Charles N. Draper v. Greg Guernsey, in His Official Capacity as Director of Planning and Development Watershed Protection Review Department And City of Austin

December 16, 2015

CHARLES N. DRAPER,

Appellant, Pro Se § CAUSE NO. 03-15-00741-CV

§

V. § IN THE THIRD COURT

§ OF APPEALS

GREG GUERNSEY, §

IN HIS CAPACITY AS DIRECTOR OF § at Austin, Texas

PLANNING AND DEVELOPMENT §

WATERSHED PROTECTION §

REVIEW DEPARTMENT, §

AND CITY OF AUSTIN §

Appellees.

Appellant's Brief

Appellant Pro Se: Appellee:

Charles N. Draper Greg Guernsey, in his Capacity

160 Maeves Way Director ofPlanning and

Austin, Texas 78737 Development, Watershed

Phone:(512)699-2199 Protection Review Department,

Email: cd@teiasland.com and City ofAustin

Andralee Cain Lloyd,

Law Department,

Assistant City Attorney

City Hall, 301 West 2nd Street

PO Box 1546, Austin TX 78767-1546

Phone: (512) 974-2925

Fax:(512)974-1311

/'RECEIVED N

DEC 1 6 2015

THIRD COURT OFAPPEALS

\ JEFFREY p. KYLE /

TABLE OF CONTENTS

IDENTITY OF PARTIES & COUNSEL p.4

INDEX OF AUTHORITIES p.5

STATEMENT OF CASE p.6

PERMISSION TO APPEAL p.6

STATEMENT ON ORAL ARGUMENT p.7

LGC §43.002 Continuation of Land Use,

• Valid Travis County Flood HazardPermit (Exhibit C) p.9

o Valid Travis County Flood Hazard Permit (Permit #85-2558); issued in

1985; prior to annexation (Affidavit: R. Glasper)

o County permit has no expiration date, impervious cover, or height limitations.

o Property is exempt from Barton Creek Watershed Ordinance and Site

development, per Sec. 9-l-303(b) p.8. (Affidavit: C. McClendon)

CPRC §101.0215 (29) Governmental Liability,

• Planning and Zoning p. 17, 18

Texas Tort Claims Act not applicable, 'intentional tort'

o Meadows v. Ermel, 483 F.3d (Fifth Circuit. 2007) p.18

o 'Proprietary function* v. 'Governmental function p.18

o Obstruction of civil process p.18

Texas Constitution Article I, §17(a)(160)(161) p.8

Vested-Rights v. Inverse Condemnation p.7

ISSUES TO BE PRESENTED FOR REVIEW p.9

• PAST HISTORY p.ll

• CURRENT HISTORY p.13

STATEMENT OF ARGUMENTS p.15

LGC §43.002 Continuation of Land Use,

• Valid Travis County Flood Hazard Permit

o (Permit #85-2558) issued in 1985; prior to annexation

o Travis County permit was commercial without expiration date;

impervious cover, or height limitations was the regulatory authority.

o Property is exempt from Barton Creek Watershed Ordinance and Site

development, per Sec. 9-1-303(b)

LGC §245.00-02 Uniformity of Requirements- p.16

• Schumaker Enterprise v. City ofAustin p.9, 17,20

• Harper Park II v. City ofAustin p. 9, 21

CPRC §101.0215 (29) Governmental Liability- Zoning & Planning p.18

• City ofHouston v. Jenkins ...p.18

• Nueces Cty v. Ferguson, 97 S.W. 3d 205, 217 (Tex. App. Corpus Christi 2002

• Edwards Aquifer v. SheffieldDev. Co, 369 S.W.3d at 838, 140 S.W.3d at 671

CPRC §41.011(a)(5)

• Aggravated and Reprehensible Conduct p.20

DAMAGES p.20

• Owen-Fiberglass Corp. v. Malone, 972 S.W.2d 35, 40 (Tex. 1998) ..p.21

PRAYER ....p.21

CERTIFICATE OF SERVICE ...p.22

VERIFICATION

APPENDIX

/. Plaintiffs No-Evidence Motion for SummaryJudgment

2. Defendant's Response To Plaintiffs No-Evidence Motion for Summary

Judgment, andDefendant's Motion to Strike Plaintiffs Summary Judgment

Evidence

3. Judge Charles Ramsay's Order, November 12th, 2015

EXHIBITS:

AFFIDAVITS

Plaintiff Affidavits:

Robert Glasper. Travis County Transportation and Natural Resources

Carl McClendon, McClendon and Associates

Jim Schissler. Jones & Carter, Engineer

Charles Draper, Tejasland & Commerce. Real Estate Broker

OTHER AUTORITIES:

Attorney General John Cornyn, October 19. 2001- "conveyance to different owner

Attorney General Greg Abbott. December 10. 2012- "project duration"'

NOTICE OF APPEAL

REGISTER OF THE COURT

IDENTITY OF PARTIES & COUNSEL

Appellant, Pro Se: Appellee:

Charles N. Draper Greg Guernsey, in his Capacity

160 Maeves Way Director ofPlanning and

Austin, Texas 78737 Development, Watershed

Phone: (512) 699-2199 Protection Review Department,

Email: edfrteiasland.com and City ofAustin

Andralee Cain Lloyd, Law Department,

Assistant City Attorney

City Hall, 301 West 2n* Street

PO Box 1546, Austin TX 78767-1546

Phone: (512) 974-2925

Fax:(512)974-1311

INDEX OF AUTHORITIES

STATUTES & CASE LAW

Texas Local Government Code §245- Projects

Texas Government Code

• LGC Section §43.002- Continuation of Land Use

• LGC Section §245.00-02- Projects. Permits, Uniformity of Requirements

• Harper Park II v. CityofAustin (App. 3 Dist. 2011) 359 S.W.3d 247

• Schumaker v. City ofAustin, 325. S.W.3d 812. 814-15 (Tex. App- Austin 2010)

Texas Civil Practices & Remedies Code

• Rule §101.0215(29)- Municipal Liability, Planning and Zoning

• Rule §101.106 Restatement (2d) Torts Rule §895 D, Rule §2.2

• Rule §41.011(a)(5)- Evidence to Exemplary damages

• Rule §51.014(d)(l); Tex. CPRC Rule §168- Controlling Question of Law

Texas CPRC §101.001- Government- General Provisions

• City ofHouston v. Jenkins, 363 S.W.3d 808. 814 (Tex. App.-Houston [14th Dist.] 2012

pet. filed 4-30-12) p.18

• Nueces Cty. v. Ferguson, 97 S.W. 3d 205. 217 (Tex. App. Corpus Christi 2002)....p. 18

• Steele v. City ofHouston, 603 S.W.2d 786, 791 (Tex. 1980) (????p.821COA) p.18

• Edwards Aquifer v. Sheffield Dev. Co, 369 S.W.3d at 838, 140 S.W.3d at 671 p.19

Texas Rules of Appeal Procedure

• Rule §28.1- Accelerated Appeal

• Rule §29.1,2(b) - Orders pending Interlocutory Appeal

• Rule §39.1, (b)(c)

CONSTITUTION

Texas Constitution Article I, §17(160)(161) -

•

Intent, Inverse condemnation (160) p. 12

1. Bass v. City ofDallas (App. 7 District 2000) 34 S.W.3d 1

•

Restriction on Use- (161) p.12

2. Weingarten Realty Investors v. Albertson 's, (S.D. Tex. 1999) 66 F.Supp.2d, 825

STATEMENT OF THE CASE

The nature of the case concerns Damages, Declaratory Judgment, and Summary

Judgment, against the City of Austin, and their governmental employee. Greg Guernsey a city

director, and Mr. Guernsey's liability for fraudulent misrepresentations, while acting in his

capacity as Director of Planning and Development Watershed Protection Review Department in

charge of the 'coordinated branch of government*. Guernsey engaged in 'occupational

discretion', utilized his "proprietary* function to intentionally, and knowingly aid and abet the

subversion of State law; Texas LGC§43.002- Continuation ofLand Use. and Texas

LGC§245.00- Project, Torts §876, Tex. CRPC Rule §101.0215(29)- Municipal Liability,

Planning andZoning by denying Appellant's valid Travis County FloodHazard Permit,

thereby, adversely condemning Appellant's 'vested-rights* without adequate compensation;

thereby, violating Texas Constitution Article I, §17(a) - Taking, Damaging, or Destroying

Propertyfor Public Use.

PERMISSION TO APPEAL

Plaintiff'sNo-Evidence Motion for Summary Judgment was filed on November 10th,

2015 in 419th Judicial District, Travis County.

Honorable Justice Charles Ramsay issued interlocutory Orders from the trial court on

November 12, 2015.

Honorable Justice Charles Ramsay denied, Plaintiff's No-Evidence Summary Judgment

motion and provided no legal basis in support of the Order. Justice Ramsay's Order was not

supported by case law. and leaves an unresolved controlling question of law. Rule

CPRC§51.014(d)(l); TRCP Rule §168.

Appellant seeks permission from the Third Court of Appeals to appeal these

interlocutory orders, and causes of action.

If permission is granted, the appeal will be an accelerated appeal.

Additionally, Appellant requests an accelerated appeal based TRAP Rule §28.1

Interlocutory Orders quo warranto. Appeal is based on State statue. Notice of Appeal has been

filed with the trial court, and a Docking Statement has been filed with the Third Court of

Appeals.

STATEMENT OF THE ORAL ARGUMENTS

The Court should grant oral arguments for the following reasons:

1. The issues presented have not been authoritatively decided.

See Tex. R. App. P. 39.1(b).

a. The issue undecided concerns, Greg Guernsey in the 'coordinated branch of

government" as Director ofPlanning andDevelopment Watershed Protection

Review Department, intentionally, breached his 'proprietary* duty, at his

•occupational discretion', failed to perform his governmental function with

'objective legal reasonableness'. aided and abetted the subversion of his

constitutional duty, when he denied Draper's valid Travis County Flood

Hazard Permit, and 'vested-rights*', issued prior to City Annexation; thereby,

adversely condemning Draper property without adequate compensation.

Appellants have produced no-evidence of'agency* intervention, since 1985.

2. Oral arguments would give the court a more complete understanding of the facts

presented in this appeal.

See Tex. R. App. P. 39.1(c).

a. In the evidence to be presented, Appellant would elaborate and expand the

Court's understanding, that Appellee's actions are not an isolated event.

Appellee's gross misrepresentations, sham-affidavits, breach of contracts, and

obstruction of civil process by nature are so reprehensible, thatAppellees*

offend the public trust, and undermine public justice, equally are paramount to

the Court's deliberations.

j. Oral arguments would allow the to better analyze the complicated legal issues

presented in this appeal.

See Tex. R. App. P. 39.1(c).

a. Vested-Rights v. Inverse Condemnation-

i. Conveyance does not diminish the rights of a subdivision.

ii. No 'project' alterations have been filed, or permitted: which changed

the original intent,

iii. Appellant has never "consented* or received compensation,

consideration, or notice of conveyance of'vested-rights*,

iv. City of Austin has the burden to indicate more 'narrow-use',

v. City of Austin has no-evidence of intervention for thirty years,

vi. Travis County was the regulatory 'agency* at time of permit issuance,

vii. Travis County issued a permit #85-2558, August 1985.

viii. Commercial office project could have been built in 1985; therefore,

'vested-rights* should still exist today: without limitations on

impervious cover, or height. LGC§43.002, LGC § 245.002(a).

ix. Property is zoned commercial, was rezoned December 2008, and is

zoned VMU in Oak Hill's Neighborhood Plan, and FLUM.

x. According to the City, the property is located in the Barton Creek

Watershed, simultaneously; the property is in the Williamson Creek

flood plain. Explain (?)

xi. Property is exempt from Barton Creek Watershed Ordinance and Site

development, per Sec. 9-1-303(b)

b. Texas Constitution Article I, §17(a) - Taking, Damaging, or Destroying

Propertyfor Public Use- No person's property shall be taken, damaged, or

destroyed for or applied to public use without adequate compensation being

made, unless the consent of such person, and only if the taking, damage or

destruction is for: (1) the ownership, use, and enjoyment of the property,

notwithstanding an incidental use, by: (A) the State, a political subdivision of

the State, or public at large. Article 1,17 (160)- To establish an inverse

condemnation claim, a property owner must establish that (1) the State or other

governmental entity intentionally performed a certain act (2) that resulted in

the taking, damaging or destruction of the owner's property (3) for public use.

Bass v. City ofDallas. Article 1,17 (161)- An inverse condemnation, for

which a owner is entitled to compensation under the Texas Constitution, may

occur when the government physically appropriated or invades the property or

when unreasonably interferes with the landowner's right to use and enjoy the

property, such as by restricting access or denying a permit for development.

Weingarten Realty Investors v. Albertson's

Oral arguments would significantly aid in deciding this case.

ISSUES TO BE PRESENTED FOR REVIEW

Issue 1: Case law. State statue, nor the evidence supports the Orders, or findings

of the trial court.

1. Texas LGC§43.002- Continuation ofLand Use

(a) A municipality may not, after annexing an area, prohibit a person from:

(1) continuing to use the land in the area in the manner that was

being used on the date the annexation proceedings were instituted if

the land use was legal at that time;

2. Texas LGC§245.00- Project

a. Harper Park II v. CityofAustin, Greg Guernsey, et al

• 'Vested-rights* are 'frozen'; not 'locked-in' as alleged by

defendants.

b. Schumaker Enterprises v. City ofAustin,

• "Vested rights attach to a project once an application for the first permit

required in completing the project is filed with municipality, or 'agency'

responsible for regulating the subject property"; according to defendants.

(Defendants1 Motion in Opposition to Plaintiffs No Evidence Motion for

Summary Judgment and Defendants' Motion to Strike Plaintiffs Motion for

Summary Judgment. (Page 4 of 13, and page 5 of 13)

3. Travis County Flood Hazard Permit #85-2558 does not expire according to

Section §105.5 ofthe International Building Code, alleged byMs. Andralee Cain

Lloyd fSee, City ofAustin, and Greg Guernsey Response to Plaintiff's Motion for

No-Evidence Summary Judgment (footnote2, p.8 of13)).

a. Appellee's arguments are in direct conflict with the Texas statute;

according Texas Attorney General Greg Abbott, who concluded; " A court

would likely conclude that the provisions about which you ask ^Project

Duration; are void because they conflict with Chapter §245of the Local

Government Code." (Other Authorities, Exhibit L)

4. Texas Constitution, Article 1, §17 (a), (160), (161)

Appellees* actions, failed to comply with state statue and has 'taken, damaged,

or destroyed for or applied to public use without adequate compensation being

made* Appellant's property; resulting in damages for 96 (ninety-six) months

for which appellant is entitled to economic compensation.

