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

January 5, 2017

CHARLES N. DRAPER, §
§
Appellant, Pro Se § CAUSE NO. 03-16-00745-CV
§
V. § IN THE THIRD COURT
§ OF APPEALS
GREG GUERNSEY, §
IN HIS CAPACITY AS DIRECTOR OF § at Austin, Texas
PLANNING AND DEVELOPMENT §
WATERSHED PROTECTION §
REVIEW DEPARTMENT, §
and CITY OF AUSTIN §
§
Appel/ees. §
§
§

JAN O5 2017
Appellant's Brief

Appellant, Pro Se: Appellee:

Charles N. Draper Greg Guernsey, in Ids Capacity
160 Maeves Way Director ofPlanning and
Austin,Texas 78737 Development, Watershed
Phone: (512) 699-2199 Protection Review Department,
Email: cd@,tejasland.com and City ofAustin

Andralee Cain Lloyd,
Law Department,
Assistant City Attorney
City Hall, 301 West 2nd Street
PO Box 1088, Austin TX 78767-1088
Phone: (512) 974-2918
Fax: (512) 974-1311

I
 TABLE OF CONTENTS

IDENTITY OF PARTIES & COUNSEL ....................... p.4

INDEX OF AUTHORITIES ....................... p.5

STATEMENT OF CASE ....................... p.6

PERMISSION TO APPEAL ....................... p.6

STATEMENT ON ORAL ARGUMENT ........................ p.7

LGC §43.002 Continuation of Land Use,
• Valid Travis County Flood Hazard Permit (Exhibit C) ........ p.8
o Prior to annexation, Travis County 'acted' and issued (Permit #85-2558) in
1985; ......... .............................................. (Affidavit: R. Glasper)
o County permit has no expiration date, impervious cover, nor height limitations.
o Sham-affidavits: Stacey Scheffel, and Susan Scallon
LGC §245.00- Projects
• Shumaker Enterprise v. City ofAustin (non-applicable) ............ p. 9, 17, 20
• Harper Park II v. City ofAustin
CPRC §101.0215 (29) Governmental Liability,
• Planning and Zoning ......... p. 17, 18
o Meadours v. Ermel, 483 F .3d (Fifth Circuit. 2007) ........... p. 9, 18
o Owens-Fiberglass v. Malone, 972 S.W.2d35,40 (Tex. 1998)
o City ofHouston v. Jenkins, 363 S.W.3d 808,814 (Tex. App.-Houston [14th Dist.]
Vested-Rights v. Inverse Condemnation ........................... p.7
Texas Constitution Article I, §l 7(a)(l60)(161) .... , ..................... p.8
• Weingarten Realty Investors v. Albertson's (S.D. Texas 1999) 66F.Supp. 2d,825.
• Bass v. City ofDallas (App.7 District 2000) 34 S.W.3d 1 ......................... p.10
ISSUES TO BE PRESENTED FOR REVIEW ......................... p.9

• History ....................... p.11
• Current History ....................... p.13

2
STATEMENT OF FACTS ....................... p.15

LGC §43.002 Continuation of Land Use,
• Valid Travis County Flood Hazard Permit
o (Permit #85-2558) issued in 1985; prior to annexation
o Sham-affidavit, and Heresay- Stacy Scheffel, and Susan Scallon
o Travis County permit was commercial, without an expiration date; impervious
cover, nor height limitations. TC acted with regulatory authority.
o Property is exempt from Barton Creek Watershed Ordinance and Site
development, per Sec. 9-l-303(b)
LGC §245.00-02 Uniformity of Requirements- ....................... p.16
• Shumaker Enterprise v. City of Austin (non-applicable) ......... p. 9, 17, 20
• Harper Park II v. City ofAustin .................... p. 9, 21
CPRC §101.0215 (29) Governmental Liability- Zoning & Planning ..... p.18
• City of Houston v. Jenkins, 363 S.W.3d 808,814 (Tex. App.-Houston [14th
Dist.J ... p.18
• Edwards Aquifer v. Sheffield Dev. Co, 369 S.W.3d at 838, 140 S.W.3d at 671
CPRC §4I.Oll(a)(5)
• Aggravated and Reprehensible Conduct ..................... p.20
DAMAGES ...................... p.20
• Owen-Fiberglass Corp. v. Malone, 972 S.W.2d 35, 40 (Tex. 1998) .. p.21
CERTIFICATE OF CONFERENCE .... p.23
CERTIFICATE OF COMPLIANCE .... p.23
PRAYER .... p.23
CERTIFICATE OF SERVICE ... p.24
VERIFICATION
APPENDIX- Evidence and deliberations of Justice Crump's trial court
1. Plaintiffs Final Amended Petition
2. Defendants' No-Evidence Motion for Summary Judgment
3. Plaintiff's Counter-Claim for No-Evidence Summary Judgment
4. Defendant's Response to Plaintiff's Counter-Claim for No-Evidence Summary
Judgment

3
 1
5. Honorable Judge Karin Crump 's Order, October 18 \ 2016
6. · Plaintiffs Request for Finding ofFact and Conclusion ofLaw
7. Honorable Judge Karin Crump's Denial Letter, October 28th , 2016
8. Past-due Notice Plaintiffs Request for Finding ofFact and Conclusion of Law
ORDERS
EXHIBITS: A through J
AFFIDAVITS
Appellant's Affidavits:
• Sham-Affidavits- Stacey Scheffel, and Susan Scallon
• April 10, 1987 Letter, Travis county Engineer Mark Kronkosky
• Robert Glasper, Travis County Transportation and Natural Resources
• Carl McClendon, McClendim and Associates
• Jim Schissler, Jones & Carter, Engineer
• Charles Draper, Tejasland & Commerce, Real Estate Broker
• Charles Draper, Certificate of Competency
OTHER AUTORITIES:
Third Court of Appeals Memorandum Opinion, CPRC Sec.101.106, (2/25/2015)
Attorney General John Comyn, October 19, 2001- "conveyance to different owner"
Attorney General Greg Abbott, December 10, 2012- "project duration"

NOTICE OF APPEAL
REGISTER OF THE COURT
IDENTITY OF PARTIES & COUNSEL

Appellant, Pro Se: Appellee:

Charles N. Draper Greg Guernsey, in his Capacity
160 Maeves Way Director of Planning and
Austin, Texas 78737 Development, Watershed
Phone: (512) 699-2199 Protection Review Department,
Email: cd@tejasland.com and City ofAustin

Andralee Cain Lloyd, Law Department,
Assistant City Attorney
City Hall, 301 West 2 nd Street
PO Box 1088, Austin TX 787~7-1088
Phone: (512) 974-2918

4
 INDEX OF AUTHORITIES
STATUTES & CASE LAW
Texas Local Government Code
• LGC Section §43.002- Continnation of Land Use
• LGC Section §245.00-02- Projects, Permits, Uniformity of Requirements
• Harper Park II v. City ofAustin (App. 3 Dist. 2011) 359 S.W.3d 247
• Shumaker v. City ofAustin, 325, S.W.3d 812, 814-15 (Tex. App-Austin 2010)

Texas Civil Practices & Remedies Code- Tort Claims
• Rule §101.001- Government- General Provisions
th
• City a/Houston v. Jenkins, 363 S.W.3d 808,814 (Tex. App.-Houston [14 Dist.] 2012
pet. filed 4-30-12) ........... , ........................................................................ p.18
• Weingarten Realty Investors v. Albertson's, (S.D. Tex. 1999) 66 F.Supp.2d, 825 .... p.13
• Edwards Aquifer v. Sheffield Dev. Co, 369 S.W.3d at 838, 140 S.W.3d at 671 ........ p.19
• Rule §101.0215(29)- Municipal Liability, Planning and Zoning
• Rule §101.106 Restatement (2d) Torts Rule §895 D, Rule §2.2
• Rule §41.0ll(a)(5)- Evidence to Exemplary Damages
• Rule §51.014(d)(l); Tex. CPRC Rule §168- Controlling Question of Law
• Rule §299- Omitted Findings of Fact
Tenery v. Tenery, 932S.W. 2d 29, 30 (Tex. 1996) .............. p.7
• Rule §329(a)(d)- Timing for Filing Motions- plenary powers .............. p.7

Texas Rules & Civil Procedure
• Rule §166a(c)-
• Mann, Frankfort, Stein & Lipp Advsr v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009)
• MMP, Ltd v. Jones 710 S.W.3d 802, 816 (Tex. 2005)
• Rule §168- Permission to Appeal .... p.6
• Rule §299- Omitted Findings
• Rule §329(b)(f)- Time for Filing Motions-
• In Re Baylor Med Center 280, s.W.3d 277, 230-1 (Tex.2009) .... p.7
• Tenery v.Tenery, 932 S.W. 2d 29,30 (Tex. 1996) .... p.7

Texas Rules of Appellate Procedure
• Vernon's Texas Rules Annotated, Vol. 4, Texas Court of Appeals
o Rule §377- Diligence:
• Note 24- Reversal, Strode v. Srygley (Civ.App.1961) 342 SW.2d 638 ....... p.7
• Note 66 -Findings, Rosales v. Rosales (Civ. App.1964) 377 S.2d 661 ....... p.12
Kilsby v. Aero-Test Equipment Co (Civ.App. 1957)301 SW.2d 703
• Note 68- Grounds, Ives v. Watson (Civ. App 1975) 521 SW.2d 930 ....... p.22
• Note 69-Error, Barham v. Combs (Civ. Appl975) 523 SW.2d 725 ....... p.13
• Note 116- Duty, Gipson v. Southwest Oil Co. ofS.A,Inc (Civ. Appl980)604 S. W2d 396
• Note 117- Rights, Goodman v. Goodman (Civ. App. 1981) 611 S.W. 2d 738 ....... p.13
• Rule §24.4- Appellate Review
• Rule §39.2- Oral Arguments

5
TEXAS CONSTITUTION
Article I, §17(160)(161) -
• Intent, Inverse condemnation (160) ................ p.12
l. Bass v. City ofDallas (App. 7 District 2000) 34 S.W.3d I
• Restriction on Use- (161) ................ p.12
2. Weingarten Realty Investors v. Albertson's, (S.D. Tex. 1999) 66 F.Supp.2d, 825

STATEMENT OF THE CASE

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

appellees.

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

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

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

capacity as Director ofPlanning and Development Watershed Protection Review Department in

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

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

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

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

Planning and Zoning by denying Appellant's valid Travis County Flood Hazard Permit;

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

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

Property for Public. Use.

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

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

6
 Justice Crump issued an Order; "... Accordingly, Plaintif!s lawsuit against Defendants is

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

7
 STATEMENT OF THE ORAL ARGUMENTS

The Court should grant oral arguments for the following reasons:

1. At issue, CPRC§51.014(d)l, an undecided controlling question oflaw; LDC §43.002
and LDC §245 have not been authoritatively decided. See Tex. R. App. P. 39.l(b).
Justice Crump refusal leaves a controlling question of law unresolved.
• The undisputed facts are; Travis County issued Permit #85-2558 on August 9th
1985, prior to city annexation. (Affidavits: C. McClendon, and R. Glasper)
• In January 2008, appellant attempted to move forward towards project completion.
Appellees, headed by Greg Guernsey as Director ofPlanning and Development
Watershed Protection Review Department, intentionally, failed to perform their
governmental functions. Appellees denied Draper's vested-rights, a valid Travis County
Flood Hazard Permit; thereby, adversely condemning appellant's property without
adequate compensation.
• LGC §43.002: Appelles have attempted to defeat LGC §43.002, and beguile the trial
court with sham-affidavits of Susan Scallon, and Stacey Scheffel, a Travis County
Permit Director. Both, Ms. Scallon and Ms. Scheffel stated under oath; appellant's
vested-rights expired; "... 180 days after issuance if no work commenced, or... abandoned
after 180 days". (Affidavits: Stacey Scheffel; See also, LGC §245.005(b))
• Contrary to Ms. Scheffel's claims; Travis County Flood Engineer, Mark
Kronkosy on April 10th, 1987 requests '... another elevation certificate form ... '.
(605 days after permit issuance; Exhibits C).
• Ms. Scheffel was employed by Travis County in 1997, twelve years after the
permit was issued. Ms. Scheffel was not present in 1985. Her testimony is Heresay.
• See also Other Authorities, Attorney General Greg Abbott, December 10, 2012
letter- "project duration"; which conflicts with Ms. Scheffel's sham-affidavit.
• LGC §245: Appellees allege Shumaker v. City ofAustin provides appellees the
authority to retroactively regulate land-use.
• The Shumaker permit case concerned three tracts; A, B, and. C. Travis County
'acted'. Schumaker received regulatory agency approval for Tract A. Appellees

8
 did not contest Shumaker's Tract A permit. The appellees contested, Travis
County application on Tract B; prior to the county's action.
• In Chief Justice Jones Opinion of Shumaker, he stipulates; (second sentence,
page 1)" ... Consequently , but before the County had acted on the
application ... ".
• Shumaker v. City ofAustin does not apply, here. Travis County 'had acted' in
1985 and issued Permit #85-2558; similar to Shumaker's Tract A.
• Appellees have produced no-evidence of 'regulatory agency' intervention,
since 1985.
• Appellees are defeated under both LGC §43.002 and LGC §245.
2. Oral arguments would give the court a more complete understanding governmental
liability and the facts presented in this appeal.
See Tex. R. App. P. 39.l(c).
• Evidence to be presented, under CPRC Rule §101.0215(29) Governmental
liability, Planning & Zoning, would elaborate and expand the Court's
understanding, that Appellee's actions are not an isolated event. Appellee's
denials are supported with sham-affidavits, gross misrepresentations, duration,
breach of contracts, and obstruction of civil process.· The nature of the
offenses are so reprehensible, that appellees' offend the public trust, and
undermine public justice, equally are paramount to the Court's deliberations.
Meadours v. Ermel, 483, F.3d (Fifth Circuit 2007), and Weingarten Realty
Investors v. Albertson's, (S.D. Tex. 1999) 66 F.Supp.2d, 825.

