# Charles N. Draper v. Greg Guernsey, in His Official Capacity as Director of Planning and Development Watershed Protection Review Department And City of Austin > Texas Court of Appeals, 3rd District (Austin) · January 5, 2017 URL: https://www.frixlaw.com/law-library/cases/4114320 ## Case - **Court:** Texas Court of Appeals, 3rd District (Austin) - **Decided:** January 5, 2017 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4114320 ## How later opinions describe it (automated extraction) - stating that the parties concede that Section 43.002 does not apply because the provision did not become effective until 1999, after the 1998 annexation of the property at issue in the case - holding that property owner could not develop property more than thirty years after a previous owner filed a subdivision plat because a permit is for a specific project, rights vest in a particular project, and rights are no longer vested when a project changes ## Opinion text 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 ,.'-!Y-/Y. 230 -a---: -: l';,ij11ITT: T!i>~~iiI ...-- ~ s m5-1 cs !1 1 1 .~- 1 / ;I~ .;. ~ ,li'"-"' 1 l?,\17:)N U,NE Ci:'r"IGE B:JILCl'H;i 1,I .... , ·:-~..,_,-'=::~"'"!r- i~ • ,N,--,.:-,,;,-J,:·w:1 . -- '--~ '----' ~!JL,..·"'·· ~ · j- ;~tHITECJ ~ n-- ,,• i.. ,; -·-- "\, '2 . . '- ;..,...... -f----·- .! ~ / i : !' . • j ....~---· ~ -- ;i--- •) X -'! . ·' _;:_; i !~1-~- ,, _____ ;•,";'·· ~-·J (_ . -...:..,. . _;~:_.. ---_, i ' ' I I , ,. ~ .:..._ -- -.c',. .J ....t---· -. .,.;-:_.;-~!~ 1 :-) j,:_ I i : -; ~ ~ ~ __ ""'"".":"'" ~-·~..... :; 'Al'ICHJ1'Ec:TUP.AL' l:NGINEERS ', !' [__ _Ji'---JI1._~_,' _'_-_J~_..__'c'-"------~•·e'"C"C,••d ,... ,~.,;,,...,., •u1r,.,ruu1nn - •u-c•• \_ _ _ •------- • .--·-- • ·-·. ·-' i .,,' i .·' -,=./{-'-C j, I" l t; l_i I I ' ; :/ / ·'' ,.----'--J-J.. ~~..,_ . _,_,,, ~· ~····. US. HWY 290 I ·:._· ~~--- • 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. "====--~ ·-·- • • I , I i I I I I I I / I / I 'l./ 'JS ~J '-f',•)i E2 • .,.. us~ 1 "'··' s·.1s~ e.e - -Jr! SF,: =.c:: '"~"""' I I '' y ZONING l'.,:1/. j SUBJECT TRACT N ZONING CASE#: C14-2008-0152 ,: : : ZONING BOUNDARY ADDRESS: 6300 W US 290 HWY WB A 1"=400'" D PENDING CASE OPERATORS MEEKS SUBJECT AREA 2.357 ACRES GRID C19 MANAGER C. PATIERSON T·smJ:·.Hti.r~i.eot::br:;· ~ S..,,,;a":.-lt.i.::.itptr;a:St=!~......,.,~,.,·rc• r-.c...,n:.~ srn:,.:,i !PJ~.,,c·:,,"7 "-itn~?7-; 1:te•: z::ax',•cra:rn:,p;r'"'' ·--- . _______ ,. ------ - 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. 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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 • - • ... .~.. : it·· "t ..... ...... ,.,.u--+-.. . ~ -"·-'-)-~ ~--'-- .1_,.,_,,,,.,;:,"-"u=" ., = - - - - - · - - - - - - - - .u · .(,·,, ~,·. ,( :. { ,-n.~n:.":::.. .H..tpublicnfTes.:as, lR:if) \; ·1', r-.1,, -~ t I ,n:cti1Jt, ,md l".lt"'("d,,p1nt·r:r R1.:\-i1...,\.· l kJ•arrmt:nt : r~ !::>i,;- ., ..• .,:.·.\u... :u~ T:.:.\:., .. -;-;,,-:-r,~ 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.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. • •--- - • 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 expressed at our meeting. Based on this information 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, CC: Susan Scallon, PDRD Brent Lloyd, Law Department Mitzi Cotton, Law Department . • Tejasland & Commerce 6300 Highway 290 West • Austin, TX 78735 Phone: 512.699.2199 Email: cdr7c.itejasland.com September 29, 2011 Mr. Greg Guernsey, AICP Director City of Austin Planning and Review Department PO Box 1088 Austin, TX 78767 RE: Freedom of Information Act, and request for meeting: 6302 Highway 290 West, lot /IA, Block 1, Oak Hill Tm.-nship 1704 Application/Chapter 245 City Admin Code; Tracking# 10547 Dear Mr. Guernsey, I appreciated your letter, you submitted on September 23, 20 I I. The letter states;'' .. ./11 light of the attachments to your email, I requested and obtained addilional permit info_rmation from Travis County .... / have decided to uphold my original decision that the site plan would be subject to current code ... ··. Regrettably, your letter does not respond to my letter of August 17, 2011. I wil I repeat the question: ""Again_. I appeal to your judgmenl; on what 'legal basis' are you denying the application?" • I request. You furnish~ through the Freedom ofinfornmtio11Act all copi,es of correspondences the City of Austin., and Travis County have on record for Lots/ IA, and Lot JOA Block I of1he Oak Hill Township; as well as those which your decision was moored. It is my understanding; you are not an attorney, Mr. Guernsey. Given the City recent rescission in Harper Park Two, LLCvs. City of Austin, I believe, I am entitled tO more than; ··._../ have decided In uphold my original decision ... ". I~ formally, request a meeting with you, the City Attorney, my engineer, my attorney, and myself; so \ve may ascertain the ' Jegal basis" of your decision. 4 As a consequence of your un-relented position, I have experienced economic hardship. economic Joss, and inability to rent my private property, or generate economic rent from my investment. I believe. the law affords me a reason for the basis of your decision. I look fonvard to meeting with you in the next couple of weeks. Sincere regards, ~::::~ Tejasland & Commerce, President CC: Susan Scallon City Manager, Marc Ott Honorable Mayor Lee Luffingwell Greg Anderson, Chief-of-Staff, Ma,or Pro Tern Sherly Cole Honorable Representative Paul Workman •----- Jim Schissler, Jones & Carter - • Phone: S 12.699.2199 Tejasland & Commerce 6300 Highway 290 West Austin, TX 78735 Email: cSc. 6- J~ -«h It (Plaintiffs Final Amended Petition). What is clear, however, is the City denied Plaintiffs application for vested rights, codified at Chapter 245 of the Local Government Code ("Chapter 245"), to develop property at 6300-02 Highway 290, requesting an exemption from current City regulations based on a plat recorded in 1872 and/or an expired permit issued by Travis County on August 9, 1985. 2 Plaintiff's lawsuit challenges Defendants' denial of his vested rights application and asserts that various City employees made fraudulent misrepresentations, )IQ-I> 1 Greg Guernsey has been dismissed from this suit for all claims other than Plaintiff's ultra vires claim as ruled by the Third Court of Appeals in Memorandum Opinion No. 03-14-00265-CV. • 2 The City's application for vested rights is titled "'Project Application H.B. 1704/Chapter 245 Determination", but for ease of reference is referred to herein as a "vested rights application." .' • committed perjury, and breached a contract in connection with the denial of his vested rights application and the handling of the current lawsuit. In general, Chapter 245 provides that all permits required to complete a development project are "locked-in" to the regulations in effect on the date that the first permit application, development plan or plat application for the project is filed which "gives the regulatory agency fair notice of the project and the nature of the permit sought." TEX. LOCAL Gov'T CODE § 245.002. Contrary to Plaintiffs Final Amended Petition, the rights conferred by Chapter 245 are not so broad that any permit application filed for the development of property with one regulatory agency is sufficient to exempt it from current regulations with respect to a different regulatory agency. The evidence presented by Plaintiff in this case-a plat from I 872 and a lapsed Travis County permit issued in 1985-is legally insufficient in establishing vested rights • from current City regulations. As for the remainder of Plaintiffs claims (fraudulent misrepresentation, perjury, and breach of contract), these claims are confusing, unsubstantiated and conclusory. Plaintiffs claims-must be dismissed and Defendants are entitled to summary judgment as a matter oflaw. II. SUMMARY JUDGMENT EVIDENCE To support the facts in this response, Defendants offer the following summary-judgment evidence and incorporates them by reference. Exhibit A: Plaintiffs Final Amended Petition. Exhibit B: Supplemental Affidavit of Susan Scallon with attachments. Exhibit C: Affidavit of Stacey Scheffel. Exhibit D: Affidavit of Christopher Johnson. Rule I I Agreement dated May 3, 2013 regarding rescheduling a hearing. • Exhibit E: DEFENDANTS' TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT PAGE 2 OF 16 • Exhibit F: Affidavit dated May 17, 2013 signed by Defense counsel in support of Defendants' Motion for Continuance. Exhibit G: Order dated May 30, 2013 granting Defendants' Motion for Continuance. III. STANDARD OF REVIEW Under Rule 166a (c), a court must grant summary judgment if the movant presents sufficient evidence to show that there are no issues of material fact and that it is entitled to summary judgment as a matter of law. Park Place Hospital v. Estate of Milo, 909 S.W.2d 508 510 (Tex. 1995); TEX. R. Crv. P. 166a (c). A defendant whose summary judgment evidence conclusively negates at least one of the elements of plaintiffs cause of action, or whose evidence conclusively proves all of the elements of an affinnative defense, is entitled to summary judgment as a matter oflaw. