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

January 5, 2017

CHARLES N. DRAPER, §

§

Appellant, Pro Se § CAUSE NO. 03-16-00745-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 §

§

Appel/ees. §

§

§

JAN O5 2017

Appellant's Brief

Appellant, Pro Se: Appellee:

Charles N. Draper Greg Guernsey, in Ids Capacity

160 Maeves Way Director ofPlanning and

Austin,Texas 78737 Development, Watershed

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

Email: cd@,tejasland.com and City ofAustin

Andralee Cain Lloyd,

Law Department,

Assistant City Attorney

City Hall, 301 West 2nd Street

PO Box 1088, Austin TX 78767-1088

Phone: (512) 974-2918

Fax: (512) 974-1311

I

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 Hazard Permit (Exhibit C) ........ p.8

o Prior to annexation, Travis County 'acted' and issued (Permit #85-2558) in

1985; ......... .............................................. (Affidavit: R. Glasper)

o County permit has no expiration date, impervious cover, nor height limitations.

o Sham-affidavits: Stacey Scheffel, and Susan Scallon

LGC §245.00- Projects

• Shumaker Enterprise v. City ofAustin (non-applicable) ............ p. 9, 17, 20

• Harper Park II v. City ofAustin

CPRC §101.0215 (29) Governmental Liability,

• Planning and Zoning ......... p. 17, 18

o Meadours v. Ermel, 483 F .3d (Fifth Circuit. 2007) ........... p. 9, 18

o Owens-Fiberglass v. Malone, 972 S.W.2d35,40 (Tex. 1998)

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

Vested-Rights v. Inverse Condemnation ........................... p.7

Texas Constitution Article I, §l 7(a)(l60)(161) .... , ..................... p.8

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

• Bass v. City ofDallas (App.7 District 2000) 34 S.W.3d 1 ......................... p.10

ISSUES TO BE PRESENTED FOR REVIEW ......................... p.9

• History ....................... p.11

• Current History ....................... p.13

2

STATEMENT OF FACTS ....................... 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 Sham-affidavit, and Heresay- Stacy Scheffel, and Susan Scallon

o Travis County permit was commercial, without an expiration date; impervious

cover, nor height limitations. TC acted with regulatory authority.

o Property is exempt from Barton Creek Watershed Ordinance and Site

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

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

• Shumaker Enterprise v. City of Austin (non-applicable) ......... p. 9, 17, 20

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

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

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

Dist.J ... p.18

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

CPRC §4I.Oll(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

CERTIFICATE OF CONFERENCE .... p.23

CERTIFICATE OF COMPLIANCE .... p.23

PRAYER .... p.23

CERTIFICATE OF SERVICE ... p.24

VERIFICATION

APPENDIX- Evidence and deliberations of Justice Crump's trial court

1. Plaintiffs Final Amended Petition

2. Defendants' No-Evidence Motion for Summary Judgment

3. Plaintiff's Counter-Claim for No-Evidence Summary Judgment

4. Defendant's Response to Plaintiff's Counter-Claim for No-Evidence Summary

Judgment

3

1

5. Honorable Judge Karin Crump 's Order, October 18 \ 2016

6. · Plaintiffs Request for Finding ofFact and Conclusion ofLaw

7. Honorable Judge Karin Crump's Denial Letter, October 28th , 2016

8. Past-due Notice Plaintiffs Request for Finding ofFact and Conclusion of Law

ORDERS

EXHIBITS: A through J

AFFIDAVITS

Appellant's Affidavits:

• Sham-Affidavits- Stacey Scheffel, and Susan Scallon

• April 10, 1987 Letter, Travis county Engineer Mark Kronkosky

• Robert Glasper, Travis County Transportation and Natural Resources

• Carl McClendon, McClendim and Associates

• Jim Schissler, Jones & Carter, Engineer

• Charles Draper, Tejasland & Commerce, Real Estate Broker

• Charles Draper, Certificate of Competency

OTHER AUTORITIES:

Third Court of Appeals Memorandum Opinion, CPRC Sec.101.106, (2/25/2015)

Attorney General John Comyn, 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 of Planning and

Austin, Texas 78737 Development, Watershed

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

Email: cd@tejasland.com and City ofAustin

Andralee Cain Lloyd, Law Department,

Assistant City Attorney

City Hall, 301 West 2 nd Street

PO Box 1088, Austin TX 787~7-1088

Phone: (512) 974-2918

4

INDEX OF AUTHORITIES

STATUTES & CASE LAW

Texas Local Government Code

• LGC Section §43.002- Continnation of Land Use

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

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

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

Texas Civil Practices & Remedies Code- Tort Claims

• Rule §101.001- Government- General Provisions

th

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

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

• Weingarten Realty Investors v. Albertson's, (S.D. Tex. 1999) 66 F.Supp.2d, 825 .... p.13

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

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

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

• Rule §41.0ll(a)(5)- Evidence to Exemplary Damages

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

• Rule §299- Omitted Findings of Fact

Tenery v. Tenery, 932S.W. 2d 29, 30 (Tex. 1996) .............. p.7

• Rule §329(a)(d)- Timing for Filing Motions- plenary powers .............. p.7

Texas Rules & Civil Procedure

• Rule §166a(c)-

• Mann, Frankfort, Stein & Lipp Advsr v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009)

• MMP, Ltd v. Jones 710 S.W.3d 802, 816 (Tex. 2005)

• Rule §168- Permission to Appeal .... p.6

• Rule §299- Omitted Findings

• Rule §329(b)(f)- Time for Filing Motions-

• In Re Baylor Med Center 280, s.W.3d 277, 230-1 (Tex.2009) .... p.7

• Tenery v.Tenery, 932 S.W. 2d 29,30 (Tex. 1996) .... p.7

Texas Rules of Appellate Procedure

• Vernon's Texas Rules Annotated, Vol. 4, Texas Court of Appeals

o Rule §377- Diligence:

• Note 24- Reversal, Strode v. Srygley (Civ.App.1961) 342 SW.2d 638 ....... p.7

• Note 66 -Findings, Rosales v. Rosales (Civ. App.1964) 377 S.2d 661 ....... p.12

Kilsby v. Aero-Test Equipment Co (Civ.App. 1957)301 SW.2d 703

• Note 68- Grounds, Ives v. Watson (Civ. App 1975) 521 SW.2d 930 ....... p.22

• Note 69-Error, Barham v. Combs (Civ. Appl975) 523 SW.2d 725 ....... p.13

• Note 116- Duty, Gipson v. Southwest Oil Co. ofS.A,Inc (Civ. Appl980)604 S. W2d 396

• Note 117- Rights, Goodman v. Goodman (Civ. App. 1981) 611 S.W. 2d 738 ....... p.13

• Rule §24.4- Appellate Review

• Rule §39.2- Oral Arguments

5

TEXAS CONSTITUTION

Article I, §17(160)(161) -

• Intent, Inverse condemnation (160) ................ p.12

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

• 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

Appellant seeks a reversal of Justice Karin Crump's Order; dismissing all claims against

appellees.

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

against the City of Austin, and their governmental employee, Greg Guernsey in his capacity as

city director. Mr. Guernsey is liable for fraudulent misrepresentations made, while acting in his

capacity as Director ofPlanning and Development Watershed Protection Review Department in

charge of the city's '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 and Zoning by denying Appellant's valid Travis County Flood Hazard Permit;

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

thereby, violating Texas Constitution Article I, §l 7(a) - Taking, Damaging, or Destroying

Property for Public. Use.

· PERMISSION TO APPEAL

· On August 11th, 2016, defendants filed a No-Evidence Motion for Summary Judgment

in 419th Judicial District of Travis County. The Honorable Justice Karin Crump presided.

6

Justice Crump issued an Order; "... Accordingly, Plaintif!s lawsuit against Defendants is

DISMISSED... " from the trial court on October 18th, 2016. (See Appendix 6). Justice Crump

DENIED, Defendant's Motion to Strike Plaintif!s Evidence; however, GRANTED Defendant's

No-Evidence Summary Judgment motion; without support of the Order.

On October 24th, 2016, appellant filed, Plaintiffs Request for Finding ofFacts and

Conclusion ofLaw. Justice Crump's denied appellant's request on October 28th, 2016; stating,

"... Findings ofFact and Conclusions of Law are neither required nor appropriate following

summary judgment... ". (See Appendix 7)

Under TRCP § 299, Refusal of the Court to make a finding of fact requested shall be

reviewable on appeal. "Harm to the complaining party is presumed unless the contrary appears

in the face of the record when the party makes a proper and timely request for findings, and the

trial court fails to comply. Error is harmful if it prevents an appellant from properly presenting a

case to the appellant court." Tenery v. Tenery, 932 S.W. 2d 29, 30 (Tex. 1996)

Justice Crurnp's Order is not supported by case law, and leaves an unresolved

controlling questions oflaw. Rule CPRC§51.0I4(d)(l); TRCP Rule §168.

Justice Crump erred and should not have denied appellant's motion as a rule of law. As a

result of Justice Crump 30 day refusal, the Courts forfeited their plenary powers, under TRCP §

329b, In re Baylor Med Ctr. 280 S.W.3d 277, 230-1 (Tex. 2008).

Any order that interferes with or impairs the effectiveness of the relief sought may be

granted an appeal, TRAP Rule §24.4. If the record shows that an appellant was deprived

statement of facts, which would enable him to present to an appellate court questions he would

be entitled to raise on appeal, an error material, will necessitate a reversal. Strode v. Srygley,

(Civ.App.1961) 342 SW.2d 638.

On November 30, 2016, the Third Court granted a Permission for Appeal.

7

STATEMENT OF THE ORAL ARGUMENTS

The Court should grant oral arguments for the following reasons:

1. At issue, CPRC§51.014(d)l, an undecided controlling question oflaw; LDC §43.002

and LDC §245 have not been authoritatively decided. See Tex. R. App. P. 39.l(b).

Justice Crump refusal leaves a controlling question of law unresolved.

• The undisputed facts are; Travis County issued Permit #85-2558 on August 9th

1985, prior to city annexation. (Affidavits: C. McClendon, and R. Glasper)

• In January 2008, appellant attempted to move forward towards project completion.

Appellees, headed by Greg Guernsey as Director ofPlanning and Development

Watershed Protection Review Department, intentionally, failed to perform their

governmental functions. Appellees denied Draper's vested-rights, a valid Travis County

Flood Hazard Permit; thereby, adversely condemning appellant's property without

adequate compensation.