3. Oral arguments would allow the to better analyze the complicated legal issues
presented in this appeal.
See Tex. R. App. P. 39.l(c).
• Vested-Rights v. Inverse Condemnation-
!. Travis County 'acted' in 1985, and issued Permit #85-2558.
11. Conveyance does not diminish the rights of a subdivision. (See Other
Authorities: John Comyn letter)

9
 111. No 'project' alterations have been filed, or permitted; which changed
the original intent. (See Affidavit: C. McClendon)
1v. Appellant has never 'consented', nor received compensation,
consideration, nor notice of conveyance of 'vested-rights'.
v. City of Austin has the burden to indicate more 'narrow-use'.
v1. City of Austin has no-evidence of intervention for thirty years.
vu. Travis County was the regulatory 'agency' at time of permit issuance.
vm. Commercial office project could have been built in 1985; therefore,
'vested-rights' should still exist today; without limitations on
impervious cover, nor height. LGC§43.002, LGC § 245.002(a).
1x. Property is zoned commercial, was rezoned December 2008, and is
zoned VMU in Oak Hill's Neighborhood Plan, and FLUM.

• Texas Constitution Article I, §17(a) - Taking, Damaging, or Destroying
Property for Public Use- No person's property shall be taken, damaged, or
destroyed for or applied to public use without adequate compensation being
made, unless the consent of such person, and only if the taking, damage or
destruction is for: (1) the ownership, use, and enjoyment of the property,
notwithstanding an incidental use, by: (A) the State, a political subdivision of
the State, or public at large. Article 1, 17 (160)- To establish an inverse
condenmation claim, a property owner must establish that(!) the State or other
governmental entity intentionally performed a certain act (2) that resulted in
the taking, damaging or destruction of the owner's property (3) for public use.
Bass v. City ofDallas. Article 1, 17 (161)-An inverse condenmation, for
which a owner is entitled to compensation under the Texas Constitution, may
occur when the government physically appropriated or invades the property or
when unr~,isonably interferes with the landowner's right to use and enjoy the
,.'-!Y-/Y. 230

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US. HWY 290
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• NOTICE OF PUBLIC HEARING

Mailing Date: December 30, 2008
REZONING

Case Number: C14-2008-0152

Este aviso le informa de una audiencia publica tratando un cambio de zonificaci6n dentro de una
distancia de 500 pies de su propiedad. Si usted desea recibir una copia de este aviso en espaiiol, por
favor llame al (512) 974-7668.

Please be advised that the City of.Austin has received an application for a zoning change.
Owner: Tejas Land & Commerce (Charles Draper) Telephone: 512-358-7191
Agent: Thrower Design (Ron Thrower) Telephone: 512-476-4456
Address and/or Legal Description:
6300 US Hwy 290 West
Proposed Zoning Change
From CS-CO-NP - General Commercial Services district is intended predominately for
commercial and industrial activities of a service nature having operating characteristics or
traffic service requirements generally incompatible with residential environments. CO-
. Conditional Overlay combining district may be applied in combination with any base
district. The district is intended to provide flexible and adaptable use or site development
regulations by requiring standards tailored to individual properties. NP - Neighborhood

• Plan district denotes a tract located within the boundaries ofan adopted Neighborhood
Plan.
To CS-CO-NP - General Commercial Services district is intended predominately for
commercial and industrial activities of a service nature having operating characteristics or
traffic service requirements generally incompatible with residential environments. CO-
Conditional Overlay combining district may be applied in combination v.ith any base
district. The district is intended to provide flexible and adaptable use or site development
regulations by requiring standards tailored to individual properties. NP - Neighborhood
Plan district denutes a lrncl located within the bounq.aries of an adopted Neighborhood
Plan.

This application is scheduled to be heard by the. City Council on January 15, 2009. The meeting will .be
held at City Hall Council Chambers, 301 Wesi 2"' Street beginning at 4:00pm.
You are being notified because City Ordinance requires that all property owners within 500 feet, those who
have a City utility service address within 500 feet and registered environmental or neighborhood
organizations whose declared boundaries are v.ithin 500 feet be notified when an application is scheduled for
. a public hearing.
If you have any questions concerning this application, please contact Stephen Rye, of the Neighborhood
Planning and Zoning Department at 512-974-7604 an.d refer to the Case Number at the top right of ihis
notice. However, you may also. find information on this case at our web site:
https://v,·ww.ci.austin.tx.us/de,•review/index.jsp.
For additional information on the. City of Austin's land development process, please visit our
W\\w.ci.alistin.tx.us/development. "====--~

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ZONING
l'.,:1/. j SUBJECT TRACT
N ZONING CASE#: C14-2008-0152
,: : : ZONING BOUNDARY ADDRESS: 6300 W US 290 HWY WB

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D PENDING CASE

OPERATORS MEEKS
SUBJECT AREA 2.357 ACRES
GRID C19
MANAGER C. PATIERSON
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 - Page 1 of 3

• Kleeman, Robert

From:
Sent:
To:
Murphy, Pat [pat.murphy@ci.austin.tx.us]
Wednesday, February 20, 2008 10:22 AM
Kleeman, Robert; Hollon, Matt
Subject: RE: info on property
Follow Up Flag: Follow up
Flag Status: Red

Robert,

This is a pretty complicated question that you are asking. l would suggest that we sit down at some point and go
through the regulations that might apply to this project.

Pat

From: Kleeman, Robert [mailto:rkleeman@munsch.com]
Sent: Tuesday, Februa_ry 19, 2008 12:06 PM
To: Hollon, Matt
Cc: Murphy, Pat
Subject: RE: info on property

• Guys:

I need some guidance. The property in question has an original plat that goes back to a plat called the "Town of Oak Hill"
recorded in Volume X, Page 242, Deed Records of Travis County. 1 am working on getting a copy of this plat but 1 feel
comfortable in guessing that this plat goes back to at least the 1960s if not earlier. The plat was amended in 1991 by moving
lot lines. The current property description is Town of Oak Hill, Amended Lots 10 and 11, according to the plat recorded in
Volume 90, Page 61, Travis County Plat Records. The amended plat was administratively approved by the City of Austin.

The Williamson Creek Ordinance, Ord No.810319-M, states in Section !Ol.2 that the requirement for a site development
permit does apply to development within a recorded subdivision which was finally approved by the Planning Commission
prior to December 18, 1980. I strongly suspect that the orlginal plat pre-dates December 18, t 980.

W'dS there a Williamson Creek Ordinance prior to Ord. No. 810319-M? Was there another Williamson Creek Ordinance
between 1981 and the CWO?

Wa.s there some other, earlier City Ordinance that would have required a site development permit or site plan in the
Williamson Creek Watershed? Ordinance No. 801218-W appears to only address subdividing. which isn't an issue here.

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

Now going Back to the Future, I am thinking that under 13-2-502(d), May l 8, I 991 would be the first date that a site
development pennit requirement would apply to this property. Under 13-2-502(b), this platted property would have been
exempt from the Comprehensive Watersheds Ord. Under 13-2-502(g), development of the property would have been
governed by the applicable watershed ordinance, if any, in effect on May 18, J986. Unless there is a pre-I98 I ordinance. l
believe that there was not a site development permit requirement applicable to this property on May 18, 1986.

·-- 2/25/2008
··--· -···-------·"··-----·. -"--- · - - -
 Page 2 of3

•
Thanks

·Robert Kleeman
MUNSCH HARDT
KOPF & HARR, P.C.
DALLASjHOUSTONjAUSTIN

One American Center
600 Congress Avenue, Suite 2900
Austin, Texas 78701-3057
Direct (512)391-6115
Fax: (512) 482-8932
rkleeman@munsch.com
munsch.com
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and cannot be used, for the purpose of (a) avoiding penalties under the Internal Revenue Code or (b) promoting,
marketing or recommending to another party any transaction or matter addressed herein.

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

•
Sent: Friday, January 18, 2008 3:40 PM
To: Kleeman, Robert
Cc: Murphy, Pat
Subject: info on property

Robert,
OK, I made a couple of quick maps of Charles Draper's properties along 290 (6300 & 6302 Hwy 290 W)
and am attaching them for your use. I noted that the area to the back is functionally impervious-looking, but
am not certain as to its actual status. I talked with Pat Murphy and he said that you will need a
determination of the legality of the impervious cover (i.e., whether it was permitted). We'll get into more of a
grey area if it was put in illegally. Anyway, the smaller 6300 property WAS included in our analysis of
properties for the BSZ Redevelopment Ordinance. We didn't pick up the other property because it was
listed as "undeveloped" in our coverage. Obviously it IS developed, and now we just need to confirm its
status.
Definitely feel free to call us back to talk more about it if you have questions. Pat Murphy (974-2821) will
likely be your best contact in terms of interpretation of the rules.
Matt

Matt Hollon
Env. Program Manager, Planning & GIS
Watershed Protection & Development Review
City of Austin
505 Barton Springs Rd. I Ith Floor; Austin, Texas 78704
512.974.2212 voice/ 512.974.2846 fax

·---
2/25/2008
•
 AITORNEYS & COUNSELORS

DALLAS I HOUSTON I AUSTIN

ROBERT J. KLEEMAN
Write(sDirectDiaJ: 512.391,6115
E-Mail rkteeman@munsch oom
Direct Fax: 512.482 8932

July 22, 2008

Ms. Victoria Li, P.E.
Director
Watershed Protection and
Development Review Department
City of Austin
P.O. Box 1088
Austin, Texas 78767

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

Dear Ms. Li:

• This firm represents Charles Draper, the owner of an approximately 2.36 acre tract of land
located at the above-referenced address ("Property"), with regard to the applicability of the
Redevelopment Ordinance, codified as Section 25-8-27, to the Property. The Property is also
described as Lots 10A and 11A, Block 1, Town of Oak Hill Amended Plat, according to the plat
recorded in Volume 90,. Page 61, Plat Records of Travis County, Texas. At this time, the owner of the
property requests confirmation that the Property has "existing commercial development" for purposes
of Section 25--8-27. The area of "existing commercial development" is discussed below.

The original plat of the Property dates back to the 1870s. As shown on the enclosed aerial
photographs, the Property has been under constant development and redevelopment since at least the
mid 1960s. Each photograph has the year written on it and the Property is circled to assist you. As
you will see, buildings have occupied various locations throughout the Property.

· The Property is located in the Barton Creek Watershed. The City annexed the PropE!rty for full
purposes in late December 1985. Prior to its annexation, the Property was subject to the City's water
quality regulations found in Chapter 9-10, Division 4, Sections 301 through 355. According to Section
9-10-303(b), the Property was exempt from the requirements of the_ Barton Creek Watershed
Ordinance due to the fact that the Property was lawfully subdivided prior to April 17, 1980. Due to the
Property's exempt status under the Barton Creek Watershed Ordinance, development on the Property
prior to the full annexation of the Property was legal without having to obtain an· approved site
development or waterway development permit from the City ofAustin. The City granted CS zoning for
the Property in 1991 pursuant to Ordinance No 911010-8. According to staff comments to the zoning
case in 1991, retail and commercial uses already existed on the Property.

Unfortunately, there is no aerial photograph of the property .taken in the time frame of
December 1985. Enclosed are photographs taken in 1984 and another in 1987. Based on

• MHDocs 1639277_1 10047.1
 Ms. Victoria Li, P.E.

•
July 22, 2008
Page2

discussions with City staff, my client proposes the north line of the development shown on the 1987
aerial pnotograph as the northern boundary of the "existing commercial development" for purposes of
Section 25-8-27. The "existing commercial development" would encompass the Property south of the
line all the way to the US 290 West right of way on the south, Patton Ranch road to the west and the
Austin Piz;a Garden tract to the east. Exact dimensions based on a survey would be provided in
conjunction with a site plan application for the Property.

Please provide me a written confirmation that the area of the Property described in the previous
paragraph is the amount and location of the "existing commercial development' for Section 25-8-27.

Please let me know if you have any questions.

Very truly yours,

Robert J. Kleeman

•
RJK:akm

Enclosures

cc: Mr. Charlie Draper (w/o enclosures)
Ms. Mitzi Cotton (w/o enclosures)
Mr. Pat Murphy (w/o enclosures)
Mr. Bob Ray, Assistant Director (w/o enclosures)
Mr. Matt Hollon (w/o enclosures)

• MHDocs 1639277_110047.1
• August 28, 2008

Mr. Robert J. Kleeman
Munsch Hardt
Kopf & Harr PC
One American Center
600 Congress Avenue - Suite 2900
Austin, Texas 78701-3057

Dear Mr. Kleeman:

I am writing you in response to your request to verify your client's entitlements for
a redevelopment project in the Barton Springs Zone located at the intersection of
U.S. Hwy. 290/71 West and Patton Ranch Road. I agree that a successful
redevelopment project under 25-8-27 would be a benefit to the City and your
client.

As you know, City Code Section 25-8-27 provides an exception to compliance with
the City's water quality regulations in the Barton Springs Zone under limited

• circumstances. Applicable to your client's situation is the requirement that only
existing commercial development that does not increase non-compliance with code
requirements qualifies. My understanding is that your client wishes to redevelop
commercial property in the Barton Springs Zone, but at least some of the existing
development on the property was not built in compliance with City Code
requirements.

The development on the site has occurred in several phases as you have evidenced
by comparing the City's aerial photographs from different dates. The site is located
within the Barton Creek watershed and the first watershed regulations limiting
impervious cover that would have applied to your client's property was the 1980
Barton Creek Ordinance. Because of the lack of City records documenting any
permits or construction dates, I agree that it is reasonable for you to document
through aerial photographs or other credible evidence the portion of the commercial
development that was built in compliance with City regulations in existence at that
time.

