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

> Texas Court of Appeals, 3rd District (Austin) · December 16, 2015

URL: https://www.frixlaw.com/law-library/cases/4076024

## Case

- **Court:** Texas Court of Appeals, 3rd District (Austin)
- **Decided:** December 16, 2015
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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)^ PAGE v fi^

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riled beer lctn Ifix at 11 H. Recorder: sam(- day

&. H. Morris:., Cllei-: by u. S» Sunn, Deputy

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the County of Travis ana state of Te:. a. Eecorded Beer loth 1872.
~. R. Jlorria^ -Clk. By *. S. iunn, Beputy
---------- _______

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in hand paid,, tba reeelnt whereof is hereby acknowledged, tovetfels «e^
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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
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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.)

„,._,_. 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 Austin
Founded by Congress, Republic of Texas, 1839
Planning and Development Review Department
P.O. Box 1088. Austin. Texas 78767

May 13, 2011

Mr. Charles Draper
Tejasland and Commerce
6300 Highway 290 West
Austin, TX 78735

RE: 6302 Highway 290 West, Lot 11 A, Block 1, Oak Hill Township
1704 Application/Chapter 245 City Admin Code; Tracking 10547874

Dear Mr. Draper:

Thank you for your letterof April 6, 2011 regarding the above referenced property. In
response to your request to reconsider the Chapter 245 determination for the site plan at
the referenced property, it is my decision to uphold the original decision that the site plan
would be subject to current code as of the date of submittal. This decision was reached
after reviewing information submitted with your original determination request, aerial
photography and your most recent letter and its attachment. If you have questions
regarding the terms of this letter, please call me at 974-2387.

Sincerely,

Gregory I. Guernsey, AICP, C
Planning and Development Review Department

CC: Susan Scallon, PDRD
Brent Lloyd, Law Department
City of Austin
Founded by Congress, Republic of Texas, 1839
Planning and Development Review Department
P.O. Box 1088. Austin. Texas 78767

September 23, 2011

Mr. Charles Draper
Tejasland and Commerce
6300 Highway 290 West
Austin, TX 78735

RE: 6302 Highway 290 West, Lot 11A, Block 1, Oak Hill Township
1704 Application/Chapter 245 City Admin Code; Tracking 10547874

Dear Mr. Draper:

Thank you for your email of August 17, 2011 regarding your reconsideration request of
my previous Chapter 245 determination on the referenced property. In light of the
attachments to your email, I requested and obtained additional permit information from
Travis County. Based on this additional information, the information you submitted and
the previous information from your original Chapter 245 determination request; I have
decided to uphold my original decision that the site plan would be subject to current code
as of the date of submittal. If you have questions regarding the terms of this letter,
please call me at 974-2387.

Sincerely,

^Jflmwj
Gregory I. Guernsey, AICP, Director
Planning and Development Review Department

CC: Susan Scallon, PDRD
Brent Lloyd, Law Department
Mitzi Cotton, Law Department
Tejasland & Commerce
6300 Highway 290 West
Austin, TX 78735
Phone: 512.699.2199 Email: cd
•t |ij« .»•,-.. », ••_*. - j T. /«>,>• v 'i .fisi *» -titSt-A1'£**•?»J*i*"?V-f- ftj ^*^ -*;. • iV

•• NOTICE OF CLASS "IT
TRAVIS COUNTY FLOOD HAZARD AREA
DEVELOPMENT PERMIT

STATE OF TKXAS )
: Map ^4-0834-06-05 S 0B (offices)
T.jin.l.ttiitn Inspection ^•jJ'fVV'Y remiirrd.
\]e j pit»'r fonnd.it ion .jrid or meehanhal ami electrical inspection, if
reunited.
I i'i! };>i\ -la!- to In- ;i| i-r .Jo\t r|e...iii
^'KAA/
.E. Whittington, P.E.
COINTV K\r.|NKKI.
ri; WIS COI \TY. TKWS

INSPECTION Itf-X'OliD

II, •: PaV

*!0T!:: All construction S site development shall be
VT 1n cornpHance with Travis tounty Flood Plain
Management Reflations, SFc. 5.B. and as per
iTlans annroved by Travis County.