Issue 2: The Honorable Justice Ramsay's trial court should granted PlaintiffNo-

Evidence Summary Judgment Motion based on;

• Justice Ramsay's Order prevented to materially advance the ultimate

termination of litigation. CPRC §51.014(d)(2)

• In Plaintiffs No-Evidence Motion for Summary Judgment, plaintiff requested;

Alternative Relief. Alternative Relief requested; "...the court to sign an order

specifying thefacts that are established as a matter law and directing other

proceedings as arejust. Tex. R. Civ. P. 166a(e)*\ Judge Ramsay failed to grant

Alternative Relief, specifying the facts.

• Appellees have produced no-evidence appellant's property rights are not

'vested-rights'.

• On the contrary7. Appellees emphasize: '"Vested rights attach to aproject once

an applicationfor thefirst permit required in completing the project isfiled

with municipality, or 'agency' responsiblefor regulating the subject property';

according to defendants. (Defendants' Motion in Opposition to Plaintiffs No

Evidence Motion for Summary Judgment and Defendants' Motion to Strike Plaintiffs

Motion for Summary Judgment. (Page 4 of 13, and page 5 of 13).

10

• Appellant concurs. Travis County was the regulating "agency* at the time of

permit issuance; 'vested-rights* attach to a project once an application for first

permit is filed, August 1985.

• In 1985 the project developer constructed 50 forty-foot piers.

• While the Appellees intervened, during Schumaker application process;

asserting their legal authority, at no time have Appellees intervened (ie. red

tagged) appellant's project in thirty years. Appellees cannot, today

retroactively, assert a change in land-use regulations over 'vested-right*

entitlements.

Issue 3: Under Texas CPRC Rule §101.0215(29)- Municipal Liability, Planning and

Zoning, employees of municipalities are libel for 'intentional torts**.

Greg Guernsey imposed his 'occupational discretion*, did not exercise

'objective legal reasonableness*, when he 'intentionally* denied appellant's valid

Travis County Permit. Rule §101.106 Restatement (2d) Torts Rule §895 D, Rule

§2.2 Proprietary Acts ofGovernment.

Instead Guernsey and the City of Austin chartered a course of abuse, to prevent

the execution of civil process knowingly made false statements to prevent the

performance of civil process. Rule §41.011(a)(5)- Evidence to Exemplary Damages.

• An owner is entitled to compensation under the Texas Constitution, when the

government physically appropriated or invades the property' or when unreasonably

interferes with the landowner's right to use and enjoy the property, such as by

restricting access or denying a permit for development. Weingarten Realty

Investors v. Albertson's

Issue 4: The brazen disregard, and disrespect the City of Austin, and their employees

have exhibited, undermine the public trust.

1. Greg Guernsey, and City of Austin routinely exercise their occupational

discretion and intentionally subvert state statues.

PAST- CASE HISTORY

11

6300-02 Highway 290 W (6300Hwv290W)

(Authority opinion: McClendon & Associates (PL Exhibit A)

1. Subdivision-

a. 6300Hwy290W, a 2.357 acre tract, was "..Legally subdivided as Lots 10 and 11. Block 1,

Town of Oak Hill, and recorded in the Travis County Deed Records on December 16,1872

{PL Exhibit B).

b. In 1982, the City of Austin adopted the Barton Creek WatershedOrdinance, however,

legally subdivided land was exempt from the ordinance and site development standards

per Sec. 9-10-303(b). In short, a site development, or watershed development permit

from the City of Austin was not required".

2. Site Development Permit: issued August, 1985-

a. "Travis County approved a site development or floodplain permit (PL Exhibit Q on

August 9, 1985 for the Patton Lane Office Building, a three story office development.

Although the original subdivision was platted in 1872. the site development permit

represents the first in a series of permits for the project. The Travis County

Engineer's office stamped approved, and issue a permit number: #85-2558 on August 9,

1985. Construction commenced in 1985. Although construction was initiated and later

paused due to economic conditions, the floodplain permit does not expire. The site

included previously existing residential and commercial development from 1950*s and

1970*s, which did not require City or County permits when it was constructed. All of

the development was outside the City and within the County's jurisdiction, prior to

adoption of the Barton Creek and Williamson Creek Ordinances."

3. Annexation : City of Austin-

a. "The Patton Lane Office Building was under construction when the City' of Austin

annexed the property for full purpose on December 30, 1985, and zoned the property'

Single-Family-2 (SF-2). Since the property was annexed in 1985, there have been no

building permits approved or issued for the existing development. In late 2011 and early

2012, the City issued a certificate of non-compliance for the existing commercial

12

development, which is an exemption from compliance with City's existing permit

process per LDC, Sec. 25-1-365.

4. Continued Progress-

a. "The landowner has continued progress toward permitting by filing and recording an

amended plat on October 10, 1991, which did not change or alter any of the previous

restrictions or provisions ofthe original subdivision. On October 10. 1991. the City

rezoned the property to Commercial Services- Conditional Overlay (CS-CO), (Ord.#:

911010-B). Again on June 14, 1997. the landowner filed a related zoning request; which

did not alter or change previous restrictions or provisions to the CS-CO zoning, (C14-

91-0027). It was approved by a 7-0 vote by city Council. In 2008. Draper filed for

rezoning of the property to Commercial Services- Conditional Overlay- Neighborhood

Plan (CS-CO-NP), (Ord. #: 20090115-092). which amended the site development

restrictions and permitted uses on the property to be consistent with those of the

originally submitted permit. (PL Exhibit D).

CURRENT- CASE HISTORY

6300-02 Highway 290 W (6300Hwv290W)

1. Oak Hill Neighborhood Plan-

a. On, or around the spring of 2006. the City of Austin initiated development of the 'Oak

Hill Neighborhood Plan''. OHNP. Draper participated as a board member of the 'Oak

Hill Neighborhood Contact Teanr. OHNPCT. Concerned his property, potentially,

could be down-zoned through the OHNP, Draper obtained legal counsel, through the

law firm ofMunsch, Hardt, Kopf, &Harr, representation provided by Robert Kleeman.

b. Mr. Kleeman conducted countless meetings and correspondence with Matt Hollon, Pat

Murphy, Victoria Li, City of Austin Watershed Protection, and Development Review

Department: none were able to produce conclusive evidence Draper's property

13

6300Hwy290Wwas not entitled to 'vested-rights* provisions as instructed by LGC

Chapters §43.002, or LGC §245.00. (PL Exhibit E,F).

c. Consequently, through assistance of Mr. Kleeman. andMunsch, Hardt, Kopf, & Harr.

Draper filed and obtained rezoning in December. 2008. (Case No. CI4-2008-0152).

Draper has perpetuated project completion throughout his ownership of 6300Hwy290W.

2. Site Plan: Fair-Notice-

a. On the behalf of Draper, February 14, 2011, Jim Schissler, an engineerwith Jones &

Carter, submitted a Site Plan Fair Notice andHB. 1704/ Chapter 245 Determination

application for the Patton Lane Office Building project; located on the northeast corner

of West U.S. Highway 290. and Patton Ranch Road in southwest Travis County. (PL

Exhibit G).

b. Greg Guernsey, City ofAustin Planning and Development Watershed Protection and

Review Department, along with Susan Scallon, and the Chapter 245 Determination

Committeee, intentionally, denied Draper's application. (PL Exhibit F). Scallon rejected

Draper's application, for the reasoning: "project complete". (PL Exhibit F). Greg

Guernsey, Susan Scallon, and the 1704 Committee at their 'occupational discretion'

made fraudulent misrepresentations, breached their duty, while aiding, abetting the

subversion of State law; LGC § 43.002- Continuation ofLand Use.

c. Throughout the course of 2011. and 2012. Draper sought clarification from the 1704

Committee, denial. Draper had to go as far as appeal to the Texas* Attorney General's

office, in order to mandate the City of Austin's compliance with the Texas Open

Records Act: which the City asserted "attorney/client" privileges. (PL Exhibit J).

d. Draper employed McClendon &Associates in February of 2012. McClendon &

Associates resubmitted Draper's 1704/Chapter 245 Determination request; after records

documenting the issuance of Travis County Flood Hazard Permit, and original

architectural permits were uncovered on microfiche, through the Travis County

14

archives. Again, the / 704/ Chapter 245 "vested-rights" entitlements were denied

without statutory support.

e. In attempt to exhaust his administrative appeal, on November 2, 2012, Draper met with

City of Austin Council Member, Chris Riley, in attempt to amicably resolve the dispute.

Council member Riley said: " .../'/ would require a Plan Amendment to S.O.S.; which

requires a 'super-majority' ofCity Counsel... ". Draper, respectfully, disagrees.

f. Draper contends, his property located at 6300-02 West Highway 290. has 'vested-

rights" under Chapter §43.002 and 1704/Chapter §245 of Texas" Local Government

Code. Having exhausted his administrative appeal. Draper files the above-mentioned

cause of action on March 4 ,2013.

STATEMENT OF ARGUMENTS

Appellant, Charles Draper as a Pro Se litigant filed suit on March 4th 2013, against

Greg Guernsey in his Capacity ofDirector ofPlanning and Development Watershed

Protection and Review Department, and City ofAustin, Appellees.

Having exhausted his administrative appeal, Appellant filed suit the 419th District

Court to compel the City of Austin to comply with State statutes, through the enforcement

provision Tex. LGC Chapters§43.002, and §245. Enforcement of Chapter §245.006 may be

provided ''through mandamus, declaratory or injunctive relief.

Under CPRC Rule §43.002 Continuation ofLand Use- Appellant contends, the valid

commercial Travis County Flood Hazard Permit #85-2558, which had no expiration date, no

impervious cover, or height limitation was designed to host office/banking services. CS

zoning, in August 1985. The Appellees have produced no-evidence of intervention in 1985, or

subsequent intervention following annexation. Therefore, Appellant rights were vested, when

the permit was issued. Appellees cannot, retroactively, imposes new land-use limitations.

15

Under CPRC Rule §245.02, Uniformity of Requirements, states; "a regulatory

approval of a application...for a permit solely (based) on regulations... in effect at that time".

(See. Harper Park II v. City ofAustin).

Appellant is entitled to compensation. Article 1,17 (161)- An inverse condemnation,

for which a owner is entitled to compensation under the Texas Constitution, may occur when

the government physically appropriated or invades the property or when unreasonably

interferes with the landowner's right to use and enjoy the property, such as by restricting

access or denying a permit for development. Weingarten Realty Investors v. Albertson 's

Hearing: No-Evidence Summary Judgment

In City ofAustin, andGreg Guernsey Response to Plaintiff's Motionfor No-Evidence

Summary Judgment, Appellees assert hearsay;

• Alleged by Appellees attorney, Ms. Andralee Cain Lloyd; "An application filed with

one agency does not provide 'fairnotice " to another agency and is thus not sufficient

to establish vestedrightsfrom that agency's regulations. Schumaker. 325 S.W. 3d at

815." (See. City ofAustin, andGreg Guernsey Response to Plaintiffs Motion for No-

Evidence Summary Judgment (footnote2\ p. 5 of 13)).

o Wrong. Unlike Schumaker, who was in the application process, Appelleant

'vested-rights* were granted upon filing 'first permit in a series of permits'.

Appellant's 'vested-rights" existed prior to City of Austin annexation; which

rights are protected under Chapter §43.002.

o Additionally, "Under Chapter 245 ofthe localdevelopment code, once an

applicationfor the first permit required to complete a property-development

'project' isfiled with the municipality or other agency that regulates such use

16

ofthe property, the agency's regulation applicable to the "project" are

effectively "frozen" in their then-current state and the agency isprohibited

from enforcing subsequent regulatory changes to further restrict the property-

use ". See TEX. GOV'T COCE Ann. 245.001-.007 (West 2005) Schumaker

Enters. Inc. v. City ofAustin. 325,. S.W. 3d 812, 814-5 & n.5 (Tex. App-

Austin2010. no pet.)

Furthermore, in City ofAustin, and Greg Guernsey Response to Plaintiff's Motionfor

No-Evidence Summary Judgment (footnote }page 8of13) Appellees assert; "...Ifthe Travis

County development permit isregarded as the first permit application for the project, it

appears that aprior owner may have constructed 50piers on the Plaintiffs property in

accordance with that permit before construction was halted forfinancial reasons andthe

permit expired3. (3 According to Travis County Development Services, and Section §105.5 of

the International Building Code, a permit becomes invalid and expires if no work

commences after 180 days from the date of issuance, or work authorized).

Nonsense. In Appellant's Plaintiff's First Amended Petition, Attorney General Greg

Abbott issued an opinion on December 10. 2012 on LGC §245- ''project duration ordinance"

(Exhibit L). In summary, the Attorney General concluded; " Acourt would likely conclude

that the Ordinance provisions about which you ask are void because they conflict with

Chapter §245 ofthe Local Government Code. "

Perhaps, Appellees should reserve their defenses for an "international court" of law.

Tex. Government General Provisions:

17

While appellant could argue the wanton reckless behavior of the appellees, the

argument would only distract from the foundational issues, vested-rights. Therefore,

appelleant will refrain from legal and ethical issues addressed in appellees response to

Fraudulent Misrepresentation, Breech of Contract, and Preventing the Execution of Civil

Process, all recorded in previous testimony.

Governmental Liability CPRC Rule §101.0215(29)

CPRC Rule §101.0215(29), Liability ofa Municipality, whereby, Greg Guernsey in

hiscapacity as Director of Planning and Development, habitually and 'intentionally', made

fraudulent misrepresentations, misconstrued the Legislature's intent, taking an "narrow* view

of Chapters §245, ignored § 43.002 at his 'occupational discretion' failed to comply with

State law, while engaged in his 'proprietary* special-authority, 'intentionally*, denied

Plaintiffs "vested rights* application. The Fifth Circuit held Section 101.106 did not apply to

intentional tort claims". Meadows v. ErmeL 483. F.3d (Fifth Cir. 2007). Idat424. , (Exhibits

H. I. J)

Under CPRC Rule §101.0215(29) Liability ofa Municipality, a municipality is liable

under this chapter for damages arising from it's governmental functions (29)zoning and

planning. "A governmental employee is entitled to official immunity for good-faith

performance of the discretionary duties within the scope of the employee's authority. [I]fthe

duty is imposed by law, then the performance of the duty is a ministerial act. and there is no

immunity for failure to perform it." City of Houston v. Jenkins. 363 S.W.3d 808. 814 (Tex.