You are required to provide documentation and impervious cover calculations
.based on this agreed upon methodology at the time that your client files a
development permit application requesting the redevelopment exception under City
Code section 25-8-27. To clarify, this means that any impervious cover placed on
the site not in compliance with City regulations at the time it was constructed must
be removed. The remaining impervious cover, i.e., the portion that was built in

•
 -
• ...
.~..
: 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'<'" -··-· .,_,,~m--~-~--....,.,~--- -~-~-~..,-~~·7~,;~,~~-·---~·~~- -.•.,,-.s
' ' ~
 3. Contradicting Ms. Scheffel Affidavit is, Carl McClendon letter to Greg Guernsey on July
t 16, 2012 (PL Exhibit A); supported by Carl McClendon Affidavit, February 12'1\ 2014. On page

1, Mr. McClendon attests; "Site Development Permit: Although construction was initiated and

later paused due to economic conditions, the floodplain permit does not expire".

4. Furthermore, Mr. McClendon affidavit elaborates; "The Travis County Engineer's Office

issued a letter in 1987, indicating that a floodplain elevation certificate verifying the 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). "

5. On April 10, 1987 (605 days; after permit issuance), Travis County Floodplain engineer,

Mark Kronkosky sent a letter to Pattoii Lane Office Building J. V. stating: "This office has not

received an elevation certificate ... contact Melba Archer of our office so that we may complete

Section I". Why would Mr. Kronkosky contact Patton Lane Office Building JV. if the project

permit had expired; as attested by Stacey Scheffel? (PL Exhibit B)

Sham Affidavit. §9.4 Affidavit lO(i) Under the sham-affidavit doctrine, the
contradictory affidavit should be disregarded, and thus cannot raise a fact issue when there is a
clear contradiction on a material point without explanation Pando v. Southwest Convenience
Stores, 242, S.W.3d 76, 79 (Tex. App.-Eastland 2007, no pet)

C. PLAINTIFF IS ENTITLED TO VESTED RIGHTS, LDC Chapter §245
1. LGC § 245.002. Uniformity of Requirements
(a) Each regulatory agency shall consider the approval, disapproval, or conditional approval
of an application for a permit solely on the basis of any orders, regulations, ordinances,
rules, expiration dates, or other properly adopted requirements in effect at the time;
(I) the original application for the permit is filed for review for any purpose, including
review for ad!ninistrative completeness; or (2) a plan for development of real property or
plat. application is filed with a regulatory agency.
(a-I) Rights to 'Nhicha permit applicant is entitled under this chapter accrue on the fili~g of
an oriajnalapplication or pfan for development dr plat application that gives the regulatory
agency fair notice of the project artd the nature of the permit sought. '

4
 As previously stated, the 'regulatory agency' at the time was Travis County. Travis County

t issued Patton Lane Office Building 'original application' permit #85-2558 on August 9, 1985, in

accordance with City of Austin ordinance and site development standards per Sec. 9-10-303(b).

11. No-Evidence, Defendants engaged as a Regulatory Agency.
The burden of proof is for the defendant's to produce evidence; defendants had regulatory

authority and were entitled to fair notice.

Carl McCiendon's letter, July 2012, attests;

"In 1982, the City adopted the Barton Creek Watershed Ordinance, however, legally
subdivided land was exempt from the ordinance and site development standards per Sec. 9-
10-303 (b). in short, a site development, or waterway development permit from the City of
Austin was not required."

The defendants' lack of evidence exposes lack of authority. Today, City of Austin building

permits requires; structural blue-prints, plumbing blue-prints, gas and electrical blue-prints, TIA,

FARs, parking, drainage, water quality retention, etc. And yet, the defendants have produced no-

evidence; they have regulatory building permits in their possession.

Which begs the question. Why, in August of 1985, did the defendants not red-tag

construction? No-evidence exists, the defendants engaged in any supervisory capacity. Even

more suspect, the City annexed the subject property four months, after construction commenced.

A simple permit process requires six to nine months to be processed. Yet, the City annexed the

subject property in less time. Apparently, the City was aware of the "project"; but did not

engaged in active restraint on the project's development. Defendants have no-evidence of

regulatory authority; under LDC Chapter §245.

111. CASE LAW: Shumaker Enterprises vs. City ofAustin
Shumaker Enterprises vs. City ofAustin was a case based on a mining permit for commercial

extraction. Patton Lane Office Building permit #85-2558 would have required a higher standard

of review; which is noticeably absent.
5
 The distinction between Schmaker and plaintiff are;
t • Schumacher had a permit for tract A; which did not require city approval. Schumacher

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

• Plaintiff had a "project" 'original application for development and/or plat application that

had gives[n] the regulatory authority fair notice of the project and nature of the permit

sought' in 1985.

• Plaintiff's vested-rights are frozen on "project" first permit application in 1985.

"Under chapter 245 of the local government code, once an application for the first permit
required to complete a property-development "project" is filed with the municipality or other
. agency that regulates such use of the property, the agency's regulation applicable to the "project"
are effectively "frozen" in their then-current state and the agency is prohibited from enforcing
subsequent regulatory changes to further restrict the property use". See TEX. GOV'T CODE
Ann.§§ 245.001-.007 (West 20005) Shumaker Enters, Inc. v. City ofAustin, 325, S.W 3d 812,
814-15 & n.5 (Tex. App-Austin 2010, no pet.)

.1v. Defendant's misrepresentations, project has not changed.
Defendants continue to make misrepresentations project has changed.

Plaintiff's "project" has not changed. Fair notice was given towards project completion.

o "The landowner has continued progress toward permitting by filing and
recording an amended plat on October 10, 1991, which did not change or alter
any of the previous restrictions or provisions of the original subdivision. On
October 10, 1991, the City rezoned the property to Commercial Services-
Conditional Overlay (CS-CO), (Ord. #: 911010-B).

"See Act of May 11, 1999, 76"' Leg., R.S. Chp73 § 2, 1999 Tex. Gen. Laws 432, codified as amended, Tex. Loe
Gov't Code Ann.§ 245.002(a)-(b). The effect of these requirements is to "freeze" most of the regulatory authority's
land-use regulations as they existed at the time the first permit application is filed through completion of the
"project"." Harper Parkl!v. City ofAustin, S.W. 3d (App. 3 Dist. 201 !), 359, S. W. 3d 247.

6
• 0 Again on June 14, 1997, the landowner filed a related zoning request;
which did not alter or change previous restrictions or provisions to the CS-CO
zoning, (Cl4-91-0027). It was approved a super-majority 7-0 vote by city
Council.
o In 2008, Draper filed for rezoning of the property to Commercial Services-
Conditional Overlay- Neighborhood Plan (CS-CO-NP), (Ord.#: 20090115-092),
which amended the site development restrictions and permitted uses on the
property to be consistent with those of the originally submitted permit. (Pl.
Exhibit D).
o The Affidavit of Chris Johnson is subordinate to LGC §43.002. The
Amnesty Certificate of Occupancy (ACO) requested in 2012 only ": (I)
continuing to use the land in the area in the manner that was being used on the
date the annexation ... ", and did not change the use of the property.

On page 6 of 16, Defendant's No-Evidence Motion for Summary Judgment, defendants

assert; " .... thus Plaintiff entitled to vested rights, the overall project as completed, abandoned,

or dormant well before Plaintiff submitted his request for vested rights to the City on February

14, 2011". Malarkey!

Plaintiffs Chapter 245 application on February 14, 2011 was to notify the City, plaintiff

was moving towards project completion by submitting structural blue-prints of the original

project (Pl. Exhibit G); without change, or modification.

Plaintiff first brought forth his plans for project completion in January 2008. Victoria Li,

Director of Watershed Protection and Development Review Department opines; "Because of the

lack of City records documenting any permits or construction dates". (Pl. Exhibit F)

Why, because either, the City was not the regulatory agency responsible to receive fair notice

of the 'original application' according City of Austin site development per Sec. 9-10-303(b), or

the City destroyed documents relating to project completion.

7
 Director Li knew, the City lacked regulatory authority. Greg Guernsey knew it. The City

t and Greg Guernsey in his Capacity as Director of Planning and Development Watershed

Protection Review Department from 2008 through 2016; knew it, when plaintiff filed D-lGN-

13-000778 causes of actions documenting the defendants' history of fraudulent

misrepresentations, malice, perjury breach of contract and the prevention of civil process.

D. Ultra Vires Claims, Fraudulent Misrepresentations, Malice
On February 25, 2015, Texas Third Court of Appeals ruled on the matter. The Third

Court reversed the District Court decision to acquit Greg Guernsey in his Capacity as Director of

Planning and Development Watershed Protection Review Department; because it " ... awards

relief beyond properly authorized subsections (a) or (e) of Section 101.106 of the Civil Practices

and Remedies Codes as they apply to in this case". (Reference; Third Court ofAppeals 03-14-

00265-CV). Defendant's claims, plaintiff did not specifically plead and ulta vires claims are

t malarkey. Please read INTRODUCTION.

E. Perjury, Breach of Contract, and Prevention of Civil Process
To further discuss defendants' perjury, breach of contract, and prevention of the

execution of civil process arguments; would distract, and aid defendants, further attempts to

obfuscate the facts. Because, plaintiffs primary claims are associated with denied vested-rights

entitlements, wonton fraudulent misrepresentation, and acts of malice; perpetrated by defendants.

Plaintiff concedes. Defendants' recital's fall painfully short of their mark. Plaintiff will not

sustain defendant's feeble distractions with a retort.

"See Act of May 11, 1999, 76th Leg., R.S. Chp73 § 2, 1999 Tex. Gen. Laws 432; see Quick v. City ofAustin 7 S.W.
3d I 09 (Tex 1998) at 128n (purpose of the chapter 245's statutory predecessor, former chapter 481 oftbe
government code, was to" establish requirement, relating to the processing and issuance of permits and approvals
by the government regu1atory ag'encies in order to aI1eviate bureaucratic obstacles to economic development")".
Harper Parkllv. City ofAustin, S.W. 3d (App. 3 Dist. 201 I), 359, S. W. 3d 247.

8
•
F. Defendants' Municipal Liability-

CPRC Rule §101.0215(29), Liability of a Municipality, whereby, Greg Guernsey in his

capacity as Director of Planning and Development, habitually made fraudulent

misrepresentations. Four times, Guernsey denied plaintiff requests (Exhibits F,H, I, J). Guernsey

intentionally misconstrued the Legislative intent, taking a 'narrow' view of Chapters §245, while

ignoring § 43.002 at his 'occupational discretion'. "The primary objective in construing statue is

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

436). Guernsey failed to comply with State law. Guernsey engaged in his 'proprietary' special-

authority, 'intentionally' destroyed, or denied Plaintiff's 'vested rights'.

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

this chapter for damages arising from it's governmental functions (29) zoning and planning. "A

governmental employee is entitled to official immunity for good-faith performance of the

discretionary duties within the scope of the employee's authority. [I]fthe duty is imposed by

law, then the performance of the duty is a ministerial act, and there is no immunity for failure to

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

2012 pet. filed 4-30-12). Greg Guernsey failed to perform his duty in approval of Plaintiff

'vested-rights' Chp. 245 Fair-Notice Application. (Exhibit F). Thereby, violating Article I,

§17(a) of the Texas Constitution - Taking, Damaging, or Destroying Property for Public Use.

STANDARD OF REVIEW

A. Defendant's no-evidence motion is conclusory-

A no-evidence motion must be specific in challenging the evidentiary support of the elements of

a claim. TRCP. 166a (i). The rule does not authorize conclusory motions for general no-

evidence challenges to opponent's case, Timpte Indus. Inc. Gish, 286 S.W. 3d 306,310 (Tex.

2009). Defendants failed to address LGC §43.002.

9
 B. · Plaintiff has sufficient evidence to raise fact issue on his cause of action

t When a no-evidence motion for summary judgment does not challenge specific elements, it

should be treated as a traditional motion for summery judgme~J.!I)der TRCP 166a(c). Because

defendant's motion does not challenge specific elements of the plaintiff's cause of action, LGC

§43.002, the court must treat the defendant's motion as a traditional motion for summary

judgment.

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

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

TRCP l 66a(c); Mann Frankfort Stein & Lipp Advisors, Inc. Fielding, 289 S. W. 3d 844, 848

(Tex. 2009). To meet the burden, defendants must conclusively prove all essential elements of

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

C. Defendants have not proven their affirmative defense as a matter of law.

The defendants are not entitled to summary judgment on the plaintiff's causes of action because

the undisputed facts in this case and defendant's summary-judgment evidence does not

conclusively establish each element ofLGC§43.002, LGC§245.00 Torts §876, CRPC Rule

§101.0215(29). Defendants denied plaintiff's valid Travis County Flood Hazard Permit,

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

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

DAMAGES

Given the egregious, and contemptuous conduct of Greg Guernsey's and the City of Austin.

Defendants wanton disregard of State Jaw. Given the defendants practices are not an isolated

event. Given defendants' actions were committed, knowingly and intentionally. Therefore,

plaintiff seeks to recover actual economic damages, and compensatory damages; he has suffered.

10
 Plaintiff is entitled to relief. Under, Texas Constitution, Article 1, 17 (161)-An inverse

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

occur when the government physically appropriated or invades the property or when

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

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

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

Plaintiff prays the Court will grant plaintiffs compensatory, economic loss, and

exemplary damages for the aggravated, reprehensible conduct of the defendants. To the extent,

defendants have 'undermined the public trust'.

Compensatory Damages

Plaintiff has been denied 'vest-rights' entitlements to 6300 Hwy 290 West; since January

2008 to the present.