'ft
:"-"•• . ,--?_-»-• ^^r-^_ •^.••^HUfm-'^^Tf.^- • v

NOTICE OF CLASS "B"
TRAVIS COUNTY FLOOD HAZARD AREA
DEVELOPMENT PERMIT
I
STATK OK TKXAS
CO! \TY OK THAVIS
r.
•i
Tins Permit No. 85-2558 is issiu-i! nn August 9, 1985
•
and is effective immediately,

\ ,,,. M . . .
1 Ins I ermit is issued
, fo
Patton L' : 2-14 acres of the Thomas Anderson Sur Ml
6300 H*c/» 2W West Tax Tap #4-0834-06-05 SJffi
, lint. I'lpVk. Sul.di\ision. Stnvt A#4^0634~Q1 -01
•
(offices)
KV

l«^wlciSiU:-.-? __&#_

^r • •. \
Austin, Texas 73767
(512)473-9122
April 10, 1987

Patlw Lane J.V. - Buddy Goodson
8000 Centre Park Drive Suite 100
Austin, Tx. 78704

SUBJECT: Completion of Travis County Flood Hazard Area Development Permit
-'•: 85-2553 , Lt 10 5 11 Oatmanville, 6300 290 West
Patton Lane Office Building

Dear Mr. Goodson

This office has not received an elevation certificate for the above-mentioned
prooerty, therefore, our files are considered incomplete.
The elevation certificate is required by the Federal Err.eroencv "ananc-ment Agency
(FE.XA) to verify the lowest floor elevation of your structure for insurance"and'
lending purposes and to comply with the Travis Countv Flood Plain Management
Regulations. Sec. 5.E., which states:

"An elevation certificate shall be completed by the certifier and
one cooy shall be returned to the County Engineer's office for
cc-oletion of the permit file".

"Failure to provide the County Engineer's office with a completed
copy of the elevation certificate within one year from the issuance
of the permit shall constitute a violation".

If you need another elevation certificate form, contact Melba Archer of our office
so that we may complete Section I. Then a registered professional engineer, surveyor
or architect shall complete Section II or Section III (where applicable", verifvinr
the lowest floor elevation. One copy shall be returned to this office sC.
rfor County L"se Wi'A^-V AODRESS: __/>__.
fre: • •_
Rec'd by:
PHONE; -•• rnw t inn Will

be requested, including complete plans and specifications of proposed construction.]
4. Attach a rap o* sufficient scale to locate the building site, along with surrounding
property. Mark the building site on the map.
5. Attach a copy of all State and/or Federal permits applicable.

5. State the name of the permit applicant: L^l" r^-?"
Owner: " -'• '- '__ '•'•"• _____tog
7 If the perv.it applicant is a corporation, partnership or other legal entity other than
a natural person*, state the name of one or more natural persons who will be responsible
to Cownissioners Court to see that all provisions of the Duilding permit will be
faithfully complied with, w__-3_~ •____•-• •'

v. State the estimated cost or construction: S «-.-,- -.-_ 1 ___

. ,.% ..... , heresy file this application for
basic'aevelopmenrpernitrand if the permit herein applied for is granted, acknowledge
myself to be foand to Commissioners Court of Travis County, Texas to see that all pro
visions z£ tne permit are faithfully performed.

ppTTcant/Agent or Attorney;

(Fcr County L'se Only)
Rec'd by:
Ck'd by: PHONE:
Approved:
hAi:C L-EVrTLCPMLNT -r^F-*-27 k'f\\

fc-.ri o* tr._ •'.•] Is*. r.j q.t-t* .r . .t*. tr.:

State; the r.ture c-f the construct en, ere * ,.:.r .:;«.•• . .tr.fci :**v tr-fe
nature ann purpose of the propose:: const? _:tu':. -'.'(•"•' "it iS.i
structures as sewage aisposal plants, watt' :-pp":y -r.s rstn
erTi&anVmerits, etc.:
t. .1 ..'. u

Resldenti-': \'_;-.-'He SI :er.t'_' : __. L:•-.;>:.__,.; .....v.r
Location c Description of Property - F:"'. *' - 1 b:_?.»; I'.s'

.Lrvey cot - ... B'.cc* S--C.. •'.
Secticn Ressrve
Hessrve Itree*. A_,'e.!