• LGC §43.002: Appelles have attempted to defeat LGC §43.002, and beguile the trial

court with sham-affidavits of Susan Scallon, and Stacey Scheffel, a Travis County

Permit Director. Both, Ms. Scallon and Ms. Scheffel stated under oath; appellant's

vested-rights expired; "... 180 days after issuance if no work commenced, or... abandoned

after 180 days". (Affidavits: Stacey Scheffel; See also, LGC §245.005(b))

• Contrary to Ms. Scheffel's claims; Travis County Flood Engineer, Mark

Kronkosy on April 10th, 1987 requests '... another elevation certificate form ... '.

(605 days after permit issuance; Exhibits C).

• Ms. Scheffel was employed by Travis County in 1997, twelve years after the

permit was issued. Ms. Scheffel was not present in 1985. Her testimony is Heresay.

• See also Other Authorities, Attorney General Greg Abbott, December 10, 2012

letter- "project duration"; which conflicts with Ms. Scheffel's sham-affidavit.

• LGC §245: Appellees allege Shumaker v. City ofAustin provides appellees the

authority to retroactively regulate land-use.

• The Shumaker permit case concerned three tracts; A, B, and. C. Travis County

'acted'. Schumaker received regulatory agency approval for Tract A. Appellees

8

did not contest Shumaker's Tract A permit. The appellees contested, Travis

County application on Tract B; prior to the county's action.

• In Chief Justice Jones Opinion of Shumaker, he stipulates; (second sentence,

page 1)" ... Consequently , but before the County had acted on the

application ... ".

• Shumaker v. City ofAustin does not apply, here. Travis County 'had acted' in

1985 and issued Permit #85-2558; similar to Shumaker's Tract A.

• Appellees have produced no-evidence of 'regulatory agency' intervention,

since 1985.

• Appellees are defeated under both LGC §43.002 and LGC §245.

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

liability and the facts presented in this appeal.

See Tex. R. App. P. 39.l(c).

• Evidence to be presented, under CPRC Rule §101.0215(29) Governmental

liability, Planning & Zoning, would elaborate and expand the Court's

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

denials are supported with sham-affidavits, gross misrepresentations, duration,

breach of contracts, and obstruction of civil process.· The nature of the

offenses are so reprehensible, that appellees' offend the public trust, and

undermine public justice, equally are paramount to the Court's deliberations.

Meadours v. Ermel, 483, F.3d (Fifth Circuit 2007), and Weingarten Realty

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

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

presented in this appeal.

See Tex. R. App. P. 39.l(c).

• Vested-Rights v. Inverse Condemnation-

!. Travis County 'acted' in 1985, and issued Permit #85-2558.

11. Conveyance does not diminish the rights of a subdivision. (See Other

Authorities: John Comyn letter)

9

111. No 'project' alterations have been filed, or permitted; which changed

the original intent. (See Affidavit: C. McClendon)

1v. Appellant has never 'consented', nor received compensation,

consideration, nor notice of conveyance of 'vested-rights'.

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

v1. City of Austin has no-evidence of intervention for thirty years.

vu. Travis County was the regulatory 'agency' at time of permit issuance.

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

'vested-rights' should still exist today; without limitations on

impervious cover, nor height. LGC§43.002, LGC § 245.002(a).

1x. Property is zoned commercial, was rezoned December 2008, and is

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

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

Property for 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

condenmation claim, a property owner must establish that(!) 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 condenmation, 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 unr~,isonably interferes with the landowner's right to use and enjoy the

,.'<f'· ·. .·. . .

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.

10

ISSUES TO BE PRESENTED FOR REVIEW

Issue 1: Case Jaw, State statue, nor the evidence supports the Orders, or findings of the

trial court.

I. Texas LGC§43.002- Continuation ofLand Use

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

(I) 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;

(b) Judicial refusal, nor sham-affidavits defeat statues and case Jaw.

2. Texas LGC§245.00- Project

a. Harper Park II v. City ofAustin, Greg Guernsey, et al

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

b. Shumaker Enterprises v. City ofAustin,

• Plainly stated in Chief Justice Jones Opinion on Shumaker, Justice

Jones stipulates; (second sentence, page !)"... Consequently, but before

the County had acted on the application. .. ".

• Appellant contends; ' ... the county 'had acted' on the application', and

the County issued Permit# 85-2558 in 1985; which the appellees did

not object.

• "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.

3. Travis County Flood Hazard Permit #85-2558 does not expire in 180 days

as alleged by Ms. Stacy Scheffel's sham-affidavit (See, Affidavits; Defendant's

Motion for No-Evidence Summary Judgment).

a. Ms. Scheffel Affidavit alleges: "3. In 1985, the applicable rules and

regulations for development permit, including Class "B" Travis County

Flood Hazard Area Development Permit, provided that a land development

permit expires after (I) 180 days from the date of issuance if no work

commenced on the subject property or (2)work authorized under the permit

is suspended or abandon for a period of at least 180 days."

11

b. Correspondence from Travis County Floodplain Engineer, Mark

Kronkosky on April 10th, 1987, completely refutes Ms. Scheffel sham-

affidavit. (Exhibit C)

c. Ms. Scheffel has was hired by Travis County in 1997, twelve years

after permit issuance, and Ms. Scheffel has no first hand knowledge. The

doctrine of hearsay excludes consideration of evidence which does not derive

its value solely from the witness rather the veracity and competence of some

other person whom the witness received the information. Ms. Scheffel

Affidavit must be dismissed; under Article VIII, Rule 802.

d. Additionally, 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 §245 of the Local

Government Code." (Other Authorities: Exhibit L; and LGC§245.005)

4. Texas Co11stitution, 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 to Appellant; resulting in damages for 108 months (one hundred and

eight; nine years) for which appellant is entitled to economic compensation.

Issue 2: Justice Crump's trial court should not have granted Defendants' No-Evidence

Summary Judgment Motion, and should have produced 'findings of facts and

conclusions of law; appellant's basis for reversal.

1. "To warrant reversal in a non-jury case where record contains a statement of

facts but no findings of fact or conclusion oflaw, appellant must show from the

record that under no theory to be gathered therefrom was the court authorized to

render the judgment... " Rosales v. Rosales (Civ .App.1964) 377 SW.2d 661

2. "Appealing party is entitled to statement of facts, and if, through no fault of his

own, after exercise of due diligence he is unable to procure statement of facts, his

right to have case reviewed on appeal can be preserved for him by retrial of the cause;

12

... because no court reporter was present at hearing on default judgment was entitled to

retrial". Goodman v. Goodman (Civ.App.1981) 611 SW.2d 738.

3. Appellees have produced no-evidence appellant's property rights are not 'vested-

rights'. Travis County Permit #85-2558 issued on August 9th, 1985; are undisputed.

Texas LGC§43.002.

4. Travis County acted as 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. Texas LGC§245.00.

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

6. While the appellees intervened, and asserted their legal authority; during Shumaker

application on Tract B. At no time have appellees intervened (ie. red tagged)

appellant's project in thirty years. Today, appellees cannot retroactively assert a

change in land-use regulations over 'vested-right' entitlements.

7. Even where no statement of fact or briefs are filed, the court will examine the record

for fundamental error and questions of law important to public in general. Barham v.

Combs (Civ.AppI975) 523 SW.2d 725.

Issue 3: Inverse Condemnation, and 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 of Government. Instead appellees chartered a course of abuse, to

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

performance of civil process. Rule §41.0ll(a)(5)- Evidence to Exemplary Damages.

(See Exhibits I)

I. 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

13

restricting access or denying a permit for development. Weingarten Realty

Investors v. Albertson's-Inverse Condemnation. Article 1, Rule §17(160)(161).

2. The brazen disregard, and disrespect the City of Austin, and their employees have

exhibited, undermine the public trust and should not be dismissed; as attested in

Third Court's Memorandum Opinion issued, February of 2015. (See, Other

Authorities)

CASE HISTORY

6300-02 Highway 290 W (6300Hwv290W)

(Affidavit: Carl McC!endon, and McClendon & Associates (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

(Exhibit B).

b. In 1982, the City of Austin adopted the Barton Creek Watershed Ordinance, 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 (Exhibit C) 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 I 985. 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'sjurisdiction, prior to

adoption of the Barton Creek and Williamson Creek Ordinances."

14

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

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 of the original subdivision. On October I 0, 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, (CI4-

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. (Exhibit D)

CURRENT- CASE HISTORY

6300-02 Highway 290 W (6300Hwy290W)

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 Team', OHNPCT. Concerned his property, potentially,

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

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

15

b. In January of 2008, 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 6300Hwy290W was not entitled to 'vested-rights' provisions as

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

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

Draper filed and obtained rezoning in December, 2008, (Case No. C14-2008-0152).

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 engineer with Jones &

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

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

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

(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. (Exhibit F). Scallon rejected

Draper's application, for the reasoning: "project complete". (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. 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

archives. (Affidavit: R. Glasphar). Again, the 1704/ Chapter 245 'vested-rights"

entitlements were denied without statutory support.

d. 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

16

dispute. Council member Riley said; " ... it would require a Plan Amendment to S. OS.;

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

e. 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 Goverrunent

Code. Having exhausted his !')dministrative appeal, Draper files the above-mentioned

cause of action on March 4'\ 2013.

STATEMENT OF FACTS

Failure to produce Finding of Facts- Defendant's No-Evidence Summary Judgment

On November 13th, the trial court of the honorable Justice Karin Crump failed to

comply with TRCP § 299, Finding of Fact and Conclusions of Law.

On November 15th, 2016, appellant recorded, past-due notice in the District Court for

failure to timely comply with CPRC Rules §297, Finding of Facts and Conclusions ofLaw.

Justice Karin Crump's Jetter dated, October 28th, 2016 response was; "... Finding of

Facts Conclusion ofLaw are neither required nor appropriate following summary judgment

ruling; therefore, the Court respectfally denies Plaintiffs Request for Finding of Fact and

Conclusion ofLaw".

Under TRCP § 299, Refusal request shall be reviewable on appeal. "Harm to the

complaining party is presumed unless the contrary appears in the face of the record when the

party makes a proper and timely request for findings, and the trial court fails to comply. Error

is harmful if it prevents an appellant from properly presenting a case to the appellant court."