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

Oxford Commercial Austin Office Market Report, the Southwest rental rate for 2013 was $31.81

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

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

Therefore, from January 2008 until October 2016 equates to 105 months; times the

southwest market rate of$31.81, times 43,510 sq. ft., equals $12,110,465.00 in compensatory

damages.

Exemplary Damages

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

duration of wanton fraud, perjury, sham-affidavits, misrepresentations, degree of culpability,

malice, physical threats, and sense of justice, as well as defendants' net worth, plaintiff seeks an

additional $12,110,465.00 in exemplary damages.

11
•
Under Rule §4I.Oll(a)(5), Exemplary damages are designed to penalize and deter

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

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

interest, the City of Austin should be held accountable.

Total Damages

Plaintiff requests, Total Damages as of October 2016, for $24,220,930.00; penalties,

interests, court cost, and recovery associated with plaintiffs claims.

CONCLUSION

Defendants have not met the standard of review to be awarded, no-evidence summary

judgment. They are sufficient facts, and questions raised with sham-affidavits, and conflicting

testimony. They are 'controlling question oflaw' to be determined.

Does LDC § 245.002 negate LGC §43.002? Are the statutes mutually exclusive?

Defendants' arguments are conclusory, and can only defeat LGC §43.002 with perjured

hearsay, sham-affidavit. Stacey Scheffel sham-affidavit must be dismissed under Article VIII,

Rule §802 and the doctrine of sham-affidavits §9.4 10(2)

Plaintiff request the court grant Plaintiff's Motion for Counterclaim Summary Judgment.

Vested-rights are 'frozen' from time the first permit application is filed through

completion of the "project". The City of Austin was not the regulatory agency responsible for ·

submission of the first permit application per LGC § 245.002 (a)(l)(la). The City of Austin

ordinance and site development standards affirm, their lack of authority, per Sec. 9-10-303(b).

Regardless on the defendants interpretation of LDC Chapter §245;

LGC §43.002 confirms "a municipality may not, after annexing an area, prohibit a
person from: (1) continuing to use the land in the area in the manner that was being used on the
date the annexation".

12
 As a consequence of the defendants' malicious misrepresentations, plaintiff has sustained

injuries to which plaintiff is entitled to just compensation, in accordance with the Texas

Constitution, Article 1, 17 (161).

PRAYER

For these reasons, plaintiff prays, the Court will resolve and grant plaintiffs

counterclaims, award vested-rights entitlements, damages, and establish the 'controlling question

oflaw' necessary for the resolution ofthis case; in accordance with state statues and legislative

intent.

Respectfully submitted,

0,·-ks~
Charles N. Draper
160 Maeves Way
Austin, Texas 78737
Phone: 512.699.2199
Email: cd@tejasland.com

JLY-
CERTIFICATE OF SERVICE: I HEREBY CERTIFY that on Septemberk, 2016, a true and correct copy of the
foregoing Plaintiff's Response to Defendant's Motion/or No-Evidence Summa,,• Judgment, was sent by certified
mail, return receipt request to Andralee Cain Lloyd, Austin Law Department, City Hall, 301 West 2nd Street. P.O.
Box 1088, Austin, Texas 78767-1088

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
Tel.(512) 974-2918 _
Fax:(512) 974-2918

13
 CAUSE NO. D-l-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

DEFENDANTS' REPLY IN SUPPORT OF ITS TRADITIONAL AND NO-EVIDENCE
MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFF'S
COUNTERCLAIM FOR SUMMARY JUDGMENT

COMES NOW, Defendants City of Austin and Greg Guernsey' (collectively referred to

as "Defendants" and respectively referred to as the "City" or "Guernsey") file this reply in

support of their motion for summary judgment and in response to Plaintiffs counterclaim for

summary judgment. In support thereof, Defendants respectfully show the following:

I.
INTRODUCTION

Plaintiffs response improperly tries to shift the burden of proof to the Defendants. The

burden remains with Plaintiff to present enough evidence to raise a genuine fact issue. Plaintiff

doesn't even attempt to provide any evidence to support his claims of perjury, breach of contract,

and prevention of civil process. Alleging, instead, that any argument in support of these claims

would detract from his primary claims for vested rights, fraud, and misrepresentations. Plaintiff

failed to meet his burden for these claims and they must be dismissed. Plaintiff further fails to

present any competent summary judgment evidence to support his claims of fraud and

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.
 misrepresentations. Instead, Plaintiff alleges fraud and misrepresentations any time he disagrees

with a statement made presenting no evidence except his own subjective belief. Subjective belief

is not competent summary judgment evidence and Plaintiff's claims of fraud and

misrepresentations must also be dismissed. Finally, Plaintiff's only argument to support his claim

for vested rights is that the City was not the regulatory agency as of 1985 - relying on hearsay

statements made by his own representation during the Chapter 245 application process. For the

reasons addressed below and in Defendants' motion for summary judgment, Plaintiff has not met

his burden that he is entitled to vested rights. 2 Defendants' motion for summary judgment should

be granted and Plaintiff's lawsuit dismissed.

II.
ARGUMENT

A. Texas Local Government Code § 43.002.

Generally, once property is annexed, the municipality's ordinances and regulations apply

to the property. See e.g. Shumaker Enterprises, Inc. v. City of Austin, 325 S.W.3d 812,814 (Tex.

App.-Austin 2010, no pet.). Subsection 43.002(a), however, provides that even a valid zoning

ordinance or land use regula~n may not prohibit a person in a newly annexed area from:

(1) continuing to use l~d in the area in a manner in which the land was being used on the
date the annexztionroceedings were instituted if the land use was legal at that time;
or

(2) b~!~t~se land in the area in a manner that was planned for the land before the
9 ~ , o r e the effective date of the annexation if:

(A) one or more licenses, certificates, permits, approvals, or other forms of
authorization by a governmental entity were required by law for the planned
land use; and

2
Plaintiff has twice filed a motion for summary judgment. Both times his motion has been denied. Plaintiff has not
amended his pleadings, presented any new evidence, or cited new legal authority to support his motion.
Accordingly, this court should deny Plaintiff's counterclaim for summary judgment.

DEFENDANTS' REPLY IN Sl1PPORT OF ITS TRADITIONAi, AND
NO-EVIDENCE MOTION FOR SUMMARY JlJDGMENT AND
RESPONSE TO PLAINTIFF'S COUNTERCLAltVI FOR SUMMARV Jl.lDG!\'lENT PAGE 2 OF 8
 (B) a completed application for the initial authorization was filed with the
governmental entity before the date the annexation proceedings were
instituted.

TEX. LOCAL Gov'T CODE § 43.002. Plaintiff cites subsection (a)(!) to support his position that

he is entitled to Chapter 245 vested rights. Plaintiffs Response at p. I. Plaintiff seems to be

under the assumption that subsection (a)(!) gives him unfettered rights to develop his property

under the City's regulations as of 1985. This argument must fail for two reasons: (!) Plaintiffs

property was annexed prior to the enactment of Section 43.002; and (2) there is no evidence that

Plaintiff complied with the requirements of subsection (a).

When Plaintiffs property was annexed into the City's full-purpose jurisdiction, Section

43.002 had not yet been enacted. Plaintiffs property was annexed in 1985, Defendants' MSJ,

Ex. B at ,r 12, while Section 43.002 was first enacted in 1999. Act of May 30, 1999, 76th Leg.,

R.S., ch. 1167, § 17, 1999 Tex. Gen. Laws 4074, 4090. The City looked and could not find any

precedent to support the proposition that Section 43.002 applies retroactively. In fact, the only

case the City could find touching on this.issue is a Texas Supreme Court case that suggests that

the statute does not apply retroactively. See Board of Adjustment of City of San Antonio v.

Wende, 92 S.W.3d 424, 427 (Tex. 2002) (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). Furthermore, the plain language of the statute

suggests that the Legislature did not intend for retroactive application. Accordingly, Plaintiffs

property is not entitled to nonconforming use under Section 43.002.

Assuming, arguendo, that Section 43.002 could be applied retroactively, Plaintiff has

failed to produce competent summary judgment evidence that he met the requirements of the

statute. As Defendants understand Plaintiffs position, Plaintiff has alleged that he has a permit

issued by Travis County in 1985 to develop a commercial building on his property. He alleges
DEFENDANTS' REPLY IN SUPPORT OF ITS TRADITIONAL AND
NO-EVlDENCE MOTION FOR SUMMARY JUDG!\.'1ENT AND
RESPONSE TO PLAI'.\ITTFF'S COUNTERCLAIM FOR SUMJ\'lARY JLIDGNIENT PAGE3 OF8
that the building was never colnpleted and that he would like to complete the building pursuant

to the original project plans. Plaintiff does not want to continue using the land as it existed when

it was annexed. He, instead, wants to build something new based on a permit that was issued in

1985. Accordingly, Defendants believes that this would fall under subsection (a)(2), which

would have required a completed application to be filed with the City. There are no records that

the City ever received notice of Plaintiffs 1985 permit or his project in 1985 when the property

was annexed or in 1999 when this statute was enacted. See Defendants' MSJ at Ex. B.

Accordingly, Plaintiff has not shown that he is entitled to nonconforming use rights under

Section 42.002.

B. Ms. Scheffel is competent to testify on Travis County's permit regulations.

Plaintiff alleges that Ms. Scheffel' s affidavit is inadmissible because its "impeachable

hearsay" and Ms. Scheffel does not have personal knowledge of Travis County permits in 1985.

Plaintiffs MSJ Response at pp. 3-4. Plaintiffs argument must fail for the reasons addressed

below.

"To constitute competent summary judgment evidence, affidavits must be made on

personal knowledge, set forth facts as would be admissible in evidence and show affirmatively

that the affiant is competent to testify to matters stated therein." Krishnan v. Law Offices of

Preston Henrichson, P.C., 83 S.W.3d 295, 299 (Tex. App.-Corpus Christi, 2002) (citing Tex.

R. Civ. P. 166a(f)). Ms. Scheffel testified that she is the Permit Program Manager for Travis

County. As such, she "possess knowledge regarding rules and regulations pertaining to land

development permits issued by Travis County." Defendants' MSJ, Ex. C at ,i 2. Ms. Sheffel's

position at Travis County and her job responsibilities as the Permit Program Manager qualify her

to testify on Travis County regulations.

DEFENDANTS' REPLY IN SUPPORT OF JTS TRADJTIONAL AND
No-EvlDENCE l\10TIOL\ FORSUMJ\:lARY JUDGMENT AND
RESPONSE TO PLAlNTIFf'S COUNTERCLAIM FOR SUMMARY JtJDGME:\T PAGE 4 OF8
 Furthermore, Ms. Scheffel' s testimony is not hearsay because she is not testifying to an

out of court statement. A "statement" for purposes of hearsay means "a person's oral or written

verbal expression, or nonverbal conduct that a person intended as a substitute for verbal

expression." Tex. R. Evid. 80l(a). Ms. Scheffel's testimony is limited to what Travis County

policy was in 1985 with regards to the expiration of the Flood Hazard Area Development permit.

Accordingly, this Court should find Ms. Scheffel competent to testify and that her testimony is

admissible.

C. Plaintiff's property was not exempt from a City permit in 1985.

Plaintiff argues that the City was not a regulatory agency 3 entitled to fair notice because

his property was located in the area of the Barton Creek Watershed Ordinance of 1982, which

exempted certain properties from requiring a development permit from the City. See Plaintiffs

Response at pp. 4-5. Plaintiffs property, however, was not part of the Barton Creek Watershed

in 1985. See Defendants MSJ, Ex.Bat ,i 14. Instead, Plaintiffs property in 1985 was part of the

Aquifer-Related Williamson Creek Watershed. Id. at ,i 14. Plaintiffs property came into the

Barton Creek Watershed in 2007. Id. The City requires a site development permit before

development can commence on a property located in the Aquifer-Related Williamson Creek

Watershed. Id. at ,i 15. Accordingly, the City was entitled to fair notice and notice in 2011 is

insufficient to entitle Plaintiff to vested rights as of 1985.

III.
DEFENDANTS' MOTION TO STRIKE PLAINTIFF'S EVIDENCE

Defendants object to the below listed evidence for being unauthenticated. Further,

Defendants object as the evidence contain inadmissible hearsay. Plaintiff offers the below

3
Chapter 245 defines tegulatory agency as "the governing body of, or a bureau, department, division, board,
comrniSsion, or other agency of, a political subdivision acting in its capacity of processing, approving, or issuing a
permit." TEX. LOCAL Gov'T CODE§ 245.001(4). The City was a regulatory agency as defined by Chapter 245.

DEFENDANTS' REPLY IN SUPPORT OF ITS TRADITIONAL AND
No-EVIDENCE MonoN FORSUi\lMARY JLJDG:\"1ENT AND
RESPONSE TO PLAINTIFF'S COUNTERCLAll\1 FOR SUMMAR\' JUDGNIENT PAGE 5 OF 8
evidence for the truth of the matters asse1ted. This is incompetent summary judgment evidence

and Defendants respectfully request that they be struck.

I. July 25, 2012 Letter Carl McClendon to Greg Guernsey regarding

"Reconsideration of 1704/Chapter 245 Application for Lots JOA and I IA, Block I, Town of Oak

Hill at 6300 and 6302 U.S. 290 West (Tracking#; I 0547874)."

2. July 16, 2012 letter From Carl McClendon to Greg Guernsey regarding

"Reconsideration of 1704/Chapter 245 Application for Lots !OA and I IA, Block 1, Town of Oak

Hill at 6300 and 6302 U.S. 290 West (Tracking#; I 0547874)."

3. February 20, 2008 email from Pat Murphy to Robert Kleeman and Matt Holton

regarding "info on prope1ty" and the entire chain of conversation.