*creage___ -C_src- To:

O. Of L-r; Ct:.er:
-reject v_~*e. _t:. /

\j tr.c- pr .. :c: ttr.stf .:t'on a *"•:.•* itr.t.'t- :r ":t '•: .-tic -

of cr. cv'.•.."!'.. .t«•_.:•._•"(..•» ,S_..t .. -•--£
r-.vse*!*" *.- '•;• ::
Appro.eJ:
BO
I*' **
# 2ASIC DEVELOPMENT P:;?.:-*!T APPLICATION F0".V

Application No. ...• -,• .
I ••»»• each of the following questions, c>- comply with the following instructions:
(i
]» I State the nature of the construction, and if your answer is "other", state briefly the
Is nature and purpose of the proposed construction. "Other" is used to designate sucn
structures as scv.aae disposal plants, water supply and distribution systers, fills and
(•fiihankmer.ts, etc.:
waste

Residential: Non-"osidonti_1: Dicpo: v~t.cr e:

Location or Description •:« Property - Fill .in.all Blanks that Apply: Abstract
»\H7
t r-jrvVy_;„'.„ •J "__ Lot ^.'... _1_, Block S-abd«vi sion Cjv[_/.______ .,±L
Section Reserve _____ Street Add re-;s_ _.__ jl!__Li._._- -l.-..,.: _.
v

Aere.... ;;e Square Footage of Structure -> ')

N-'i. oi "J'lit', Other : • .'
*Tf'ro~i*ectf"Name, e tr.;
ubstar.tial. improvore;
•_ M-r. ^ro'-oscd construction a nc»w st-ucture or is U a proposed su^.ar.i.ai. i,.vi ..•.--•
; .»; pii.Jiri s'r,ct_rc? "Substantial irprcver-enf -ea.s any-rcPftfrr-recenstruct^n,
;,r i.-.rnver.-nt of a propertv. tr.c- cost or ,hich equal* o- exceeds .3 o' he 'a- ra,,
v>l=Jf.'-.f !'t orr-rty either •••;) at tne ti-e *>. cer-:t spp-icaticr is_r..e, ;r ..
•../.f.•..".-'*he d,.v:e oCcu'-red-, if the property has teen di- r;ed and is ~c--r-: 'c-..-- e_.

,i:,:;l/wiM- t.hi'. .ppikatioi .r.»: .1) '.™./ of ^-neral p.=v* of censtru
•,.,-..*. Tl'....' 'i...Mrd Arc, ^.c-!c:-i-it !e.--,t. :, reused, _doi. or.l
lii.'i err?,

.' t • , I ,i -.;> ,r '. i' ' i ciil-r.t '.
all ; ,-: ;..,•••/. •••.:*', the buil'Jin'. • n the :'." •

;..._s *o :ee
vfo'i' to t-e bo-..r.i to Ccr.-.issiows '.Ourt •_: •
.•V-ir.ns o- the potvit sre f3itn:'u'ly noi"'.-' .••:.

^ * 'Ai":;';;'l i'l si.t"'^c;^Tr "AVtcr-iey)'

'Fcr County L'se C'nly

hec:_^;7;iT_3._ "HO:.:
- '• j oy. __._.
Approved:

-A
**> ,s_/l^-.«
r\ _.iiav of fWrcv^. 2 014

4$?#& RORY RENE TELLO
f'^Jbr?\ Notary Public, State of Texas
L\A\.-:h# My Commission Expires
^aft^ September 15. 2015 Notary Public. State Texas
McClendon & Associates
Development Consulting, LLC

July 25, 2012

Mr. Greg Guernsey, AICP, Director
Planning and Development Review
505 Barton Springs Road, Ste. 500
Austin, TX. 78704

Re: Reconsideration of 1704/Chapter 245 Application for Lots 10A and 11 A, Block 1,Town of
Oak Hill at 6300 and 6302 U.S. 290 West (Tracking #; 10547874)

Dear Mr. Guernsey;

Thank 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 the Committee's disapproval. In response, it seems additional
information, materials, and signed plans may provide clarification of the facts and additional
documentation ofthe justification and "continuing progress" by which we would respectfullv
request for the 1704 Committee to reconsider the application.

Asite development summary follows providing a chronology of development permitting for the
subject property inan effort to clarify and augment the facts of the application previously
submitted.