Tenery v. Tenery, 932 S.W. 2d 29, 30 (Tex. 1996)

Where appellant's objections to findings of facts and conclusion oflaw, and his

request for additional findings has been denied by the trial judge, to whom the case had been

tried, statutory statement of facts control the appeal. Kilsby v. Areo-Test Equipment Co. (Civ.

17

App.1957) 301 SW.2d 703. Diligence in obtaining a statement of facts in default judgment

case does not require appealing party to exhaust provisions of the is rule and rule 378

governing statement of facts for the purpose of appeal. Gipson v. Southwest Oil Co. San

Antonio, Inc (Civ.App.1980) 604 SW.2d 396

Local Government Code §43.002 & §245

Defendant's Motion for No-Evidence Summary Judgment; appellees asserted sham-

affidavit and hearsay;

• In order to defeat LGC §43.002, Ms. Stacey Scheffel, Travis County Permit Director

stated under oath; appellant's vested-rights had expired; "... 180 days after issuance if no

work commenced, or... abandoned after 180 days". (Affidavit: Stacey Scheffel)

o Wrong. Why then did Travis County Floodplain Engineer, Mark K.ronkosky on

April 10th, 1987, request 'another elevation certificate'; 605 days after original

permit issuance? (see Exhibit C)

o Ms. Scheffel testimony is direct conflict with LGC §245.005(b)l

o 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;" A court

would likely conclude that the Ordinance provisions about which you ask are void

because they conflict with Chapter §245 of the Local Government Code.".

o Additionally, "Under Chapter 245 of the local development code, once an

application for the first permit required to complete a property-development

'project' is filed with the municipality or other agency that regulates such use of

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

"frozen" in their then-current state and the agency is prohibited from eriforcing

18

subsequent regulatory changes to further restrict the property use". See TEX.

GOV'T COCE Ann. 245.001-.007 (West 2005) Shumaker Enters, Inc. v. City of

Austin, 325,, S.W. 3d 812, 814-5 & n.5 (Tex. App-Austin 2010, no pet.)

o Ms. Scheffel was not employed by Travis County in 1985. The doctrine of of

heresay excludes consideration of evidence which does not derive its value solely

from the witness rather the veracity and competence of some other person whom

the witness received the information. Ms.Scheffel testimony must be dismissed,

under Article VIII, Rule § 802.

• Shumacher had a permit for Tract A; which did not require city approval. Shumacher

made a new application for a permit on Tract B; which the city objected.

• Appellant had a "project". An 'original application for development or plat application

that has gives[n] the regulatory authority fair notice of the project and nature of the

permit sought' was filed on August 9th, 1985.

Appellant's vested-rights are frozen on "project" original application in 1985.

Summary Judgment as a rule of law·

To succeed on a traditional motion for summary judgment, the defendant must show

there is no genuine issue of material fact and that it is entitled to summary judgment as a

matter oflaw. TRCP 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. Fielding, 289 S.W.

3d 844, 848 (Tex. 2009). To meet the burden, defendants must conclusively prove all

essential elements of the claim. MMP, Ltd. v. Jones, 710 S.W.3d 802,816 (Tex. 2005).

Apellees failed to conclusively prove all essential elements, and are not support with the trial

court's finding of fact.

19

Tex. Government General Provisions:

Under CPRC Rule §101.0215(29) Liability of a 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 ofHouston v. Jenkins, 363 S.W.3d 808,814 (Tex.

App.-Houston [14 th 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).

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.

DAMAGES

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

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

given defendants' actions were committed, knowingly and intentionally; therefore, appellant

· seeks to recover actual economic damages, and exemplary damages, he has suffered.

Appellant requests relief.

Plaintiff is entitled to relief. Under, Texas Constitution, Article 1, 17 (161)• An

inverse condemnation, for which a owner is entitled to compensation under the Texas

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

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

20

Compensatory (Economic) Damages

Plaintiffs 'vest-rights' entitlements to 6300 Hwy 290 West have been denied; since

January 2008 to the present, nine years.

As affirmed in Affidavit by Mr. Draper, and in accordance with Cushman Wakefield/

Oxford Commercial Austin Office Market Report, the Southwest rental rate for 2013 was

$31.81 p.s.f. The 1985 Travis County permitted Patton Lane J. V. office project, gross square

footage was 43,510 sq. ft. (Exhibit C, and Affidavit 3)

Therefore, from January 2008 until January 2017 equates to 108 months (9 years);

times the southwest market rate of$31.81, times 43,510 sq. ft., equals $12,456,478.00 in

compensatory damages.

Exemplary Damages

Additionally, Draper is entitled to exemplary damages. Given the aggravated conduct,

duration of wanton fraud, misrepresentations, the degree of culpability, perjury, breech of

contact, malice and physical threats, sense of justice, and Appellees' net worth; orchestrated

against Draper, and his property, Draper seeks an additional $12,456,478.00 in exemplary

damages.

Under Rule §41.0ll(a)(S), Exemplary damages are designed to penalize and deter

conduct that is outrageous, malicious, or morally culpable. Owen-Fiberglass Corp. v. Malone,

972 S.W.2d 35, 40 (Tex. 1998) To the extent the nature of the offenses offends the public

interest, the City of Austin should be held accountable.

Total Damages

Plaintiff requests, Total Damages as of December 2016, for $24,912,956.00. Should it

please the court, $25,000,000 (twenty-five million); after collections, accumulated and

accrued interest of seven percent (7%).

21

CONCULSION

Apellant has been harmed and deprived by the trial court's refusal to produce a

findings of facts, and conclusions oflaw, a material error, TRCP §299. Appellant has

been forced to guess at the trial courts deliberations; whereby, appellant requests a

reversal.

Appellees entire case rests on the sham-affidavits presented by Stacey Scheffel,

Susan Scallon and Shumaker; which does not apply. Appellees have not conclusively

proven their affirmative defense as a matter of law. The trial court refuses to provide

Findings of Fact and Conclusions of Law; forcing the appellant to guess at the

conclusions of the trial court. Even without statement of facts, it is the appelate court's

duty to review correctness of legal conclusion drawn from the facts actually found by the

trial court. Ives v. Watson (Civ.App.1975) 521 SW.2d 930. As a consequence, the trial

court forfeited their plenary powers for failure to comply with TRCP Rule §299. The

Appellees are not entitled to summary judgment on the appellant's causes of action;

because of the disputed facts in this case and appellee's summary-judgment evidence

does not conclusively establish each element of LGC§43.002, LGC§245.00 Torts §876,

CRPC Rule §101.0215(29). Appellees denied, appellant's valid Travis County Flood

Hazard Permit, thereby, adversely condemning appellant's 'vested-rights' without

adequate compensation; thereby, violating Article I, §17(a) of the Texas Constitution.

Appellant requests, a reversal of the trial courts findings, and reward vested-rights,

damages and summary judgment to the appellant.

22

CERTIFICATE OF CONFERENCE

I certify, that I have conferred with Andralee Cain Lloyd by telephone on December

30, 2016, and have attempted in good faith to reach an agreement on Defendants' No-

Evidence Motion for Summary Judgment, and Order on Motion for Summary Judgment;

issued October 18th, 2016. We have been unable to reach an agreement.

CERTIFICATE OF COMPLIANCE

I certify that the foregoing document contains less than 6,500 words, in compliance with Rule

§9.4 of the Texas Rules of Appellate Procedure.

PRAYER

Appellant prays the Third Court will support the rule of law, and issue 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 and exemplary damages for $25,000,000 (twenty-five million); plus interest.

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 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.

23

Respectfully submitted,

~/z.-/e:$~•7 ... -

Charles N. Draper

160 Maeves Way

Austin, Texas 78737

Phone: 512.699 .2199

Email: cd@tejasland.com

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on January 5th, 2017 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, City 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 1088

Austin, Texas 78767-1088

(512) 974-2918

24

.APPENDIX

26

• IN THE DISTRICT COURT OF

TRAVIS COUNTY, TEXAS

419th JUDICIAL DISTRICT

CHARLES N. DRAPER, §

§

Plaintiff, Pro Se §

§

v. § CAUSE NO. D-lGN-13-000778

§

GREG GUERNSEY, §

IN HIS CAPACITY AS DIRECTOR OF §

PLANNING AND DEVELOPMENT §

WATERSHED PROTECTION §

REVIEW DEPARTMENT, §

AND CITY OF AUSTIN §

§

Defendants. §

• PLAINTIFF'S FINAL AMENDED PETITION

Charles N. Draper, plaintiff, brings this suit against the City of Austin, Greg Guernsey, in

his capacity as Director of Planni_ng and Development Review Department for the City of

Austin, as party defendants, and for: fraudulent misrepresentations, malice, administrative

failure to comply with Chapters: §43.002, §245, and Chapter §312.005 of the Texas Local

Government, Draper shows the Court the following:

Parties and Venue

1. Charles N. Draper is an individual residing in Austin, Travis Country, Texas 78735.

2. The property, in possession, and questions of fact are located at: 6300-02 Highway 290

(6300Hwy290W) West, Austin, Texas 78735, Travis County, Texas and are owned

individually by Draper .

• 1

• 3. City of Austin, and Director Greg Guernsey, which conduct business in Travis County,

and may be served: at 505 Barton Springs Road, One Texas Center, 4 th floor, Austin,

Texas 78704.

4. Venue of this action is proper because, the property is located in Travis County, and the

plaintiff's was denied his vested-property rights as defined in SB 1701, and Chapters:

§43, §245, and Chapter§ 312.005 of the Texas Local Government Code, by the City of

Austin.

Case History: - 6300-02 Highway 290 W

(Authority opinion: McClendon & Associates (Pl. Exhibit A)

1. Subdivision-

a. 6300Hwy290W, a 2.357 acre tract, was " ..legally subdiv1ded 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 Watershed Ordinance, 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 C) 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. Although construction was initiated and later paused due to economic conditions,

2

• the floodplain permit does not expire Construction commenced in 1985. 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 to the 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

•

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 of the 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 arelated 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

• 3

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

originally submitted permit. (Pl. Exhibit D).

Current History: 6300-02 Highway 290 W

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 Team', OHNPCT. Concerned his property, potentially,

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

law firm of Munsch, Hardt, Kopf. & Harr. Representation was provide 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

6300Hwy290W was not entitled to 'grand0 fathering' provisions as instructed by LGC

Chapter 245.00. (Pl. Exhibit E,F).

c. Consequently, through assistance of Mr; Kleeman, and Munsch, Hardt, Kopf. & Harr,

Draper filed and obtained rezoning in December, 2008, (Case No. C14-2008-0152).