App.-Houston [14th Dist.] 2012 pet. filed 4-30-12). Greg Guernsey failed to perform his duty'

in approval of Plaintiff'vested-rights* Chp. 245 Fair-Notice Application. (Exhibit F).

18

Sovereign immunity does not bar suit that alleges a violation of a self-enacting state

constitutional provision. Nueces Cty. v. Ferguson. 97 S.W.3d, 205, 217 (Tex. App- Corpus

Christi 2002, no pet). A constitutional provision is self-enacting when it supplies rules

sufficient to protect the rights given or to permitthe enforcement of the duty imposed. Steele

v. City OfHouston, 603 S.W.3d 795. 803 (Tex App. Amarillo 2002, pet. denied).

Other factors the court must consider, what the property owner's reasonable

expectations were in the property (See. Edwards). A per se regulatory taking occurs when the

regulation requires the property owner to suffer a physical invasion of her property. Edwards

Aquifer v. Sheffield Dev.Co.. 369 S.W.3d at 838, 140 S.W.3d at 671.

Aggregated and Reprehensible conduct

Greg Guernsey has been named in the suit, acting in his capacity as Director of

Planning andDevelopment Watershed Protection, "the coordinate branch of government', for

his "occupational discretion*; and intentional breach of duty, acting in his "proprietary'

capacity as special-authority in the implementation of CPRC §101.0215 (29) Planning and

Zoning, and Chapters §245, and §43.002.

Greg Guernsey did not act in good faith. Either in committee, or in his individual

capacity as Director ofPlanning and Development Watershed Protection, Guernsey,

intentionally, denied Appellant's valid "vested-rights' development entitlements. Case law-

precedent established Greg Guernsey in several additional suits for failure to comply with

Chapters §43.002 §245, §312.00 in his official capacity; more specifically, he was named as

a Defendant in Harper Park IIv. Greg Guernsey in his capacity as Director of Planning, and

Watershed Protection, andthe City ofAustin. (Plaintiff's Org. Pet. Exhibit L). Historical

evidence points to Greg Guernsey blatant disregard for the law.

19

DAMAGES

Given the egregious, and reprehensible nature of Greg Guernsey's and the City of

Austin's wanton disregard of State law. and given the City's practices are not an isolated

event. Defendants" actions were committed, knowingly and intentionally, and therefore

Appellant seeks to recover actual economic damages, and compensatory damages, he has

suffered.

Asevidenced in Plaintiffs letter to Greg Guernsey, (dated: September, 2011), :"...As

a consequence ofyour un-relentedposition, I have experienced economic hardship, economic

loss, and inability to rent my property, or generate economic rent from my investment... ".

(Exhibit J).

Compensatory Damages - Economic relief

Further, Draper evidenced his complaint of economic damages. OnJune 15th, 2013.

Draper filed, Plaintiff's Response to Defendant's Request for Disclosure: which was in

compliance of TRCP 197. Record Excerpt:

City of Austin: Pursuant to Rule 194.2(d), provide the amount and method

of calculating all economic damages which you seek to recover in this cause.

Draper's Response:

Correspondence between Draper's attorney, Robert Kleeman, Matt Hollon, Victoria Li.

and Pat Murphy, reflect Draper contentions, he sought clarity onPatton LaneJVxalid

permit inaccordance with 1704/Chp. 245 TX LGC (01/18/2008, PL Exhibit E).

Assuming the City ofAustin would have complied with State law. Draper contends, a

tilt-wall construction project could have been completed within one year. Consequently,

Draper has been denied four (*eight) years ofeconomic rent. Had Draper developed the

bare minimum foot print issued by the Travis County permit, he could have constructed

43,509sq. ft building (PL Exhibit Q

The 43,509 sq. foot print times, the Southwest Austin market office rate of$24.00 p.s.f,

equals $4,524,936.00, lost economic rent through June 20,2013.

20

Under TRCP Rule 193.5, Draper amended and supplemented hisresponse with an

Affidmit on February 18th. 2014. which was validated in Oxford Commercial Market

Office Snapshot. Themarket rate forSouthwest Austin is $31.81, not$24.00 p.s.f; from

previous response. (See, Affidavits)

Appellant amended his Economic Loss: Ninety-four (96) months x (times)

$2.65 ($31.81/12. S.W. monthly office rental) per month p.s.f. x (times) 43,509 sq.ft.

(original building size) = (equals) $11,068,690.00, through January 2016.

Total Compensatory Damages

Appellant requests total compensatory damages $11,068,690.00, as of January

2016

PRAYER

In conclusion, Appellant has experienced, wanton reckless behavior from an

intentionally abusive non-compliant municipality, under the subdivision of Texas State's

mandated authority; which undermines the public trust. Appellant prays the Third Court will

reverse Interlocutory Order issued by Justice Ramsay, and issue compensatory damages,

declaratory relief, alternative relief, and summary judgment in favor of the appellant.

Equally, Appellant prays the Third Court will grant Appellant's compensatory,

economic damages for $11,068,690.00. An owner is entitled to compensation under the Texas

Constitution, may occur when the government physically appropriated or invades the property

or when unreasonably interferes with the landowner's right to use and enjoy the property, such

as by restricting access or denying a permit for development, Weingarten Realty Investors v.

Albertson's. While appellant is entitled to exemplary damages for the aggravated, reprehensible,

and malicious conduct of the Appellees, Rule §41.011(a)(5)- Evidence to Exemplary damages.

21

Appellant has compassion for the additional victims in the charade, the City' of Austin taxpayer,

who will bear the ultimate expense.

Additionally, Appellant prays the Third Court will acknowledge Appellant 'vested-

rights'; recognizing Travis County'"s Flood Hazard Permit was the first permit in a series of

permits, and grant Appellant •'vested-rights protections, entitled to develop, office, or any other

commercial use consistent with rules regulations, and ordinances in effect at the time of initial

permit application; "project" was "commercial" development and was not limited to office

building or other specific type of "commercial" development". Harper Park IIv. Greg

Guernsey, in his capacity Director ofPlanning and Development Watershed Protection Review

Department, S.W.3d (App. 3 Dist. 2011), 359, S.W. 3d 247.

Respectfully submitted.

d_^l«-^ /**••& **j£zz^£-

Charles N. Draper

160 Maeves Way

Austin, Texas 78737

Phone: 512.699.2199

Email: cd@teiasland.com

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on December 16. 2015, a true and correct copy of the foregoing

Appellant's Brief, was sent by certified mail, return receipt request to Andralee Cain Lloyd,

Austin Law Department, Citv Hall. 301 West 2nd Street. P.O. Box 1546. Austin. Texas 78767-

1546

Andralee Cain Lloyd, Assistant City Attorney

Law Department, City of Austin

City Hall, 301 West 2nd Street

P.O.Box 1546

TO/G" /3~z& C^Oot 4&2.i 52-8*J

Austin, Texas 78767-1546

(512)974-2925

22

VERIFICATION

THE STATE OF TEXAS

COUNTY OF TRAVIS

BEFORE ME, THE UNDERSIGNED AUTHORITY, on this day personally

appeared Chares N. Draper, who, being by me first duly sworn, and deposed as follows:

"Myname is Charles N. Draper. I am over theage of 21 years, and I am fully

competent to make this verification. I have read the foregoing Appellant's Brief, Charles

N. Draper v. Greg Guernsey», in his Capacity Director ofPlanning and Development

Watershed Protection Review Department, andthe City ofAustin. All of the allegations

contained in the petition are within my personal knowledge, and true and correct."

Charles N. Draper

SUBSCRIBED AND SWORN TO BEFORE ME on the date _|_^_ day of L^rr.,^ .2015

m - ~ ^

AA

Notary Public. State Texas

SEAN JESSE CROW

My Commission Expires

June 14.2017

Notary Expiration date

^ v w w • •

APPENDIX

33

IN THE DISTRICT COURT OF

TRAMS COUNTY, TEXAS

ith Filed inThe District Court

419mJUDICIAL DISTRICT of Travis County,Texas

OCT 15 2015 (/D

CHARLES N. DRAPER, PX i j.'3nlb_M.

Velva L. Price, District Clerk

Plaintiff, Pro Se

§

V.

§ CAUSE NO. D-1GN-13-000778

§

GREG GUERNSEY, §

IN HIS CAPACITY AS DIRECTOR OF §

PLANNING AND DEVELOPMENT §

WATERSHED PROTECTION §

REVIEW DEPARTMENT, §

AND CITY OF AUSTIN §

§

Defendants.

PLAINTIFF'S NO EVIDENCE MOTION FOR SUMMARY JUDGMENT

Plaintiff. Charles N. Draper, ask the Court to sign a summary judgment under Texas

Rules ofCivil Procedure Rule §166(a), and (e) on plaintiffs cause ofaction, against

defendants. Greg Guernsey, and City ofAustin, under Tex. CRPC Rule §101.0215 (29),

Municipal Liability. Planning and Zoning, and Texas Constitution, Article 1, §17 (a),

(160), (161) Physical Taking. Intent. Inverse Condemnation. Restriction ofland use.

Plaintiff. Charles Draper, sued defendants. Greg Guernsey in his official capacity as

Director ofPlanning and Watershed Protection Review Department, and the City ofAustin

for intentional torts and failure to conduct their municipal duties under Tex. CRPC Rule

§101.0215 (29), Municipal Liability. Planning and Zoning.

Repeatedly. Greg Guernsey and his staff have habitually, and intentionally, made

fraudulent misrepresentations, misconstrued legislative intent, taking a 'narrow view* of

Chapter Rule §245, while ignoring Rule §43.002. Defendants. Greg Guernsey, and the Citv

ofAustin in their 'occupational discretion failed to comply with State law. engaged in

'proprietary' special authority, intentionally denied plaintiffs "vested-rights*. Texas Third

Court ofAppeal affirmed plaintiffs claims. The Texas Tort Claims Act grants no immunity,

under Tex. CRPC §101.106(a) and (e). Meadows v. ErmeL 483. F.3d (Fifth Cir.2007). Id

at 424.

SUMMARY JUDGEMENT EVIDENCE

To support the facts in this motion, plaintiff offers the following summary judgment

evidence attached to this motion incorporates the evidence into this motion by reference.

Exhibit 1: 7>m7.v ( oitntv Flood Hazard Permit #85-2558: issued August 9th. 1985.

prior to city annexation.

Exhibit 2: Patton Lane- Architectural Bldi>. plans filed with Travis Countv. August

5th. 1984

F.xhibit 3: Email correspondence between Atty. Robert Kleeman and City of Austin

Watershed Protection and Development Review Dept.: Pat Murphv and

Matt Hollon. January 18th. 2008

Exhibit 4: Letter of correspondence between Atty. Robert Kleeman and City of

Austin's Director of Watershed Protection and Development Review

Department. Victoria Li. July 22. 2008

Exhibit 5: Jones &Carter. Jim Schissler's letter in support ofPatton Lane Project

Application 11. B. I~()4 Chapter 245 Determination. February 15th 2011

Exhibit 6: Patton Lane Project Application H.B. I"04 Chapter 245 Determination.

February 15Ih 2011

Exhibit 7: First letter ofdenial: City ofAustin's Greg Guernsey. Director Planning

&Development Review Department. Mas 13th. 2011

Exhibit 8: Second letter of denial: City of Austin's Greg Guernsey. Director

Planning cv Development Review Department. September 23rd. 2011

Exhibit 9: Letter ofclarification: Charles Draper. Tejasland &Commerce to City of

Austin's Greg Guernsey. Director Planning &Development Review

Department. September 29h. 2011

Exhibit 10: McClendon &Associates Resubmission, letter ofcorrespondence Carl

McClendon to City of Austin's Greg Guernsey. Director Planning &

Development Review Department. July 16th. 2012

Exhibit 11: Third letter of denial: City of Austin's Greg Guernsey. Director

Planning &Development Review Department. September 21st. 2012

Exhibit 12: Texas Third Court of Appeals. Austin Division reversal of District Court

Order. ('ause Xo. 03-14- 00265-CV. February 25. 2015

Exhibit 13: Cushman Wakefield Oxford Austin commercial office report Q4/2013

PLAINTIFF'S CAUSES OF ACTION

Texas CRPC Rule §101.0215 (29), Municipal Liability. Planning and Zoning, and

Texas Constitution, Article 1, §17 (a), (160), (161) Physical Taking. Intent. Inverse

C'ondemnation. Restriction ofland use

To succeed on a traditional motion for summary judgment on its cause of action, the

plaintiff must show that there is no genuine issue of material fact and that it is entitled

to summary judgment as a matter of law. Tex. R. Civ. P. 166a(c): Mann. Frankfort,

Stein &Lipp Advisors. Inc v. Fielding. 289 S.W. 3d 844. 848 (Tex. 2009).: Sixon v. Mr.

Prop. Management Co.. 690 S.W. 2d 546. 548 (Tex. 1985). To meet this burden, the

plaintiff must conclusively prove all the elements of its claim. .MMP, Ltd. V. Jones. 170

S.W. 2d 59. 60 (Tex. 1986). A matter is conclusively established if reasonable people

could not differ on the conclusion to be drawn from the evidence. City of Keller v.

Wilson. 168 S.W. 3d 802. 816 (Tex. 2005). If the plaintiff establishes its right to

summary judgment as a matter of law. the burden shifts to the defendant to present

evidence that raises a genuine issue of material fact. Bourdreau v. Fed. Trust Bank. 115

S.W. 3d 740. 743 (Tex. App. - Dallas 2003. pet. denied)

Plaintiff is entitled to summary judgment on his causes of action for Texas CRPC

Rule §101.0215 (29), Municipal Liability. Planning and Zoning, and Texas

Constitution, Article 1, §17 (a), (160), (161) Physical Taking. Intent. Inverse

Condemnation. Restriction ofland use. because the undisputed facts in this case and

plaintiffs summary judgment evidence conclusively establish each essential element.

The essential elements of the plaintiffs cause ofaction for Texas CRPC Rule

§101.0215 (29), Municipal Liability. Planning and Zoning are the following:

Under Texas CRPC Rule §101.0215 (29), employees ofmunicipalities are libel for

•intentional torts'. Plaintiffs Exhibits ". ,V. 9. &//. evidence Greg Guernsey failure to

exercise "objective legal reasonableness" by imposing "occupational discretion", while

operating in his proprietary capacity, denied plaintiffs valid Travis County Flood

hazard Permit -(S5-255X.