Subdivision

The land was legally, subdivided as Lots 10and 11, Block 1, Town of Oak Hill, 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 ofAustin was not required.
Site Development Permit

Travis County approved a site development orfloodplain permit on August 9, 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 ofpermits for the
project. Two copies ofthe 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 floodplain permit does not expire. The Travis County Engineer's
Office issued a letter in 1987, indicating that a floodplain elevation certificate verifying the
McClendon & Associates Development Consulting. LLC Phone: 512 363 8676
4808 Canyonwood Dr. Fax: 512 382 1017
Austin, Tx. 78735 e-mail: carlmcclendon@austin.rr.com
finished floor elevation of the building (to be constructed) had not been filed within one year of
the issuance ofthe permit and, therefore, is aviolation, (not expiration ofthe permit).
Construction commenced in 1985, with removal of existing homes on the site and construction
ofdrilled pier locations for the building's foundation, as evidenced by notes from aCity of
Austin environmental inspector and an aerial photo in 1986, (attached).
The site included previously existing residential and commercial development from the 1950's
and 1970's, which did not require City or County permits when it was constructed All ofthis
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 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 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, alocal regulatory agency mav
enact an ordinance, rule, or regulation that places an expiration date on aproject ofno earlier "
than the fifth anniversary ofthe 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 10, 1991, the City rezoned the property to
Commercial Services-Conditional Overlay (CS-CO), (Ord. #: 911010-B).
In 2008, the current owner 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 ofthe
originally submitted permit.

Please contact me if there are questions orfurther items for discussion
C_Xc_*'CV*-^--
Carl McClendon, AICP

cc: Mr. Charles Draper
McClendon &Associates Development Consulting, LLC Phone: 512 363 8676
4808 Canyonwood Dr.
Austin. Tx. 78735 Fax: 512 382 1017
e-mail: carlmcclendon@austin.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 City'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).

8/9/1985 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 ofAustin 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 10and 11 Town
of Oak Hill (Case No. CI4-91-0027).
10/17/1991 Amended platrecorded 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 10A and 11A, 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 the property.

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: 512 363 8676
4808 Canyonwood Dr. Fax: 512 382 1017
Austin. Tx. 78735
e-mail: carlmcclendon@austin.rr.com
PlaintiffSupplement to the Record

Exhibit **lH
AFFIDAVIT

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:

"My name is Charles N. Draper. I am over the age of 21 years. I have been a
licensed real estate broker with State of Texas for over 25 years. I am fully competent
to make this verification. I have read the foregoing: 2013 Oxford Commercial
Marketbeat Office Snapshot. All of the information contained in the publication are
within my personal knowledge, and true and correct."

Ca A?s

Charles N. Draper

SUBSCRIBED AND SWORN TO BEFORE ME on the date] *V day offihjl^l^ 2014

ic. State Teras ,

+ + m

CAR.A L.HA
MyComm.ssion Exp.'es
December 10. 2016

0mwm*r^r*9*i*m^r^**m**^
MARKETBEAT «••/I*cushman&
WAKEFIELD *ITIOXFORD
| J v^AI" wn_U
OFFICE SNAPSHOT

AUSTIN, TX
A Cushman & Wakefield Alliance Research Publication
L j
EC y. DM ' :
The Austin area economy performed as Developers broke ground on 1.6 msf of office product in 201 3, much
strongly as many economists predicted over of which will deliver in 2014 and bring some relief to a market
calendar year 2013. A recent study by the approaching 90.0% occupancy overall. Expect to see office
Milken Institute ranks Austin as the Best- development activity remain strong with another 450,000 sf
Performing City in 2013 based upon job anticipated to break ground in the Southwest submarket by Q2 2014
creation, job retention and the quality of new jobs. Over 27,000 |obs alone. With several ma|or tenants out in the market and current
were created in the Austin MSA, a growth rate of 3.3%, with demand for over 2.0 msf of office space, developers and investors
continued growth projected for 2014 and beyond. The latest Bureau alike remain bullish on the Austin office market approaching 2014.
of Labor Statistics figures from November recorded a 4.7%
unemployment rate for the Austin MSA. This was the lowest rate STATS ON THE GO
since September 2008 before unemployment eventuallyspiked to a
recession high of 7.3% in December 2009. The rate of job growth in •

the Austin area has outpaced that of the national economy, with the Overall Vacancy 13.2% 10.8% -2.4 pp
national unemployment rate as high as 7.0% in November
Overall Asking Rents (psf'yr) $26.79 $2893 8.0%