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

2. Site Plan Fair Notice-

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

Carter, submitted a Site Plan Fair Notice and H.B. 1704/ Chapter 245 Determination

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

• 4

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

Exhibit G).

b. Greg Guernsey, City of Austin Planning and Development Watershed Protection and

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

Committee 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 made a fraudulent misrepresentations, and

ignored; LGC § 43.002. Continuation of Land 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 "attomey/client" privileges.(?/. 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 Plain Permit, and original

architectural permits were uncovered through the Travis County archives. Again, the

1704/ Chapter 245 entitlements were denied without statutory support.

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

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

member Riley said; " ... it would require a Plan Amendment to S.0.S.; which requires a

'super majority' a/City Counsel..". Draper respectfully disagrees.

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

fathered' under Chapter §43.002 and 1704/Chapter 245 of Texas' Local Government

• 5

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

cause of action.

Texas Local Government Code, and Civil Practices & Remedies Code

LGC § 43.002. Continuation of Land 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; or

(2) beginning to use the land in the area in the manner that was planned for the land before the

90th day before the effective date of the annexation if:

(A) one or more licenses, certificates, permits, approvals, or other forms of authorization by

a governmental entity were required by law for the planned land use; and

(B) a completed application for the initial authorization was filed with governmental entity

before the date the annexation proceedings were instituted .

• LGC § 245.001. Definitions-

(I) "Permit" means a license, certificate, approval, registration, consent, permit, contract or other

agreement for construction related to, or provision of, service from a water or wastewater utility

owned, operated, or controlled by a regulatory agency, or other form of authorization required by

law, rule, regulation, order, or ordinance that a person must obtain to perform an action or initiate,

continue, or complete a project for which the permit is sought.

(3) "Project" means 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.

(4) "Regulatory agency" means the governing body of, or a bureau, department, division, board,

commission, or other agency of, a political subdivision acting in its capacity of processing,

approving, or issuing a permit.

LGC § 245.002. Uniformity of Requirements

(a) Each regulatory agency shall consider the approval, disapproval, or conditional approval of an

application for a permit solely on the basis of any orders, regulations, ordinances, rules, expiration

dates, or other properly adopted requirements in effect at the time;

(I) the original application for the permit is filed for review for any purpose, including review for

administrative completeness; or

• (2) a plan for development of real property or plat application is filed with a regulatory agency.

6

• (a-1) Rights to which a permit applicant is entitled under this chapter accrue on the filing of an

original application or plan for development or plat application that gives the regulatory agency fair

notice of the project and the nature of the permit sought. An application or plan is considered filed

on the date the applicant delivers the application or plan to the regulatory agency or deposits the

application or plan with the United States Postal Service by certified mail addressed to the

regulatory agency.

LGC § 245.006. Enforcement of Chapter-

(a) This Chapter may be enforced only through mandamus or declaratory or injunctive relief.

CPRC § 101.021 - Governmental Liability-" a governmental unit is liable for:

(I) property damage, personal injury, and death proximately caused by a wrongful act or

omission, or negligence of an employee acting within the scope of employment if: (B) the

employee would be personally liable to claimant to Texas law."

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 of the State sovereignty to be exercised by the

municipality in interest of the general public, including but not limited to: (29) zoning, planning

and plat approval."

• Harper Park Two, LP v. City of Austin

LGC § 245.00- .002

Case Law

Uniformity of Requirements, Projects, 2.5, Permits- "Project" was single endeavor

reflected in original application for first permit in series, rather than individual components of

larger, original projecUendeavor that could subsequently require separate permit, and thus, owner,

under vested-rights protections, was entitled to develop six-acre lot as hotel, office, or any other

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

application, along with zoning and restrictive covenants that were previously voluntarily imposed

on property; "project" was "commercial" development, as defined under then-applicable

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

development. Harper Park Two, LP v. City of Austin (App. 3 Dist.2011) 359 S.W.3d 247,

rehearing overruled, review denied.

"Under chapter 245 of the local government code, once an application for the first permit

required to complete a property-development "project" is filed with the municipality or other

agency that regulates such use of the property, the agency's regulation applicable to the "project"

• are effectively "frozen" in their then-current state and the agency is prohibited from enforcing

7

• subsequent regulatory changes to further restrict the property use". See TEX. GOV'T CODE Ann.

§§ 245.001-.007 (West 20005) Shumaker Enters, Inc. v. City of Austin, 325, S. W. 3d 812, 814-15 &

n.5(Tex. App-Austin 2010, no pet.)

Greg Guernsey, Susan Scallon and the 1704 Committee violated State law, ignored

"'project" are effectively "frozen"' from further restrictions, acted in defiance of State law, and

fraudulently misrepresented Draper's project as; "project-complete". (Pl. Exhibit F)

"See Act of May 11, 1999, 76"' Leg., R.S. Chp73 § 2, 1999 Tex. Gen. Laws 432, codified

as amended, Tex. Loe Gov't Code Ann.§ 245.002(a)-(b). The effect of these requirements, is to

· "freeze" most of the regulatory authority's land-use regulations as they existed at the time the first

permit application is filed through completion of the "project"." Harper Park lI v. City of Austin,

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

"See Act of May 11, 1999, 76"' Leg., R.S. Chp73 § 2, 1999 Tex. Gen. Laws 432; see Quick

v. City of Austin 7 S.W. 3d 109 (Tex 1998) at 128n (purpose of the chapter 245' s statutory

predecessor, former chapter 481 of the government code, was to" establish requirements relating

• to the processing and issuance of permits and approvals by the government regulatory agencies in

order to alleviate bureaucratic obstacles to economic development")". Harper Park lI v. City of

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

"Moreover, as an incidental matter of historical fact, the legislative record reflects that bill

proponents advocated chapter 245 as an appropriate response to instances when the City of Austin

had purportedly imposed new regulatory restrictions, retroactively on development projects that

were already underway causing project failures, bankruptcies, and regulatory uncertainty for

developers, and landowners". Harper Park JJ v. City of Austin, S.W. 3d (App. 3 Dist. 2011), 359,

S. W . .3d247

"In any event, we are to construed chapter 245 in a manner consistent with legislature's

· intent, and whether that leads to a particular "narrow" or "broad" application is entirely a function

the words the Legislature has chosen. The words that the Legislature has chosen in chapter 245

guide us to view the relevant project in context of the applicable land-use regulations in effect at

the time the initial permit application was filed". Harper Park II v. City of Austin, S.W,. 3d (App. 3

Dist. 2011), 359, S. W. 3d 247

• 8

• LGC § 245.006-

Statutes allowing enforcement of permit application regulations through declaratory or

injunctive relief and waiving immunity from suit only applied to permit applicants, and thus did not

result in a waiver of city's immunity from neighbor's claims that city violated its ordinances in

issuing drilling permit to owner of underground hydrocarbon storage facility. Cemosek

Enterprises, Inc. v. City of Mont Belvieu (App. 1 Dist.2011) 338 S.W.3d 655. Municipal

Corporations

LGC § 312.005. Legislative Intent-

In interpreting a statue, a court shall diligently attempt to ascertain legislative intent and shall

consider at all times the old law, the evil, and the remedy. "The Court of Appeals presumes that

legislature used every word for a purpose and excluded every word for a purpose". (Brown v. State

(App 5 Dist. 1995) 915 S. W. 2"d 533). Where language is unambiguous and it meaning is clear, a

court should give effect to the statue, according to its terms." (Rio Grande Valley Sugar Growers,

Inc v. Campesi (Civ. APP.1779) 580 S. W. 2"d 850). "The primary objective in construing statue is to

•

give effect to Legislature intent. (Mitchell Energy Corp. v. Ashworth (Sup.1997) 943 S. W. 2ml 436) .

"City's contention that it will not construe challenged ordinance in unconstitutional manner is

irrelevant to constitutional question of ordinance's susceptibility to such construction: well-

intentioned prosecutors and judicial safeguards do not neutralize vice of vague law". (City of

Mesquite v. Aladdin's Castle Inc. (Civ. App. 1997) 559 S. W. 2"d 92).

Draper contends Greg Guernsey, and the City of Austin breeched CPRC § 101.0215,

Liability of a Municipality, made fraudulent misrepresentations, misconstrued the Legislature's

intent taking a "narrow" view of chapter 245, ignored§ 43.002 , and refusing to provide a

definitive explanation for the refusal of Draper's application.

Attorney General John Cornyn Opinion, October 13, 2001-

"Section § 245.002 of the Local Government Code locks in, for the duration of a real-property

"project", the development regulation 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); see

also Quick v. City of Austin, 7 S.W. 3d 109, 131 (Tex. 1998). Under the statutory definition of

term "project", it is irrelevant whether the owner who files the original application for the first

• permit retains the property for the duration of the project or conveys the property. See TEX. LOC

9

• GOVT CODE § 245.001 (3)(Vernon Supp. 200 I) If another person purchases the tract of land, you

inquire, is the purchaser "entitled to the rights and benefits" that Chapter 245 provides to the owner

.who filed the original application for the first permit, see Letter, not I, at 1, and we thus understand

you ask whether the property remains subject to the development regulations in effect when the

original application for the first permit was filed despite the conveyance. We conclude that the

property remains. subject to the development regulations in effect at the time the original

application for permit was filed, but only if the project remains the same." (Pl. Exhibit KJ

Attorney General Greg Abbott's Opinion, December 10 , 2012-

"You inquire about a potential conflict between the City of Austin's Project Duration Ordinance

("Ordinance") and chapter 245 of the Local Government Code. Id§ 245.005(b). Under the

Ordinance, a project's expiration date could be sooner than five years after the filing of the first

permit application. AUSTIN CITY CODE§ 25-l-533(B).Under the statute, however, a project's

expiration date must be no earlier than five years after the filing of the first permit application.