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995) . • Under a no-evidence motion, a defendant asserts that there is no evidence of one or more essential elements of a plaintiffs claim(s) upon which the plaintiff would have the burden of proof at trial. TEX. R. CIV. P. 166a (i). The defendant, as movant, does not bear the burden of establishing each element to its own claim or defense. General Mills Restaurants v. Texas Wings, Inc., 12 S.W.3d 827, 832 (Tex. App.-Dallas 2000, no pet.); Lampasas v. Spring Ctr., Inc., 988 S.W.2d 428, 432-33 (Tex. App.-Houston [14th Dist.] 1999, no pet.). Rather, the movant lists the elements for which the party lacks evidentiary support. The burden then shifts to the plaintiff to present enough evidence to be entitled to a trial, i.e., evidence that raises a genuine fact issue on the challenged elements. TEX. R. Civ. P. 166a (i). A plaintiff must produce evidence of probative force to raise a fact issue on the material questions presented. General Mills, 12 S.W.3d at 833. If plaintiff is unable to provide more than • a scintilla of probative evidence to raise a genuine issue of material fact as to an essential DEFENDANTS' TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT PAGE3 OF 16 • element of plaintiffs claim, the trial judge must grant the motion. Id. at 832-33; Lampases, 988 S.W.2d at 433. More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). Less than a scintilla of evidence occurs "when the evidence offered to prove a vital fact is so weak so as to do no more than create a mere surmise or suspi_cion of its existence and in legal effect is no evidence." Coastal Conduit & Ditching v. Noram Energy, 29 S,W.3d 282, 284-85 (Tex. App.-Houston [14th Dist.] 2000, no pet.) (citing Kindredv. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). IV. ARGUMENT A. Plaintiff is not entitled to vested rights under Chapter 245. Under Plaintiffs interpretation of Chapter 245, a property would remain forever exempt • from current City development regulations based on nothing more than a plat recorded for the property in the year of 1872 and/or an expired permit issued by another regulatory agency in 1985. Plaintiffs arguments are inconsistent with controlling precedent and fail as a matter of law to establish vested rights under Chapter 245. i. A permit application. submitted to one regnlatory agency does not establish vested rights for purposes of another agency's regulations. "Generally, the right to develop property is subject to intervening regulatory changes." Shumaker Enterprises, Inc. v. City of Austin, 325 S.W.3d 812, 814 {Tex. App.-Austin 2010, no pet.); Harper Park Two, L.P. v. City of Austin, 359 S.W.3d 247, 256 (Tex. App.-Austin 2011, pet denied); Quick v. City of Austin, 7 S.W.3d 109, 124 (Tex. 1998). Chapter 245 creates a "narrow exception to this rule." Id. (emphasis added). Under Chapter 245, once an individual files a development application or plan with a regulatory agency, that agency may not enforce • DEFENDANTS' TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT PAGE 4 OF 16 .. • any subsequent changes to its land-use regulations to the detriment of the applicant. Shumaker, 325 S.W.3d at 814; see also TEX. LOCAL Gov'T CODE § 245.002(a). These vested rights may only accrue against a regulatory agency, however, if the application under Chapter 245 "gives the regulatory agency fair notice of the project and the nature of the permit sought." TEX. LOCAL Gov'T CODE § 245.002(a-l) (emphasis added); see also Shumaker, 325 S.W.3d at 815. Accordingly, an application filed with one agency does not provide "fair notice" to another agency and is thus not sufficient to establish vested rights from that agency's regulations. Shumaker, 325 S.W.3d at 815. The present case is almost identical to the Shumaker case. In Shumaker, a landowner was required to obtain a city permit after. the city's extraterritorial jurisdiction ("ETJ") expanded to include the landowner's property. Shumaker, 325 S.W.3d at 815. The landowner argued that it • was not required to obtain a city permit for its intended sand-and-gravel mining operations because it had already applied for an application with the county before the expansion of the city's ETJ included the property in question. Id. at 812-13. In rejecting that argument, the Shumaker court held the reference to "permits" as opposed to a "project" or "property," in Section 245.002(a)(l) of the Local Government Code meant a landowner can only establish vested rights with an agency's regulations if he or she filed a permit application with that same agency. Id. at 814-15. The landowner in Shumaker was required to file an application with the city after the city's ETJ expanded to include the landowner's property in order to establish vested rights with the city, and the previous filing with the county could not accomplish this result. Id. at 815; TEX. LOCALGOV'TCODE § 245.002(a)(J). Similar to the landowner in Shumaker,' ~Iliintiff requests this Court recognize vested rights under City regulations following the filing of an 1872 plat of unknown origin or a 1985 • DEFENDANTS' TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT PAGE 5 OF 16 Travis County development permit. Ex. A. Neither was filed with the City, and in accordance with Shumaker, vested rights with the City was not established on either date. Ex. B (Affidavit of Susan Scallon). In fact, Plaintiff's claims are even weaker than those rejected by the court in Shumaker because the subject property came within the City's ETJ on July 19, 1951, prior to the issuance of the 1985 Travis County development permit, and would therefore have required a City permit in 1985. Ex. B. Since no application giving the City "fair notice" of a development project was ever filed with the City, Plaintiff's argument that development of the subject property is vested to City regulations in effect on August 9, 1985, or in the year 1872, directly contradicts Shumaker and fails as a matter of law. Ex. B. Only an application filed with the City in 1985 could possibly afford Plaintiff vested rights to City regulations in effect in 1985. Accordingly, Plaintiff is not • entitled to vested rights . ii. A permit does not entitle a project to vested rights if the original project has changed, been completed, abandoned, or become dormant. Even if this Court could find that the City was somehow given fair notice of the subject property development and thus Plaintiff entitled to vested rights, the overall project was completed, abandoned, or dormant well before Plaintiff submitted his request for vested rights to the City on February 14, 201 I. Accordingly, any proposed development on the subject property as of201 l or thereafter constitutes a new project subject to current regulations. 1. The scope of a "project" under Chapter 245 is defined by the original permit. The rationale for Chapter 245 protections only works with the assumption that the same "project" is being pursued by the developer-as rights are vested in a particular project not the property. Seguido, 227 S.W.3d at 242, 250. For purposes of Chapter 245, a "project" is "an • DEFENDANTS' TRADITIONAL AND No-EVIDENCE MOTION FOR SUMMARY JUDGMENT .PAGE 6 OF 16 I i. ,. endeavor over which a regulatory agency exerts its jurisdiction and for which one or more permits are required to initiate, continue, or complete the endeavor." TEX. LOCAL Gov'T CODE § 245.001(3). A project is the single endeavor reflected in the original application for the first permit in the series of permits connected to a project. Harper Park Two, L.P., 359 S.W.3d at 256. The term "endeavor" is not defined in the statute, but the common definition is "the action of endeavoring; effort, or pains, directed to attain an object." City of San Antonio v. En Seguido, Ltd, 227 S.W.3d 237, 243 (Tex. App.