switch in technology for the METRORaiI; 3) its . failure to

increase bus service; 4) its deviation in the routes for the METRORail; 5) its changes in scope of


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the projects authorized; and 6) its General Mobility Fund accountability.

II.THE PARTIES

2. Plaintiff Daphne Scarbrough is a residential property owner, commercial

businesswoman and taxpayer in the Metro service area, and resident of HarrisCounty, Texas.

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Texas law recognizes the right of parties similarly situated to bring a suit to enforce referenda ,.Plaintiff voted in the 2003 Referendum . Plaintiff is a landowner on one of the routes that Metro

is proposing to use in contravention of the Resolution and she will suffer significant financial

damages if Metro is allowed to proceed in violation of the Referendum . Her interests as a

taxpayer would also be affected if Metro undertakes 'action that violates the financialrequirements of the Resolution.

3, Defendant Metro is an authority created pursuant to Chapter 451 of the Texas

Transportation Code which may be served by serving its Chairman of the Board of Directors

David Wolff and its President and CEO Frank J. Wilson, both at its headquarters 1900 Main

Street, Houston, Harris County, Texas 77002.

III.JURISDICTION AND VENUE

4. Jurisdiction and venue in this action is proper and maintainable in Harris County,

Texas.

IV.FACTS

S. In 2003, Mefro proposed a special election involving rail and the expansion of bus

service in its service area. The proposition asked the voters to vote "For" or "Against" the

authorization of bonds, notes and other obligations for Metro's Transit Authority System ,

including the Metro Solutions Transit System Plan (hereinafter "Metro Solutions Plan"), as well


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as the dedication of 25% of Metro 's sales and use tax revenues for road and street improvements

Authorization of METRO to issue bonds, notes and other obligations payable, in

whole or in part, from 75% of METRO's sales and use tax revenues in anaggregate principal amount not to exceed $640,000,000 for METRO's TransitAuthority System, including the METRO Solutions Transit System Plan (asdescribed in Exhibits A and A-I of METRO Resolution No. 2003 -77 and theof.ficial notice of election, wh ich are incorporated herein) , which includes busservice expansions and construction of extensions and new segments of METRO's rail system known as "METRORail," approva l of such plan andconstruction of the METRORail and commuter line components (includingapproximately 64 .8 miles of light rail and 8 miles of commuter line, as describedin Exhibits A and A-3 through A-9 of such resolution and the official notice of election, which are specifically incorporated herein and generally summarizedbelow), and dedication of 25% of METRO's sales and use tax revenues through

September 30, 2014, to street improvements and related projects, as authorized bylaw, and with no increase in the current rate of METRO 's sales and use tax.

through 2014. The ballot stated:

*****The following summary lists the components and segments of METRORail andcommuter line, as described in Exhibits A and A-3 through A-9 of such resolutionand the official notice of the election, and is part of the ballot and the propositionbeing submitted to the voters at the election. The segments marked * areexpected to be completed by the end of 2012 utilizing the proceeds of the $640million of bonds , if approved at the election.

I, North Hardy:*(a) UH-Downtown to Northline Mall

(b) Northline Mall to Greenspoint(c) Greenspoint to Bush IAH Airport

2, Southeast:*(a) Downtown/Bagby to Dowling*(b) Dowling to Griggs/61 0

(c) Griggs/610 to Park & Ride in the vicinity of Hobby Airport(d) Sunnyside: Southeast Transit Center to Bellfort(e) Sunnyside: Bellfort to Airport Blvd.

3 , Harrisburg:*(a) Dowling to Magnolia Transit Center

(b) Magnolia Transit Center to Gulfgate Center(c) Gulfgate Center to Telephone Road

4. *Westpark-Wheeler Station to Hillcroft Transit Center5. Uptown/West Loop-Westpark to the Northwest Transit Center6. hiller Katy-DowntowniBagby to Northwest Transit Center

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. - _ ._ -- --_._ - - - -_ .

7. Southw est Commuter Line- Fannin South Park & Ride to Harris CountyLine 1

6. On November 4, 2003, the Resolution passed by a small majority , with 51.7%

(189,465) voting for and 48 .3% (176,890) voting against it. Beginning in late 2005 , Metro began

changing the Referendum Plan and , on September 22,2005 , Metro's Board of Directors passed a

resolution to imp lement Pha se II of the METRO Solutions Plan 2 which had "morphed" by that

time into something different than that which has been passed by the v oters in the R esolution.