TEX. LOC. GOV'T Ai'\'N. § 245.005(b) (West 2005). Thus, the Ordinance's expiration periods

conflict with those of statute. Similarly, under the Ordinance, a project would expire if "all building

•

permits are not obtained or notice of construction is not filed within the time periods" established

by the city. AUSTIN CITY CODE§ 25-J-533(B). However, under the statue, a project may not

expire unless it meets dormancy criteria in section 245.005 TEX. LOC. GOV'T ANN. §

245.005(c)(2) (West 2005). The failure to obtain all building permits or file a notice of construction

within a time period set by the city is not one of the criteria set forth in section 245.005. Thus, the

Ordinance's criteria for expiring a project conflicts with that of the statute. See In re Sanchez, 81

S. W. 3d at 796.

Accordingly, a court would likely conclude that the Ordinance is void to the extent it causes a

project to expire sooner than it would under provisions of section 245.005 of the Local

Government Code. Likewise, a court would likely conclude that the Ordinance is void to the extent

it causes a project to expire regardless of whether the project meets the section 245.005 criteria for

progress towards completion of the project". (Pl. Exhibit L).

"While Attorney General opinions are not binding on Court of Appeals, they are

persuasive and entitled to consideration". (Glasscock Underground Water Conservation Dist. V.

Pruitt(App. 8Dist. 1996) 915 S.W. 2'd 577.

Draper "project" complies with the accords of Attorneys General John Comyn, and

• Greg Abbott's opinions, " ... the property remains subject to the development regulations in

10

• effect at the time the original application for permit was filed ... ";Travis County Flood

Hazard Permit, August 9, 1985; prior to city annexation.

Fraudulent Misrepresentation

As stated in abovementioned tort claim, Greg Guernsey, City of Austin, Susan Scallon,

and the 1704 Committee made fraudulent misrepresentations. Susan Scallon assertion

"project complete" (Pl. Exhibit F) fraudulently represent a misrepresentation of material

fact. Three times, Greg Guernsey made further misrepresentations on May 13'\ 2011 (Pl.

Exhibit H), May 23 rd , 2011 (Pl. Exhibit I), and September 21, 2012 in correspondence:

" ... Based on this infonnation, I have decide to uphold my original decision that the site

would be subject to current code based on day of submittal..". (Pl. Exhibit ?N)

Basic elements of Fraudulent Misrepresentation:

1. False representation of a material fact.

2. Scienter (fraud) defendant knew element were false.

•

3. Intent to induce plaintiff's reliance .

4. Act ofreliance on false representation.

5. Plaintiff suffered damages.

Scienter (elements of fraud)

• Plaintiff proved that the Defendant knew the statement was false, made the statement

without belief in the truth, or made the statement in reckless disregard for the truth.

• Elements of negligence - the plaintiff must only prove that the defendant made the

statement without using reasonable care to determine whether the statement was true or

false.

In seeking claim for misrepresentation, a plaintiff may have suffers personal injury, property

damages, or economic loss. The claim for misrepresentation is one of the few tort laws that will

allow recovery for all three types of damages; compensatory, punitive, and exemplary.

Draper claims, Greg Guernsey and the City of Austin made fraudulent

misrepresentations, attempted to induce Schissler, Kleeman, McClendon, and Draper into

believing their misrepresentations, defendants knew the statements were false, and plaintiff

suffered damages .

• 11

• Perjurv and Breach of Contract

In early May of 2013, Sandra Kim, Assistant Attorney for the City of Austin, notified

Draper, she would be out of the country on May 20'\ 2013; whereby, Draper agreed to reset a

scheduled hearing on the merits of Plaintiff's Original Petition. On May 6th , 2013, Draper

entered into a Rule 11 Agreement with Defendant's attorney, Sandra Kim. The Rule 11

Agreement stipulated; "Pursuant to Rule 11 of the Texas Rules of Civil Procedure, the parties

have agreed to reset Plaintiff's Original Petition, Declaratory Judgment, Injunctive Relief and

Supplement to the Record from its current setting of May 20, 2013, at 2:00 PM to June JO,

2013, at 2:00 PM". (Plaintiff's Exhibit M).

On May 17th , 2013, Sandra Kim filed; Affidavit in Support of Motion of Continuance.

In Ms. Kim's Affidavit, Kim testifies: "Counsel/or Defendants (' .. On May, 3, 2013,

•

Defendant's received a Notice for Hearing set for May 20, 2013 ... ') was not contacted prior to

scheduling this hearing date and unable to attend because she will be in South Korea from May

18 th , 2013 to June 1, 2013." (Plaintiffs Exhibit M, p.l, p.2).

Ms. Kim further testified (' .. . under the penalty of perjury'); "Any request for injunctive

relief allowing the Plaintiff to develop his property would upset the [']status quo['] and

constitute a hearing on the merits of the Plaintiff's case and be tantamount to adjudicating both

parties' respective rights without the benefit of a trial, which is improper basis for granting a

temporary injunction". (Plaintiff's Exhibit M, p.9)

Ms. Kim's Affidavit in Support of Motion/or Continuance was a false statement. Ms.

Kim committed perjury, in order to prevent Draper's hearing on the merits of his claim;

scheduled: June 10, 2013 at 2:00 PM .

• 12

• 'Status quo' is Draper's valid Travis County Flood Hazard Pennit issued; August 9,

1985. (Plaintiff's Exhibit C). Ms. Kim made a fraudulent statement under the oath of perjury.

LGC § 43.002. Continuation of Land Use-

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

(!) 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; ...

TX. JUR. 3d Criminal Law Offenses Against Public Administration

§ 109. Preventing the Execution of Civil Process- a person commits an offense if he or she

intentionally or knowingly, by words or physical action, prevents the execution of any process in a

civil cause. (Tex. Penal Code Ann.§ 38.16(a)),

§ 85. Knowledge of False Statement- The evidence may be sufficient even if it does not show

that the accused knew the statement was false because a person may commit perjury by swearing to

a matter about which he or she has no knowledge or swears falsely to a belief in the existence of a

fact which he or she knows does not exist. Gauthier v. State, 496 S.W. 2d, 584 (Tex. Crim. App.

• 1973); Butlerv. State, 429 S.W. 2d, 497 (Tex Crim. App. 1968); Hardy v. State, 246 S.W. 3d 290

(Tex. App. Houston 14th Dist. 2008).

Ms. Kim's falsified Affidavit in Support of Motion for Continuance, was complicit with

Assistant City Attorney, Christopher Coppola May 30th , 2013 hearing on Defendant's Greg

Guernsey and City of Austin Motion of Continuance, granted by Judge Wisser.

Upon Judge Wisser Order, the City of Austin and Assistant City Attorney Sandra Kim breached

the Rule 11 Agreement, signed on May 5, 2013. (Plaintiff's Exhibit C)

TX. JUR. 3d Contracts

§ 326. Prevention and Performance- Where one party to the contract, by wrongful means,

prevents the other party from performing, as by making it impossible for that party to perform,

such action constitutes a breach of the agreement; the effect of such a breach is not only to excuse

the performance by the injured party, but also to entitle it to recover for any damage sustained by

reason of the breach. (Arceneaux v. Price, 468 S.W. 2d, 473 (Tex. Civ. App. Austin 1971); S.K.Y.

•

Inv v. H.E. Butt Grocery Co., 440, S.W. 2d 885 (Tex. App. Corpus Christi 1969)) .

13

• Draper sustained damages as a result of the City of Austin's complicit failure to adhere

to Texas statutes, perjury, and breach of a Rule 11 Agreement.

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 Plaintiff seeks

to recover actual economic damages, compensatory, and exemplary damages, he has suffered.

Compensatory Damages

As evidenced in Plaintiffs letter to Greg Guernsey, Exhibit J (dated: September, 2011),

" ... As a consequence of your un-relented position, I have experienced economic

hardship, economic loss, and inability to rent my property, or generate economic rent from my

investment ... ".

• Draper, further, evidenced his complaint of economic loss. On June 15'1\ 2013, Draper

filed, Plaintiff's Respon_se 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 Ll,

and Pat Murphy, reflect Draper contentions, he sought clarity on Patton Lnne JV valid

perrnit in accordance with 1704/Chp. 245TX LGC (PL Exhibit E).

Assuming the City of Austin 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 years of economic rent. Had Draper developed the bare

minimum foot print issued by the Travis County permit, he could have constructed 43,509

sq. ft. building (PL Exhibit C)

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

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

• 14

• As filed in United States District Court, Western Dis/rict of Texas, Case No. l:11-CV-00505-

SS, Charles N. Draper v. Bank of America, Plaintiff acquired a 15 year Home Equity Loan from Bank

of America on December 15th 2007 for the amount of $173,600.00 at 7.39% interest; in order for

payoff the indebtedness at 6300-2 Hwy 290 W.

As a consequence of the City of Austin's "un-relented position", fraudulent misrepresentations,

perjury, and breach of contract, Draper faced foreclosure on his primary residence, located at 4609

Trail Crest Circle, Austin TX 78735, through September 28'\ 2012. Draper has.been unable to

generate sufficient economic rent from his coffi!Ilercial property; which he encumber with a Home

Equity Loan froin Bank of America on December 15, 2007.

Today, Draper faces the same threat, again; as a result of the City of Austin's "un-relented

position", misrepresentation, perjury, breach of contract, and failure to comply with State law. Should

•

Draper's primary residence may be foreclosed; as a result of the City of Austin, fraudulent behavior,

negligence, and intentional tort, Draper claim's, he is entitled to $350,000.00 in additional

compensatory damages; as the result of the loss of his homestead.

In addition, Draper has sustained hostile physical threats from opposing political interests.

Draper's office; at 6300 Hwy 290 W was burgled. Draper loss computers, and related company

equipment. Draper's homestead has been burgled on numerous occasion; as documented in City of

Austin police reports. Draper has received physical threats from opposing political interest. Draper

property has been vandalized, and his dogs physically beaten by threatening political interest. As a

consequences, Draper fears his physical safety. Draper has listed his homestead for sale; since January

of 2013, and is attempting to leave the Austin co=unity.

• 15

• Therefore, the total compensatory damages could exceed $5,000,000.00; should Draper loose

his homestead, coupled with project delays, and economic damages: $4,524,936.00,( lost economic rent

through June 20, 2013); plus attorney fees, court cost, and accrued interest.

Exemplary Damages

Additionally, Draper is entitled to exemplary damages. Given the duration of wonton fraud,

misrepresentation, perjury, breech of contact, malice and physical threats, against Draper and his

property, Draper seeks an additional $5,000,000.00 in exemplary damages.

Exemplary damages are designed to penalize and deter conduct that is outrageous, malicious,

or morally culpable. (Owen-Fiberglass Corp. v. Malone, 972 S.W.2d 35, 40 (Tex. 1998)) To the extent

the nature of the offenses offends the public interest, the City of Austin should be held accountable.