" - •: El C -l'~ • •• YTD Absorption (sf) 1.494.613 1.232.692 -17.5%
The office market gained 381,961 square feet (sf) of direct absorption
in Q4 2013, bringing the end-of-year total to 1.2 million square feet
(msf). This marked the third consecutive year of more than 1.0 msf of DIRECT GROSS RENTAL VS. VACANCY RATES

absorption in the Austin market. Positive absorption over this period
tightened overall occupancy levels to 89.2% in Q4 2013, the highest
rate since Y2K (2000) when the market's occupancy rate reached its
all-time high of 95.8%. Furthermore, overall occupancy rates $26.00
exceeded pre-recession levels of 87.5% set in 2006, an impressive

I I I
recovery that outpaced a majority of the nation's office markets. The $2400

Far Northwest submarket outgained all submarkets with 537.340 sf of
$2200
direct absorption in 2013. The Central Business District's absorption
2009 2010 2011 2012 2013
dropped off 66.4% from 2012 numbers, ending the year with 73.1 I9 sf
of positive absorption. DIRECT GROSS RENTAL RATE — DIRECT VACANCY RATE

Average rental rates for the overall market accelerated to an all-time
high of $28.93 per square foot (psf), up 8.0% from Q4 2012. Over the DIRECT ABSORPTION

last decade, rental rates climbed 60.6% from the $18.01 psfmark set 2.0
in 2003, an average increase of over $ 1.09 psf per year. 1.5
—' IN

w. I 0
Class Aproduct trailed just 0.2 percentage points behind pre-
recession overall occupancy levels of 89.1% set in 2006. The Central
Business District's class A product was 88.1% occupied, down a slight
0.4 percentage points from Q4 2012. Class A rates increased 6.5%
^05
0.0

-0.5
i I I
since Q4 2012. reaching an all-time high of$32.47 psf. The average
2009 2010 2011 2012 2013
Class A office in the CBD demanded $42.87 psf, a 5.1% increase from
Q4 2012.

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* implitd, « —iocti the srcj-icy c cefnpletencu
200 W. Cesar Chavez. Suite 250 Justin Bibb, Research Director id umc n mbmtted uyier: :c eriori om.ii cm
Austin. TX 78701 512637 5515 uoru withdrawalwithout"cute, anc tc ia> tpeaa
Iiltmj condition)i-pzsed by ou- p'in:>jali
www.oxfordcommercial.com |bibb@oxfordcommercial com Z 2013 Cuilimu A Wakefield. In: 'I nfl :-.
AUSTIN, TX

: ' ." • • " /- •- 'Tt : •: '" •

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•.-.

•

8,630.127 11.4% 10.9% N/A 812.466 17.470 73,119 75.677 $39 45 $42.87

Central 998.679 15.6% 15 6% N/A 0 C 6.420 (434) $33.91 $3466
Far Northwest 12,276.829 12.6% 1 1.9% N/A 0 Q 537.340 465,732 $28 15 S28 94
North Central 2.485.635 13.9% 13.9% N/A 361.973 0 70.487 70.487 $21 30 $25 10
Northeast 1,944,201 9.4% 9.4% N/A 30,248 0 26,357 26.357 $18.77 N/A
Northwest 3.950.337 8.7% 8.1% N/A 220,600 0 113,195 86.212 $2503 $28 29
South Central 2,103,594 2.3% 2.1% N/A 0 J 72,890 69.256 $23 00 $24.00
Southeast 992,420 26.1% 26.1% N/A 0 0 (19,116) (19.116) $1503 $24.17
Southwest 9,124,743 7.8% 7.3% N/A 214.355 87.461 311,718 284.656 $30.22 $31 81
Round Rock 1.112.135 13.3% 13.1% N/A 0 0 40,282 40.193 $21.42 $2172

-
34.988.573 10.7% 10 2% N A S27.I76 87,461 1.159,573 1.023.343 $26 17 $29 56

TOTALS 43,618,700 10.8° I 0.4% N/A 1,639,642 104,931 1,232,692 1,099,020 $28.93 $32.47

• RENTAL RATES REFLECT ASKING SPSF/YEAR

MARKET HIGHLIGHTS

Significant 2013 Lease Transactions
7171 Southwest Parkway SW SolarWinds A 229.793

9505 Arboretum Blvd. FNW AT&T A 150.033

7700 Parmer Lane FNW Oracle A 66,000

I I 305 Four Points Drive FNW Zcnoss A 43,452

Significant 2013 Sale Transactions •" ' : :