4. February 15, 2011 letter from James Schissler to Susan Scallon regarding "Patton

Lane Office Building 6302 West US Hwy 290 Austin, Texas 78735."

5. September 29, 2011 letter from Plaintiff to Guernsey regarding "Freedom of

Information Act, and request for meeting: 6302 Highway 290 West, Lot l lA, Block 1, Oak Hill

Township 1704 Application/Chapter 245 City Adrnin Code; Tracking #10547."

6. August 17, 2011 letter from Plaintiff to Guernsey regarding "6302 Highway 290

West, Lot l JA, Block 1, Oak Hill Township 1704 Application/ Chapter 245 City Admin Code;

Tracking #10547."

The City fu1ther objects to Mr. Draper's affidavit and the attached documents from the

2013 Oxford C01mnercial Marketbeat Office Snapshot. Defendants object to Plaintiff swearing

that the information contained in the publication is within his personal knowledge as Plaintiff has

failed to articulate with particularity how such information is within his personal knowledge.

Defendants do not believe that being a licensed real estate broker in Texas makes Plaintiff

DEFENDANTS' REPLY I:'\: SUPPORT OF ITS TRADITIONAL AND
NO-EVIDENCE 1\-lOTION FORSLiMJ\L\RY JCDG!\.lENT AND
RESPONSE TO PLAINTIFF'S COUNTERCLAIM FOR SUMMARY JUDG.,IEN"f PAGE 6 OF 8
competent to testify to all the information contained within the publication including all the

statistics regarding market rate, occupancy levels, etc.

IV.
PRAYER

For the reasons set forth herein and in Defendants' motion for summary judgment,

Defendants pray that its motion is granted and Plaintiffs counterclaim for summary judgment is

denied.

RESPECTFULLY SUBMITTED,

ANNE L. MORGAN, CITY ATTORNEY
MEGHAN L. RILEY, CHIEF LITIGATION

Isl Andralee Cain Lloyd
ANDRALEE CAIN LLOYD
Assistant City Attorney
State Bar No. 24071577
andralee.lloyd@austintexas.gov
City of Austin - Law Department
P. 0. Box 1088
Austin, Texas 78767-1088
Telephone: (512) 974-2918
Facsimile: (512) 974-1311

ATTORNEYSFORDEFENDANTS

DEFENDANTS' REPLY JN SUPPORT OF ITS TR.ADITJONAL AND
No-EvmENCE l\JOTION FOR SUi\IMAR,- JUDGMENT AND
RESPONSE TO PL,\INTIFF'S COLNTERCLAIM FOR Sut\:l\1ARY JunGMEN"l PAGE 7 OF8
 CERTIFICATE OF SERVICE

I certify that on this Tuesday the 4th day of October 2016, I served a copy of Defendants'

Reply in Support of its Traditional and No-Evidence Motion for Summary Judgment and

Response to Plaintiff's Counterclaim for Summary Judgment on Pro Se Plaintiff Charles Draper

in compliance with the Texas Rules of Civil Procedure.

VIA CMRRR #91 7199 9991 7036 8500 8261,
Regular Mail & Electronic Mail

Charles N. Draper
160 Maeves Way
Austin, TX .78737
cd@tejasland.com

PRO SE PLAINTIFF

/s/Andralee Cain Lloyd
Andralee Cain Lloyd
Assistant City Attorney

DEFENDANTS' REPLY IN SLTPPORT OF ITS TRADITIONAL AND
NO-EYIDENCE MOTION FOR SUMMARY JUDGMENT AND
RESPONSE TO PLAINTlFF'S COUNTERCL\IM FOR SU'.\'1MARY JlJDGJ\:JENT PAGE 8 OF 8
 ..
Filed in The District Court
of Travis County, Texas

IN THE DISTRICT COURT OF OCT 24 2016 •,rJl"l
I TRAVIS COUNTY, TEXAS
419 th JUDICIAL DISTRICT
At '-f>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 §
PROTE<::TION 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

~,0-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 IS THEREFORE ORDERED that Defendants' M<:>tion 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,·<:tin· imn,rdiatf'lv.

T!1i:-: P1•rmit is i~sut'd to
and i~ 1101 l!':rnsfrrr,d,!(·,
Patton Lane Joint Venture

Thi:; Pt'rtnit authorizf·~ the pPnnitt1·r- to <·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
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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

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NOTICE OF PUBLIC HEARING
REZONING

Mailing Date: December 30, 2008 Case Number: CI4-2008-0]52

Este aviso le informa de una audiencia publica tratando un cambio de zonificacion dentro de una
distancia de 500 pies de su propiedad. Si usted desea recibir una copia de este aviso en espafiol, por
favor Harne 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 of an adopted Neighborhood
Plan.
To CS-CO-NP - General Commercial Services district is intended predominately for
commercial and industrial activities of a service nature having operating characteristics or
traffic service requirements generally incompatible with residential environments. CO -
Conditional Overlay combining district may be applied in combination with any base
district. The district is intended to provide flexible and adaptable use or site development
regulations by requiring standards tailored to individual properties. NP - Neighborhood
Plan district denotes a tract located within the boundaries of an adopted Neighborhood
Plan.

This application is scheduled to be heard by the City Council on January 15, 2009. The meeting will be
held at City Hall Council Chambers, 301 West 2nd Street beginning at 4:00pm.

You are being notified because City Ordinance requires that all property owners within 500 feet, those who
have a City utility service address within 500 feet and registered environmental or neighborhood
organizations whose declared boundaries are within 500 feet be notified when an application is scheduled for
a public hearing.

If you have any questions concerning this application, please contact Stephen Rye, of the Neighborhood
Planning and Zoning Department at 512-974-7604 and refer to the Case Number at the top right of this
notice. However, you may also find information on this case at our web site:
https://www.ci.austin.tx.us/devreview/index.jsp.

For additional information on the City of Austin's land development process, please visit our
www.ci.austin.tx.us/development. I..••-•
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ZONING
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N ZONING CASE#: C14·2008·0152
ADDRESS: 6300 W US 290 HWY WB

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SUBJECT AREA: 2.357 ACRES
D PENDING CASE GRID:
MANAGER:
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OPERATOR: S. MEEKS
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 • •
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• 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
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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 y<;u in response to your request to verify your client's entitlements for
a redevelopment project in the Barton Springs Zone loeated at the intersection of
l3.S. Hwy. 290/71 West and Patton Ranch Road. I agree that a successful
redevelopment proj,~~t under 25-8-27 would be a benefit 1o 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 B3110n Springs Zone under limited
circwnstances. Applicable to your client's situation is the requirement that only
existing commercial development that does not increase non-compliance with eode
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 eo1r.paring the City's aerial photographs from different dates. The site is located
within tlte Barton Creek watershed and the first watershed regulations Hmiting
imrcrvious cover that would have applied t.o your client's property was the I980
Barton Creek Ordnance. Because of the lack of City records documenting any
permits or const.-uction dates, f agree that it is reasonable for you to document
through aerial photographs or other credible evidence the portion of the commercial
development that wasbuilt 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. '[be remaining impervious cover, i.e., the portion that was 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.

Zl!.!:-V
Watershed Protection and Development Review Department

•
Jt J O N ES & C A RTE R, NC.
•
ENG!NEERS•PLANNERS•SURVEYORS
•
1701 Directors Blvd., Suite 400
Austin,Texas 78744·1024
TEL 512 441 9493
FAX 512 445 2286

AUSTIN DALLAS

HOUSTON BRENHAM

SAN ANTONIO ROSENBERG
COLLEGE STATION THE WOODLANDS

Texas Board ofProfessional Engineers Registration No. F-439 .
Februruy 15, 2011
I
Ms. Susan Scallon
I'
Planning and Development Review
505 Barton Springs Road
Austin, Texas 78705

Re: Patton Lane Office Building
6302 West US Hwy 290
Austin, Texas 78735

Dear Susan:

On behalf of the owner, Charles Draper, Jones & Carter, Inc. is submitting a Site Plan Fair Notice and
a H.B.1704 Chapter 245 Determination Application for the Patton Lane Office Building project. The
project is located on the northeast corner of West US Hv.'Y 290 and Patton Ranch Road in southwest
Austin. A briefhistocy of the project is that the building was designed, the project site was cleared
and construction began in l 985 with the construction of SO building piers. Due to the economic
downturn of the mid 1980's, the project was halted and the property became owned by the lending
institute. At the time, the project was outside the Austin city limits, so no permit was required for the
project. Attached are site plan, floor plan and utility plan for the project, a copy of an aerial
photograph from February 16, 1984 showir1g the site, plus a copy of an aerial photograph from April
23, 1986 showing the site had been cleared, the houses and other building had been demolished and
construction activity had commenced. There are currently fifty building piers that were constructed
for the building foundation prior to the project being halted.

On December 30, I 985, the property was annexed into the City. Based on the factthattheproject had
commenced prior to armexation by the City, the project should be grandfathered to the regulations at
the time construction began and can continue construction.

We appreciate your favorable review of the H.B. 1704 Chapter 245 determination. If there is
additional information that you require, please contact me at (512) 441-9493.

Vezy truly yours,

~/j?,~J
James M. Schissler, P.E.

Cc: Charles Draper, Tejas Laud Company

J:/projects/A633[00I/general/letter/1704 Jetter 0201 I !.doc

Smart Engineering. Smart Solutions.,... www.jonescarter.com
•
• Exhibit D
PROJECT APPLICATION H.B. 1704/Chapter 245 DETERMINATION
(Chapter 245, Texas Local Government Code)
•
t (This completed form must accompany all subdivision and site plan applications.)

Proposed Project Name: Patton Lane Office Building

Address I Location: 6302 West US Hwy 290. Austin • TX 78735

Legal Description: Lots 10 and 11 Town of Oak Hill
A The , sed a licalion is for a New Pro ect and is submitted under re ulations currentl in effect
NOTE: ff A is checked above, proceed to signature block below.
B. [ J The proposed application is for an ongoing ·project not requesting House Bill 1704 consideration. The choice of this option
does not constitute a waiver of any rights under Chapter 245.
C. [ J The proposed application is for a project requesting review under regulations other than those currently in effect, but not
on the basis of House Bill 1704. All appropriate supporting documentation must be attached to this request. Provide
a brief description of the basis for this request here: -----------------~--=--=
D. [ J The proposed application is for a project requesfing review under a specific agreement, not on the basis of House Bill
1704. All appropriate supporting documentation must be attached to this request. Provide a brief description of the
basis for this request here: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
E. [ X JOriginal Application Filing Date: Not required at time construction began File#: _ _ _ _ _ _ _ _ _ _ __

The proposed application is submitted as a Project In Progress under Chapter 245 (HB 1704) and should be reviewed under the
applicable regulations pursuant to state law. The determination will be based on information submitted on and with this
form.
The following information is required for Chapter 245 Review:
Attach supporting documentation, including a summary letter with a complete project history from the Original Application to
the presen~ with a copy of the original subdivision or site plan approval by the City and subsequent application approvals.
Specify project information for date claiming 1704 grandfathering; include a copy of the relevant permit upon which Chapter
245 vesting is claimed.

Project Application History File# Application Date Approval Date
Annexation/zoning
(if applicable to history) _ _ _ _ _ _ _ _ _ _ _ __

Preliminary Subdivision _ _ _ _ _ _ _ _ _ _ _ _ __

Final Subdivision Plat ,cV,,o,,,lu.,m,.ec,X,.,..,.P_.a"'g""e-"2"'42,,,___ _ _ _ _ __ December 16. 1872

Site Plan / Devel. Permit Not required at time construction 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:
Single Family/ Duplex _ _ _ _ _ _Townhouse I Condo I Multi-family _ _ _ _ _ _Office _ _ _ _ _ __

Commercial 2.1313 Industrial/ R&D _ _ _ _Other (Specify) _ _ _ _ _ _ _ _ _ _ _ _ _ __

Total acreage: 2.1313 Watershed Williamson Creek Watershed Classlflcatlon Barton Springs Zone

This proposed project application will still be reviewed under those rules and regulations that are not subject to Chapter 245. such as
those to prevent imminent destruction of property or injury to persons, including regulations dealing with stormwater detenlion,
temporary erosion and sedimentation controls, and regulallons to protect criticaVsignificant recharge features.

Signature· Property Owner or Agent 4, HQ~~ £. - Date: 2. - I 4 ~I/
Printed Name James M. Schissler. P{' Phone I Fax 512-441·9493 / 512-445-2286 .
Fonn Date 5106/2005
City of Austin/ Planning and Development Review Department
505 Barton Springs Road, Austin, Texas 78704 Ph. 974-2659 / Fax 974-2934
 :. Land Use Review •
Site Plan Completeness Check
.... ,,,
~{ilffil~~
~~.
.
~'.
: ;

t 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 45 Day·Expiration date: 04/02/2011
Tracking #: 10547374 Revision #: 00 Watershed: Williamson Creek
Project Name: Patton Lane Office Building
Ch 245 Team Review Req'd· Yes Orig Submittal Datff 02/16/2011 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
deficiencies and resubmit it along with a comment response letter to the Intake Office, at One Texas
Center, 505 Barton Springs Rd., 4th Floor, Austin TX 78704.