Case law- "Determining amunicipality's immunity from suit is atwo-step

inquiry. First we determine whether the function is governmental or

proprietary." Texas Bay Cherry Hill. LP. ('ity of Fort Worth 257 S.W.3d

379. 389 (Tex.App- Forth Worth 2008. no pet.)

i. Greg Guernsey at his 'occupational discretion' preformed a

•proprietary" function and denied plaintiffs vested-rights,

without just-cause,

ii. To prove immunity the defendants must establish, defendants

acted in 'good faith'. The element ofgood faith is generally

pivotal issue in official immunity.

Case law-"The courts measure 'good faith" in official-immunity cases by

the standard of••objective legal reasonableness". Wadewitz v Montgomery

951 S.W.2d 464. 466.

'Under the standard, adefendant acts in 'good faith", ifa reasonably

prudent official under the same circumstances could have believed that'the

official action was justified based on the information possessed when the

conduct occurred." Joe v. Two Thirty Xine Jt. I' 145S.W.3d 150. 164

Case law- "[l]f the duty is imposed by law. then the performance of the duty

is a ministerial act. and there is no immunity for failure perform it." City of

Houston v. Jenkins. 363 S.W.3d 808. 814 (tex.App-Houston [14th dist."]

2012 pet.

iii. Greg Guernsey in his official capacity as Director Planning &

Development Review Department has a ministerial duty to uphold

constitutional provisions designated by the legislature.

Case law-"A constitutional provision is self-enacting when it supplies rules

sufficient to protect the rights given or to permit enforcement ofaduty

imposed. Steele v. City ofHouston. 603 S.W.3d 795. 803 (Tex.App-Amarillo

2002. pet. denied)

CONSTITUTIONAL PROVISIONS

Greg Guernsey failed to perform his ministerial duty, upholding legislative intent,

a self-enacted constitutional provision. Instead. Defendants charted a maligned course,

failed to exercise "objective legal reasonableness", failed to act in 'good faith*, and

pursued 'narrow' interpretation ofChapters §43.002, and §245.002.

Tex. LGC §43.002- Continuation of Land Use-(a) "A municipality mav not. after

annexing an area, prohibit a person from: (1) continuing to use the land in the area in

the manner that was being used on the date the annexation proceedings were instituted

if the land use was legal at that time".

Tex. LGC §245.002- Uniformity ofRequirements (a) Each regulator) agencv

shall consider the approval, disapproval, or conditional approval ofan application for a

permit solely on the basis ofany orders, regulations, ordinances, rules, expiration dates,

or other properly adopted requirements in effect at the time"

On August 5 \ 1984. when Fspy. Huston. &Associates site plan permit was

submitted. Travis County had no expirations or limitation on development permits.

Greg Guernsey retro-actively at his occupational discretion, defied constitutional

provisions protecting vested-rights, and exercised proprietary prejudice, and denied

plaintiff valid development permit. Guernsey has produced no-evidence in support of

denial.

a. Texas Constitution, Article 1, §17 (a), (160), (161) Physical Taking, Intent.

Inverse Condemnation, Restriction ofland use- - No person's property shall be

taken, damaged, or destroyed for or applied to public use without adequate

compensation being made, unless the consent ofsuch person, and only ifthe

taking, damage or destruction is for: (1) the ownership, use. and enjoyment of

the property, notwithstanding an incidental use. by: (A) the State, a political

subdivision of the State, or public at large.

b. Article 1,17 (160)- To establish an inverse condemnation claim, a property

owner must establish that (1) the State or other governmental entity intentionallv

performed a certain act (2) that resulted in the taking, damaging or destruction of

the owner's property (3) for public use. Buss v. City ofDallas.*'

c. Article 1,17(161)- An inverse condemnation, for which a owner is entitled to

compensation under the Texas Constitution, may occur when the government

physically appropriated or invades the property or when unreasonably interferes

with the landowner's right to use and enjoy the property, such as bv restricting

access or denying a permit for development. Weingarten Realty Investors v.

Albertson's

ADAQlATE TIME FOR DISCOVERY HAS PASSED

Plaintiff is entitled to a no-evidence summary judgment on defendants* failure to

produce evidence in support oftheir denial, because defendants have had adequate time

to produce discovery. To determine whether adequate time for discover) has passed,

courts consider the following nonexclusive factors: (1) the nature ofthe suit. (2) the

evidence necessary to convert the motion. (3) the length of time the case has been on

file. (4) the length oftime the motion has been on file. (5) the amount ofdiscovery

already taken place. (6) whether the movant requested stricter deadlines ofdiscovery

that has already taken place. (7) whether discovery deadlines in place were specific or

vague. Cmty. Initiatives. Inc v. Chase Bank. 153. S.W.3d 270. 278 (Tex. App-El Paso

2004. no pet.) Rest. Teams hit 7. v. MG Se. Corp.. 95 S.W.3d 336. 339 (Tex. App.

Dallas. 2002. no pet.): Martinez v. City ofSan Antonio. 40 S.W.3d 587. 591 (Tex. App-

San Antonio 2001. pet denied).

Defendants have had adequate time to perfect discovery. Plaintiff responded to

Defendants requests for Admission. Documents Production, andDisclosure: on June

15 \ 2013. almost two and a half years ago.

DAMAGES

The damages for plaintiffs cause of action are liquidated. Based on the facts stated in

this motion and supported by summary judgment evidence, plaintiff is entitled to damages

in the mount of SI 0.610.000.00 (Ten million, six hundred ten thousand).

CPRC § 101.0215- Liability of a Municipality- "a municipality is liable under this chapter

for damages arising from it's governmental functions, which are those functions that are

enjoined on the municipality and are given it by the States as part ofthe State sovereignty to be

exercised by the municipality in interest ofthe general public, including but not limited to: (29)

zoning, planning and plat approval."

On June 15th. 2013. Draper filed. Plaintiff's Response to Defendant '.v Request for

Disclosure.

Record Excerpt:

Citv of Austin; Pursuant to Rule 194.2(d), provide the amount and method of

calculating all economic damages which you seek to recover in this cause.

Draper's (2013) Response:

Correspondence between Draper's attorney. Robert Kleeman. Matt Hollon. Victoria Li. and Pat

Murphy, reflect Draper contentions, he sought claritv on Patton Lane J] 'valid pemiit in accordance

with lW4Chp. 245 TX LGC (PL Exhibit E).

ConsequentK. Draper has been denied over six years ofeconomic rent. Had Draper developed the

bare minimum foot print issued bv the Trav is Countv permit, he could have constructed 43 509 sq

ft. building (PI. Exhibit C*)

Tlie 43,509 sq.footprint times, the Sout/mest Austin market office rate of$24.00p.s.f equals

S4,524,936.00, lost economic rent through June 20. 2013.

Exhibit 13. Cushman Wakefield/ Oxford Commercial Report for the Fourth Quarter

of 2013. more correctly, reports: Office rents for Austin's Southwest market place are

S31.81 psf: not S24.00 psf.

COMPENSATORY DAMAGES

Southwest market rent at S31.81 p.s.f (times). Patton Lane JV building foot print

of43,509 sfi; equals Sl,384,021.29 in economic losses per year (or. SI 15,335.108 per

month). Given plaintiffs emails have sought clarification from Directors ofAustin's

Watershed Protection, and Development Review Department for the Citv ofAustin,

since January 18th. 2008: plaintiff is entitled to seven years and eight months. (92

months of economic loss). Ninetv-two month (times) the Austin Southwest monthly

market rate ($2.65 x43.509 =$115.335.108). ($115.335.108 monthly rate x92 months)

= S10,610,830.00.

DECLARATORY RELIEF

In addition to damages on economic loss, plaintiff requests a Court Order for

declarator} relief, an order to compel defendant's compliance, acknowledging

plaintiffs Project Application IIB 1~()4 Clip. 245 Determination claims of vested-rights

are valid.

ALTERNATIVE RELIEF

In the alternative, if the court denies any part of plaintiff s motion for summarv

judgment, plaintiff asks the Court to sign an order specifying the facts that are

established as a matter of law and directing any further proceedings as are just. Tex. R.

Civ. P. 166a(e).

CONCILSION

Plaintiff is entitled to summary judgment on his causes of action for Texas CRPC Rule

§101.0215 (29), Municipal Liability. Planning and Zoning, and Texas Constitution, Article 1,

§17 (a), (160), (161) Physical Taking. Intent. Inverse Condemnation. Restriction ofland use.

because the undisputed facts in this case and plaintiffs summarv judgment evidence

conclusively establish each essential element. The Citv of Austin's Watershed Protection c£

Development Review Department, and Greg Guernsey, it's executive director, has habitually,

failed to operate in 'good-faith". Austin's Watershed Protection &Development Review

Department, and Greg Guernsey as evidenced, intentionally used proprietary discretion, acted

with malice, failed to perform their ministerial duty: to exercise 'objective legal

reasonableness" in their interpretation of Tex. LGC §43, §245. Defendants' actions resulted in

physical taking of plaintiffs vested-rights under Texas Constitution, Article 1, §17 (a), (160),

(161).

PRAYER

Therefore, plaintiff. Draper requests relief from the Court, an Order signed for final Xo-

Evidence Summary Judgment. Compensatory Damages, and Declaratory Relief on Draper's

/~04 Chapter 245 Application, acknowledge. Draper's permit is valid, and current: entitling

Draper to proceed towards 'project completion'

As provided under LGC §43, §245 of the Tex. Local Gov't Code, grant Draper's...

"vested-rights protections, was entitled to develop office, or any other commercial use

consistent with rules, regulations, and ordinances in effect at time of initial permit

application...."project" was "commercial" development, as defined under then-applicable

ordinances, and was not limited to office building or otherspecific type of "commercial"

development....".. Harper Park II v. Greg Guernsey, in his capacity Director ofPlanning and

Development Watershed Protection Review Department. S.W.3d (App. 3 Dist. 2011). 359. S.W

3d 247.

Respectfully submitted.

Charles N. Draper

160 Maeves Way

Austin. Texas 78737

Phone: 512.699.2199

Email: cd ateiasland.com

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on October 10. 2015. a true and correct copy of the foregoing

Appellant's Brief was sent by certified mail, return receipt request to Sandra Kim. Austin Law

Department. City Hall. 301 West 2nJ Street. P.O. Hox 1546. Austin. Texas 7X767-1546

Sandra Kim. Assistant Citv AUornev

Law Department. City of Austin

Citv Hall. 301 West T' Street

P.O. Box 1546

Austin. Texas 78767-15-16

(512)974-2925

CAUSE NO. D-l-GN-13-000778

CHARLES N. DRAPER, § in THE DISTRICT COURT

Plaintiff Pro Se, §

§

§

GREG GUERNSEY, § TRAVIS COUNTY, TEXAS

IN HIS CAPACITY AS DIRECTOR OF §

PLANNING AND DEVELOPMENT §

WATERSHED PROTECTION §

REVIEW DEPARTMENT, §

AND CITY OFAUSTIN, §

Defendants. § 419th JUDICIAL DISTRICT

DEFENDANTS' RESPONSE TO PLAINTIFF'S NO-EVIDENCE MOTION

FOR SUMMARY JUDGMENT AND DEFENDANTS' MOTION

TO STRIKE PLAINTIFF'S SUMMARY JUDGMENT EVIDENCE

COMES NOW, City ofAustin and Greg Guernsey ("Defendants") file its Response to

Plaintiffs No-Evidence Motion for Summary Judgment ("Motion" or "MSJ") and Defendants'

Motion to Strike Plaintiffs Summary Judgment Evidence ("Motion to Strike"). The City asks the

Court to deny Plaintiffs Motion and strike Plaintiffs evidence in support of such Motion. It

support thereof, the City shows the following:

I.

Introduction

1. On August 29, 2013, Plaintiff filed Plaintiffs Final Amended Petition

("Petition"). Plaintiffs legal theories and factual allegations are difficult to follow. What is clear,

however, is that the City denied Plaintiffs application for vested rights, codified at Chapter 245

of the Local Government Code ("Chapter 245"), to develop property at 6300-02 Highway 290

under regulations in effect on the date of an expired permit issued by Travis County on August 9.

1985, and/or aplat recorded in 1872.1 Chapter 245 provides that all permits required to complete

The City's application form for asserting vested rights is titled Project Application H.B. 1704/Chapter 245

Determination, but for ease ofreference is referred to herein as "vested rights application."

•:J*-n t-~ t)Ccv\"5^

r

a development project are "locked-in" to the regulations in effect on the date that the first permit

application for the project was submitted. Plaintiff challenges the City's denial of his vested

rights application and asserts that various City employees committed fraudulent

misrepresentation, perjury, breach of contract, preventing the execution of civil process, and

administrative failure to comply with Chapters 43.002, 245, and 312.005 of the Texas Local '

Government Code in connection with the denial ofPlaintiffs vested rights application and the

handling of the current lawsuit.

2. Plaintiffs MSJ must be denied as a matter of law. His claims lack evidentiary

basis and are contrary to well established law. Contrary to Plaintiffs allegations, the rights

conferred by Chapter 245 are not so broad that any permit application filed for development of a

property is sufficient to exempt it from current regulations in perpetuity. The evidence presented

in this case—a plat from over 125 years ago and a lapsed Travis County permit from 28 years

ago—is legally insufficient to establish vested rights from current City regulations. Moreover.

Plaintiffs allegations offraudulent misrepresentation, perjury, breach ofcontract, and preventing

the execution ofthe civil process are confusing, unsubstantiated and conclusory.

3. Finally, this matter has already been decided by this Court. On October 9. 2013.

Plaintiff filed a Motion for No Evidence Summary Judgment, making the same legal arguments

and attaching the same inadmissible hearsay evidence. Ex. 1. On November 13, 2013, this Court

struck Plaintiffs evidence and denied Plaintiffs motion for summary judgment. Ex. 2. Since this

Court's ruling, Plaintiff has not amended his pleadings, presented any new authenticated

evidence or cited new legal authority to support this Motion. Accordingly, this Court should

deny Plaintiffs MSJ as Plaintiff has not presented sufficient evidence to show that there are no

Defendants' Response in Opposition to Plaintiff's No-Evidence

Motion for Summary Judgment and Defendants' Motion

to Strike Plaintiff's Summary Judgment Evidence PAGE 2of 13

issues of material fact or that he is entitled to summary judgment as a matter of law. Tex. R. Civ.

P. 166a(c).

II.

Summarv Judgment Evidence

4. To support the facts in this response, Defendants offer the following summary-

judgment evidence attached to this response and incorporate the evidence into this response by

reference.

Exhibit 1: Plaintiffs first No-Evidence Motion for Summary Judgment filed on

October 9. 2013.

Exhibit 2: November 13. 2013 order denying Plaintiffs first No-Evidence Motion

for Summary Judgment and striking Plaintiffs exhibits.

Exhibit 3: Affidavit of Susan Scallon with attachments.