Summary

•

In summary, LGC §43, §245 limits a city's right to impose land- use regulations to

regulations in effect when a project is commenced. Greg Guernsey, acting in his capacity as

Director of Planning and Development Review Department for the City of Austin, took a

"narrow" view of chapter § 245, created a· intentional tort for which Draper suffered economic

hardship. Greg Guernsey, and the City of Austin, breached a Rule 11 Agreement, committed

perjury, fraudulently misrepresented the law, acted in malice, ignored and misconstrued the

statues LGC §43, §245 & §312.005, failed to give effect of the Legislature's intent, failed to.

provide evidence as to the City's legal basis for disputing Draper's 1704/ Chapter 245

Application, and denied Draper's vested rights.

Prayer

Therefore, plaintiff, Draper requests the Court enter a Declaratory Judgment, Damages,

•

Injunctive Relief on Draper's 1704/ Chapter 245 Application, and acknowledge, Draper's

16

• 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, granting 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, along with

zoning and restrictive covenants that were previously voluntarily imposed on property;

"project" was "commercial" development, as defined under then-applicable ordinances, and

was not limited to office building or other specific type of "commercial" development.. .. ".

In addition to compensatory damages of $5,000,000.00 (Five Million dollars), Draper

prays the court will award Draper exemplary damages in excess of $5,000,000.00 (Five Million

dollars); which should be calculated at the execution of Judicial Order from the Court. Total

Damages awarded exceed $10,000,000.00 (Ten Million Dollars) for one of the most egregious

• acts in municipal administration .

Respectfully submitted,

Charles N. Draper

4609 Trail Crest Circle

Austin, Texas 78735

Phone: 512.699.2199

Email: cd@tejasland.com

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on August 27, 2013, a true and correct copy of the foregoing

Plaintiff's Final Amended Petition, was sent by certified mail, return receipt request to Sandra

Kim, Austin Law Department, City Hall, 301 West 2nd Street. P.O. Box 1546, Austin, Texas

78767-1546

Sandra Kim, Assistant City Attorney

Law Department, City of Austin

City Hall, 301 West 2'' Street

P.O. Box 1546

•

Austin, Texas 78767-1546

(512) 974-2925

17

'.

• McClendon & Associates

Development Consulting, LL<;_

July 16, 2012

Mr. Greg Guernsey, Director

Planning and Development Review

505 Barton Springs Road, Ste. 500

Austin, TX. 78704

Re: Reconsideration of 1704/Chapter 245 Application for Lots lOA and! IA, Block I, 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 not approving the application. In response, it seems additional

information, materials, and signed plans may provide clarification of the facts and additional

documentation of the justification and "continuing progress" by which we would respectfully

• request for the 1704 Committee to reconsider the application.

A site development summary follows providing a chronology of development permitting for the

subject property in an effort to clarify and augment the facts of the application previously

submitted.

Subdivision

The land was legally subdivided as Lots IO and 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- I 0-303(b). In short, a site

development, or waterway development permit from the City of Austin was not required.

Site Development Permit

Travis County approved a site development or floodplain permit on August 8, 1985 for the

Patton Lane Office Building, a 3-story office development. Although the original snbdivision

was platted in 1872, the sit"' d"'velopment permit represents the first in a series of permits for the

project. Two copies of the complete (II" 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 thal a floodplain elevation certificate verifying the

• Mcclendon & Associates Development Consulting, LLC

4808 Canyonwood Dr.

Austin, Tx. 78735

Phone: 512 363 8676

Fax: 512 382 1017

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 of the permit and, therefore, is a violation. (not expiration of the pennit).

Construction commenced in 1985, with removal of existing homes on the site and construction

of drilled pier locations for the building's foundation, as evidenced by notes from a City of

Austin environmental 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 of this

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

the Barton Creek and Williamson Creek Ordinances.

Annexation to City of Austin

The Patton Lane Office Building was under construction when the City of Austin annexed the

property for full purpose on December 30, 1985, and zoned the property Single-Farnily-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 201 I and early 2012, the City issued a certificate of non-

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 Co_de Chapter 245.00S(a) states for permits without an expiration date

and for which there is no continuing progress towards completion, a local regulatory agency may

enact an ordinance, rule, or regulation that places an expiration date on a project of no earlier

than the fifth anniversary of the effective date of this chapter (Sept. 1, 2005).

The landowner has continued progress toward permitting by filing and recording an amended

plat on October I 0, 1991, which did not change or alter any of the previous restrictions or

provisions of the original subdivision. On October 17, 1991, the City rezoned the property to

Commercial Services-Conditional Overlay (CS-CO), (Case#: Cl4-91-0027).

1n 2008, the current owner filed for rezoning of the property to Commercial Services-Conditional

Overlay-Neighborhood Plan (CS-CO-NP), (Case# C 14-2008-0152), which amended the site

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

originally submitted permit.

pc~:zu,..r_e_,ar,..e,.._u_e_s_ti_o_ns or further items for discussion.

Carl McClendon, AICP

cc: Charles Draper

• Mcclendon & Associates Development Consulting. LLC

4808 Canyonwood Dr.

Auslin. Tx. 78735

Phone: 512 363 8676

Fax: 512 382 1017

e-mail: carfmcclendon@aus_tin.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).

8/8/1985 Travis County approves site development (or floodplain) permit (Case#: 85-

2558) for Patton Lane Office Building and site construction commences. Foundation piers are

drilled, but construction pauses due to economic conditions; aerial photo from 4/23/86 showing

drilled piers is attached.

12/30/1985 City of Austin annexes property, and approves zoning for Single-Family-2 (SF-2).

10/10/1991 City of Austin approves rezoning from SF-2 to CS-CO for Lots 10 and 11, Town

• of Oak Hill (Case No. C!4-91-0027) .

10/17/1991

UlS/2009

Amended plat recorded for Town of Oak Hill, Lots IO and 11 to create Lots I OA

and I IA, Town of Oak Hill, (Case#: C8-91-0039.0A).

Based upon landowner's request for rezoning, the City of Austin revises the

zoning and conditional overlay for Lots JOA and I !A, Block I, Town of Oak Hill Amended

Subdivision from CS-CO-NP to CS-CO-NP, (Case#: Cl4-2008-0152). 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

4808 Canyonwood Dr.

Austin, Tx. 78735

Phone: 512 363 8676

Fax: 512 382 1017

e-mail: carlnicclendon@austin.rr.com

•

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• NOTICE OF PUBLIC HEARING

Mailing Date: December 30, 2008

REZONING

Case Number: C14-2008-0152

Este aviso le informa de una audiencia publica tratando un cambio de zonificaci6n dentro de una

distancia de 500 pies de su propiedad. Si usted desea recibir una copia de este aviso en espaiiol, por

favor llame al (512) 974-7668.

Please be advised that the City of.Austin has received an application for a zoning change.

Owner: Tejas Land & Commerce (Charles Draper) Telephone: 512-358-7191

Agent: Thrower Design (Ron Thrower) Telephone: 512-476-4456

Address and/or Legal Description:

6300 US Hwy 290 West

Proposed Zoning Change

From CS-CO-NP - General Commercial Services district is intended predominately for

commercial and industrial activities of a service nature having operating characteristics or

traffic service requirements generally incompatible with residential environments. CO-

. Conditional Overlay combining district may be applied in combination with any base

district. The district is intended to provide flexible and adaptable use or site development

regulations by requiring standards tailored to individual properties. NP - Neighborhood

• Plan district denotes a tract located within the boundaries ofan adopted Neighborhood

Plan.

To CS-CO-NP - General Commercial Services district is intended predominately for

commercial and industrial activities of a service nature having operating characteristics or

traffic service requirements generally incompatible with residential environments. CO-

Conditional Overlay combining district may be applied in combination v.ith any base

district. The district is intended to provide flexible and adaptable use or site development

regulations by requiring standards tailored to individual properties. NP - Neighborhood

Plan district denutes a lrncl located within the bounq.aries of an adopted Neighborhood

Plan.

This application is scheduled to be heard by the. City Council on January 15, 2009. The meeting will .be

held at City Hall Council Chambers, 301 Wesi 2"' Street beginning at 4:00pm.

You are being notified because City Ordinance requires that all property owners within 500 feet, those who

have a City utility service address within 500 feet and registered environmental or neighborhood

organizations whose declared boundaries are v.ithin 500 feet be notified when an application is scheduled for

. a public hearing.

If you have any questions concerning this application, please contact Stephen Rye, of the Neighborhood

Planning and Zoning Department at 512-974-7604 an.d refer to the Case Number at the top right of ihis

notice. However, you may also. find information on this case at our web site:

https://v,·ww.ci.austin.tx.us/de,•review/index.jsp.

For additional information on the. City of Austin's land development process, please visit our

W\\w.ci.alistin.tx.us/development. "====--~

·-·-

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ZONING

l'.,:1/. j SUBJECT TRACT

N ZONING CASE#: C14-2008-0152

,: : : ZONING BOUNDARY ADDRESS: 6300 W US 290 HWY WB

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1"=400'"

D PENDING CASE

OPERATORS MEEKS

SUBJECT AREA 2.357 ACRES

GRID C19

MANAGER C. PATIERSON

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- Page 1 of 3

• Kleeman, Robert

From:

Sent:

To:

Murphy, Pat [pat.murphy@ci.austin.tx.us]

Wednesday, February 20, 2008 10:22 AM

Kleeman, Robert; Hollon, Matt

Subject: RE: info on property

Follow Up Flag: Follow up

Flag Status: Red

Robert,

This is a pretty complicated question that you are asking. l would suggest that we sit down at some point and go

through the regulations that might apply to this project.

Pat

From: Kleeman, Robert [mailto:rkleeman@munsch.com]

Sent: Tuesday, Februa_ry 19, 2008 12:06 PM

To: Hollon, Matt

Cc: Murphy, Pat

Subject: RE: info on property

• Guys:

I need some guidance. The property in question has an original plat that goes back to a plat called the "Town of Oak Hill"

recorded in Volume X, Page 242, Deed Records of Travis County. 1 am working on getting a copy of this plat but 1 feel

comfortable in guessing that this plat goes back to at least the 1960s if not earlier. The plat was amended in 1991 by moving

lot lines. The current property description is Town of Oak Hill, Amended Lots 10 and 11, according to the plat recorded in

Volume 90, Page 61, Travis County Plat Records. The amended plat was administratively approved by the City of Austin.