Checked for Completeness by the following reviewers: Complete/Incomplete Initials
Drainage Engineering Jay Baker 512-974-2636 Comelete JB
Transportation Joe Almazan 974-2674 Comelete JA
Site Plan Lynda Courtney 974-2810 lnComelete LC
Environmental Ingrid McDonald 974-2711 Comelete IM
Water Quality Eng. Jay Baker 974-2636 Comelete JB
Env.Res.Mgmt. David Johns 974-2781 Comelete DJ
Floodplain Jameson Courtney 974-3399 Comelete JC
Row Mgmt Joan Caldwell 974-7024 Comelete JC
Utility Coord. Eva Moore 974-7671 Comelete EM
Traffic Control Javier Martinez 974-1584 Comelete JM
AWU-DPR Monty Lowell 974-2882 Comelete ML
AWU Neil Kepple 972-0077 lncomelete NK
UST Schuyler Schwarting 974-2715

Staff Reviewers as follows Case Manager:
Team A Team B TeamC Team D
Nikki Hoelter (SP) Donna Galati (SP) Sue Welch (SP) Sarah Graham (SP)
Jennifer Groody (DR/WQ) Leslie Daniel (DR/WQ) Kevin Selfridge (DR/WQ) Jay Baker (DR/WQ)
Ron Czajkowski (DR/WQ) Michael Duval (DR/WQ) Beth Robinson (DR/WQ) Benny Ho (DR/WQ)
Jim Dymkowski (EV) Mike McDougal (EV) Joydeep Goswami (DR/WQ) Brad Jackson (EV)
Candace Craig (TR) Jeb Brown (EV) Michael Clay (EV) Shandrian Jarvis (TR)
Sangeeta Jain (TR)
Other Disciplines required:

t Mapping
Electric (3)
I Traffic Control.No addn. review
I Fire
WWW
Floodplain
PARO
Industrial Waste

'
t
•

RSMP:Yes/No
•
Additional Copies to ERM/Other:
Waiver: Yes/No
•
Onsite Drainage: Yes/No

Small Project: Yes/No

Fees:

Total# of Plans_/ Engineering Reports_ required at formal
I
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/neighborhoodservices/ or contact our Neighborhood Liaisons for more information:
Carol Gibbs@ 974-7219 or Jody Zemel@ 974-7117.
I
Comments:
Please respond to each comment in letter form.

TR: OK for HB 1704 determination only

AWU: Plan is for 1704 only, No Site Plan to review.

SP: Submit new project Site Plan Packet

ERM: FYI, if 1704 is not granted, project will require an EA.
..
City of Austin • •
• Founded by Congress, Republic of Texas, 1839
Planning and Development Review Department
P.O. Box 1088. Austin. Texas 78767

May 13, 2011

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

RE: 6302 Highway 290 West, Lot 11A, 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,

!bi?.;,.,~
Planning and Development Review Department

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

September 23, 2011

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

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

Dear Mr. Draper:

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

Sincerely,

.~
Grego I. Guernsey, AICP, Director
Planning and Development Review Department

CC: Susan Scallon, PORO
Brent Lldyd, Law Department
Mitzi Cotton, Law Department
 ~• Tejasland & Commerce
6300 Highway 290 West
Austin, TX 78735 •
• Phone: 512.699.2199

September 29, 2011

Mr. Greg Guernsey, AICP Director
City of Austin
Email: cd@tejasland.com

Planning and Review Department
PO Box 1088
Austin, TX 78767

RE: Freedom ofInformation Act, and request for meeting:
6302 Highway 290 West, Lot l JA, Block 1, Oak Hill Township
1704 Application/Chapter 245 City Admin Code; Tracking# 1054 7

Dear Mr. Guernsey,

I appreciated your letter, you submitted on September 23, 2011. The letter states;" .. .In light of the
attachments to your email, I requested and obtained additional permit information 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 17,201 1. l will repeat the
question: "Again, I appeal to your judgment; on what 'legal basis' are you denying the
application?"

l request. You furnish, through the Freedom ofInformation Act all copies of correspondences the
City of Austin, and Travis County have on record/or Lots I IA, and Lot JOA Block I of the 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, LLC vs. City ofAustin, I believe, I am entitled to more than; " .. .! have
decided to uphold my original decision ... ".

I, formally, request a meeting with you, the City Attorney, my engineer, my attorney, and myself;
so we may ascertain the "legal basis" of your decision.

As a consequence of your on-relented position, I have experienced economic hardship, economic
loss, 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.

l look forward 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, Mayor Pro Tern Sherly Cole
Honorable Representative Paul Workman
Jim Schissler, Jones & Carter
 ,
' "
'

• •
• Phone: 512.699.2199
Tejasland & Commerce
6300 Highway 290 West
Austin, TX 78735
Email: cd@tejasland.com

August 17, 201 I

Mr, Greg Guernsey, AICP Director
City of Austin
Planning and Review Department
PO Box 1088
Austin, TX 78767

RE: 6302 Highway 290 West, Lot I IA, Block I, Oak Hill Township
I 704 Application/Chapter 245 City Admin Code; Tracking# I 0547

Dear Mr. Guernsey,

Following our last week's discussion at First Evangelical Free Church, I have, patiently, awaited
acknowledgement ofmy 1704 Application; submitted in early spring of 2011. Attached is a copy
of your denial from May 201 I. Again, I appeal to your judgment; on what 'legal basis' are you
denying the application?

Attached is a copy of Chapter 245 of the Local Government Code. Equally, attached are a site
plan, and permit issued by Travis County engineer H. E. Whittington on August 9, 1985; prior to
City annexation.

Because the term SB 1704 and Chapter 245 are interchangeable, and refer to the legislative intent
of the State; please provide written notice, why my project does not comply with the Local
Government Code; because, I can not locate it in statute.

I pray. You recognize my project confonns to State law, and you will issue a letter ofapproval.

I look forward to hearing from you.

Sincere regards,

Charles Draper
Tejasland & Commerce, President

CC: Susan Scallon
City Manager, Marc Ott
Honorable Mayor Lee Luffingwell
Greg Anderson,Chief-of-Staff, Mayor Pro Tern Sherly Cole
Honorable Representative Paul Workman
Jim Schissler, Jones & Carter
 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, PORO
Brent Lloyd, Law Department
Mitzi Cotton, Law Department
AFFIDAVITS

28
 CAUSE NO. D-1-GN-13-000778

CHARLES N. DRAPER, § IN THE DISTRICT
COURT §
Plaintiff, Pro Se, §
§
V. §
§
GREG GUERNSEY, § TRAVIS COUNTY,
TEXAS §
IN ms CAPACITY AS DIRECTOR OF §
PLANNING AND DEVELOPMENT §
WATERSHED PROTECTION §
REVIEW DEPARTMENT, §
AND CITY OF AUSTIN, §
Defendants. §
§ 419th JUDICIAL
DISTRICT

AFFIDAVIT OF SUSAN SCALLON

STATE OF TEXAS §
§
COUNTY OF TRAVIS §

Before me, the undersigned notary, on this day personally appeared Susan

Scallon, known to me to be the person whose name is subscribed below, and being duly
sworn, testified as follows:

1. "My name is Susan Scallon. 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. The exhibits attached and

incorporated by reference are true and correct copies.

2. I am a City of Austin employee. My job title is Environmental Program

Coordinator. My job duties include primarily, but among other things, managing

the Chapter 245 completeness check team. I have been employed by the City of
Austin since 1989.
 3. In my capacity as Environmental Program Coordinator, myself and the Chapter

245 team reviewed an application for Project Application H.B. 1704/Chapter 245

Determination dated February 14, 2011, regarding a proposed project titled

"Patton Lane Office Building project," located at 6302 West U.S. Highway 290,

Austin, Texas 78735, requesting an exemption from current rules and regulations

under Chapter 245. The application and its attachments are attached and
incorporated by reference as Exhibit A.

4. The "Patton Lane Office Building project" application refers to a plat dated

December 16, 1872. To the best of my knowledge, this plat was not filed with the
City of Austin. (Exhibit A).

5. A cover letter dated February 15, 2011 and signed by James M. Schissler, P.E.

was filed with the "Patton Lane Office Building project" application, and

explained that 50 piers were constructed on the subject property, but halted due to
financial constraints. (Exhibit A).

6. Attachments to the "Patton Lane Office Building project" application included a

site plan, floor plans, and a foundation plan depicting the fifty piers referenced in

the cover letter dated February 15, 2011 and signed by James M. Schissler, P.E.

None of these plans, including the site plan, foundation plans, nor the foundation
plan, was filed with the City of Austin prior to the submittal of the "Patton Lane

Office Building project" application submitted on February 16, 2011. (Exhibit A).

- 7. In reviewing the "Patton Lane Office Building project" application, I reviewed

three GIS aerial maps of the subjec_t property, which depict existing structures on

the subject property. The GIS map dated 1987 shows one completed structure on

Lot JOA of the subject property. The GIS map dated 1997 shows the one

structure on Lot JOA plus three more structures on Lot llA of the subject
property. The GIS map dated 2006 shows three structures on Lot JOA and a total
of six structures on Lot 1lA of the subject property. The GIS maps confirm that a
 total of nine structures on the subject property were constructed as of 2006. The

three GIS maps are attached and incorporated by reference as Exhibit B.

. 8. My review also uncovered a plat titled "Town of Oak Hill Amended Lots 10 and

11" regarding the subject property, that was filed on April 8, 1991 for purposes of

determining ownership rights. To the best of my knowledge, this was the first and

only plat filed with the City of Austin regarding the subject property located at

6302 West U.S. Highway 290, Austin, Texas 78735 and it was titled "Town of

Oak Hill Amended Lots 10 and 11."
9. The subject property was annexed by the City of Austin on July 19, 1951.

Historical City Limits and Extra-Territorial Jurisdictions map attached and

incorporated by reference as Exhibit C.
10. The "Patton Lane Office Building project" application was denied on the basis of

"project complete" due to the construction of nine structures located on the

subject property as of 2006. Additionally, members of the Chapter 245 team
possessed personal knowledge regarding the existence of a nursery on the subject
property. A new permit is required before new construction can begin on the
subject property.

FURTHER AFFlANT SAYETH NOT"

SUSAN SCALLON
Environmental Program Coordinator

SWORN TO AND SUBSCRIBED before me on the ~ a y of October, 2013.

GAfuR KIEKE
My Comml1.itn Epel
Nfflfflblr 9, 2015
•
 CAUSE NO. D-l-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.

3. In 1985, the applicable rules and regulations for a land development permit, in~luding a

Class "B" Travis County Flood Hazard Area Development Permit, provided that a land

development permit expires after (1) 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.

1
Sworn to and subscribed before me by Stacey Scheffel on February Gtn, 2014.

2
LETTER TRAVIS COUNTY ENGINEER

April 10, 1987 (605 days; after permit issuance),

Travis County Floodplain engineer, Mark Kronkosky

16
 P-479 712 999
_.i, (.~

Henry E. Whittington, P.E.
TRAVIS COU:STI E':GJ:S:EER ,J.Jt"'J ' :'.. . .j u
Tr:i\'iS County Administration Bt.:i!dir:g ~ (. \,_ t. (_;,.',">A'--
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 application previously
submitted.

Subdivision

The land was legally.subdivided as Lots 10 and 1 I, Block I, 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-I0-303(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 9, 1985 for the
Patton Lane Office Building, a 3-story office development. Although the original subdivision
was platted in 1872, the site development permit represents the first in a series 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 Cariyonwood Dr. Fax: 512 382 1017
Austin, Tx. 78735 e-m·ail: carlmcclendon@austin.rr.com
(I."" fmished 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 co=enced 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 I
Austin environmental inspector and an aerial photo in 1986, (attached). I

The site included previously existing residential and co=ercial development from the 1950' s
and 1970's, which did not require City or County permits when it was constructed. All of this I
development was outside the City and within the County's jurisdiction, prior to the adoption of
the Barton Creek and Williamson Creek Ordinances.

Annexation to City of Austin

The Patton Lane Office Building was under construction when the City of Austin annexed the
property for full purpose on December 30, 1985, and zoned the property Single-Family-2 (SF-2).

Since the property was annexed in 1985, there have been no building permits approved or issued
for the existing development. In late 2011 and early 2012, the City issued a certificate· of non-
compliance for existing co=ercial development, which is an exemption from compliance with
the City's building permit process per LDC, Sec. 25-1-365.

Continuing Progress

The Local Gove=ent Code Chapter 245.005(a) states for permits without an expiration date
and for which there is no continuing progress towards completion, a local regulatory agency may
enact an ordinance, rule, or regulation that places an expiration date on a project ofno earlier
than the fifth anniversary of the effective date of this chapter (Sept. 1, 2005).

The landowner has continued progress toward permitting by filing and recording an amended
plat on October 10, 1991, which did not change or alter any of the previous restrictions or
provisions of the original subdivision. On October 10, 1991, the City rezoned the property to
. Commercial Services-Conditional Overlay (CS-CO), (Ord.#: 911010-B).

In 2008, the current owner filed for rezoning of the property to Co=ercial Services-Conditional
Overlay-Neighborhood Plan (CS-CO-NP), (Ord.#: 20090115-092), which amended the site
development restrictions and permitted uses on the property to be consistent with those of the
·originally submitted permit.

Please contact me if there are questions or further items for discussion.

~,U~
Carl McClendon, AlCP

j cc: Mr. 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.com
 I

Development Summary
Patton Lane Office Bldg

12/16/1872 Legally platted subdivision recorded for Town of Oak Hill, Lots 10 and 11 ('I ol.
X,Pg. 242)

7/19/1951 The subject property was annexed into the City's extra-territorial jurisdiction
(ETJ).

11/18/1982 Barton Cr\;!ek Ordinance passed by City Council (Ordinance No. 82-1118-N)
requiring site development standards for land within the Barton Creek Watershed.
Subdivisions legally platted prior to April 17, 1980, are exempted per Sec. 9-10-
303(b).

8/9/1985 Travis County approves site development (or floodplain) permit (Case #: 85-
2558) for Patton Lane Office Building and site construction commences.
Foundation piers are drilled, but construction pauses due to economic conditions;
aerial photo from 4/23/86 showing drilled piers is attached.

12/30/1985 City of Austin annexes property, and approves zoning for Single-Fami!y-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. C14-91-0027).