Exhibit 4: May 3. 2013 Rule 11 Agreement regarding rescheduling a hearing.

Exhibit 5: May 17. 2013, affidavit signed by Assistant City Attorney Sandra Kim in

support of Defendants' Motion for Continuance.

Exhibit 6: May 30. 2013 order granting Defendants' Motion for Continuance.

III.

Authority and Argument

A. Plaintiffs no-evidence motion is conclusory.

5. Ano-evidence motion for summary judgment must be specific in challenging the

evidentiary support for an element ofa claim or defense. Tex. R. Civ. P. 166a(i). The rule does

not authorize conclusory motions or general no-evidence challenges to an opponent's case.

Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009); see Tex. R. Civ. P. 166a(i). When

a no-evidence motion for summary judgment does not challenge specific elements, it should be

treated as a traditional motion for summary judgment under Texas Rule of Civil Procedure

166a(c). See Michael v. Dyke, 41 S.W.3d 746, 751-52 (Tex. App.—Corpus Christi 2001, no

Defendants' Response in Opposition to Plaintiff's No-Evidence

Motion for Summary Judgment and Defendants' Motion

to Strike Plalntiff's Summary Judgment Evidence PAGE 3 OF J3

pet.); Amouri v. Sw. Toyota Inc.. 20 S.W.3d 165, 168 (Tex. App.—Texarkana 2000, pet. denied):

Weaver v. Highlands Ins. Co., 4 S.W.3d 826, 829 n. 2 (Tex. App.-Houston [1st Dist.] 1999, no

pet.). This switches the burden of prooffrom the nonmovant to the movant. See Tex. R. Civ. P.

166a(c),(i).

Plaintiffs Motion for No-Evidence Summary Judgment is conclusory as it simply states

that the City had no basis for denying his application for vested rights. Plaintiff appears to

presume that simply citing a plat recorded in 1872 and/or an expired development permit from

1985 that was issued by Travis County, and not by the City, is sufficient to exempt new

construction from current City regulations. Plaintiff globally argues various City employees

fraudulently denied his application.

Plaintiffs arguments regarding both vested rights and fraud are conclusory and fail to

establish that the City erred in denying his application. The burden shifts to Plaintiff to prove that

his application for vested rights should be granted and he has failed to establish Defendants

improperly denied Plaintiffs vested rights application as a matter of law.

B. City's Response to Chapter 245 Arguments

Under Plaintiffs interpretation ofChapter 245, a property would remain forever exempt

from current City development regulations based on nothing more than an expired permit issued

by another regulatory agency in 1985 and'or a plat recorded for the property in the year of 1872.

Plaintiffs arguments are inconsistent with controlling precedent and fail, as a matter of law, to

establish vested rights under Chapter 245.

~~ Vi;

L?) *• A permit application submitted to one regulatory agency does not establish

vested rights for purposes of another agency's regulations.

g) Vested rights attach to a project once an application for the first permit required in

completing the project is filed with the municipality or other agency responsible for regulating

Defendants' Response in Opposition to Plaintiff's No-Evidence

Motion for Summary Judgment and Defendants' Motion

to Strike Plaintiff's SummaryJudgment Evidence Page 4 of 13

the subject property. Shumaker Enterprises, Inc. v. City ofAustin, 325 S.W.3d 812. 815 (Tex.

App.—Austin 2010. no pet.): Harper Park Two, L.P. v. City ofAustin, 359 S.W.3d 247. 248-49

(Tex. App.—Austin 2011. pet denied): Tex. Local Govt Code § 245.002(a)(1). Once vested

rights are established, all subsequent permits required to complete the project are subject to the

regulations in effect on the date ofthe first permit application and, with limited exceptions, are

exempt from subsequently adopted regulations. Shumaker Enterprises, Inc., 325 S.W.3d at 814:

Harper Park Two, 359 S.W.3d at 250; see also Tex. Local Gov't Code §245.004.

In order for an application to establish vested rights from current regulations, however,

the application must have been sufficient to "giv[e] the regulatory agency fair notice of the

project and the nature of the permit sought." Tex. Local Govt Code § 245.002(a)(1)

(emphasis added). An application filed with one agency does not provide "fair notice" to another

agency and is thus not sufficient to establish vested rights from that agency's regulations.

Shumaker. 325 S.W.3d at 815.

In Shumaker Enterprises, Inc. v. City ofAustin, a landowner was required to obtain a city

permit after the city's extraterritorial jurisdiction (ETJ) expanded to include the landowner's

property. Id. The landowner argued that it was not required to obtain a city permit for its

intended sand-and-gravel mining operations because it had already applied for an application

with the county before the expansion of the city's ETJ. Id. at 812-13. The Shumaker court

rejected that argument and held that because Section 245.002(a)(1) refers to "permits" as

opposed to a "project" or "property," a landowner can only establish vested rights from an

agency regulations ifhe or she filed apermit application with that same agency. Id. at 814-15. In

other words, the landowner in Shumaker failed to establish vested rights from city regulations by

Defendants' Response in Opposition to Plaintiff's No-Evidence

Motion for Summary Judgment and Defendants' Motion

to Strike Plalntiff's Summary Judgment Evidence Page5OF13

filing an application with the county before the city's ETJ expanded to include the property. Id.

at 814-15.

Plaintiffs request that this Court recognize vested rights from City- regulations based on

either the 1985 Travis County development permit orthe 1872 plat is inconsistent with the Court

of Appeals' holding in Shumaker because neither application was submitted to the City. Ex. 3.

Indeed, to the extent he relies primarily on the 1985 Travis County development permit.

Plaintiffs claims in this case are even weaker than those rejected by the Court in Shumaker

because, unlike the property at issue in that case. Plaintiffs property came within the City's ETJ

on July 19, 1951, and would therefore have required a city permit in 1985. Ex. 3.

Since no application giving the City "fair notice" ofa development project was ever filed

with the City, Plaintiffs argument that development of the subject property is vested to the

regulations in effect on August 9, 1985. or in the year 1872, directly contradicts Shumaker and

fails as a matter of law. Ex. 2. Only a permit application submitted to the City in 1985 could

possibly afford Plaintiff vested rights to City regulations in effect in 1985.

ii. A permit is not entitled to vested rights if the original project has changed or

been completed.

Even if the expired 1985 Travis County development permit or the 1872 plat may at one

time have constituted a "project" for purposes of vested rights under Chapter 245, based on the

facts ofthis case, the City correctly determined that any such project had long been completed

and that further development on the property would constitute a new project subject to current

regulations.

1. The scope of a "project" under Chapter 245 is defined by the original

permit.

Defendants' Response in Opposition to Plaintiff's No-Ev idence

Motion for Summary Judgment and Defendants' Motion

to Strike Plaintiff's Summary Judgment Evidence Page 6 of 13

^y A development is no longer entitled to vested rights if it constitutes a new or different

"project" from the one sought in the initial permit application. Harper Park Two, L.P.. 359

S.W.3d at 249. 250: Seguido. 227 S.W.3d at 242-43 (holding that property owner could not

develop property more than thirty years after a previous owner filed a subdivision plat because a

permit is for a specific project, rights vest in a particular project, and rights are no longer vested

when aproject changes); Op. Tex. Att'y Gen. No. JC-0425. 1(opining "property remains subject

to the development regulations in effect at the time the original application for the first permit

was filed, but only if the project remains the same").

For purposes ofChapter 245. a "project" is "an endeavor over which a regulatory agency

exerts its jurisdiction and for which one or more permits are required to initiate, continue, or

complete the endeavor." Tex. LocalGov't Code §245.001(3). Aproject is the single endeavor

reflected in the original application for the first permit in the series of permits connected to a

project. Harper Park Two, L.P., 359 S.w.3d at 256. The term "endeavor" is not defined in the

statute, but the common definition is "the action of endeavoring; effort, or pains, directed to

attain an object." Seguido. 227 S.W.3d at 243 (citing Op. Tex. Atfy Gen. No. JC-0425, 3).

2. Plaintiffs project was completed or changed subsequent to the 1985

Travis County development permit and is therefore subject to current

regulations.

Based on the evidence provided to the City in connection with Plaintiffs vested rights

application dated February 14, 2011, together with additional research conducted by City staff, it

appears that significant development has occurred on the property and that any "project"

contemplated by either the 1985 Travis County development permit or the 1872 plat was

completed long ago. Ex. 3.

Defendants' Response in Opposition to Plaintiff's No-Evidence

Motion for Summary Judgment and Defendants' Motion-

to Strike Plaintiff's Summary Judgment Evidence PAGE 7 OF13

If the 1872 plat is regarded as the first permit application for the "project," it appears

from GIS maps that land included in the plat was developed with at least nine structures

constructed over a period ofnineteen years, beginning in 1987 and continuing until 2006. Ex. 3.

While no construction was ever completed on the subject property or lot in question, the 1872

plat does not evidence aspecific "endeavor" or plan for development of his property or. for that

matter, any other lot included in the plat. Ex. 3. Thus, even ifthe plat had been provided to the

City in 1872, it would have provided "fair notice" ofnothing other than the original landowner's

intention to divide a larger tract into discrete parcels.2

._£ Ifthe 1985 Travis County development permit is regarded as the first permit application

for the project, it appears that aprior owner may have constructed 50 piers on the lot in question

in accordance with that permit before construction was halted for financial reasons and the

3^

permit expired. Even if the 1985 application had been submitted to the City, which it was not,

Plaintiff has failed to cite any legal authority that allows a landowner to establish vested rights

based solely on an expired permit for asubsequently abandoned construction project.

Using either the 1985 Travis County development permit application or the 1872 plat as a

starting point, it would appear that the overall project was complete or abandoned well before

Plaintiff submitted his request for vested rights to the City of Austin on February 16, 2011.

More importantly, the 1985 Travis County permit and the 1872 plat were not filed with the City

and no rights were vested on either date. Therefore, Plaintiff must submit a new vested rights

application with the City before he can begin a new project.

- Perhaps for this reason, there is noevidence that any of the developers who constructed the nine existine structures

between 1987-2006 asserted claims of vested rights to the 1872 plat.

§? 3According to Travis County Development Services and Section 105.5 ofthe International Building Code, apermit

becomes invalid and expires if no work commences after 180 days from the date of issuance, or if work authorized

underthepermit is suspended or abandoned for 180 days afterwork is commenced,

hrtp:- 'publicecodes.cyberregs.comicodibc/2000 icod_ibc_2000_1_par046.htm

Defendants' Response in Opposition to Plaintiff's No-Evidence

Motion for Summary Judgment and Defendants' Motion

to Strike Plaintiff's Summary Judgment Evidence Page 8 of 13

C. Fraudulent Misrepresentation

The elements of fraud are (1) a material representation was made; (2) the representation

was false: (3) when the representation was made, the speaker knew it was false or made it

recklessly without any knowledge ofthe truth and as a positive assertion: (4) the speaker made

the representation with the intent that the other party should act upon it: (5) the party acted in

reliance on the representation: and (6) the party thereby suffered injury. Aquaplex, Inc. v. Rancho

La Valencia, Inc., 297 S.W.3d 768. 774 (Tex. 2009).

Although Plaintiffs allegations of fraudulent misrepresentation are hazy at best, it

appears based on the pleadings filed in this case that Plaintiff is alleging that Greg Guernsey.

Susan Scallon, and the Chapter 245 completeness check team, all City employees, made false

misrepresentations in denying Plaintiffs vested rights application. Every City employee

involved in determining the denial of Plaintiffs application merely carried out his or her job

duties in good faith by making a Chapter 245 Determination as requested by Plaintiff. Plaintiffs

dissatisfaction with the denial ofhis request does not falsify the premise for such denial.

Further, there is no evidence of intent to induce Plaintiffs reliance based on this denial.

Any action by Plaintiff as a result of this determination was outside the control of Defendants.

The denial ofPlaintiffs vested rights application simply meant that Plaintiffs rights were not

vested upon the filing ofdocuments with a regulatory agency other than the City, including the

1985 Travis County development permit and the 1872 plat. Plaintiff was free to develop his

property and pursue a project under the current land development rules and regulations at any

time after receiving the denial ofhis vested rights application.

D. Perjury and Breach of Contract

Defendants' Response in Opposition to Plaintiff's No-Evidence

Motion for Summary Judgment and Defendants' Motion

to Strike Plaintiff's Summary Judgment Evidence PAGE 9OFI3

Plaintiffs allegations of perjury relate to criminal matters, the venue for which would

take place in the criminal courts. Texas Penal Code §§37.02. 38.16(a). Such allegations are not

properly before this civil proceeding and must be dismissed. Tex. Educ. Agency v. Leeper. 893

S.W.2d 432, 441 (Tex. 1994) ("a party cannot seek to construe or enjoin enforcement of a

criminal statute in a civil proceeding unless it challenges the constitutionality ofthe provision

and proves an irreparable injury to its vested property rights...."); State v. Morales, 869 S.W.2d

941, 944 (Tex. 1994).

Plaintiff alleges that prior defense counsel Assistant City Attorney Sandra Kim's affidavit

in support of Defendants' Motion for Continuance filed May 17, 2013 constitutes an affidavit

made in bad faith pursuant to Texas Rules of Civil Procedure 166a(h), which pertains to

affidavits in support of summary judgment. Ex. 5. The affidavit in question supported a motion

for continuance, not a motion for summary judgment, so this argument is irrelevant, baseless,

and fails as a matter of law. Ex. 5.

Plaintiff alleges this same affidavit constitutes a sham affidavit. Sham affidavits

contradict an affiant's prior deposition testimony with no explanation for the change in

testimony, offered for the sole purpose of creating a fact issue to avoid summary judgment.

Farroux v. Denny's Rests., Inc., 962 S.W.2d 108, 111 (Tex. App.—Houston [1st Dist.] 1997, no

pet.); Pando v. Southwest Convenience Stores. 242 S.W.3d 76. 79 (Tex. App.—Eastland 2007.

no pet.). Such a sham affidavit should be disregarded and cannot raise a fact issue for purposes

of summary judgment. Pando, 242 S.W.3d at 79. Again, the affidavit in question was filed in

support of a motion for continuance, not a motion for summary judgment, so this argument is

misplaced. Ex. 5. Defense counsel, Assistant City Attorney Sandra Kim, did not contradict prior

Defendants' Response in Opposition to Plaintiff's No-Evidence

Motion for Summary Judgment and Defendants' Motion

to Strike Plaintiff's Summary Judgment Evidence Page 10 of 13

testimony but merely explained the basis for a motion for continuance of a hearing on the merits

of Plaintiff s claims. Ex. 5.