-San Antonio 2007, no pet.) (citing Op. Tex. Att'y Gen. No. JC-0425, 3). 2. Plaintiff's project was completed or changed subsequent to the 1872 plat and 1985 Travis County development permit, and is therefore subject to current regulations. A development is no longer entitled to vested rights if it constitutes a new or different • "project" from the one sought in the initial permit application. Harper Park Two, L.P., 359 S.W.3d at 249-50; Seguido, 227 S.W.3d at 242-43 (holding that property owner could not develop property more than thirty years after a previous owner filed a subdivision plat because a permit is for a specific project, rights vest in a particular project, and rights are no longer vested when a project changes); Op. Tex. Att'y Gen. No. JC-0425, I (opining "property remains subject to the development regulations in effect at the time the original application for the first permit was filed, but only if the project remains the same"). If the 1872 plat is regarded as the first permit application for the "project," there is no evidence construction was intended on the lot in question after issuance of the permit See Exs. A-B. Certainly the 1872 plat does not evidence a specific "endeavor" or plan for development of this lot or any other lot included in the plat. Id. The plat itself does nothing more than evidence a transfer in ownership. Even if the plat had been filed with the City, which it was not, it would not • DEFENDANTS' TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT PAGE 7 OF 16 • have provided notice of the intent to develop the subject lot for purposes of vested rights accrual. See Ex. B; see also TEX. LOCAL Gov'T CODE § 245.002. If the 1985 Travis County development permit is regarded as the first permit application for the project, based on evidence provided to the City in Plaintiffs vested rights application dated February 14, 2011 and additional research conducted by City staff, it appears that the development began on the property in I 985 and that any "project" contemplated by the 1985 Travis County development permit was completed by 2006. Ex. B. The permit was issued for the construction of an office building. Ex. B. Geographic information system (GIS) aerial maps of the subject property show that a structure was completed in 1987. Ex. B. The last structure to be built on the property was in 2006, making a total of nine structures constructed on the subject property over a twenty-one year period. Ex. B. Clearly, any development contemplated by the • 1985 permit was completed well before Plaintiff submitted his 2011 vested rights application . 3. A dormant project is no longer entitled to vested rights protections. A project becomes dormant if no progress has been made towards completion of the project. TEX. LOCAL Gov'T CODE § 245.005; Seguido, 227 S.W.3d at 244. Even if the 1985 Travis County development permit could have conferred vested rights with the City, vested rights do not continue in perpetuity and Plaintiffs project became dormant pursuant to Section 245.005 long before Plaintiff submitted his vested rights application in 2011. TEX. LOCAL Gov'T CODE§ 245.005. Chapter 245's dormancy rules first went into effect on May 11, 1999. 1999 Tex. Sess. Serv. Ch. 73 (H.B. 1704). The 1999 version of this subsection reads as follows: Notwithstanding any other provision of this chapter, after the first anniversary of the effective date of this chapter, a regulatory agency may enact an ordinance, rule, or regulation that places an expiration date on a permit if as of the first • anniversary of the effective date of this chapter: (i) the permit does not have an DEFENDANTS' TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT PAGE 8 OF 16 • expiration date; and (ii) no progress has been made towards completion of the project. Any ordinance, rule, or regulation enacted pursuant to this section shall place an expiration date of no earlier than the fifth anniversary of the effective date of this chapter. Progress towards completion of the project shaJl include any one or more of the following: (I) an application for a final plat or plan is submitted to a regulatory agency; (2) a good-faith attempt is made to file with a regulatory agency an application for a permit necessary to begin or continue towards completion of the project; (3) costs have been incurred for developing the project including, without limitation, costs associated with roadway, utility, and other infrastructure facilities designed to serve, in whole or in part, the project (but exclusive of land acquisition) in the aggregate amount of five percent of the most recent appraised market value of the real property on which the project is located; (4) fiscal security is posted with a regulatory agency to ensure performance of an obligation required by the regulatory agency; or • (5) utility connection fees or impact fees for the project have been paid to a regulatory agency. 1999 Tex. Sess. Serv. Ch. 73 (H.B. 1704). In 1985, a Travis County "land development permit expire[d] 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 abandoned for a period of at least 180 days." 3 Ex. C (Affidavit of Stacey Scheffel). Accordingly, reading Travis County's rules in harmony with Section 245.005, at the latest possible date, Plaintiff's project became dormant and his 1985 Travis County permit expired on May 11, 2004, five years after the enactment of the dormancy provisions. The only continued progress alleged by Plaintiff which occurred after the enactment of Section 245.005 occurred in 2008, Ex. A at pp. 3- • 3 This appears to have been amended in 2008 to comply v. ith Chapter 245 five years expiration requirement. See 1 Travis County Code§ 64.06l(d). DEFENDANTS' TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT PAGE 9 OF 16 ' ' • 4, well after Plaintiff's permit expired and the project became dormant. Accordingly, Plaintiff's project was dormant long before he requested vested rights in 2011. iii. Amnesty was requested and granted, further evincing the absence of the proper filings with the City of Austin that would constitute notice of legal development of the subject property. On December 2, 2011 and January 10, 2012, Plaintiff requested an Amnesty Certificate of Occupancy (ACO) in regards .to two existing structures on the subject property. Ex. D (Affidavit of Christopher Johnson). An ACO establishes the continued use of property from 1986 until the present and is typically granted to properties without an existing certificate of occupancy. Ex. D. An ACO does not authorize the development of property. See Ex. D. In other words, amnesty is often granted to structures not otherwise known to exist by the City. ACO's for the two structures on the subject property were granted because the applicant • presented evidence of the continuing use of one structure as an office and the other as a nursery . Ex. D. This fact further supports the lack of filings with the City by Plaintiff that would otherwise notify the City of development on the subject property. Ex. D. Any development commenced between 1986 and the present would only evince illegal development, proving vested rights never accrued in connection with Plaintiff's property. Further, for the reasons addressed above, any project commenced between 1986 and 2006 is now complete and cannot support the grant of vested rights for the new project currently under dispute. iv. Ultra Vires Claim 4 "Governmental immunity protects political subdivisions of the state, such as cities and their officers, from liability." Houston Belt & Terminal Railway Co. v. City of Houston, 487 S.W.3d 154, 157 (Tex. April 1, 2016). An ultra vires claim, however, does not "waive" 4 Plaintiff did not explicitly plead an ultra vires claim. The Third Court of Appeals, however, interpreted Plaintiff's • pleadings as an ultra vires claim. See Third Court of Appeals in Memorandum Opinion No. 03-14-00265-CV . DEFENDANTS' TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT PAGE 10 OF 16 • immunity, as "it is the Legislature's sole province to waive or abrogate sovereign immunity." See Id at 158, fu. 1 (citing Tex. Nat. Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 853 (Tex. 2002). Instead, when an official performs an act that is without legal authority or fails to perform a ministerial act-an ultra vires act-governmental immunity does not apply from the outset. Id. This is because an official derives his immunity from the State, and when an official performs acts that are not lawfully authorized, they are not considered acts of the State. E.g. Texas Dept. of Ins. v. Reconveyance Services, Inc., 306 S.W.3d 256,258 (Tex. 2010); City of El Paso v. Heinrich, 284 S.W.3d 366, 373 (Tex. 2009). Thus, the Texas Supreme Court has long recognized "that suits complaining of ultra vires action may not be brought against a governmental unit possessed of sovereign immunity, but must be brought against the allegedly responsible government actor in his official capacity." Texas Dept. of Ins. v. Reconveyance • Services, Inc., 306 S.W.3d 256,258 (Tex. 2010) . Accordingly, any ultra vires claim that could be read from Plaintiffs pleadings would have to be that Guernsey, in the process of reviewing Plaintiff's vested rights application, failed to perform a ministerial act or acted without legal authority. Southwestern Bell Telephone, L.P. v. Emmett, 459 S.W.3d 578, 587 (Tex. 2015). Ministerial acts are those required and defined under law with such specificity that the state actor cannot exercise any discretion or judgment. Id. Conversely, discretionary acts are those requiring judgment and personal deliberation. Id. Any allegation by Plaintiff that Guernsey failed to perform a ministerial task or acted without legal authority while in his official capacity when denying Plaintiff's vested rights applications is unfounded. At all times, Guernsey was performing the ministerial task of determining whether Plaintiff's application met the requirements of Chapter 245, and in finding it did not, he was acting within the confines of his official capacity. Plaintiff, however, has no • DEFENDANTS' TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT PAGE 11 OF 16 • evidence that Guernsey failed to perform a ministerial task or that he acted without legal authority in denying Plaintiff's vested rights application for the same reasons addressed above for why Plaintiff was not entitled to vested rights. Accordingly, no ultra vires claim applies to the facts of this case and Plaintiff's allegations regarding such are baseless and fail as a matter of Jaw. C. Fraudulent Misrepresentation Municipalities enjoy governmental immunity for claims "arising out of assault, battery, false imprisonment, or any other intentional tort." TEX. CIV. PRAC. & REM. CODE § 101.057 (emphasis added). Fraudulent misrepresentation is an intentional tort for which the City, as a municipality, is entitled to governmental immunity. See e.g. LTTS Charter School, Inc. v. Palasota, 362 S.W.3d 202,209 {Tex. App.-Dallas, no pet.). Furthermore, a civil action against • a municipal employee acting in his official capacity is essentially an action against the municipality itself. Morris v. Copeland, 944 S.W.2d 696, 698 (Tex. App.-Corpus Christi 1997, no writ); see also Aguilar v. Frias, 366 S.W.3d 271, 273 {Tex. App.-El Paso 2012, pet. denied). Accordingly, Greg Guernsey, who is only being sued in his official capacity, is entitled to the same immunities as the City. 5 Both are immune from suit and liability and this claim must be dismissed in its entirety. Moreover, Plaintiff has no evidence that the City or any of its employees made fraudulent misrepresentations. The elements of fraudulent misrepresentation are (I) defendant made a material representation to the plaintiff; (2) the representation was false; (3) when the representation was made, the defendant knew it was false; (4) the defendant made the 5It appears, based on the pleadings filed in this case, that Appellant is also alleging fraudulent misrepresentations made by Susan Scallon and the rest of the Chapter 245 completeness check team, none of whom are defendants in • this case . DEFENDANTS' TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT PAGE 12 OF 16 .. • representation with the intent that the plaintiff act on it; (5) the plaintiff detrimentally relied on the defendant's misrepresentation. Baribeau v. Gustafson, 107 S.W.3d 52, 58 (Tex. App.-San Antonio, pet. denied (citing T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 222 (Tex. 1992)). Plaintiff alleges that Greg Guernsey and Susan Scallon, both City employees, made false misrepresentations, acted in malice, and ignored and misconstrued Chapters 43, 245, and Section 312.005 of the Local Government Code, when denying Plaintiff's vested rights application. Ex. A. Every City employee involved in determining the denial of Plaintiffs application merely carried out their job duties in good faith by making a Chapter 245 Determination as requested by Plaintiff. Ex. B. Plaintiff's dissatisfaction with the denial of this request does not falsify the premise for such denial. Plaintiff has no evidence that Defendants made a knowingly false • representation to Plaintiff. Further, there is no evidence of intent to induce Plaintiff's reliance. Any action by Plaintiff as a result of this determination was outside the control of the City. The denial of Plaintiff's vested rights application simply meant Plaintiffs rights were not vested because documents were issued by regulatory agencies other than the City, including the 1872 plat of unknown origin and the 1985 Travis County development permit. Plaintiff was free to develop his property and pursue a project under the current land development rules and regulations at any time after receiving the denial of his vested rights application. D. Perjury Plaintiff alleges that former defense counsel Assistant City Attorney Sandra Kim committed perjury when she signed an affidavit in support of Defendants' Motion for Continuance filed May 17, 2013. See Exs. A, F (Affidavit of Sandra Kim). A claim of perjury • DEFENDANTS' TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT PAGE 13 OF 16 ' .. • relates to criminal matters, the venue for which would take place in the criminal courts. Tex. Penal Code §§37.02 & 38.16(a) (Vernon 2011). Such allegations are not properly before this civil proceeding and must be dismissed. Tex. Educ. Agency v. Leeper, 893 S.W.2d 432, 441 (Tex. 1994) ("a party cannot seek to construe or enjoin enforcement of a criminal statute in a civil proceeding unless it challenges the constitutionality of the provision and proves an irreparable injury to its vested property rights .... "); State v. Morales, 869 S.W.2d 941,944 (Tex. 1994). To the extent this Court can construe Plaintiffs claim to be some sort of fraud claim, Defendants retain immunity for the reasons already outlined above. Furthermore, Ms. Kim is not a defendant to this action and Plaintiff has no evidence that any of the statements made in Ms. Kim's affidavit were false or that such false statements were made with any intent to deceive • Plaintiff or the Court. This claim is meritless and must be dismissed . E. Breach of Contract and Preventing the Execution of Civil Process Plaintiff also alleges a breach of contract preventing the execution of the civil process. The basis of this allegation appears to be a Rule 11 Agreement entered into by Plaintiff and Ms. Kim to reschedule a hearing for which Ms. Kim had a conflict. See Exs. A, E (May 3, 2013 Rule 11 Agreement). Plaintiff had set the hearing without conferring with Ms. Kim. Ex. F. After entering into the Rule 11 Agreement, Ms. Kim realized that the hearing date was not feasible in light of Plaintiff requesting a trial on the merits without providing the requisite notice, and requested injunctive relief tantamount to an adjudication of the merits of the underlying case. Ex. F. After Plaintiff refused to move the hearing date, Ms. Kim filed a Motion for Continuance showing sufficient cause. See TEX. R. C!v. P. 247, 251, and 252. This motion was granted by Judge Wisser. Ex. G (May 30, 2013 Order) . • DEFENDANTS' TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT PAGE 14 OF 16 ' i I • No case or rule holds that a Rule 11 Agreement regarding a rescheduling of a hearing constitutes a contract. Any allegation of a breach of contract in connection with the Rule 11 Agreement is therefore misplaced and irrelevant. Furthermore, the underlying issue of the rescheduling of