The Williamson Creek Ordinance, Ord No.810319-M, states in Section !Ol.2 that the requirement for a site development

permit does apply to development within a recorded subdivision which was finally approved by the Planning Commission

prior to December 18, 1980. I strongly suspect that the orlginal plat pre-dates December 18, t 980.

W'dS there a Williamson Creek Ordinance prior to Ord. No. 810319-M? Was there another Williamson Creek Ordinance

between 1981 and the CWO?

Wa.s there some other, earlier City Ordinance that would have required a site development permit or site plan in the

Williamson Creek Watershed? Ordinance No. 801218-W appears to only address subdividing. which isn't an issue here.

If there are other, earlier ordinances, can you send me a copy of those earlier ordinances?

Now going Back to the Future, I am thinking that under 13-2-502(d), May l 8, I 991 would be the first date that a site

development pennit requirement would apply to this property. Under 13-2-502(b), this platted property would have been

exempt from the Comprehensive Watersheds Ord. Under 13-2-502(g), development of the property would have been

governed by the applicable watershed ordinance, if any, in effect on May 18, J986. Unless there is a pre-I98 I ordinance. l

believe that there was not a site development permit requirement applicable to this property on May 18, 1986.

·-- 2/25/2008

··--· -···-------·"··-----·. -"--- · - - -

Page 2 of3

•

Thanks

·Robert Kleeman

MUNSCH HARDT

KOPF & HARR, P.C.

DALLASjHOUSTONjAUSTIN

One American Center

600 Congress Avenue, Suite 2900

Austin, Texas 78701-3057

Direct (512)391-6115

Fax: (512) 482-8932

rkleeman@munsch.com

munsch.com

NOTICE: This e-mail message ls for the sole use of the intended recipient(s) and may contain confidential and privileged infonnation. Any

unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e.

mail. Please virus check all attachments to prevent widespread contamination and corruption of files and operating systems. Nothing

contained in this message or in any attachment shall constitute a contract or electronic signature under the Electronic Signatures in Global and

National Commerce Act, any version-of the Uniform Electronic Transactions Act or any other statute goveming electronic transactions.

IRS Circular 230 Notice: To ensure compliance with requirements imposed by the IRS, we inform you that any

U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used,

and cannot be used, for the purpose of (a) avoiding penalties under the Internal Revenue Code or (b) promoting,

marketing or recommending to another party any transaction or matter addressed herein.

From: Hollon, Matt [mallto:Matt.Hollon@ci.austin.tx.us]

•

Sent: Friday, January 18, 2008 3:40 PM

To: Kleeman, Robert

Cc: Murphy, Pat

Subject: info on property

Robert,

OK, I made a couple of quick maps of Charles Draper's properties along 290 (6300 & 6302 Hwy 290 W)

and am attaching them for your use. I noted that the area to the back is functionally impervious-looking, but

am not certain as to its actual status. I talked with Pat Murphy and he said that you will need a

determination of the legality of the impervious cover (i.e., whether it was permitted). We'll get into more of a

grey area if it was put in illegally. Anyway, the smaller 6300 property WAS included in our analysis of

properties for the BSZ Redevelopment Ordinance. We didn't pick up the other property because it was

listed as "undeveloped" in our coverage. Obviously it IS developed, and now we just need to confirm its

status.

Definitely feel free to call us back to talk more about it if you have questions. Pat Murphy (974-2821) will

likely be your best contact in terms of interpretation of the rules.

Matt

Matt Hollon

Env. Program Manager, Planning & GIS

Watershed Protection & Development Review

City of Austin

505 Barton Springs Rd. I Ith Floor; Austin, Texas 78704

512.974.2212 voice/ 512.974.2846 fax

·---

2/25/2008

•

AITORNEYS & COUNSELORS

DALLAS I HOUSTON I AUSTIN

ROBERT J. KLEEMAN

Write(sDirectDiaJ: 512.391,6115

E-Mail rkteeman@munsch oom

Direct Fax: 512.482 8932

July 22, 2008

Ms. Victoria Li, P.E.

Director

Watershed Protection and

Development Review Department

City of Austin

P.O. Box 1088

Austin, Texas 78767

Re: 6300 & 6302 U.S. Hwy. 290 West; Applicability of Redevelopment Ord.

Dear Ms. Li:

• This firm represents Charles Draper, the owner of an approximately 2.36 acre tract of land

located at the above-referenced address ("Property"), with regard to the applicability of the

Redevelopment Ordinance, codified as Section 25-8-27, to the Property. The Property is also

described as Lots 10A and 11A, Block 1, Town of Oak Hill Amended Plat, according to the plat

recorded in Volume 90,. Page 61, Plat Records of Travis County, Texas. At this time, the owner of the

property requests confirmation that the Property has "existing commercial development" for purposes

of Section 25--8-27. The area of "existing commercial development" is discussed below.

The original plat of the Property dates back to the 1870s. As shown on the enclosed aerial

photographs, the Property has been under constant development and redevelopment since at least the

mid 1960s. Each photograph has the year written on it and the Property is circled to assist you. As

you will see, buildings have occupied various locations throughout the Property.

· The Property is located in the Barton Creek Watershed. The City annexed the PropE!rty for full

purposes in late December 1985. Prior to its annexation, the Property was subject to the City's water

quality regulations found in Chapter 9-10, Division 4, Sections 301 through 355. According to Section

9-10-303(b), the Property was exempt from the requirements of the_ Barton Creek Watershed

Ordinance due to the fact that the Property was lawfully subdivided prior to April 17, 1980. Due to the

Property's exempt status under the Barton Creek Watershed Ordinance, development on the Property

prior to the full annexation of the Property was legal without having to obtain an· approved site

development or waterway development permit from the City ofAustin. The City granted CS zoning for

the Property in 1991 pursuant to Ordinance No 911010-8. According to staff comments to the zoning

case in 1991, retail and commercial uses already existed on the Property.

Unfortunately, there is no aerial photograph of the property .taken in the time frame of

December 1985. Enclosed are photographs taken in 1984 and another in 1987. Based on

• MHDocs 1639277_1 10047.1

Ms. Victoria Li, P.E.

•

July 22, 2008

Page2

discussions with City staff, my client proposes the north line of the development shown on the 1987

aerial pnotograph as the northern boundary of the "existing commercial development" for purposes of

Section 25-8-27. The "existing commercial development" would encompass the Property south of the

line all the way to the US 290 West right of way on the south, Patton Ranch road to the west and the

Austin Piz;a Garden tract to the east. Exact dimensions based on a survey would be provided in

conjunction with a site plan application for the Property.

Please provide me a written confirmation that the area of the Property described in the previous

paragraph is the amount and location of the "existing commercial development' for Section 25-8-27.

Please let me know if you have any questions.

Very truly yours,

Robert J. Kleeman

•

RJK:akm

Enclosures

cc: Mr. Charlie Draper (w/o enclosures)

Ms. Mitzi Cotton (w/o enclosures)

Mr. Pat Murphy (w/o enclosures)

Mr. Bob Ray, Assistant Director (w/o enclosures)

Mr. Matt Hollon (w/o enclosures)

• MHDocs 1639277_110047.1

• August 28, 2008

Mr. Robert J. Kleeman

Munsch Hardt

Kopf & Harr PC

One American Center

600 Congress Avenue - Suite 2900

Austin, Texas 78701-3057

Dear Mr. Kleeman:

I 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 benefit to the City and your

client.

As you know, City Code Section 25-8-27 provides an exception to compliance with

the City's water quality regulations in the Barton Springs Zone under limited

• circumstances. Applicable to your client's situation is the requirement that only

existing commercial development that 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.

The development on the site has occurred in several phases as you have evidenced

by comparing the City's aerial photographs from different dates. The site is located

within the Barton Creek watershed and the first watershed regulations limiting

impervious cover that would have applied to your client's property was the 1980

Barton Creek Ordinance. Because of the lack of City records documenting any

permits or construction dates, I agree that it is reasonable for you to document

through aerial photographs or other credible evidence the portion of the commercial

development that was built in compliance with City regulations in existence at that

time.

You are required to provide documentation and impervious cover calculations

.based on this agreed upon methodology at the time that your client files a

development permit application requesting the redevelopment exception under City

Code section 25-8-27. To clarify, this means that any impervious cover placed on

the site not in compliance with City regulations at the time it was constructed must

be removed. The remaining impervious cover, i.e., the portion that was built in

•

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August28.2008

Mr. RoberU. Kleeman

Munsch Hardt

Kopf & !!arr PC

One American Ccriter

600 Congress Avenu,, - Suite 2900

Austin, Texas 78701-3057

IJear Mr. Kiecman:

I am ~tiling yriu in response tp your request to verify your client"'s entitlements for

· a redevelopment project in the Barton Springs Zone located at the intersection of

C;.S. Hwy. 290m West and Patton Ranch Road.. I agree that a suecessful

redevelopment project under 25-8-27 would be a benefit to the City and your

cli<nt.

As you know, City Code Section 25-8-27 provides an exception to compliance v.ith

1he City's water quality regulations in the Bancm Springs Zone under limited

•

circwnstances. Applicable to your client"s situation is the I<qUirernent that only

existing commercial development that does not increase non-compliance with code

requirements qualifies. My understanding is tha1 your client wishes to redevelop

commercial property in the Barton Springs Zone, but at least some of the ex isling

development on the property was not built in compliance v.itb City Code

requirements.

Th:; J.evelopment on. the ~te ha.~ occurred in several phases as you have evidenced

by eon:paring the City's aerial photographs from different dates. The site is iocated

wiil>.in the Bart.on Creek watershed and the first watetshed regulations limiting

im!)crvious co\·er that would have applied to your cl.ienCs property was the 1980

Ran:on Creek O,~inance Because cf the ia,:k of City records documenting any

pormits or consh-uction dates, i ag= that it is reasonable for you to document

through aerial photographs orother credible evidence the portion of the commercial

development that was built in compliance with City regulations in existence at that

time.

Ycu are required to provide documentation and impervious cover calculations

based on this agreed upon methodology at 1he time that your client files a

development permit application requesting the redevelopment exception uruler City

Code section 25-8-27. To clarify. this means that any impervious cover placed on

the site not in compliance ?t'ith CitJ regulations at the time it was cocstructed must

be rcrrhwed. The reroatrring imperi.:'ious rover. i.e., the portion that v.-as built in

•----. --·-·-------~~----------- ---------------·- --- - - - - - - - -

• compliance with City regulations., may remain in accordance with 25-8-27 as long

as the redevelopment otherwise fully complies with 25-8-27.