E. Breach of Contract and Preventing the Execution of Civil Process

The Rule 11 Agreement in this case pertained to a rescheduling of a hearing set by

Plaintiff based on a scheduling conflict that arose because of the Plaintiffs failure to confer with

Defense counsel regarding the original hearing date.4 Ex. 4. The new date stated in the Rule 11

Agreement was not feasible in light of the fact that Plaintiff requested a trial on the merits

without providing the requisite 45-day notice, and requested injunctive relief tantamount to an

adjudication of the merits of the underlying case. Ex.'s 4-5. No case or rule addresses whether a

Rule 11 Agreement regarding a rescheduling ofa hearing constitutes a contract. Any allegation

of a breach of contract in connection with the Rule 11 Agreement is therefore misplaced and

irrelevant.

Furthermore, the underlying issue of the rescheduling of the hearing was addressed in an

Order granting Defendants* Motion for Continuance byJudge Wisser on May 30. 2013. Ex. 6. A

court may grant a motion for continuance if the motion is supported by an affidavit and states

sufficient cause. Tex. R. Civ. P. 247. 251. &252. Acourt is within its sound discretion to grant a

motion for continuance and will not be disturbed unless the record reveals a clear abuse of

discretion. Villegas v. Carter. 711 S.W.2d 624, 626 (Tex. 1986). Therefore, the Court has

already addressed the issue regarding the Rule 11 Agreement and made a ruling confirming its

validity. Ex. 6.

Lastly, the Rule 11 Agreement or the affidavit in support of Defendants' Motion for

Continuance did not prevent the execution ofcivil process, as the Rule 11 merely reset the date

** It should be noted that Plaintiff again failed to confer with defense counsel for this MSJ hearing setting.

Defendants' Response in Opposition to Plaintiff's No-Evidence

Motion for Summary Judgment and Defendants' Motion

to Strike Plaintiff's Summary Judgment Evidence Page 11 of 13

for a hearing, which was later continued by court order on May 30. 2013. as discussed above.

Ex.'s 3-5. .Any alleged prevention from process can be remedied by a setting of a new hearing

regarding the matter.

IV.

Defendants' Motion to Strike Plaintiffs Evidence

Plaintiff failed to authenticate Exhibits 1through 13 and Defendants object on the basis

of hearsay under Texas Rules of Evidence 801 and 802. These documents are not authenticated.

but offered to prove the truth of the matter asserted, constituting inadmissible hearsay.

Defendants request the Court strike such documents from the record and disregard them in

considering Plaintiffs Motion for No-Evidence Summary Judgment.

V.

Conclusion

For the reasons cited above, Defendants request this Court deny Plaintiffs No-Evidence

Motion for Summary Judgment and strike Plaintiffs No-Evidence Summary Judgment evidence.

Respectfully submitted.

ANNE L. MORGAN, INTERIM CITY ATTORNEY

MEGHAN L. RILEY, CHIEF, LITIGATION

/s/ Andralee Cain Llovd

ANDRALEE CAIN LLOYD

State Bar No. 24071577

Andralee.Lloyd@austintexas.gov

City of Austin - Law Department

P.O.Box 1088

Austin, Texas 78767-1088

Telephone: (512)974-2918

Facsimile: (512)974-1311

ATTORNEYS FOR DEFENDANTS

Defendants' Response ln Opposition to Plaintiff's No-Evidence

Motion for Summary Judgment and Defendants' Motion

to Strike Plaintiff's Summary Judgment Evidence Page 12 of 13

CERTIFICATE OF SERVICE

This is to certify that on this day. Tuesday. November 3. 2015. I have served a copy of

Defendants' Response to Plaintiff's Xo-Evidence Motion for Summaiy Judgment and

Defendants' Motion to Strike Plaintiff's Summaiy Judgment Evidence on Charles Draper, pro se

plaintiff, in compliance with the Texas Rules of Civil Procedure.

VIA CMRRR m 91 7199 9991 7035 9003 9596^

& U.S. Mail to:

Charles N. Draper

160 Maeves Way

Austin. TX 78737

PROSE PLAINTIFF

s/ Andralee Cain Llovd

Andralee Cain Lloyd

Assistant City Attorney

Defendants' Response in Opposition to Plaintiff's No-Evidence

Motion for Summary Judgment and Defendants' Motion

to Strike Plaintiff's Summary Judgment Evidence Page 13 of 13

•-"•>

ORDERS

}

:%

37

DC BK15317 PG1280

Filed in The District Court

of Travis County, Texas

NOV 12 2015 *d

CAUSE NO. D-l-GN-13-000778

Velva L. Price, District

CHARLES N. DRAPER, IN THE DISTRICT COURT

Plaintiff Pro Se.

v.

GREG GUERNSEY, TRAVIS COUNTY, TEXAS

IN HIS CAPACITY AS DIRECTOR OF

PLANNING AND DEVELOPMENT

WATERSHED PROTECTION

REVIEW DEPARTMENT,

AND CITY OF AUSTIN,

Defendants. 419th JUDICIAL DISTRICT

ORDER DENYING PLAINTIFFS NO-EVIDENCE MOTION FOR

SUMMARY JUDGMENT AND GRANTING DEFENDANTS* MOTION TO STRIKE

PLAINTIFF'S SUMMARY JUDGMENT EVIDENCE

TO THE HONORABLE JUDGE OF THE DISTRICT COURT:

On November 10. 2015. came to be heard Plaintiffs No-Evidence Motion for Summary

Judgment. Defendants" Response and Defendants' Motion to Strike Plaintiffs Summarv

Judgment Evidence. The Court, after reviewing the pleadings and hearing the argument of

counsel makes the following rulings:

n \X IS ORDERED. ADJUDGED DECREED that Defendants' Motion to Strike

c4- \

Plaintiffs SjjHfmarv Judgment Evide)<£e on the basis of imWrru^sible hearsay is GRANTED

libits 1-13 are'stricken and disregarded as stirnrnfcry judgment evidence.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Plaintiffs No-

Evidence Motion for Summarv Judgment (construed by the Court as Plaintiffs Traditional

Motion for Summary Judgment) is DENIED.

SIGNED this / Q— day of November. 2015.

E

Honorable Judge Presiding

••••mum11

004306017 t&

EXHIBITS

1

34

McClendon & Associates

Development Consulting, LLC

July 16.2012

Mr. Greg Guernsey. Director

Planning and Development Review

505 Barton Springs Road. Ste. 500

Austin, TX. 78704

Re: Reconsideration of 1704/Chapier 245 Application for Lots 10A and 11 A. Block 1. Town of

Oak Hill at 6300 and 6302 U.S. 290 West ('[racking #; 10547874)

Dear Mr. Guernsey:

i hank you for your previous determination of the above referenced application. Susan Scallon.

1704 Committee staff representative, was kind enough to visit with me regarding the application

and share some basis for not approving the application. In response, it seems additional

information, materials, and signed plans may provide clarification of the facts and additional

documentation of the justification and "continuing progress" by which we would respectfully

request for the 1704 Committee to reconsider the application.

A site development summary follows providing a chronology of development permitting 1

subject property in an effort to clarify and augment the facts of the application previously

The land was legally subdivided as Lots 10 and 11. Block 1. Town of Oak 1[ill, and recorded in

the Travis County Deed Records on December 16. 1872. (copy attached). In 1982. the City

adopted the Barton Creek Watershed Ordinance, however, legally subdivided land was exempted

from the ordinance and site development standards per Sec. 9-10-303(b). In short, a site

development, or waterway development permit from the City of Austin was not required.

Site Development Permit

Travis County approved a site development or floodplain permit on August 8. 1985 for the

Patton Lane Office Building, a 3-story office development. Although the original subdivision

was platted in 1872. the site development permit represents the first in a series of permits for the

project. Two copies of the complete (11" x 17") plans are attached which show approvals from

the Travis County Engineer's office. Although construction was initiated and later paused due to

economic conditions, the lloodplain permit does not expire. The Travis County Engineers

Office issued a letter in 1987. indicating that a lloodplain elevation certificate verifying the

McClendon & Associates Development Consuming, LI C Phone 512 363 •

4B0fi Canyonwood Dr. Fax. 512 332

X ~:~Zr e-r--,&!:: csrl::icc;e n r cor.

finished floor elevation of tlie building (to be constructed) had not been filed within one year of

the issuance of the permit and, therefore, is a violation, (not expiration of the permit).

Construction commenced in 1985, with removal of existing homes on the site and construction

of drilled pier locations for the building's foundation, as evidenced by notes from a City of

Austin environmental inspectorand an aerial photo in 1986. (attached).

The site included previously existing residential and commercial development from the 1950:s

and 197(Fs, which did not require City or County permits when it was constructed. All of this

development was outside the City and within the County's jurisdiction, prior to the adoption of

the Barton Creek and Williamson Creek Ordinances.

Annexation to City of Austin

The Patton Lane Office Building was under construction when the City of Austin annexed die

property for full purpose on December 30. 1985, and zoned the property Single-FamiIy-2 (SF-2).

Since the property was annexed in 1985, there have been no building permits approved or issued

for the existing development. In late 2011 and early 2012, the City Tssued acertificate ofnon

compliance for existing commercial development, which is an exemption from compliance with

the City's building permit process per LDC, Sec. 25-1-365.

Continuing Progress

The Local Government Code Chapter 245.005(a) states for permits without an expiration date

and for which there is no continuing progress towards completion, a local regulatory agency may

enact an ordinance, rule, or regulation that places an expiration date on a project ofno earlier

than the fifth anniversary of the effective date ofthis chapter (Sept. 1. 2005).

The landowner has continued progress toward permitting by filing and recording an amended

plat on October 10, 1991, which did not change or alter any ofthe previous restrictions or

provisions ofthe original subdivision. On October 17, 1991, the City rezoned the property to

Commercial Services-Conditional Overlay (CS-CO), (Case #: C14-91 -0027).

In 2008, the current owner filed for rezoning ofthe property to Commercial Services-Conditional

Overlay-Neighborhood Plan (CS-CO-NP), (Case # CI4-2008-0152), which amended the site

development restrictions and permitted uses on the property to be consistent with those of the

originally submitted permit.

Pleasej^ontact me ifthere are^uestions or further items for discussion.

Carl McClendon, AICP

cc: Charles Draper

McCendon & Associates Development Consulting LLC Phone- 512 333 3675

4808 Canyonwood Dr. Fax 512 382 1017

Austin, Tx. 73735

e-maii: carlmcclendon@austm.rr.com

Development Summary

Patton Lane Office Bldg

12/16/1872 Legally platted subdivision recorded for Town of Oak Hill. Lots 10 and 11 (Vol.

X. Pg.242)

7/19/1951 The subject property was annexed into the Citv"s extra-territorial jurisdiction

(ETJ).

11/18/1982 Barton Creek Ordinance passed by City Council (Ordinance No. 82-1118-N)

requiring site development standards for land within the Barton Creek Watershed. Subdivisions

legally platted prior to April 17. 1980, are exempted per Sec. 9-10-303(b).

8/8/1985 Travis County approves site development (or floodplain) permit (Case #: 85-

2558) for Patton Lane Office Building and site construction commences. Foundation piers are

drilled, but construction pauses due to economic conditions; aerial photo from 4/23/86 showing

drilled piers is attached.

12/30/1985 City of Austin annexes property, and approves zoning for Single-Family-2 (SF-2).

10/10/1991 City of Austin approves rezoning from SF-2 to CS-CO for Lots 10 and 11. Town

of Oak Mill (Case No. CI 4-91-0027).

10/17/1991 Amended plat recorded for Town of Oak Hill. Lots 10 and 11 to create Lots 10A

and 11 A, Town of Oak Hill, (Case #: C8-91-0039.0A).

1/15/2009 Based upon landowner's request for rezoning, the City of Austin revises the

zoning and conditional overlay for Lots 10Aand 11 A, Block 1, Town of Oak Hill Amended

Subdivision from CS-CO-NP to CS-CO-NP, (Case #: CI4-2008-0152). The conditional overlay

amendments revised the permitted uses and site restrictions on theproperty.

2/16/2011 Landowner files application for 3-story office building (Patton Lane Office

Building) for Chapter 245 review and consideration.

McClendon &Associates Development Consulting. LLC Phone- 512 353 5675

4608 Canyonwood Dr. Fax: 512 332 1017

Austin, Tx. /8/35 e-mail: carlmcciendon@austinrr.ccm

•.•Illl^iW.j IMULLIJIWIWP^HMW IIIJIUIlllllMim

TRAVIS COUNTy, TBCAS

V0L>^ PAGE v fi^

• %

riled beer lctn Ifix at 11 H. Recorder: sam(- day

&. H. Morris:., Cllei-: by u. S» Sunn, Deputy

Sat. -T-Ti: Or' TElAS y

COU2OT Cv T:,aVI3 J 230W jj, jSkh 3 j ^ ?5fcS?G?S ^ 2> ^ _ G,ofiricfc Qf

^Gooa-

the County of Travis ana state of Te:<ae, fox and in consideration of one dollar

ricfc

to me in hand paid the receipt of which it hereby acknowledge** have this day and

To

by these presets, given, granted, bargai neo, sold, alienated and conr.y.-d unto

Trust Deed

and delivered to James S, *a;.mond of said County and State, all of my right, title

Jbk.d.&aj- interest and claim in and to the following described property, to-wit: Situate

aond

iyin^ and bfttop in Travis County, in the -tate of Texas and described by metes and

bounds as follows: specially waiving all homes-ead, dowery, inten-.-t or other

rirbte. secured under the Constitution and bn of Texas, and exempt from forced

sale thereby 10 th. following described property, viz: Southeast o.uarter of Sloe-

one Beared and eighty-one |l81) fronting one hundred and twenty-eight (12&) feet Ti

Trr.s

on ban Jacinto Street; running one hundred and thirty-eight (138) feet on Willow

C.H.

Street being lots numbers Pour (4) Five (5) and £iz (6) inBloc* one hundred and

eighty-one (lbl) in the City of Austin. Together with all and singular the -right.

asmbers, appurtenance a. hereditaments and .Improvements or fixtures to the sane

belonging or in anywise incident or appertaining or belonging -hereto unto the eai d

?«•»« H. Hayaond. To hare and to bold the ease in fee simple. In true/for the

following neea end purpoeee. That is to Bay 1 hate this day re*.i<*ed from IS. C.