the hearing was addressed in Judge Wisser's order. Ex. G. A court is within its sound discretion to grant a motion for continuance and will not be disturbed unless the record reveals a clear abuse of discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986). Therefore, the Court has already addressed the issue regarding the Rule 11 Agreement and made its ruling. Ex. G. Lastly, the Rule 11 Agreement did not prevent the execution of the civil process but merely reset the date for a hearing, which was later continued by court order on May 30, 2013, as discussed above. Exs. F, G. This claim is also baseless and must be disregarded. • F. Damages Plaintiff seeks ten million in damages. Ex. A. Defendants are immunity from monetary damages for the types of claims alleged by Plaintiff-a Chapter 245 determination and an ultra vires claim. See TEX. LOCAL Gov'T CODE § 245.006; City of El Paso v. Heinrich, 284 S.W.3d 366, 374-77 (Tex. 2009); City of Houston v. Williams, 216 S.W.827, 828 (Tex. 2007). Accordingly, should Plaintiff prevail at trial, he is entitled to nothing more than a declaration that he is entitled to vested rights .. V. CONCLUSION For the reasons cited above, Defendants request this Court grant Defendants' Motion for Summary Judgment because Plaintiff's claims fail as a matter oflaw . • DEFENDANTS' TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT PAGE 15 OF 16 Filed in The District Court of Travis County, Texas • IN THE DISTRICT COURT OF TRAVIS COUNTY, TEXAS SEP O2 2016 tJ/0 Q_ 419 th JUDICIAL DISTRICT At /;2-/ ~ M. Velva L. Price, District Clerk 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 RESPONSE TO DEFENDANT"S NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT AND COUNTERCLAIM FOR SUMMARY JUDGMENT Plaintiff, Charles N. Draper, ask the court to DENY, Defendant's Greg Guernsey in his capacity as Director ofPlanning, and Watershed Protection, and the City ofAustin, No- Evidence Motion for Summary Judgment, and Plaintiff's Counter-Claim for Summa,y Judgment, files the following response: Defendant's lack of evidence, perjury, misrepresentations, and legal theories are a fe~ble effort to obfuscate the facts enshrined in statue, the Constitution, and the courts. Simply pu,;, Tex. 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". Travis County issued the first development permit; Patton Lane Office Building #85- 2558 on August 9, 1985. The City of Austin annexed subject property on January 1, 1986. Travis County was the 'regulatory agency' at time of application. No ambiguity, the law is resolute. • INTRODUCTION The nature of the case concerns damages the City of Austin, and their governmental employee, Greg Guernsey, a city director, who is liable for fraudulent misrepresentations, while acting in his capacity as Director ofPlanning and Development Watershed Protection Review Department in charge of the 'coordinated branch of government'. Guernsey engaged in 'occupational discretion', utilized his 'proprietary' function to intentionally, and knowingly aid and abet the subversion of State law; Texas LGC§43.002- Continuation of Land Use, and Texas LGC§245.00- Project, Torts §876, Tex. CRPC Rule §101.0215(29)- Municipal Liability, Planning and Zoning; by denying plaintiffs valid Travis County Flood Hazard Permit, thereby, adversely condemning plaintiffs 'vested-rights' without adequate compensation; thereby, violating Article I, §17(a) of the Texas Constitution - Taking, Damaging, or Destroying Property for Public Use, as set out in Plaintiff's Final Amended Petition. I. ARUGUMENT A. LDC §245 v. LGC §43.002 - CONTROLING QUESTION OF LAW "A trial court must identify the 'controlling question oflaw' as to which there is substantial ground for difference of opinion" (Gulf Coast Asphalt Co. v. Lloyd). Defendants' claim LDC Chapter §245 authorizes defendants' capacity to deny 'vested- rights'; granted by a prior 'regulatory agency'. Tex. LGC §43.002 diminishes defendant's claims. A controlling question oflaw arises: Does LDC §245 negate LGC §43.002? Is LGC §43.002 subordinate to LDC §245? Defendant's No-Evidence Motton for Summary Judgment fails to address LGC §43.002- Continuation ofLand Use. LGC §43.002 was originally presented in Plaintiff's Final Amended Petition (Defendant's Exhibit A, p.6). Defendants failed to mention ofLGC §43,002 in any pleading; submitted, under Defendant's No-Evidence Motion for Summary Judgment. 2 Defendants' refusal to acknowledge LGC §43.002 is because; the statue does not grant It defendants authority to deny plaintiffs vested-rights. .. ~ ' B. .. STACEY SCHEFFEL IMPEACHABLE HEARSAY, AND SHAM-AFFIDAVIT Defendants' feeble defenses attempt to negate LGC §43.002; rely on the impeachable hearsay and perjured sham-affidavit from Stacey Scheffel, Travis County Permit Program Manager. While Ms. Scheffell short-tenure at Travis County did not extend back to 1985, Ms. Scheffel Affidavit states; "3. In I 985, the applicable rules and regulations for a land 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". 1. Ms. Scheffel has produced an opinion; which the witness has no documentation or first hand knowledge. Ms. Scheffel has only been a Travis County employee for 19 years (1997). Ms. Scheffel testimony is hearsay. She was not an employee of Travis County in 1985 at the time of permit issuance. The doctrine of hearsay excludes consideration of evidence whlch 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 has no documentation in support of her affidavit, against conflicting evidence. Therefore, Ms. Stacey Scheffel prejudice affidavit must be dismissed; under Article VIII, Rule 802. 2. Furthermore, to file an affidavit of fact without requisite knowledge is perjury. § 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 whlch he or she knows does not exist. Gauthier v. State, 496 S. W. 2d, 584 (Tex. Crim. App. 1973); Butler v. State, 429 S.W. 2d, 497 (Tex Crim. App. 1968); Hardy v. State, 246 S.W. 3d 290 (Tex. App. Houston 14tl' Dist. 2008). 3 .•··=, ~~-~ n, -~--.,~_._.~, -,-,._·---~,,·,~~...,--,~--"",\~-~'.J'tf f\J Velva L. Price, District /er~· CHARLES N. DRAPER, § § Plaintiff, Pro Se § § V. § CAUSE NO. D-lGN-13-000778 § GREG GUERNSEY, § IN ms CAPACITY AS DIRECTOR OF § PLANNING AND DEVELOPMENT § WATERSHED PROTECTION § REVIEW DEPARTMENT, § AND CITY OF AUSTIN § § Defendants. § PLAINTIFF'S REQUEST FOR FINDING OF FACT & CONCULSION OF LAW Plaintiff, Charles Draper, ask the Court to file findings of fact and conclusions oflaw. INTRODUCTION 1). Plaintiff, Charles Draper, sued defendants, Greg Guernsey, et al, for fraudulent misrepresentations, violation plaintiff's constitutional-vested-rights, under Texas Constitution, Article 1, §17 (a), (160), (161), additional torts on March of 2013. 2). The honorable Justice Karin Crump's Court signed attached judgment on October 18th, 2016. REQUEST 3). Plaintiff ask the Court to file findings of fact and conclusions oflaw and require the court clerk to mail copies to all parties as requested by CRCP Rule §297. , . I Respectfully submitted, C-.r:~~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 October 24, 2016, a true and correct copy of the foregoing Plaintiff's Request for Finding of Fact & Conclusions ofLaw was sent by certified mail, return receipt request to Andralee Cain Lloyd, Austin Law Department, City Hall, 301 West 2"' Street. P.O. Box 1088; Austin, Texas 78767-1088 Andralee Cain Lloyd, Assistant City Attorney Law Department City of Austin City Hall, 301 West 2"d Street P.O. Box 1088 Austin, Texas 78767-1088 (512) 974-2918 Fax: (512) 974-2918 Filed in The District Court of Travis County, Texas k • CHARLES N. DRAPER Plaintiff, NO. D-1-GN-13-000778 § § § At OCT 18 2016 ... 