RECEIVED
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FILED
April 16, 2015 COURT OF APPEALS
SECOND DISTRICT OF TEXAS
DEBRA SPISAK, CLERK
April 21, 2015
1700 Redbud Boulevard, Suite 300 $ P.O. Box 1210 $ McKinney, Texas 75070-1210
DEBRA SPISAK, CLERK
Metro 214.544.4000 $ Fax 214.544.4040
ATTORNEYS AT LAW
RICHARD M. ABERNATHY rabernathy@abernathy-law.com
Board Certified - Civil Trial Law Direct Dial 214.544.4002
Texas Board of Legal Specialization
Qualified Mediator
April 16, 2015
Ms. Debra Spisak, Clerk Via E-Filing
2nd District Court of Appeals
Tim Curry Criminal Justice Center
401 West Belknap, Suite 9000
Fort Worth, Texas 76196-0211
Re: No. 02-14-00335-CV; FLCT, Ltd., et al. v. City of Frisco
Dear Ms. Spisak:
The evidence submitted by Appellants in response to Justice Sudderth’s
request does not show an amendment to the project. Instead, the evidence cited in
Mr. Anderson’s letter shows it has been a continuous project. The only
amendment was a site plan amendment to clarify that the Appellants had sold
approximately one (1) acre to Frisco Independent School District.
While Appellants continue to insist there are fact issues in this case, such as
whether the original 2008 site plan application was amended by a subsequent plat
application, none are material to the jurisdictional grounds for the Appellee’s plea
to the jurisdiction: (1) Chapter 245 is preempted by the TABC; (2) the scope of
Chapter 245 ends with development and construction of the project and (3) the
Appellee could not exert jurisdiction over the alcohol permit and therefore the
certification of the TABC Pre-Application form was not a permit subject to
Chapter 245.
Also, paragraph 9 of Mr. Kochalka’s Affidavit, supports the Appellee’s
contention that the sale of products is irrelevant to the site plan process and thus
beyond the scope of this land use project. The last sentence of paragraph 9 of the
Affidavit of David Kochalka, P.E. states “It has been my experience that the
Ms. Debra Spisak, Clerk
April 16, 2015
Page 2
products sold are not relevant to the site plan process.” Appellee has never denied
that Chapter 245 would apply to the site planning process and in fact has approved
every application submitted; it is only Appellants’ insistence on selling alcohol that
has prevented the construction of the convenience store “project”.
The second point in Appellants’ letter brief addresses the length of time a
project lasts. While a large-scale project, such as a multi-lot subdivision can claim
the benefits of Chapter 245 for many years, the statute contemplates that a project
must be “completed.” A project is completed when development and construction
is completed. In this case, the use of a single lot is at issue. In Anderton, the
argument by the property owner was that a building permit for a sales office in
1985 grandfathered the future expansion of a landscaping business for all time.
The Court of Appeals properly rejected this contention, holding that the operation
of a business was not part of a project. Here, the sale of a particular product once a
convenience store is established is not part of the project in the first instance.
There has been a continuous project, but one that does not include the sale of
alcohol beverages (or any other commodity). The fact that it is a continuous
approval process means the project is the same one contemplated in 2008.
Thank you for your attention to this matter.
Very truly yours,
/s/Richard M. Abernathy
Richard M. Abernathy
RMA/bac
cc: Client
Counsel of Record (via e-filing)
669057