Thomas Properties Portfolio (7 buildings) CBD (5) FNW (2) Parkway Properties $830,384,661/$309 2,687,329

Brandywine Portfolio Majority Interest (I I building SW DRA Advisors $660,245,872/ $472 1,398,826

AMD Lone Star Campus SW Spear Street Capital $164,000,000/ $189 865.832

Thomas Properties Suburban Portfolio (8 buildings) NW
NW KBS $75,900,000/ $145 523,493

Significant 2013 Construction Completions
Hill Country Gallena Q SW Peakrock Capital Q2 20I3 53,453

9225 Bee Caves Road E SW N/A Q4 20I3 34,008

405 North Lamar CBD N/A Ql 2013 17,470
Significant Projects Under Construction

Colorado Tower CBD Dubois Bryant & Campbell; Q3 2014 371.348

Scott Douglass & McConnico
Domain 7 NC N/A Q3 20I4 221.973

Champion Office Park NW N'A Q2 20I4 220.600

IBC Bank Plaza CBD IBC Bank; Endeavor; HFF Q2 20I4 194.749

Seaholm CBD N/A Q2 20I4 145,138

Domain 2 NC HomeAway Q3 20I4 140.000

• BUILDING SQUARE FOOTAGE INDICATES OFFICE SQUARE FOOTAGE ONLY
• RENEWALS NOT INCLUDED IN LEASING ACTIVITY STATISTICS

Oxford Commercial For more information, contact: dm reoo-T a-e taied on NAIOP itanda-3i "c
arrant} o- rcp-eier>:a:ic>r. exp* i or implied ii -race (o trie accuracy or compleiefleu
200 W. Cesar Chavez. Suite 250 Justin Bibb, Research Director I tne rVminc contained I eri a-.d lame i lotmmed ijt>ecl :c errori ctvh oni

Austin. TX 78701 ro_e of price, rental or n&sr c cktaofts ^it^dra^a' without -ciice >nc :c anyspecial
512637 5515
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www. cxfordcommercial.com jbibb@oxfordcommercial.com 2013 Clhmar t Wakefield In; Al nrv.:
PlaintiffSupplement to the Record

Exhibit •*££ ^
AFFIDAVIT

THE STATE OF TEXAS

COUNTY OF TRAVIS

BEFORE ME. THE UNDERSIGNED AUTHORITY, on this day personally
appeared Jim Schissler. who. being by me ilrst duly sworn, and deposed as follows:

"My name is Jim Schissler. I am over the age of 21 years. I have been a
professional engineer for over 25 years. I am fully competent to make this verification.
I have read the foregoing: February 15. 2011 letter. Chapter 245Determination
Application for the Patton Lane Joint Venture. All of the information contained in the
publication are within my personal knowledge, and true and correct."

lim Schissler. P.E

SUBSCRIBED AND SWORN TO BEFORE ME on the date____Wday of_/^_W^___. 2014

Notarv Public. State Texas

/*:?„*#%• CARl BOYNION JOHNSON. JR.
•^"wf- Notary Public, State of Texas
i*}\f\J?§ My Commission Expires
^^ APfil 08. 2017
f (

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Other Authorities
1/
/ ^ ' Office of the Attorney General • State of Texas
X John Cornyn

B
I October 19,2001

I The Honorable Frank Madia Opinion No. JC-0425
Chair, Committee on
Intergovernmental Relations Re: Whether real property for which an original
Texas State Senate application for a first permit has been filed
P. O. Box 12068 remains subject to the orders, regulations,
Austin, Texas 78711-2068 ordinances, rules, expiration dates, or other
requirements that were effective at the time ofthat
filing although the property hasbeenconveyedto
a different owner (RQ-0386-JC)

Dear Senator Madia:

Section 245.002 ofthe Local Government Code locks in, for the duration ofareal-property
"project," the development regulations in effect when the original application for the first necessary
permit is filed. See Tex. Loc. Gov't Code Ann. § 245.002(a), (b) (Vernon Supp. 2001); seealso
Quick v. City ofAustin. 7 S.W.3d 109,131 (Tex. 1998). Under the statutor

[Text truncated at 120,000 characters. The full text is on the page linked above.]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4076024. Public record. Not legal advice.