10/17/1991 Amended plat recorded for Town of Oak Hill, Lots 10 and 11 to create Lots IOA
and llA, 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 1OA and 1lA, Block 1, Town of Oak Hill
Amended Subdivision from CS-CO-NP to CS-CO-NP, (Case#: Cl4-2008-0152).
The conditional overlay amendments revised the permitted uses and site
restrictions on the property.

2/16/2011 Landowner files application for 3-story office building (Patton Lane Office
Building) for Chapter 245 review and consideration. ·

P(•

I
.

McCJendon & Associates Development Consulting, LLC Phone: 512 363 8676
4808 Canyonwood Dr. Fax: 512 382 1017
Austin, Tx. 78735 e-mail: carlmc:clendon@austin.rr.com
TRANSPORTATION AND NATURAL RESOURCES
STEVEN M. MANILLA, P.E., COUNTY EXECUTIVE

700 Lavaca Street
Travis County Administration Building
PO Box 1748
Austin, Texas 78767
Phone: (512) 854-9383
Fax: (512) 854-9436

Requestor: Charles Draper
4609 Trail Crest Circle
Austin, TX 78735

Re: Requested copies for Permit# 85-2558

Requested Records: This affidavit pertains to the release of documents responsive to the
request for public information submitted by Charles Draper to Transportation and Natural
Resources on November 25, 2013.

AFFIDAVIT

Before me, the undersigned authority, personally appeared TRANSPORTATION AND
NATURAL RESOURCES, who, being by me duly sworn, deposed as follows:

My name is ROBERT GLASPER, I am the duly authorized custodian of the records of
TRANSPORTATION AND NATURAL RESOURCES. Attached hereto are _7_ pages of
records from Transportation and Natural Resources. These said _7 _ pages ofrecords are kept by
Transportation And Natural Resources in the regular course of business, and it was the regular
course of business of Transportation And Natural Resources for an employee or representative of
Transportation And Natural Resources, with knowledge of the act, event, condition, opinion, or
diagnosis, recorded to make the record or to transmit information thereof to be included in such
record; and the record was made at or near the time or reasonably soon thereafter. The records
attached hereto are the original or exact duplicates of the original.

Affiant, ~~~
Robert Glasper/

~ .
SUBSCRIBED AND SWORN TO BEFORE ME on the o< W+"'- ri --
day of ~ 2013
to certify which witness my hand and seal of office.

------ ANN i>XfNE
NoiarJ Pub!lc
* STATE OF TEXAS .
~ C0mmission Exp. 04-04-2015
Plaintiff Supplement to the Record

Exhibit l
 - 'i. .. ~· , ',

1'TOTICE OF CLASS "B"
TRAVIS COUNTY FLOOD IIAZARD AREA
'~
DEVELOPl\fENT PERMIT
',,
,.
\' ST:\TE rmi1t1•e to (·onstnwt developmC"nl in :1t-cord~HH'f' ..,..,·ith
ih,, requin r:,. nt, of Trnris C:.,unty Finn.I Plain '.'\fona3Pmcnt Rq;ulations on th,•
f,,IJ.,win1' ,ksl'fihed pr~1·r1,--Lots 10}, 11_._0atmanville Subdivision,
2. 14 acres of the Tl'IOITI!IS Anderson Sur. #17, 6300 Hwy. 290 \.!est
T~ Map 94--0~3~-0M: d'5 ~t'&a " c'~11~'ceif'"t Acl,?r!'SS)
5 1
0

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\!,·, ha11i, al a11d 1-:1,·t'lric-nl lnsp1•f'tion ~X. is !l(ll.) recprif<'' },,·r

j,
 ··.'i"/:

NOTICE OF CLASS "B"
TRAVIS COUNTY FLuOD IIAZARD AREA
DEVELOPl\lENT PERMIT
~.TATE ()J,' TEXAS \

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www.oxfordcommerdal.com jbibb@oxfordcommercial.com C l013 Cushrm11 & Wa!celield, l=All r\ii"' re,:.,.,,.. __ -· ·,·,. _'~, '"'~\I"'~ ;';'_;",,SP,->>_,~-•=-:,:;:.~--'._" _. <,•' .•~--~"' ,'.

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 AFFIDAVIT

THE STATE OF TEXAS §
§
COUNTY OF TRAVIS §

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

'·My name is Jim Schissler, I am oYer the age of 21 years. I haYe been a
professional engineer for owr 25 years. I am fully competent to make this verification.
I have read the foregoing; Februwy 15, 201 I letter. Chapter 245 Determination
App/icationfor the Patton Lane Joint Venture. All of1he information contained in the
publication are within my personal knowledge, and true and correct."

SUBSCRIBED AND SWORN TO BEFORE ME on the date l'1m-day of fih~ • 2014

Notary Public, State Texas

,,f~~f!Z:,{, CARL BOYNTON JOHNSON, JR.
l~~t;\ Notary Public, State of Texos
ti-.~.~~$ My Commission Expires
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April 08, 2017
 J O N E S & C A R T E R. , , ,: } 70: ~·:~:::br~ 5lv:i., ~u!t~ ,,r.. ;:
t,L".'t.r Tue::; 7::.7!.:!~}Q::C'4

Febrill.ry l 5. 201 l

Ms. Susan Scallon
Pla.'llling and Development Reviev;
505 Barton Springs Road
Austin, Texas 78705

Re: Patton Lane Office Building
6302 West US Hwy 290
Austin, Texas 78735

Dear Susar1:

On bcha.lf of the owner, Charles Draper, Jones & Carter, Inc. is submitting a Site Plan Fai~ Notice and
a H.B. 1704 Chapter 245 Detem1ination Application for ihe Patton Lane Office Building prnject. The
project is located on the northeast comer of West US Hwy 290 a.'ld Patton Ranch Road in southwest
Austin. A b1iefhistory of the project is that the building was designed, the project site was cleared
and construction began in 1985 witl1 ilie construction of 50 building piers. Due 10 the economic
downturn of the mid l 980's, the project v,cas halted and the property became om1ed by the lendin[
institute. At the time, the project was outside the Austin city limiis, so no permit was required for the
project. Attached are site plan, floor plan and utility plan for the project, a copy cf an aerial
photograph from Febru:,.ry 16, i 98-1 showbg ilie site, plus a copy of an aerial photograph from April
23, 1986 showing the si,e had been cfoared, the houses and other building had been demolished and
construction activity had c.om1nenced. There are curren1ly fifty building piers that were const1ucted
for the building foundation prior to the project being hal,ed.

On December 30, 1985, the property was an.nexed into the City. Based on the fac·, ,hat the ptojcc: I-al
commenced prior to an,'1exation by the City, the project should be grandfathered to the regulations at
tl1e time cons!ruction began and c2n continue construction.

We appreciate your favorable review of the H.B. 1704 Chapter 245 determination. Jf there is
additional information that you require, please contact me at (512) 441-9493.

Very truly yours,

~/Jf!~~
James ~.l. Sch,ssler, P.E.

Cc; Charle, Draper, Tejas Land Compsnc'

J:/pr-:1e,t;.:r.63_i,-%lfgenernVierteril 7('-1 letter 0201 l l ;:!,:i.:

Smar-t EnQinE:Ering. Sma,t Stdt!tions.'~
 AFFIDAVIT OF CHARLES N. DRAPER

STATE OF TEXAS

TRAVIS COUNTY

Before me, the undersigned notary, on this day personally appeared Charles N. Draper, the
affiant, whose identity is known to me. After I administered an oath, affiant testified as
follows:

1. "My name is Charles N. Draper. 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. "On January 3rd 2017, I filed, 'Appellant's Brief in Texas Third Court of Appeal. Within
my limited knowledge, all statements of fact, records, allegations, affidavits, and exhibits are
true and correct."

Charles N. Draper

Sworn to and subscribed before me by

Notary Public in and for

the State of Texas

My commission expires: yY\().J(M q I a,QJ, 0

25
OTHER AUTHORITIES

29
I
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-14-00265-CV

Charles N. Draper, Appellant

v.

Greg Guernsey, in his Capacity as Director of Planning and Development Watershed
Protection Review Department; and City of Austin, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 419TH JUDICIAL DISTRICT
NO. D-1-GN-13-000778, HONORABLE GUS J. STRAUSS JR., JUDGE PRESIDING

MEMORANDUM OPINION

In a land-use dispute, Charles N. Draper, pro se, sued the City of Austin and one of

its employees, Greg Guernsey, "in [Guernsey's] capacity as Director of Planning and Development

Watershed Protection Review Department."' The City and Guernsey filed a motion to dismiss all

claims against him, invoking subsections ( a) and (e) of the Tort Claims Act's election-of-remedies

provision, Section 101.106 of the Civil Practice and Remedies Code. 2 The district court granted the

motion and dismissed "all claims and causes of action filed against [Guernsey] in this lawsuit."

1
Appellees advise us that Guernsey's correct job title is "Director of the Planning and
Development Review Department," but the salient point is that he is an employee of the City.
2
Tex. Civ. Prac. & Rem. Code § 101.106(a), (e); see id. §§ 101.001-.109 (Texas Tort
Claims Act).
• Draper appeals this interlocutory order of dismissal.' While we affirm the district court's order in

part, we must also reverse in part because it awards relief beyond that properly authorized under

subsections (a) or (e) as they apply to this case.

Draper's claims for relief center on his efforts to develop a tract he owns in the

Oak Hill area of Southwest Austin and the City's refusal thus far to recognize what Draper claims

are rights "grandfathered," vis-a-vis Austin's current development restrictions, by Chapters 43

and 245 of the Local Government Code. 4 Draper seeks injunctive and declaratory relief to enforce

3
Our appellate jurisdiction generally extends only to review of final judgments, see
Texas Dep't of Criminal Justice-Cmty. Justice Assistance Div. v. Campos, 384 S.W.3d 810, 813
(Tex. 2012) (per curiam ), but Draper's appeal of this interlocutory order of dismissal is authorized
by paragraphs (5), (8), or both, of section 51.014, subsection (a), of the Civil Practice and Remedies
Code. Tex. Civ. Prac. & Rem. Code§ 51.014(a)(5) (authorizing appeal of interlocutory order
denying "an assertion of immunity by an individual who is an officer or employee of ... a political
subdivision of the state"), (8) ( authorizing appeal of interlocutory order that grants or denies
jurisdictional challenge by a governmental unit); see Texas Dep 't of Aging & Disability SenJS.
v. Cannon,_ S.W.3d _ , No. 12-0830, 2015 Tex. LEXIS 2, at *5 (Tex. Jan. 9, 2015); Austin
State Hosp. v. Graham, 347 S.W.3d 298, 300-01 (Tex. 2011 )(per curiam). Under either statutory
ground, furthem1ore, Draper's appeal automatically stayed proceedings in the trial court, see
Tex. Civ. Prac: & Rem. Code§ 51.0l4(b), providing him the relief he has requested through a
separate motion for stay. Accordingly, we dismiss Draper's stay motion as moot.

Draper also seeks reversal of a second interlocutory order that denied him a summary-
judgment motion on his claims and ruled adversely to him on various related evidentiary issues; in
fact, his appellate briefing focuses largely on this order and the perceived merits ofhis claims rather
than issues relevant to the application of subsections (a) or ( e). We lack jurisdiction to award him
that reliefin the context of this appeal. He also seeks "summary judgment" on appeal-i.e., reversal
of the district court's orders-based on what he asserts is the untimeliness of appellees' brief. We
deny the motion.
4
See Tex. Loe. Gov't Code §§ 43.002 (grandfathering protections applicable in areas
annexed by a municipality), 245.001-.007 (grandfathering protections applicable to land-use
permitting by political subdivisions); see also Hmper Park Two, LP v. City ofAustin, 359 S.W.3d
247, 254-60 (Tex. App.-Austin 2011, pet. denied) (construing Chapter 245 and enforcing it against
the City).

2
these asserted rights. As the appellees acknowledge, the Legislatme has expressly waived the

City's governmental immunity against Draper's declaratory and injunctive claims to enforce

Chapter 245-in fact, it has provided that Chapter 245 "may be enforced only through mandamus

or declaratory or injunctive relief. " 5 Additionally, fairly constming the substance of his pleadings,

Draper attempts to assert what are in the nature of "ultra-vires" claims seeking injunctive or

declaratory relief to restrain other alleged statutory violations by the City. 6 We observe-as it will

become relevant to our analysis-that the proper defendant to an ultra-vires claim seeking to restrain

allegedly unlawful actions by the City would be Guernsey or some other appropriate City officer, in

his or her official capacity, not the City itself.'

Draper also seeks monetary damages-a total exceeding $10 million, in fact. His

specific theories include "fraudulent misrepresentation" by Guernsey and other City staff in their

decisions regarding Draper's development rights. He also complains of the impending foreclosure

of his house due to his inability to develop his tract, not to mention purported threats, vandalism,

burglaries, and even the beating of his dogs by "opposing political interests" in retaliation for his

efforts to do so. Finally, Draper also complains of "pe1jury" and "breach of contract" by appellees'

counsel, citing what he terms "false statements" by counsel in seeking a continuance.

We derive our summary of Draper's factual allegations from his live petition, construed
liberally and in favor ofjmisdiction. See Texas Dep 't ofParh & Wildlife v. Miranda, 133 S.W.3d
217, 227-28 (Tex. 2004).
5
Tex. Loe. Gov't Code§ 245.006 (emphasis added).
6
See City ofEl Paso v. Heinrich, 284 S.W.3d 366, 370-72 (Tex. 2009).
7
See id. at 372-73.

3
 The grounds for dismissal raised by appellees' motion and made the basis for

the district court's order were confined solely to subsections (a) and (e) of Section 101.106.