My staff and I look forward to working with you on this project.

o/~J:_Q~

~,J_Li_,~r

Watershed Protection and Development Review Department

•

• JC J O N E S & C A R T E R., .sc.

E~GINEERS•PLANNE~S•SURVEYORS

1701 O!~to~s Bl-id., Suite .:irm

A1.1:,fo;, T?~as 7E744-!024

AUST!S

HOUSTO"I

S4N ANTO~~IO

ccL;.EGE ST,\TIOc'i

TEL 512 ,;41 '1413

FAX 512. 44:J 22%

February 15, 201 l

Ms. Susan Scallon

Planning and Development Review

505 Barton Springs Road

Austin, Texas 78705

Re: Patton Lane Office Building

6302 West US H"'Y 290

Austin, Texas 78735

Dear Susan:

On behalfof the owner, Charles Draper, Jones & Carter, Inc. is submitting a Site Plan Fair Notice mid

a H.B.1704 Chapter 245 Deteffi'iP.ation Application for the Patton Lane Office Building project. The

project is localed on the northeast corner of West US H"'Y 290 and Patton Ranch Road in southwest

Austin. A brief history of the project is that the building was designed, the project site was cleared

and construction began hi 1985 v.ith the construction of 50 building piers. Due to the economic

•

downturn of the mid l980's, the project was halted and the property became owned by the lending

institute. At the time, the project was ou~jde the Austin city limits, so no permit was required for the

project. Attached are site plan, floor plan and utility plan for the project, a copy of an aerial

photograph from February 16, 1984 showrag the site, plus a copy of"" aerial photograph from April

23, I986 showing the site bad been cleared, the houses and other building had been demolished and

construction activity had conunenced. There are current1y fifty building piers that were constructed

for the building foundation prior to the project being hal led.

On December 30, 1985, the property was annexed into the City. Based on the famhat the proj~ct had

commenced prior to annexation by the City, the project should be grandfathered to the regulations al

tl1e 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 (S 12) 441-9493.

Very truly yours,

.f::::::/1//.-~

James}/[. Schissler, P.E.

Cc: Charles Draper, Tejas Land Compc..r1y

Nprojcctir.63i,OOl!genernliletter/l 7C4 l~tter 02011 ! doc

Smari: Engineering. Snurl: Solutions."' •.1,ww.jon~scarter.t.ilm

•

Exhibit D

•

PROJECT APPLICATION H.B. 1704/Chapter 245 DETERMINATION

(Chapter 245, Texas Local Government Code)

(This completed fOlm musl accompany all $Ubcfrvfsion and site plan appfoations)

Proposed Project Name: Patton Lane Office Building

Address I Location: 6302 West US Hwy 290, Austin TX 78735

Legal Description: Lots 1Qand 11 Town ofQak Hill

A The ro da ftealion is for a New Pro ect and is submitted under ra ulations curren in effect.

B. [ ] The proposed application is for an ongoing pn:iject not requesting House Bilt 1704 consideration The choice of this option

does f\9' constitute a waiver of any rights under Chapter 245.

C. [ ] The proposed application is for a project requesting review under regiJJations other than those currently In effect, but not

on_the basis of House Biil 1704'. All ;ippropriate supporting documentation must be attached to this request. Provide

D. (

a brief description of the basis for this reques_l here:--~-~-----~--~~-~~~~=--=

J ,The proposed application is for a projei::t requesting review under a specific agreement. not on the basis Of House BIii

1704_ AU appropriate supporting doc:umenf.atiOn must be attached to this request. Provide a brier description of the

basis fur this iequest h_~re: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

E. [ X ] Original Application Filing Date: Not required at time construction began· File#: _ _ _ _ _ _ _ _ _ _ __

The propo_sed application is submitted as a Pr0Ject In Progress under Chapter 245 (HB 1704) ·and should be reviewed under the

appUcable regulations pursuant to state law. The detennination will be based on information submitted on and with this

fonn.

The following information is required for Chapter 245 Review:

• Attach supporting documentation, including a summary letter with a complete project history/rom the Original Applica.tlon to

the ~sent, with a copy of the original_ subcflVfsion or site plan approvsl by the City and subsequent application approvals.

Specify project ,ntormation for date claiming 1704 grandfathering; Include II copy of the relevant permit· upon which Chapter

245 vesting is claimed.

Project AppllcaUon History

Annexation/zoning

File#

Qf applicable to history) - - - - - ~ - - - - - - - -

Appllcatfon Data Approvai Date

Preliminary Subdivision _ _ _ _ _ _ _ _ _ _ _ _ __

Final Subdivision Plat ~VLol~u~m~•~X~P~a~g•~2~4~2~------- December 16. 1872

Site Plan I Devel. Pennit Not required at !jme construdion began

Proposed Project Application (check one): Preliminary Subdivision,_ _ _ Final Plat._ _ __ Site Plan _x__

Proposed Project Land Use: Specify acreage in each of the following land use categories

Sfngle Famlly / Duplex _ _ _ _ _Townhouse I Condo I Multi-family _ _ _ _ _ _Offioe _ _ _ _ __

Commercial 2,1313 Industrial I R&O _ _ _ _OthGr (Specify} _ _ _ _ _ _ _ _ _ _ _ _ _ __

Total acreage: 2.1313 Watershed Willlamson Creek Wat:enhed Classification ~rton Springs Zone

This proposed project application wiU still be ·Tf;!viewed under those rules and regulations that are not subject to Chapter 245, such as

those to prevent ;mm1nent destruction of property or injury to j,ersons, includinti regulations deallng With stormwarer detentton.

fampora,y erosion and sedimentation controls, end regulations to protect critir:allsignincant recharge features,

SignabJre •PropertyOWner or Agent ,,-2_. w$.e&.~ £ Date: Z- 14 ~//

Printed Name Jam,eg M. Schissler P r Phone I Fax 512441-9493 / 512.-445-2286 :

Fo'!'l'TI Date 5/06/2005

Ctyot Austin I Planning and 0"'!9{0pmenl Review O&p;rtr'nen1

505 Bartoo Springs ~cad. Austin. Te,cas 7870.S Fh 974-26591 F~ 974-2934 -~~·"'-!

.lJt~i

.·~

~--------- - - - -----,------,-_J~t::=·=::L~-".'.:1_-

'

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.

A completeness check application must be deemed complete before formal application can be submitted

A formal application must be filed within 45 calendar days of the 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, or 974-7208 for

more information.

Completeness Check Results: Incomplete I 45 Day Expiration date: 04/02/2011

Tracking#: 10547374 Revision#: 00 I Watershed: Williamson Creek

Project Name: Patton Lane Office Building

Ch.245 Team Review Req'd: Yes Orig. Submittal Date: 02/1612011 I Resubmittal Date:

Date Sent to Ch.245:

Current Results to Applicant 03/02/2011

Date Rec'd.back in LUR:

This application is incomplete for the reasons given below. The Applicant must address the noted

deficief'lcles and resubmit it along with a comment response letter to the Intake Office, at One Texas

Center, 505 Barton Springs Rd., 4th f'loor, 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 Coard Eva Moore 974-7671 Complete EM

Traffic Control Javier Martinez 974-1584 -----=C-"o'-'m,.p le~te,,__ _ _ _ _J""M;:-_

7

AWU-DPR Monty Lowell 974-2882 ---~~C~o"-m~pc-;le;-cte~_ _ _ _ _M~L__

AWU Neil Kepple 972-0077 _ _ __;_lccnc"'o"'m'-'p"'l'-"et""e'------'-'N"K__

UST SchuylerSchwarting 974-2715 _ _ _ _ _ _ _ _ _ __

Staff Reviewers as follows Case Manager:

Team A TeamB Teamc Team D

Nikki Hoelter (SP) Donna Galati (SP) Sue Welch (SP) Sarah Graham (SP)

Jennifer Groodv (DRf\NQ) Leslie Daniel (DR/WO) Kevin Selfridge (DRIWQ) Jay Baker (DR/WO)

Ron Czajkowski (DRM'Q) Michael Duval (DRJWQ} Beth Robinson (OR/WQ) Benny Ho {DR/WQ)

Jim r1vmkowski (EV) Mike McOouQal {EV) Joydeep Goswami (DRJ\'VQ) Brad Jackson (EV)

Candace Craig (TR) Jeb Brown {EV) Michael Clay (EV) Shandrian Jarvis (TR}

Sangeeta Jain {TR)

Other Disciplines required: '

Mapping Traffic Conttol-No addn. review I WWW PARO

Electric {3} l Fire I Floodplain Industrial Waste

.',-·-----

• RSMP:Yes/No

Additional Copies to ERM/Other:

Small Project: Yes/No

Fees:

Waiver: Yes/No Onsite Drainage: Yes/No

Total# of Plans_/ Engineering Reports_ required at formal

The City of Austin encourages applicants to contact neighborhood organizations prior to formal submittal.To

find out contact information for neighborhood associations visit our web page at

http://www.ci.austin.tx.us/neiohborhoodseivices/ 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.

•

•---

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•

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 letter of 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,

!lli£~1::i

Planning and Development Review Department

CC: Susan Scallon, PORO

Brent Lloyd, Law Department

·--- ·-·-·-···-·-·-··- ----------------------------- ----

•

September 23, 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 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 permtt 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,

·H

Grego I. Guernsey, AICP, Director

Planning and Development Review Department

CC: Susan Scallon, PDRD

Brent Lloyd, Law Department

Mitzi Cotton, 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 21, 2012

Mr. Carl McClendon, AICP

McClendon & Associates Development Consulting, LLC

4808 Canyonwood Drive

Austin, TX 78735

RE: Reconsideration of 1704/245 Application of Lots 10A and 11A, Block 1,

Town of Oak Hill at 6300 and 6302 U.S. Highway 290 West, Tracking 10547874

Dear Mr. McClendon:

Thank you for your correspondence of July 25, 2012 and meeting with me on August 16,

2012 regarding your reconsideration request of my previous Chapter 245 determination

on the referenced property. I have reviewed your addition information and considered

the points you expr

This text is long and has been trimmed here. Open the source document for the complete record.