2-- Velva L. Price, District IN THE DISTRICT COURT OF [If' § v. § TRAVIS COUNTY, TEXAS § GREG GUERNSEY, IN HIS CAPACITY § AS DIRECTOR OF PLANNING AND § DEVELOPMENT WATERSHED § PROTECTION REVIEW DEPARTMENT § AND CITY OF AUSTIN, § Defendants, § 419TH JUDICIAL DISTRICT ORDER ON MOTION FOR SUMMARY JUDGMENT On October 11, 2016, the Court considered Defendant's First Amended Traditional and No-Evidence Motion for Summary Judgment and Defendants' Motion to Strike Plaintiffs Evidence. Plaintiff appeared representing himself Pro Se and Defendants appeared through their counsel of record. After reviewing the pleadings on file, Defendants' motions and any responses thereto, the evidence presented, and arguments of the parties, the Court is of the opinion that Defendant's Motion to Strike Plaintiffs Evidence should be DENIED and Defendant's First Amended Traditional and No-Evidence Motion for Summary Judgment should be GRANTED. IT IS THEREFORE ORDERED that Defendants' Motion to Strike Plaintiffs Evidence is DENIED. IT IS FURTHER ORDERED that Defendants' First Amended Traditional and No- Evidence Motion for Summary Judgment is GRANTED. Accordingly, Plaintiffs lawsuit against Defendants is DISMISSED with prejudice to re-filing and all relief requested against Defendants is DEN1ED. Page I ofl Order on Motion for Summary Judgment This Order disposes of all art· . p ies and all claims pending before the Court. It is, therefore a final and appealable judgment. ' SIGNED this October /!{7:';016 VELVA L. PRICE DISTRICT CLERK, TRAVIS COUN P.O. BOX 679003 AUSTIN, TX 78767 10/19/2016 NOTICE OF ORDER [;.1-GN-13-000778 D-1-GN-13-000778 CHARLES N. DRAPER vs To: GREG GUERNSEY, IN HIS CAPACITY AS DIRECTOR OF DRAPER CHARLES Nl PLANNING AND DEVELOPMENT WATERSHED 160 MAEVES WAY You a re hereby notified that an order has been signed AUSTIN, TX 78737 and entered October 18, 2016 in the 419 JUDICIAL DISTRICT COURT of Travis County Texas in the above numbered and entitled cause. A copy of the Order is available at the office of the clerk of the court, located Order on Motion for Summary Judgment at 1000 Guadalupe Street, 1st floor, room 103,_ Austin, Texas 78701. THE ORDER MAY BE SUBJECT TO APPEAL. 1 1 VELVA L. PRICE, o;J,lr111 d1~~ \i \"••I \1l" ,II\' \i II \ll\i \I' \\1 \I 1'1 I' \I" 11 • I II' CHARLES N. DRAPER, § § Appellant, Pro Se § CAUSE NO. 03-16-00745-CV § V. § IN THE TIDRD COURT § OF APPEALS GREG GUERNSEY, § INHIS CAPACITY AS DIRECTOR OF § at Austin, Texas § ~~J~.rEtNfR:~~~6~NT § REVIEW DEPARTMENT, § ANDCITY OF AUSTIN § § Appellee. § § § TRIAL COURT PAST-DUE NOTICE FINDING OF FACTS AND CONCULSION OFLAW, and NOTICE OF APPELLANT'S BRIEF Aj:,j:,ellant, Pro Se: Appellee: CJi~~les N. Draper Greg Guernsey, in. his Capacity 16Q~.~eves Way Director ofPlil/Jff,i11g and A.u'.stin, T~xas 78737 Developmi!11t, JVaiefshed Ilh:Ortt:!: (512) 699-2199 Protection Review Department, Efuaii: cd@tejasland.com and City ofAusitn Andralee Cain LJoyd, Law Depart,meliJ, Assis.fant.City4ttorney City Hall, 36iw,eit 2° d Street POBox 1088,Austin TX 78767-1088 Phone: (512) 974-2918 · RECEIVE DJ Fax: (512) 974-1311 NOV 1 5 2016 THIRD COURT. OF'.PPEALS FFIHQ..lffiL PAST-DUE NOTICE FINDING OF FACTS AND CONCULSION OF LAW On November 15th, 2016, appellant notified the District Court of their failure to timely comply with CPRC Rules §297, Finding of Facts and Conclusions of Law. Justice Karin Crump's letter dated October 18th, 2016 response was; "Finding of Facts Conclusion of Law are neither required nor appropriate following summary judgment· ruling; therefore, the Court respectfully denies Plaintiffs Request for Finding ofFact and Conclusion ofLaw". 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) Past-Due Notice ofFindings ofFacts and Conclusions ofLaw were filed November 15th, 2016 and recorded with Travis County District Court . A certified copy was sent to Defendants. JUSTICE CRUMP'S LETTER th On October 281\ 2016, Honorable Judge Karin Crump in the 419 District Court issued a Jetter, denying appellant's request for finding of facts and conclusions oflaw. Justice Crump erred and should not have denied appellant's motion as a rule of law. The result of Justice Crump refusal; the Courts forfeits their plenary powers, under TRCP § 329.b. Any order that interferes with or impairs the effectiveness of the relief sought may be granted an appeal, TRAP Rule §24.4 . . NOTICE: APPEALLENT BRIEF Under TRAP §25.1 §26.1 §32.1, Appellant will submit Appellant's Brief a within 90 days from Notice ofAppeal and Request for Findings ofFact and Conclusions ofLaw; pending any additional Court' findings of facts or conclusions oflaw. CONCLUSION Charles Draper, appellant, asks the Appellate Court to amend the ord.ers to include permission to appeal the orders. Copies of the orders, and letters are attached as Exhibits. Notice ofAppeal and Requestfor Findings of Fact and Conclusions ofLaw were filed on October 24th, 2016. Under CPRC Rules §297, The Court has 40 days from the original request to respond to Plaintiff's Notice of Findings of Fact and Conclusions of Law. PRAYER For these reasons, Appellant, Charles Draper asks the Court to sign an order granting I) Charles Draper permission to appeal orders, and letters issued October 18th, 2016 and October 28th, 2016 by Justice Karin Crump and review all pending maters. Respectfully su~ed, C""'-" ""-s ~......,.,___/..,___ Charles N. Draper Appellant 160 Maeves Way Austin, Texas 78737 Phone: 512.699.2199 Email: cd@tejasland.com CERTIFICATE OF SERVICE I HEREBY CERTIFY that on November 15th, 2016, a true and correct copy of the foregoing; Appellant's Past-Due Notice for Finding of Facts and Conclusions of Law, and Appellant's Brief was sent by nd certified mail, return receipt request to Andralee Cain Lloyd, Austin Law Department, City Hall, 301 West 2 Street. P.O. Box 1088, Austin, Texas 78767-1088 Appellee: 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 Exhibits Filed in The District Court of Travis County, Texas c;;: OCT 2 8 2016 fft At /4!Q1:J g,M. Velva L. Price, District Jerk GRACEMCGEE VASUBEHARA JUDGE KARIN CRUMP Court Operations Officer Staff Attorney (512) 854-9903 250TH DISTRICT COURT (512) 854--4807 HEMAN MARION SWEATI JAMIEK. FOLEY IFRAIN "FINO" ALANIZ TRAVIS COUNTY COURTHOUSE CourtOerk Official Reporter P. 0. BOX 1748 (512) 854-5800 (512) 854-9321 AUSTIN, TEXAS 78767 (512) 854-9312 (512) 854-2469 (FAX) October 28, 2016 Mr. Charles N. Draper Ms. Andralee Cain Lloyd 160 Maeves Way Assistant City Attorney Austin, Texas 78737 City of Austin-Law Department V1A ELECTRONIC MAIL: P.O. Box 1088 cd@teiasland.com Austin, Texas 78767-1088 VlA ELECTRONIC MAIL andralee.llord@austintexas.gov Re: Cause No. D-1-GN-13-000778; CHARLES N DRAPER V. GREG GUERNSEY, IN HIS CAPACITY AS DIRECTOR OF PLANNING AND DEVELOPMENT th WATERSHED PROTECTION REVIEW DEPARTMENT, ET AL.; in the 419 District, Travis County, Texas. Dear Mr. Draper: I have received Plaintiffs Request for Findings of Fact and Conclusions of Law relating to the Court's Order Granting Defendants' Traditional and No-Evidence Motion for Summary Judgment, signed by this Court on October 18, 2016 (the "Order") following a non-evidentiary hearing on October 11, 2016. Findings of Fact and Conclusions of Law are neither required nor appropriate following a summary judgment ruling; therefore, the Court respectfully denies Plaintiffs Request for Findings of Fact and Conclusions of Law. · Original: Velva L. Price, District Clerk I004869584 llllll lllll llllllllllllllllllll lllll lllll l l l llll llll .. ,., Flied.in The _Di~trlct Court of Travis County, Texas U OCT 18 2016 [ If' NO. D-1-GN-13-000778 CHARLES N. DRAPER § § Plaintiff, § § ¼ § TRAVIS COUNTY, TEXAS § GREG GUERNSEY, IN ms CAPACITY § AS DIRECTOR OF PLANNING AND § DEVELOPMENT WATERSHED § PROTEtion to Strike Plaintiff's Evidence is DENIED. IT IS FURTHER ORDERED that Defendants' First Amended Traditional and No- Evidence Motion for Summary Judgment is GRANTED. Accordingly, Plaintiff's lawsuit against Defendants is DISMISSED with prejudice to re-filing and all relief requested against Defendants is DENIED. Page I of2 Order on Motion for Summary Judgment ..' . This Order disposes of all parties and all claims pending before the Court. It is, therefore, a final and appealable judgment. SIGNED this October -1Lzo16 Pagelofl Order on Motion for Summmy Judgment ORDERS 32 • .~. Flied In The District Court of Travis Cquilty, Tex;i$ z::;- OCT 1.82016 rr-r- NO. D-l-GN-13-000778 At ... £- Velva L Prlci, t>l~tiict CHARLES N. DRAPER § IN THE DISTRICT COURT OF . § Plaintiff, § § v. § TRAVIS COUNTY, TEXAS § GREG GUERNSEY, IN ms CAPACITY § AS DIRECTOI{ OF PLANNING AND § DEVELOP!