7. The Resoluti on stated that Metro could not "undertake the construction of any

new segment of Phase II of METRORail with proceed s of the bonds , notes or other obligations

author ized at the Election w ithout first obtaining appro vai of the segment for federal capital

assistance under applicable federal law and regulations or the commitment of substantial pri vate

funds. " According to a Metro press release, Metro has entered into a contract that calls for early

construction activiti es. This contract was entered into p rior to the above requirements being met.

In addition, the proposed aggregate principal amount of bonds, not es or other obligations Metro

intends to issue to complete the entire Phase II of the METRORail cannot exceed

$640,000 ,000.00.

8. Additionally, pursuant to the R esolution, Metro agreed to extend the "Street

Improvement Dedication " in effect at the time of the election to continue through September 14 ,

2014 . This Dedication is a fund that Metro is obligated .to pay to the City of Houston, Harris

County , and the fourteen participating cities up to twenty -five (25%) percent of Metro's sales ta x

revenues. Metro has ente red into Referendum mandated extensions .of the Dedication with

I A true and correct copy of the ballot is attached hereto as Exhibit A .2 According to METRO'S webs ite, the METRO S olutions Plan "is a c omprehen sive transit p lan that provides arange of technologies and services to addre ss the varying mobility needs of specific corridors and th e communit yat large through 2025_"

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fourteen participating cities, but has failed to do so with the City of Houston and Harris County.

Plaintiff further alleges that Metro is neither distributing the funds as was required by the ballot

nor accounting for them in a manner required by law.

9. Additionally, the technology Metro is utilizing for the various routes in the

METRORail system does not comply with the Resolution. Metro proposes to use some form of

Bus Rapia Transit when the voter approved plan was for light raiL

10. The ballot, the educational material distributed by Metro to the public, and the

studies undertaken by Metro contained specific maps for the rail lines . Metro is not complying

with the routes specified in the Resolution.

11. Metro is not increasing its bus service as required by the Resolution.

V.CAUSES OF ACTION

A. Breach of Contract

12. Plaintiff incorporates the foregoing paragraphs herein by reference.

13. Plaintiff entered into a contract with Defendant by the terms of the 2003

Referendum. As will be shown at trial, Defendant, through its aforementioned actions, has

breached the contract.

B. Suit for Declaratory Judgment

14. Plaintiff incorporates the foregoing paragraphs herein by reference .

15. Plaintiff seeks a declaration saying that:

L Metro must fully comply with the financing restrictions contained in the

Resolution;

11. Metro cannot switch technologies for the METRO Rai l without first

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obtaining voter approval;

iii. Metro must increase bus services as promised or call a new elect ion to

obtain vo ter approv al to decrease;

I V. Metro cannot deviate from the routes of the lines that were approve d by

the voters without ca lling a new election ; and

v. Metro shall not change the scope of the projects which were authorized

without first obtain ing voter approva l.

C. Constitutional Impairment of Contracts

16. Plaintiff inco rporates the forego ing paragrap hs herein by reference .

17. Since Metro has s ubstantially altered the rights and expectatio ns of Plaintiff

through the afore mentioned actions , they are in violation of article I, section 16 of the Tex as

Constitution.

VI.CONCLUSION

For the reasons detailed above, Plaintif f Daphne Scarbrough respectf ully requests that

this Court determine the following:

a. Metro breached its contract with Plain tiff;

b. Metro must fully comp ly with the financing restric tions' contained in theResolution;

C . Metro canno t switch technologies for the METRORail without first obtaini ngvoter approval;

d. "Metro must increase bus services as promised;

e. Metro canno t deviate from t he routes of the lines th at were approved by the voters

without calling a new election;

f Metro shall not change the scope of the pro jects which \vere a uthorized w ithoutfirst obtaining voter approvaL

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g. Metro violated article I , section 16 of the Texas Constitution;

h. Reasonable and necessary attorneys fees;

1. All costs of sillt; and

J. All other and further relief to which Plaintiff may show herse lf to be justlyentitled .

Respectfully Submitted ,

ANDY TAYLOR & ASSOCIATES, P .e.

ATTORNEYS FOR PLAINTIFF DAPHNESCARBROUGH

~~ BY: ( ,L~~ ~ ~ State Bar No. 19727600Amanda PetersonState Bar No. 24032953405 Main Street , Suite 200Houston , TX 77002713-222-1817 (telephone)713-222-1855 (f acsimile)

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Daphne Scarbrough 2007 Metro Lawsuit