Bartnolemaw, the «um of Six hundred and eighty -doll-era in U. S. Curxenoy; and as

evident of aaid debt and to Eeoure the payment of tte eame hove this day made,.

executed ar.d deliverer to '£, iholomew the c.omis.orv noi hereto attached

fo.r

tear I « twer.t:

ioreiher with this Trust deed to sec?

and comrei \m- faithful payment of the same therefore,, if j shall well and .;

puy off and discharge said note at ?t. arr.eatle 1.0 it:' leeal te'noS

-:.c ef:eet, then and in that event this conveyer.ce t o he null and void, cancelled

should Ifail to par: said oebt at its- maturity ( or whan'

:.t. •/ c(". • her jfter t- C. Bartholomew or his- lernl re presentativee, then 1;

tut nor ire and smcower Jensei F.u viao nd . rn se (or in c»?eof ht<? death or

act. tr;-- vcuit; to advert is e said property herein

described ior sale; givi:.? written lotioe at three public places in the Count; of

Iravis, ior twctj days; setting fort:: the place ,-. 6 oat ;.f ;.ie a::d the property

to i, sold, use at the expiration of said notice should said note remain unjj

an:, part thereo:/to sell s^io property between the hours cf 10 o'clock A. H. a';

.. o'clock r. ... at the ..euel piace of public sales in Travis Couaty to the :«4

ticcer :o* cash; and upon ..aymei.t of the purchase money ty the bidder to make,

execute and deliver to the purchaser a warrantee deed to the property soldv,

i:v m; .-.s.me thereto, and I bind myeelf to warrant and refend the same aga; be**'

lawful claime of any and all persons. The proceeds of said sale to Tje applied"

toe payment of said note, interest and costs; the residue, if any to be paid to

or my legal representatives. Sitress my hand and seal this 14th -day of December

L'* i678« Mary .-v. Goodrich (Seal)

?:-:_ ST.aTii OF TSi^i j

COUM.' OF TiUVIS # BBFDHE HE. :.. I. Fulmore a Kotery Public for said Counl

d%l3 commissioned and qualified, personally appeared toe, Mary ~. Goodrich^

sole to me well ,.nown who acknowledged the execution of the instrument of w:

her to attached, for the uses., purposes; and considerations therein stated, Vitxti

my hand and affix my official seal at office in the City of ^uajtim, this the

day of leer ^. B. 167£. ^ r&. FuTnowe,, K. x< ^ c^

Filed Beer 14th 1672 at i. i>. a. Eecorded Beer loth 1872.

~. R. Jlorria^ -Clk. By *. S. iunn, Beputy

---------- _______

Internal HeVenue -tamp $1.00 Cancelled

«.^lein

TEE ti'.a.T£ CF ir.Knii 5

i. fl«fe

OOUSri OF TBVVIS f iCHOW eLL HOT BX TKiiSE -BBSBHTS, that 1, flrnold Elein*f^

To

the bounty of Travis and State of Texae, for and in consideration of on, doll*

Trust ieed

in hand paid,, tba reeelnt whereof is hereby acknowledged, tovetfels «e^

C.B.Joana

by theee present.„ &*•% granted, Irar^ained,, aoid, alienated *nd -convene

and delivered to C, H. Johns all ay ri^ht,, title, lntere.-tt and claim in and kb

following deecribed property-to-wit: Situate, lying and **-ing in th> 'County •

Travie, 3t*ta of Texas,, and deecribed fcj aeree -ajfl bounds ae follow.- •Baartsial

waiving all homee-tead* Bowery, int-rest or other right*, secured -water '*ne

tution and law* of Texae, and me^t fr<m forced :2«le therapy to the folic

deecribed property, vis: Be lag Two bondred *aS sixteen a«iee of land

Santiago del Valla Grant,, boaoded aad deeeiiea.- *« follewe.;

NOTiCK ok ciiAK:-' '-'ir

TRAVIS COUNTY FLOOi) 11/.7AR1) AREA

DKVKLOPMKNT J'KRMIT

staif. or TKXAS )

<:<>•. \t\ or Tij.wis j

Thiv iNMM.it \o. 85-2558 ..l(.,l or, August 9, 1985

and i< effective immediately.

.„,. .....

: !i»s I enmt :s issueu

, '•»

Patton

.

Lane Joint Venture . . -

ami is not transferrahie.

Thi- I'ermit authorize- the permittee to construct development in ;u cordage v.ith

the requirements of Travi- G»ui,!\ Flood Plain Management KeLulath/n- nn rhe

c i, • , it,,. ,.,,v.2.14 acres of the Thomas Anderson Sur.£17

5300 Hwy. 290 West Tax .Map #4rQ834r06=05. .&.JJ8 ..

, (Lot. nio.k. Suhdivision. Street AfjW-^OS34-01-Cl

(offices)

Foundation In-pection (is. X^&K1 required.

Mei hard. a< and F.leetrical In-pectiou 'XX'" n°l > required.

Sj»-< i.ii l'|o\ i-dom- <){$'. Hem'!* attached.

\ \.li.r of Pi-noil \u\< hi-en !--'.!<(! v. ith 5hi- i»«- •i: iii which -Imidd he n.«-N'd :n a

'••'iti'Vi ,. ;,| ujjj !„> i.roi«( led fio;;j v. eath.ei ;iik! Mrnrc from vandalism, and '..!•.

v. .H 1

n rn.iin • ...-ted until the uoi k :- i (ij!!|-ii!i

j'!.: j.. ••iiitti •• -hall ini;if\ the C.>unt\ Fn-.ineci I'oj !\ ei-dit 'h*)» hour- In-fore en-

•!, fj mi ';- iead\ for foundation ami -u me.h:i:ii'ai and electrical inspection, if

1

!'<;u:n

Fiei-hcd -iah to 'ir at or aho\r elewilion

81

for H.E. VtoUtingtqg, P.E

<;<>r\TY KXOINFKK

TKAVIS i'i)[ NTY. TKXAS

1:['<•<• i I."; ! n.-jN ••'«or Pate !'•..:<•.] Failed

i.UMia::«.(!

NOTE: All construction £• site development shall

M.-fl.ani.-:.! be in cornpliance with Travis County Flood Plain

ar.d

KVrfira! fenageraent Regulations, §ec. 5.B. and as per

plans approved by Travis County.

- Mhi-r

I I' I;,..-

PATTON (.'.no HIGHWAY .">() WIS I

LANE

AIM IN IIXAS 787 i'»

SITE DEVELOPMENT PERMIT PLANS

(NOT FOR CONSTRUCTION)

()WNI R: Nl I h IS \ l( I)(>NAI I > l'R< >H R III S

',00 | I \KI \l MIN Ml VI )

SUIII KL'

AUSIIN IIXAS

•rV -='

<<• 'J. c* - ;Vi6 *

!• Mi_&

ESPEY, HUSTON & ASSOCIATES, INC.

engineering & environmental consultants

916 Capital of Texas Hwy. South P. O. Box 519

(512) 327-6840 % Austin, Texas 78767

i

rM yjf

>

......v..

.= '/ / v\

I'T \ I

VICINITY MAP

...^^fe^:^SS

v {-4™«<

t . ;- . . ,M it ... , J "I '<

A

^ihpH-t' J-.1TOMV ^UILJI/H

^ !

"i

y\ >.. .'_ffi

: . j. TiLj ,Ly

\

v. \

. ,• i .....

•<:>•

AREA TABULATIONS -ia<£

'^l^&m&zh OWNUH caitoii lan_; joi.'u

• sue aoca > »« *r.«f.s !•!.«» 11 SO. t I.

ADDRESS Bio-i »«« nfsi

010U. AULA lOtH'.ll •ij.:.jj so. i ;.

PAIISItm OA1A

C; LEGAL DESCRIPTION

rtr.oo d;s , o BITE PLAN

LOTS 10 4 II

OAIMANV.UH SIIOOIVISIC

coup. «» :.paci:s

PAIIALIC!. VOL.X Kg. Hi {tO/lll Of

a SPACES

si a i m spaces TilAVIS KOUNSY. ILKAJ

u'c*r 5 SPACES

IOI *ll}i>*SPAiU'.>'

I *---»

-k: ;; iiZ..m: 1 ? J 01 i

I»l s

.*s ; •' ^V CM £ a

'Jnr

CJ ' ,] w

_. *

IKA4E SPACE

5 J

-'•,? v«>.', &»~«<.L--.

11 r" i. j

fi a ';.{S

V' *

> ) u s

-

. >«

UFIIVC •,T.'"W >;V 4* • « < u

• /

._ jAnnon .;''•;'' /\\//, Jltf

.* $ z1 ~*\ /•~

*"

. r

it n

Ll'.VSfi SPACt:

\ it 3!

5 *

v

~j

5

iii

LU

^-.;;. ;•' . .* .» • w /'Of v / ri.ecr./ • o

C v :;l •'

.: V y' ' ,. *». ^ •'?, t. MfTSH. '

l»~

V V,

-. Vlf.-.r.-.!."* _-> _ tl.

\.(ma\ /'• . r-r1.-'.', •.•i--.il. „. o .

w

/' . "-_ - ' ----- a.

«<

_j

7.

;-

<

p

•u

ia :-"•r^

a

*" a.

^-. ^ o

l».

IUAS(. SPAfifi

Vi"

"

,-.,. » .. • ' (£'

i-'vivN\ FJRST^FLOOR PLAN^

VlSiV

if n

•*' !l

. , a

: i w

• . u>

Z

I. **' #, o

(0 z

Or ] u

vnotoacu

•'. }'

i-ataiir iiuiLoiun

«SCI**!'

„ •' *a

&• t S

'MI

_*' I • 1

••jg

• i

( 1 f~

o

/ I1 2T

Q

=>

Kl

LU

-~. / O

-^ U.

O ,

!IJ

K

•**.

z

P^!°f"-^ o

ii J" ••j

" n.

UTILITY SITE PLAN * /

-J'

./

^!

DAAV -4 4T Jr<

OWNER

LEGAL DCSCHIPTIOM

iV

! 7

r:.

p •

STREET ADDRPSW

I NOTICE OF PUBLIC HEARING

REZONING

Mailing Date: December 30, 2008 Case Number: C14-2008-0152

Este aviso le informa de una audiencia publica tratando un cambio de zonificacion dentro de una

distancia de 500 pies de su propiedad. Si usted desea recibir una copia de este aviso en espanol, por

favor llame at (512) 974-7668.

Please be advised that the City ofAustin has received an application for a zoning change.

Owner: Tejas Land & Commerce (Charles Draper) Telephone: 512-358-7191

Agent: 1hrower Design (Ron Thrower) Telephone: 512-476-4456

Address and/or Legal Description:

6300 US Hwy 290 West

Proposed Zoning Change

From CS-CO-NP - General Commercial Services district is intended predominately for

commercial and industrial activities of a service nature having operating characteristics or

traffic service requirements generally incompatible with residential environments. CO -

Conditional Overlay combining district may be applied in combination with any base

district. The district is intended to provide flexible and adaptable use or site development

regulations by requiring standards tailored to individual properties. NP - Neighborhood

Plan district denotes a tract located within the boundaries of an adopted Neighborhood

Plan.

To CS-CO-NP - General Commercial Services district is intended predominately for

commercial and industrial activities of a service nature having operating characteristics or

traffic service requirements generally incompatible with residential environments. CO-

Conditional Overlay combining district may be applied in combination with any base

district. The district is intended to provide flexible and adaptable use or site development

regulations by requiring standards tailored to individual properties. NP - Neighborhood

Plan district denotes a tract located within the boundaries of an adopted Neighborhood

Plan.

This application is scheduled to be heard by the City Council on January 15, 2009. The meeting will be

held at City Hall Council Chambers, 301 West 2nd Street beginning at 4:00pm.

You are being notified because City Ordinance requires that all property owners within 500 feet, those who

have a City utility service address within 500 feet and registered environmental or neighborhood

organizations whose declared boundaries are within 500 feet be notified when an application is scheduled for

a public hearing.

Ifyou have any questions concerning this application, please contact Stephen Rye. ofthe Neighborhood

Planning and Zoning Department at 512-974-7604 and refer to the Case Number at the top right ofthis

notice. However, you may also find information on this case at our web site:

https://wvwv.ci.austin.tx.us/devreview/index.jsp.

For additional information on the City ofAustin's land development process, please visit our

www.ci.austin.tx.us/development.

\\ \v

\ < ••

\ \

6B

\%\

\ 'VN

ZONING

SUBJECT TRACT

N ZONING CASE? C14-2008-0152

*••»

ZONING BOUNDARY ADDRESS 6300 W US 290 HWY WB

A SUBJECTAREA 2.357 ACRES

f~7*"l PENDING CASE GRID C19

MANAGER. C.PATTERSON

OPERATOR S MEEKS

I" =400' • ""'•

Page 1 of 3

Kleeman, Robert

From: Murphy, Pat [pat.murphy@ci.austin.tx.usl

Sent: Wednesday, February 20, 2008 10:22 AM

To: Kleeman, Robert; Hollon, Matt

Subject: RE: info on property

Follow Up Flag: Follow up

Flag Status: Red

Robert,

This is a pretty complicated question that you are asking. I would suggest that we sit down at some point and go

through the regulations that might apply to this project.

Pat

From: Kleeman, Robert [mailto:rkleeman@munsch.com]

Sent: Tuesday, February 19, 2008 12:06 PM

To: Hollon, Matt

Cc: Murphy, Pat

Subject: RE: info on property

Guys:

1need some guidance. The property in question has an original plat that goes back to a plat called the "Town of Oak Hill"

recorded in Volume X, Page 242. Deed Records of Travis County. I am working on getting a copy of this plat but 1feel

comfortable in guessing that this plat goes back to at least the 1960s if notearlier. The plat was amended in 1991 by moving

lot lines. The current property description is Town of Oak Hill, Amended Lots 10 and 11,according to the plat recorded in

Volume 90, Page 61, Travis County Plat Records. The amended plat was administratively approved by the City of Austin.

The Williamson CreekOrdinance, Ord No. 810319-M, states in Section 101.2 that the requirement for a site development

permitdoes apply to development within a recorded subdivision which was finally approved by the Planning Commission

prior to December 18, 1980. I strongly suspect that the original plat pre-dates December 18, 1980.

Was there a Williamson Creek Ordinance prior to Ord. No. 810319-M? Was there another Williamson Creek Ordinance

between 1981 and the C WO?

Was there some other, earlier City Ordinance that would have required a site development permit or site plan in the

Williamson Creek Watershed? Ordinance No. 801218-W appears to only address subdividing, which isn't an issue here.

If there are other, earlier ordinances, can you send me a copy of those earlier ordinances?