\fENT WATERSHED § PROTECTION REVIEW DEPARTMENT § AND CITYOF A1JSTIN, § Defendants. § 419™ JUDICIAL DISTRICT ORDER ON MOTION FOR SUMMARY JUDGMENT On October II, 2016, the Court considered Defendant's First Amended Traditional and No-Evidence Motion for Summary Judgment and Defendants' Motion to Strike Plaintiff's Evidence. Plaintiff appeared representing himself Pro Se and Defendants appeared through their counsel of record. After reviewing the pleadings on file, Defendants' motions and any responses thereto, the evidence presented, and arguments of the parties, the Court is of the. opinion that Defendant's Motion to Strike Plaintiff's Evidence should be DENIED and Defendant's First Amended Traditional and No-Evidence Motion for Summary Judgment should be GRANTED. IT JS THEREFORE ORDERED that Defendants' Motion to Strike Plaintiff's Evidence is DENIED. ff IS FURTHER ORDERED that Defendants' First Amended Traditional and No- Evidence Motion for Summary Judgment is GRANTED. Accordingly, Plaintiff's lawsuit against Defendants is DISMISSED with prejudice to re-filing and all relief requested against Defendants is DENIED. Pagelofl Order on Motion for Summary Judgment . ' \ This Order disposes of all parties and all claims pending before the Court. It is, therefore, a final and appealable judgment. SIGNED this October /g7:;,016 Page 2 ofl Order on Motion for Summary Judgment Filed in The District Court ofTravis County, Texas OCT 2 8 2016 {if AtVelva L.k{r?rJ gM. Price, District Jerk GRACEMCGEE VASUBEHARA JUDGE KARIN CRUMP Court Operations Officer Staff Attorney (512) 854-9903 250TH DISTRICT COURT (512) 854--4807 HEMAN MARION SWEATI JAMIE K. FOLEY IFRAIN "FINO" ALANIZ TRAV(S COUNTY COURTHOUSE Court Clerk Official Reporter P. 0. BOX 1748 (512) 854-5800 (512) 854-9321 AUSTIN, TEXAS 78767 (512) 854-9312 (512) 854-2469 (FAX) October 28, 2016 Mr. Charles N. Draper Ms. Andralee Cain Lloyd 160 Maeves Way Assistant City Attorney Austin, Texas 78737 City of Austin-Law Department VIA ELECTRONIC MAIL: P.O. Box 1088 cd@tdasland.com Austin, Texas 78767-1088 VIA ELECTRONIC MAIL andralee.llo1•tl@µustintexas.gov Re: Cause No. D-I-GN-13-000778; CHARLES N DRAPER V. GREG GUERNSEY, IN HIS CAPACITY AS DIRECTOR OF PLANNING AND DEVELOPMENT th WATERSHED PROTECTION REVIEW DEPARTMEN1'. ET AL.; in the 419 District, Travis County, Texas. Dear Mr. Draper: I have received Plaintiffs Request for Findings of Fact and Conclusions of Law relating to the Court's Order Granting Defendants' Traditional and No-Evidence Motion for Summary Judgment, signed by this Court on October 18, 2016 (the "Order") following a non-evidentiary hearing on October 11, 2016. Findings of Fact and Conclusions of Law are neither required nor appropriate following a summary judgment ruling; therefore, the Court respectfully denies Plaintiffs Request for Findings of Fact and Conclusions of Law. Original: Velva L. Price, District Clerk .1Ht . J}f. 1111111111111111111111111111111111111111111111111111111 004869584 EXHIBITS 27 • • Mcclendon & Associates 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 I IA, Block l, 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 10 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. 9-10-303(b). In short, a site development, or waterway development permit from the City of Austin was not required. Site Development Permit Travis County approved a site development or floodplain permit on August 8, 1985 for the Patton Lane Office Building, a 3-story office development. Although the original subdivision was platted in 1872, the site development permit represents the first in a series of permits for the project. Two copies of the complete (11" x 17") plans are attached which show approvals from the Travis County Engineer's office. Although construction was initiated and later paused due to · economic conditions, the floodplain permit does not expire. The Travis County Engineer's Office issued a letter in 1987, indicating that a floodplain elevation certificate verifying the McClendon & Associates Development Consulting, LLC Phone: 512 363 8676 4808 Canyonwood Dr. Fax: 512 .382 1017 Austin, Tx. 78735 e-mail: carlmcclendon@austin.rr.com l i { ' • • 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 permit). Construction commenced in 1985, with removal of existing homes on the site and construction of drilled pier locations for the building's foundation, as evidenced by notes from a City of Austin environmental inspector and an aerial photo in 1986, (attached). The site included previously existing residential and commercial development from the 1950' s and l 970'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 2011 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 Code Chapter 245.00S(a) states for pem1its 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. I, 2005). The landowner has continued progress toward permitting by filing and recording an amended plat on October 10, 1991, which did not change or alter any 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). In 2008, the current owner filed for rezoning of the property to Commercial Services-Conditional Overlay-Neighborhood Plan (CS-CO-NP), (Case# C14-2008-0152), 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_st-io-ns or further items for discussion. Carl Mcclendon, AICP cc: Charles Draper McClendon & Associates Development Consulting, LLC Phone: 512 363 8676 4808 Canyonwood Dr. Fax: 512 382 1017 Austin, Tx. 78735 e-mail: carlmcclendon@austin.rr.coru-~ -e,,,-1$ -w~. t • • 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-I0-303(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. Cl4-91-0027). 10/17/1991 Amended plat recorded for Town of Oak Hill, Lots 10 and 11 to create Lots JOA and 1 lA, Town of Oak Hill, (Case#; C8-91-0039.0A). 1/15/2009 Based upon landowner's request for rezoning, the City of Austin revises the zoning and conditional overlay for Lots JOA and llA, Block 1, Town of Oak Hill Amended Subdivision from CS-CO-NP to CS-CO-NP, (Case#: C14-2008-0152). The conditional overlay amendments revised the permitted uses and site restrictions on the property. 2/16/2011 Landowner files application for 3-story ofiice building (Patton Lane Office Building) for Chapter 245 review and consideration. McClendon & Associates Development Consulting, LLC Phone: 512 363 8676 4808 Canyonwood Dr. Fax: 512 382 1017 Austin, Tx. 78735 e~mail: carlmcclendon@austin.rr.com \ ,, '.'-!• ~\ ', . • NOTiCE OF CLARil'B" ti .,, '; ,.,-' TRAVIS COUNTY FLOOD li"f.:7,ARD AREA , DEVELOPMEN'I' PERlWIT i • STATE OF TEXAS t:(ll "iTY OF THA Vl:, Thi, l\·rmil No. 85-2558_ ( ) ~. t t a11d is df,·llll(la! io11 J11,p,·,·I JOI! ( i,. i,i.j&x) n•quirl'd. .I '.\l,·,·ita:.i, ;i: a11d E!,•dri,.al l11-1wctio11 CU( is not) requirnl. J. .f il ·._;··_1. • :\ '-:1:tiiT of P1·r111it ha~ l11·t•n i~::-:.iwd \,itl1 ilii"' Jli'rmit 1.d1id1 :-:hoi!ld hr po...:t1·d in a f l:l('.1tinn \•.:~l!'l'I' it \vill !H' pro!1·1·tt>d frnrn \\Tatlwr and ~('C\lfP from Y.:rndaii:-:.m. ~rnd ,·:ill ! f lTt11ai11 :ro...:!1·d UP!il tlw work i...: ,·ompll'lc. ~ Tlw jlt'l"!Jll!ltT ~hail llotify tlw (:n11•:ty F11;.!,i1wcr ft1rty-t·ird1t (.1-:-n lio11r...: l1rfr)rC roll· 1 ·ll nwcliani('al and Pll'dr;cal i11sp1·1·'.io11. if _--.11 ! ri.111 i-- n·ad\" for fo1111:L1tio11 ;rnd ',1r !1 · './J I 81' .O' ~~~:cT-~),q, I .~/ . 1 for H.E. }:hitting~Tl.-v:; \ 6300 HIGHWAY 290 WEST AUSTIN TEXAS 78735 LANE SITE DEVELOPMENT PERMIT PLANS ( NOT FOR CONSTRUCTION) OWNER: NEL/v1S/MCDONAU) PROPERTIES 300 I LAKE AUSTIN BLVD. SUITE 402 AUSTIN, TEXAS r· ,- , , r , . ·>,;~: Ii~, ·.)> ,',,/ - :·-. ~Il';i;) > I ~· ~r-, . I, .•,. . c:: 1-.c. -·~-=~,;;r-'7;·. TL_...~- ,.,.La _s,,'d.s.L ~ A_ _ ••• __ lL~ ••,:'-'~ II I IF= ,, d--1--.U I ; l·-1·' ·!'1+-~1:.-d__ ;. "'' ,., .!-----·-· ---·----r •• • fa' I \ l \ ,;.-',-;,f.~-~ FCC I \ UN:)}'";' LP. / / I / / ., GR 1· I ,,11 \ \ .. \ ~ \ , , I I j 1' I \\·, ,_, /. / II \. . \1// ,./ / ... II I I M-m~ I I ·; I , /, / •• , • '',,, I /I r----------J ; -------RD - - - -- SCHOOL / ; / / \ j J / • / \ lo/ , . -,_ 1 'I/ ~ 1 ,' ', \, Ii{ / .··d ··o~- t \\ \ \\ cs i,;,c I/ >.: 0.U:HIU , • ~',· z-t:4E ---- o~ W US 29C \1)/,'Y S'/R~ ---- ---- --- -- --- SF-~ ZONING E2Z] SUBJECT TRACT N ZONING CASE#: C14·2008·0152 ADDRESS: 6300 W US 290 HWY WB A ; : : : ZONING BOUNDARY SUBJECT AREA: 2.357 ACRES D PENDING CASE GRID: MANAGER: C19 C. PATIERSON OPERATOR: S. MEEKS T11 ~ nu= l':,u be-en p·~i..::e;j by ~ ,i -~- Serv ce~ fo; !he sole p,rp:,se of ge-:.vaphic ,efe-?1ce. 1' = 400' !\c wa'T.!I"':'/ s rr.J>:t by :he c,:y r:I A..r:5tn ,~r-~ 1:ecf~ ac:;ur3cy er eornp·~~s. • • I ...... ~ .... '._,.., • 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. I would suggest that we sit down at some point and go through the regulations that might apply to this project. Pat From: Kleeman, Robert [mailto:rkleeman@munsch.com] Sent: Tuesday, February 19, 2008 12:06 PM To: Hollon, Matt Cc: Murphy, Pat Subject: RE: info on property Guys: 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. I am working on getting a copy of this plat but I feel comfortable in guessing that this plat goes back to at least the I 960s if not earlier. The plat was amended in 1991 by moving lot lines. The cunent property description is Town of Oak Hill, Amended Lots IO 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 101.2 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 suspectthat the original plat pre-dates December 18, 1980. Was there a Williamson Creek Ordinance prior to Ord. No. 810319-M? Was there another Williamson Creek Ordinance between 1981 and the CWO? Was there some other, earlier City Ordinance that would have required a site development permit or site plan in the Williamson Creek Watershed? Ordinance No. 801218-W appears to only address subdividing, which isn't an issue here. Tfthere 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 I 8, 1991 would be the first date that a site development permit requirement would apply to this property. Under 13-2-502(b), this platted property would have been exempt from the Comprehensive Watersheds Ord. Under 13-2-502(g), development of the property would have been governed by the applicable watershed ordinance, if any, in effect on May 18, 1986. Unless there is a pre-1981 ordinance, I believe that there was not a site development pennit requirement applicable to this property on May 18, 1986. 2/25/2008 ... ' ; ·1·. Thanks ... ' Robert Kleeman • • . -v- - -· - MUNSCH HARDT KOPF & HARR, P.C. DALLAS I HOUSTON I AUSTIN 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 is for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. 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 El~ctronic Transactions Act or any other statute governing electronic transactions. IRS Circular 230 Notice: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (a) avoiding penalties under the Internal Revenue Code or (b) promoting, marketing or recommending to another party any transaction or matter addressed herein. From: Hollon, Matt [mailto:Matt.Hollon@ci.austin.tx.us] Sent: Friday, January 18, 2008 3:40 PM To: Kleeman, Robert Cc: Murphy, Pat Subject: info on property Robert, OK, I made a couple of quick maps of Charles Draper's properties along 290 (6300 & 6302 Hwy 290 W) and am attaching them for your use. I noted that the area to the back is functionally impervious-looking, but am not certain as to its actual status. I talked with Pat Murphy and he said that you will need a determination of the legality of the impervious cover (i.e., whether it was permitted). We'll get into more of a grey area if it was put in illegally. Anyway, the smaller 6300 property WAS included in our analysis of properties for the BSZ Redevelopment Ordinance. We didn't pick up the other property because it was listed as "undeveloped" in our coverage. Obviously it IS developed, and now we just need to confirm its status. Definitely feel free to call us back to talk more about it 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. 11th Floor; Austin, Texas 78704 512.974.2212 voice/ 512.974.2846 fax 2/25/2008 • • August 28, 2008 Mr. RobertJ. Kleeman Munsch Hardt Kopf & Harr PC One American Center 600 Congress Avenue - Suite 2900 Austir., Texas 78701-3057 Dear Mr. Kleeman: l am v11riting yA'-- 31.J West 11th Street, Suite 200 P.O. Box 17~8 ~- L Ausiin·, Texas /8767 (512) 473-9122 April 10, 1987 Pattin Lane J.V. - B"ddy Goodson 8000 Centre Park Drive Suite 100 Austi~, Tx. 78704 S~3JECT: Ca~Jletion of Travis County Flcod Hazard Area Development Pcr~it "85-255S, Lt 10 ~ 11 Outmanville, 6300 290 \·,est Petta~ Lane Office Building This cffice ~as not rec2ived ~n elevation certificate for t~e above~enti:ne~ ~rc~erty, t~e1·efor2, our files are considered incomplete. T~0 ~1e~ation certificate i~ recui1·ed by t~e Federal E~er~enc1 ~'.anane~e~t ~g2Gc; {f~·~~) ta verify the lo~est flcor elevation of your str~cture for in~ura11ce aGd 1e:r:dit;1 1ur'.)c~r-s and to cc':':rilJ 1·fith tr,::1 Travis County F1ood Plain i,ianage~en: P[~u1atic~s. Sec. 5.E., which st~tes: '~n ~levaticn cErtif1catc shall te ccmpleted by the ce1·tifi2r and CG? cccy shall te ret'Jr~ed to t~e Ccu~ty Engireer s office for1 cc~Jletic~ of t~e per~it file''. ''Failure to provide the Co~ntv Enain2er 1 s office with a ro~o]eted coJy or tFe e1evat1on certificate ~ithin one year froG the issuance ·-ct'l!>:? per.-~1t si:::3!: const1t'Jte a '.'iolation~1 • If ycu need ,~r-:'Jther e:le·/a.tion ce\-tificate for~, contact 1·~e1t:a A.rcher of q1 p~ gff._icc so t~Jt we ~JV cc~p1ete Sectjnp i. Then a ?·egistered professicna1 engineer sur~~y~1· s,r ::,-.,:.'litect sh::i1 cc,:-:-.:i1ete Section II or Section III (where a:Jp1icablc'.·, \ rif,:,rir:·; 1 tr.c 1c·.-.-2s:: f1cc.r- ele':ati:n. Or.c copy shall be i·eturned to this of.;-ice .S( '- a~ c.ur files ·,:i11 b€? .:,::piete. If·,::? !1.:.:-.0 n0: rccei'.'ed U·c cc,~~lete:d c:c-rtificate or 2 '::r·itte:1 e:,;~lanation st2tir,2 r0)~c1s ~er· l~ck of cer·tificaticn within 30 days of receipt of this letter, ;~e wi11 2ssu~e tt,at t~e i::1·ucture is i~ non-co~oliance ~ith the Travis Cau~ty Flccd ?l.::.in '.·'.2n2{.~2,~:::rit ?e;:Jlatians 3.nd ·,·:ill r13+e:r this permit file to the County ,Ll,ttcrr.~j fer a;orc~r·1ate actic.,. I~ :i:~r2 nrc ary qJ[Stic11s. plc~se feel fr~e to contact ti1is office. AFFIDAVITS 14 CAUSE NO. D-1-GN-13-000778 CHARLES N. DRAPER, § IN THE DISTRICT COURT Plaintiff, Pro Se, § § V. § § GREG GUERNSEY, § TRAVIS COUNTY, TEXAS IN HIS CAPACITY AS DIRECTOR OF § PLANNING AND DEVELOPMENT § WATERSHED PROTECTION § REVIEW DEPARTMENT, § AND CITY OF AUSTIN, § Defendants. § 419th JUDICIAL DISTRICT AFFIDAVIT OF STACEY SCHEFFEL STATE OF TEXAS § § TRAVIS COUNTY § Before me, the undersigned notary, on this day personally appeared Stacey Scheffel, known to me to be the person whose name is subscribed below, and being duly sworn, testified as follows: I. "My name is Stacey Scheffel. I am over 18 years of age, of sound mind, and capable of making this affidavit. The facts stated in this affidavit are within my personal knowledge and are true and correct. 2. I am an employee with Travis County as a Permit Program Manager. I possess knowledge regarding rules and regulations pertaining to land development permits issued by Travis County. In 1985, the applicable rules and regulations for a land development permit, including a 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 abandoned for a period ofat least 180 days. 1 Sworn to and subscribed before me by Stacey Scheffel on. February &th, 2014. 2 .. ,. [;~ AFFIDAVIT THE STATE OF TEXAS § § COUNTY OF TRAVIS § BEFORE ME, THE UNDERSIGNED AUTHORITY, on this day personally appeared Carl McClendon, who, being by me first duly sworn, and deposed as follows: "My name is Carl McClendon with McClendon & Associates, I am over the age of 21 years. I am independent development consultant in the Austin real estate market. On July 16, 2012, I filed a Reconsideration of 1704/Clzapter 245Application on behalf of Charles Draper for Lots I OA and I IA, Block I, Town of Oak Hill; located at 6300 and 6302 US Hwy 290 West (Tracking# 10547~74). I am fully competent to make this verification. I have read the foregoing; 1704/Clzp.245 Reconsideration Application. All of the information contained in the publication are within my personal knowledge, and true and correct." Carl McC!endon SUBSCRIBED AND SWORN TO BEFORE ME on the date_jk-u.Ly of &lr·1,y.,r7, 2014 / i ! s-~t1J'l?.:.t'-:. RORY RENE TELLO i :I !+~~..%Notary P·u. blic, .State ofli.•x.as ~...=.. ~,::.. s My Commission Expires ~ti,'lotit~·:l 1111111 SepiE!mber ·, 15, 2015 Notary Public, State Texas Development Consulting, LLC July 25, 2012 Mr. Greg Guernsey, AICP, Director Planning and Development Review 505 Barton Springs Road, Ste. 500 Austin, TX. 78704 Re: Reconsideration of 1704/Chapter 245 Application for Lots I OA and I 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 the Committee's disapproval. 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 sununary follows providing a chronology of development permitting for the subject property in an effort to clarify and augment the facts of the a [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4114320. Public record. Not legal advice.