Now going Back to the Future, I am thinking that under 13-2-502(d), May 18, 1991 would be the first date that a site

development permit requirement would apply to this property. Under 13-2-502(b). this platted property would have been

exempt from the Comprehensive Watersheds Ord. Under l3-2-502(g), development of the property would have been

governed by the applicable watershed ordinance, if any, in effect on May 18, 1986. Unless there is a pre-1981 ordinance, I

believe that there was not a site development permit requirement applicable to this property on May 18, 1986.

2/25/2008

Page 2 of 3

Thanks

Robert Kleeman

MUNSCH HARDT

KOPF & HARR, P.C.

DALLAS | HOUSTON | AUSTIN

One American Center

600 Congress Avenue, Suite 2900

Austin, Texas 78701-3057

Direct: (512)391-6115

Fax: (512)482-8932

rkleeman@mu nsch .com

munsch.com

NOTICE: This e-mail message is for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any

unauthorized review, use, disclosure or distribution is prohibited. Ifyou are not the intended recipient, please contact the sender by reply e-

mail. Please virus check all attachments to prevent widespread contamination and corruption of files and operating systems. Nothing

contained in this message or in any attachment shall constitute a contract or electronic signature under the Electronic Signatures in Global and

National Commerce Act, any version of the Uniform Electronic Transactions Act or any other statute governing electronic transactions.

IRS Circular 230 Notice: To ensure compliance with requirements imposed by the IRS, we inform you that any

U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used,

and cannot be used, for the purpose of (a) avoiding penalties under the Internal Revenue Code or (b) promoting,

marketing or recommending to another party any transaction or matter addressed herein.

From: Hollon, Matt [mailto:Matt.Hollon@ci.austin.tx.us]

Sent: Friday, January 18, 2008 3:40 PM

To: Kleeman, Robert

Cc: Murphy, Pat

Subject: info on property

Robert,

OK, I made a couple of quick maps of Charles Draper's properties along 290 (6300 & 6302 Hwy 290 W)

and am attaching them for your use. I noted that the area to the back is functionally impervious-looking, but

am not certain as to its actual status. I talked with Pat Murphy and he said that you will need a

determination of the legality of the impervious cover (i.e., whether it was permitted). We'll get into more of a

grey area if it was put in illegally. Anyway, the smaller 6300 property WAS included in our analysis of

properties for the BSZ Redevelopment Ordinance. We didn't pick up the other property because it was

listed as "undeveloped" in our coverage. Obviously it IS developed, and now we just need to confirm its

status.

Definitely feel free to call us back to talk more about it ifyou have questions. Pat Murphy (974-2821) will

likely be your best contact in terms of interpretation of the rules.

Matt

Matt Hollon

Env. Program Manager, Planning & GIS

Watershed Protection & Development Review

City of Austin

505 Barton Springs Rd. 11th Floor; Austin, Texas 78704

512.974.2212 voice / 512.974.2846 fax

2/25/2008

ot Austin

:--aj^B

;S ".•"••*"'•-:•'• J '.'•^rc-:-. KtpLihiic r>f Texas, 1S3V

.... ':• •!'. r-h;.J ; ; >WXtir*'.. ,?Tid IV'd' >plTUT:r Ro.tcw 1VpartJnrtlt

August 28.2008

Mr. Robert J. Kleeman

Munsch Hardt

Kopf&IlarrPC

One American Center

600 Congress Avenue - Suite 2900

Austin, Texas 78701-3057

Dear Mr. Kieeman:

1 am writing you in response to your request to verify your client's entitlements for

a redevelopment project in the Barton Springs Zone located at the intersection of

U.S. Hwy. 290/71 West and Patton Ranch Road. I agree that a successful

redevelopment project under 25-8-27 would be a benefitto the City and your

client.

As you know, City Code Section 25-8-27providesan exceptionto compliancewith

the City's water quality regulations in the BartonSprings Zone under limited

circumstances. Applicable to your client's situation is the requirement that only

existing commercial developmentthat does not increase non-compliance with code

requirements qualifies. My understanding is that your client wishes to redevelop

commercial property in the Barton Springs Zone, but at least some of the existing

development on the property was not built in compliance with City Code

requirements.

1he development on the site has occurred in several phasesas you have evidenced

by comparing the City's aerialphotographs fromdifferent dates. The site is located

within the BartonCreek watershed and the first watershed regulations limiting

imperviouscover that would have appliedto your client's propertywas the 1980

Bnrr.on Creek Ordnance. Becauseof the lack of City recordsdocumentingany

permits or construction dates, i agres.that it is reasonable for you to document

through aerial photographsor other credible evidence the portion ofthe commercial

development that was built in compliance with City regulations in existenceat that

lime.

You are required to providedocumentation and impervious cover calculations

based on this agreed upon methodology at the time that your clienl files a

development permitapplication requesting the redevelopment exception underCity

Code section 25-8-27. To clarify, this means thatany impervious coverplacedon

the site not in compliancewith City regulations at the time it was constructed must

be removed. The remaining impervious cover, i.e., the portion that was built in

compliance withCity regulations, mayremain in accordance with 25-8-27 aslong

as the redevelopment otherwise fully complies with 25-8-27.

My staffand I look forward to working with you on this project.

Sincerel

bim:t

victoriaJ. Li., Director

Watershed Protection and Development Review Department

JONES&CARTEHiac 1701 Directors Blvd., Suite 40G TEL 512 441 9433

ENGINEERS-PLANNERS-SURVEYOR: Austin.Texas 78744-1024 FAX 512 445 2286

AUSTIN DALLAS

HOUSTON BRENHAM

SAN ANTOMIO ROSEMEERG

COLLEGE STATiON THEWOOOLA^S

TaosBoard ofProfession! Engineers Registration Xo F-*?9

February 15, 2011

Ms. Susan Scallon

Planning and Development Review

505 Barton Springs Road

Austin, Texas 78705

Re: Patton Lane Office Building

6302 West US Hwy 290

Austin, Texas 78735

Dear Susan:

On behalfofthe owner, Charles Draper, Jones &Carter, Inc. is submitting aSite Plan FairNotice and

aH.B. 1704 Chapter 245 Determination Application for the Patton Lane Office Buildingproject Tlv

project is located on the northeast comer ofWest US Hwy 290 and Patton Ranch Road insouthwest

Austin. Abriefhistory of the project is that the building was desisTied, tlie project site was cleared

and construction began in 1985 with the construction of 50 building piers. Due to the economic

downturn ofthe mid 1980's, the project was halted and the property became owned by the lending

institute. At tlie time, the project was outside the Austin city limits, so no permit was required for the

project. Attached are site plan, floor plan and utility plan for the Droject, a copy tf maerial

photograph from February 16,1984 showing the site, plus acopy ofan aerial photouraph from April

•o, 1986 showing tlie site had been cleared, the houses and other buildine had been demolished and

construction activity had commenced. There are currently fifty building triers that were constructed

for the building foundation prior to the project being halted.

On December 30,1985, the property was annexed into the City. Based on the feet that the projecthad

commenced prior to annexation by the City, the project should be grandfathered to the regulations at

tlie time construction began and can continue construction.

We appreciate your favorable review of the H.B. 1704 Chapter 245 determination. If there is

additional information that you require, please contact me at (512) 441-9493.

Very truly vours,

James M. Schissler, P.E.

Cc: Charles Draper, Tejas Land Company

J:.'project_'A63.i/001/general/letter/J704 Isttcr 0201 i i.doc

Smart Engineering.Smart Solutions. www.jonescarter.com

Exhibit D

PROJECT APPLICATION H.B. 1704/Chapter 245 DETERMINATION

(Chapter 245, Texas Local Government Code)

(This completed form must accompany all subdivision and site plan applications.)

„,._,_. <ro J^// ,/,, F0R DEPARTMENTAL USE „ ,

File #Assigned: ^f &>H-C&f((>C. Tbate Filed: JMHo/7&l

2ri___al AfP1'03*500 Da*e: ftA^fidlCfafdj? Sionat.ii-.-

Comments:

'T"> .Date: PrV#3ty/

Insufficient Information to establish Chapter 245 rights.

ProposedProject Name: Patton Lane Office Building

Address / Location: 6302 West US Hwv 290. Austin . TX 78735

Legal Description: Lots 10 and 11 Town of Oak Hill

A. [ ] The proposed application is for a New Project and is submitted under regulations currently in effect.

| NOTE: If Ais checked above, proceed to signature block below.

B. [ JThe proposed application is for an ongoing project not requesting House Bill 1704 consideration The choice of this option

does not constitute a waiver ofany rights under Chapter 245.

°'f ] ]_T#£_K°,?d ?_liCati°nDi?, f?rJ project re(*uestin9 review under regulations other than those currently in effect, but not

on AM basis of House Bill 1704. All appropriate supporting documentation must be attached to this request Provide

a bnef descnption of the basis for this request here:

D. [ JThe^Proposed application is for a project requesting review under aspecific agreement not on the basis of House Bill

k • ,A" appropriate supporting documentation must be attached to this request Provide a brief description of the

basis for this request here: ^^

E. [X] Original Application Filing Date: Not required at time construction began File #:

The proposed application is submitted as a Project in Progress under Chapter 245 (HB 1704) and should be reviewed under the

applicable regulations pursuant to state law. The determination will be based on information submitted on and with this

form.

The following information is required for Chapter 245 Review:

Attach supporting documentation, including asummary letter with acomplete project history from the Original Application to

the present, with acopy ofthe original subdivision or site plan approval by the City and subsequent application approvals.

Specify project information for date claiming 1704 grandfathering; include acopy ofthe relevant permit upon which Chapter

245 vesting is claimed.

Project Application History File # Application Date Approval Date

Annexation/zoning

(ifapplicable to history)

Preliminary Subdivision

Final Subdivision Plat Volume X. Page 242 December 16. 1872

Site Plan / Devel. Permit Not required at timeconstruction began

Proposed Project Application [check one): Preliminary Subdivision.. Final Plat Site Plan X

Proposed Project Land Use: Specify acreage in each ofthe following land use categories.

Single Family / Duplex _ Townhouse / Condo / Multi-family Office

Commercial 2.1313 Industrial / R&D .Other (Specify)

Total acreage: 2.1313 Watershed Williamson Creek Watershed Classification Barton Springs Zone

This proposed project application will still be reviewed under those rules and regulations that are not subject to Chapter 245, such as

TJOOL Pre tm™™nt destruction of property or injury to persons, including regulations dealing with stormwater detention

temporary erosion and sedimentation controls, and regulations to protect critical/significant recharge features

Signature -Property Owner or Agent j^Srrti _f_4^^e^^_f _• ^ Date : 2.-/4-//

Printed Name James M. Schissler. P Phone / Fax512-441-9493 / 512-445-2286

Form Date 5/06/2005

City ofAustin / Planning and Development Review Department

505 Barton Springs Road. Austin, Texas78704 Ph 974-2659 / Fax 974-2934

Land Use Review

Site Plan Completeness Check

Before an application is accepted for formal review, City Staff conducts a completeness check to ensure the

application packet contains the necessary components to complete a review.

Acompleteness check application must be deemed complete before formal application can be submitted.

A formal application must be filed within 45 calendar days ofthe initial completeness

check (by 04/02/2011) or the application will expire and a new completeness check

application must be filed.

Applicants must pick up the completeness check packet at the Intake office within 72 hours of receiving a

response The City is not responsible for lost or stolen packets. The applicant must schedule an appointment

with the Intake office for formal application submittal Please call 974-2681, 974-2350 or974-7208 for

more information.

Completeness Check Results: Incomplete 45 Day Expiration date: 04/02/2011

Tracking #: 10547374 Revision #: 00 Watershed: Williamson Creek

Project Name: Patton LaneOffice Building

Ch.245 Team Review Req'd: Yes Prig. Submittal Date: 02/16/2011 Resubmittal Date

Date Sent to Ch.245:

Date Rec'd.back in LUR:

Current Results to Applicant: 03/02/2011

This application is incomplete for the reasons given below. The Applicant mustaddress the noted

deficiencies and resubmit italong with acomment response letter to the Intake Office, atOne Texas

Center, 505 Barton Springs Rd., 4th Floor, Austin TX 78704.

Checked for Completeness by the following reviewers: Complete/Incomplete Initials

Drainage Engineering Jay Baker 512-974-2636 Complete JB

Transportation Joe Almazan 974-2674 Complete JA

Site Plan Lynda Courtney 974-2810 Incomplete LC

Environmental Ingrid McDonald 974-2711 Complete IM

Water Quality Eng Jay Baker 974-2636 Complete JB

Env.Res.Mgmt. David Johns 974-2781 Complete DJ

Floodplain Jameson Courtney 974-3399 Complete JC

Row Mgmt. Joan Caldwell 974-7024 Complete JC

Utility Coord. Eva Moore 974-7671 Complete EM

Traffic Control Javier Martinez 974-1584 Complete JM

AWU-DPR Monty Lowell 974-2882 Complete ML

AWU Neil Kepple 972-0077 Incomplete NK

UST Schuyler Schwarting 974-2715

Staff Reviewers as follows Case Manager:

Team A Team B Team C Team D

Nikki Hoelter (SP) Donna Galati (SP) Sue Welch (SP) Sarah Graham (SP)

Jennifer Groody (DR/WQ) Leslie Daniel (DR/WQ) Kevin Selfridge (DR/WQ) Jay Baker (DR/WQ)

Ron Czajkowski (DR/WQ) Michael Duval (DR/WQ) Beth Robinson (DR/WQ) Benny Ho (DR/WQ)

Jim Dymkowski (EV) Mike McDougal (EV) Joydeep Goswami (DR/WQ) Brad Jackson (EV)

Candace Craig (TR) Jeb Brown (EV) Michael Clay (EV) Shandrian Jarvis (TR)

Sangeeta Jain (TR)

Other Disciplines required:

Mapping Traffic Control-No addn. review WWW PARD

Electric (3) Fire Floodplain Industrial Waste

RSMP: Yes/No Waiver: Yes/No Onsite Drainage: Yes/No

Additional Copies to ERM/Other:

Small Project: Yes/No

Fees:

Total # of Plans / Engineering Reports required at formal

The City ofAustin encourages applicants to contact neighborhood organizations prior to formal submittal. To

find out contact information for neighborhood associations visit ourweb page at

http://www.ci.austin.tx.us/neiahborhoodservices/ or contact our Neighborhood Liaisons for more information-

Carol Gibbs @ 974-7219 or Jody Zemel @ 974-7117.

Comments:

Please respond to each comment in letter form.

TR: OK for HB 1704 determination only

AWU: Plan is for 1704 only, No Site Plan to review.

SP: Submit new project Site Plan Packet

ERM: FYI, if 1704 is not granted, project will require an EA.

City of Aust

This text is long and has been trimmed here. Open the source document for the complete record.