Subsection (a) provides:

The filing of a suit under this chapter against a governmental unit constitutes an
irrevocable election by the plaintiff and immediately and forever bars any suit or
recovery by the plaintiff against any individual employee of the governmental unit
regarding the same subject matter. 8

Subsection (e), in turn, states:

If a suit is filed under this chapter against both a governmental unit and any of its
employees, the employees shall immediately be dismissed on the filing of a motion
by the governmental unit. 9

The Texas Supreme Court has provided the following pertinent guidance for our

application of these provisions:

• Although both provisions refer to "a suirnnderthis chapter," "the propriety ofdismissal must
be evaluated on a claim-by-claim basis to give effect to the statute."'°

• A claim "under this chapter" refers to one sounding in tort, regardless of whether or not the
plaintiff actually purports to assert it under the Tort Claims Act or could ultimately recover
via that statute. 11

8
Tex. Civ. Prac. & Rem. Code§ 101.106(a).
9
Id.§ 101.106(e).

" Cannon, 2015 Tex. LEXIS 2, at *11 n.lO (citing Mission Consol. Indep. Sch. Dist.
v. Garcia, 253 S.W.3d 653, 659 (Tex. 2008)).
11
See id. at *9 (citingFranka v. Velasquez, 332 S.W.3d 367, 379-80 (Tex. 201 !)).

4
• However, claims that seek remedies independent of the Tort Claims Act are not
"under the Act" and are not subject to the above dismissal mechanisms." This is consistent
with Section 101.106's role within the Act as a whole-as the supreme court has observed,
"[t]he Act ... opens the door to governmental liability in certain tort actions, while
[Section 101.106] narrows that opening.""

• The references to "employee" or "employees" in both subsections (a) and ( e) denote persons
sued in their individual capacities-i.e., the plaintiff seeks to impose liability upon them
personally. Such a claim stands in contrast to one asserted against a governmental employee
in his or her official capacity, which in the context of tort or other damages claims is "in all
but name only" a claim seeking recovery from the governmental employer. 14

The bulk of Draper's arguments are ·either inconsistent with these holdings or simply inapposite

under them, focusing largely on disputing whether the City enjoys governmental immunity against

his claims or Guernsey official i1m11unity against them. But appellees-in addition to urging that

we dismiss Draper's prose appeal based solely on technical violations of the briefmg rules-also

overlook some of these important qualifications and limitations on subsections (a) and (e)'s

application, including the analytical significance of the distinction between claims asserted against

Guernsey in his individual versus official capacities.

The effect of subsection ( e), as the supreme court has construed it, is merely that

Draper's asse1tions of tort claims against the City-not his claims founded on immunity waivers

independent from the Tort Claims Act or other non-tort theories-require dismissal of those

same tort claims to the extent Draper asserts them against Guernsey individual(v. His misplaced

arguments about official immunity notwithstanding, it is unclear whether Draper's tort claims

" See id. at *10-11 & n.10, *14-15.
13
See id. at *17-18.
14 See Texas Adjutant Gen. 's Office v. Ngalwue, 408 S.W.3d 350, 356-57 (Tex. 2013).

5
actually are intended to seek recove1y from Guernsey individually, as opposed to a recovery from

the City based on Guernsey's allegedly wrongful acts. Draper, again, purported to sue Guernsey "in

his capacity" as a City employee, suggesting an official-capacity suit, and his all'!Jgations complain

entirely of alleged acts or omissions by Guernsey while perfonning his job duties. But to the extent

Draper's pleadings could be construed to assert his tort claims against Guernsey individually,

dismissal of those claims would clearly be mandated under subsection (e).

Similarly, subsection (a) means that the tort claims Draper has asse1ted against the

City "constitute[] an irrevocable election by [Draper] and immediately and forever bars any suit or

recovery by [him]" against Guernsey individually "regarding the same subject matter." To the extent

the district court's order refers to any claims of this sort that Draper has actually asserted or might

someday asse1t, it appropriately dismissed them.

The district comt, however, dismissed "all claims and causes of action filed against

[Guernsey] in this lawsuit," which would facially extend also to any claims Draper asserts against
15
Guernsey in his official capacity. Neither subsection (a) nor (e) authorizes this relief, but any

error would be hannless with respect to most of Draper's claims, inasmuch as his assertion of the

same claim against both the City and Guernsey in his official capacity would generally amount
16
merely to a duplicative pleading for the same relief against the same defendant. However, this is

15 Cf Tex. Civ. Prac. & Rem. Code§ 101.106(1) (providing for substitution of governmental
entity for employee defendant under circumstances where claim is "considered to be against the
employee in the employee's official capacity only").
16 SeeNgakoue, 408 S.W.3d at 356-57; cf Texas Dep 't ofState Health Servs. v. Balquinta,
429 S.W.3d 726, 750 (Tex. App.-Austin 2014, pet. filed) (suggesting for these reasons that any
error in failing to dismiss official-capacity defendant sued alongside governmental defendant is
harmless where Legislature has waived the government's immunity).

6
not true of Draper's ultra-vires claims, which, while seeking to bind the City, must formally be
17
asserted against Guernsey in his official capacity rather than against the City itself. In purporting

to dismiss Draper's ultra-vires claims-and in the absence of any other jurisdictional bar to these

claims demonstrated by the City or apparent from the record-the district comt reversibly erred.

Bob Pemberton, Justice

Before Justices Puryear, Pemberton, and Bourland

Affirmed in part; Reversed in part

Filed: February 25, 2015

17 See Heinrich, 284 S.W.3d at 372-73.

7
 E/ ·
I - -
I ...,.,,.,. 0FflCE OF THE ATTORNEY GINERAL . STATE Of TEXAS
)OHN CORNYN

I
I October 19, 2001

I The Honorable Frank Madia Opinion No.· JC-0425
Chair, Committee on
I Intergovernmental Relations
Texas State Senate
Re: Whether real property for which an original
application for a first pennit bas been filed
P. 0. Box 12068 remains subject to the orders, regulations,
I Austin, Texas 78711-2068 ordinances, rules, expiration dates, or other
requirements that were effective at the time of that
filing although the property has been conveyed to
I a different owner (RQ-0386-JC)

Dear Senator Madia:
I Section 245.002 of the Local Government Code locks in, for the duration of a real-property

~
''project," the development regulations in effect when the original application for the first necessary
pennit is filed. See TEX. Loe. Gov'TCODEANN. § 245.002(a), (b) (Vernon Supp. 2001); see also
Quickv. City ofAustin, 1 S.W.3d 109, 131 (Tex. 1998). Under the statutory defmition of the term

I ''project," it ·is irrelevant whether the owner who files the original application for th_e first pennit
retains the property for the duration of the projector conveys the property. See TEX. Loe. Gov'T
CODE ANN.§ 245.001(3) (Vernon Supp. 2001). You ask a question regarding a tract of land for
which an owner bas filed an original application for the first necessary pennit. 1 If another person
purchases that tract of land, you inquire, is the purchaser "entitled to the rights and benefits" that
chapter 245 provides to t_he owner who filed the original application for the first pennit, see Request
-Letter, note I, at I, and we thus understand you to ask whether the property remains subject to the
d~elopment regulations in effect when the original application for the first pennit was filed despite
the conveyance. We conclude that the property remains subject to the development regulations in
effect at the tiine the original application for the first permit was filed, but only ifthe project remains
the same. Whether a project remains the same is a fact question, and this office cannot resolve it.
See, e.g., Tex. Att'y Gen. Op. Nos. JC-0032 (1999) at 4 (stating that question of fact is beyond
purview of this office); JC-0027 (! 999) at 3 (stating the questions of fact cannot be addressed in

'See Letter from Honorable Frank Madia, Oiair, Committee on Intergovernmental Relations, Texas Senate,
to Honorable John Comyn, Texas Attorney General (May 24, 2001) (on file with Opinion Committee) [hereinafter
Request Letter].
 Toe Honorable Frank Madia - Page 2 (JC-0425)

'I attorney general opinion); JC-0020 (1999) at 2 (stating that investigation and resolution of fact
questions cannot be done in opinion process).

Section 245.002 of the Local Govenunent Code specifies that a real-property "project" will
be subject to the development regulations in effect when the original application for the first permit

I required for the project is filed:

(a) Each regulatory agency shall consider the approval,

I disapproval, or conditional approval of an application. for a pennit
solely on the basis of any orders, regulations, ordinances, rules,
expiration dates, or other properly adopted requirements in effect at

I the time the original application for the pennit is filed.

(b) If a series of permits is required for a project, the orders,

I regulations, ordinances, rules, expiration dates, or other properly
adopted requirements in effect at the time the original application for
the first permit in that series is filed shall be the sole basis for

I consideration of all subsequent permits required for the completion
of the project. All permits required for the project are considered to
be a single series of permits. Preliminary plans and related

~I
subdivision plats, site plans, and all other development permits for
land covered by the preliminary plans or subdivision plats are
considered collectively to be one series of permits for a project.

TEX. Loe. GoV'TCODEANN. § 245.002(a), (b) (Vernon Supp. 2001 ). Toe terms "permit," "project,"
and "regulatory agency" are defined in section 245.001:

I (I) "Permit" means a license, certificate, approval,
registration, consent, permit, or other form of authorization required
by law, rule, regulation, order, or ordinance that a person must obtain
to perform an action or initiate, continue, or complete a project for
which the permit is sought.

(3) "Project" means an endeavor over which a regulatory
agency exerts its jurisdiction and for which one or more permits are
required to initiate, continue, or complete the endeavor.

•
 -·
The Honorable Frank Madia - Page 3 (JC-0425)

(4) "Regulatory agency" means the governing body of, or a
bureau, department, division, board, commission, or other agency of,
a political subdivision acting in its capacity ofprocessing, approving,
J
'
or issuing a permit.

Id. § 245.001. Chapter 245 applies only to a project "in progress on or commenced after
September I, 1997," see id.§ 245.003, and certain permits and regulations are exempt from the
chapter, see id. § 245.004. In addition, a regulatory agency may, by ordinance or regulation, place
an expiration date on dormant projects, after which date the project would be subject to current
development regulations. See id. § 245.005. We understand that the propertY about which you are
concerned is not exempt from chapter 245 and is not dormant. See generally Request Letter, supra
note 1.
I With respect to propertY for which an original application for a first permit has been filed,
the property is subject to the development regulations that are effective at the time of the filing (with
I the exceptions listed in chapter 245 of the Local Government Code) for the duration of the project
regardless of any conveyances that may occur during the project. Nothing in chapter 245 suggests
that the development regulations to which a property is subject, locked in at the time of filing the
I original application for the first permit, no longer apply to the property solely because the property
has been conveyed to another owner. Section 245.002 facially directs that a property is, for the
duration of a project, subject to the development regulations in effect when the original application
for the first permit was filed, without mentioning the possibility of a conveyance. Cf Quick, 7
S. W.3d at 131 (examining prior statute, which "provides that if a series of permits is for a project,
the ordinances in effect at the time the original application for the first permit is filed shall be the
I sole basis for consideration of all subsequent permits required for the completion of a project").
Additionally, the term "project," as defined in section 245.001(3), does not indicate that a project
is specific to a person or terminates each time the propertY is sold. See TEX. Loe. Gov'TCODE ANN.
I § 245.001 (3) (Vernon Supp. 2001 ). A project is an "endeavor," see id., which is commonly defined
as ''the action of endeavouring; effort, or pains, directed to attain an object." V OXFORD ENGLISH

I DICTIONARY 226 (2d ed. 1989); see TEX. Gov"TCODE ANN.§ 311.011 (a) (Vernon 1998)(requiring
us to read statutory words and phrases in context and to construe them according to rules of grammar
and common usage); Thompson v. Corbin, 137 S.W.2d 157, 159 (Tex. Civ. App.-Texarkana 1940,
no writ) (defining verb "endeavor" as "to exert physical and intellectual strength toward the
attainment of an object; a systematic or continuous effort'') (quoting Webster's New International
Dictionary).

Nevertheless, neither a purchaser nor an owner may alter a project without the possibility of
a consequence. If a project is altered by a purchaser, for example, the development regulations are
no longer locked in under chapter 245 and current development regulations apply. Whether a
particular project has changed so as to lose the protections granted by chapter 245 is a question that
must be resolved by the local regulatory agency with jurisdiction in the matter. The statute defines
 The Honorable Frank Madia - Page 4 (JC-0425)

•I "regulatory agency" as ''the governing body of, or a bureau, department, division, board,
commission, or other agency of, a political subdivision acting in its capacity of processing,
approving, or issuing a permit." TEX. Loe. Gov'TCODE ANN.§ 245.001(4) (Vernon Supp. 2001).
Nothing in chapter 245 provides any other body jurisdiction to decide such a question. Cf id.
§ 245.005 (authorizing regulatory agency to adopt rules placing expiration date on dormant projects).
Furthermore, this agency cannot determine whether a project has changed, as the question cannot
I be resolved without considering fact questions. Fact questions are not amenable to the opinion ·
process. See, e.g., Tex. Att'y Gen. Op. Nos. JC-0032 (1999) at 4 (stating that question of fact is
beyond purview of this office); JC-0027 (1999) at 3 (stating the questions of fact cannot be
I addressed in attorney general opinion); JC-0020 ( 1999) at 2 (stating that investigation and resolution
of fact questions cannot be done in opinion process).

I
I
I
I
I
 The Honorable Frank Madia - Page 5 (JC-0425)

I SUMMARY
Under section 245.002 of the Local Govennnent Code,
I property for which an original application for the first development
permit has been filed remains subject to the orders, regulations,
ordinances, rules, expiration dates, or other requirements that were
I effective at the time the application was filed for the duration of a
project, regardless of any changes in ownership that may occur before
the project is completed. See TEX. Loe. Gov'T CODE ANN. §
I 245.002(a), (b) (Vernon Supp. 2001). If a project changes, however,
the project becomes subject to current development regulations. See
id. § 245.001(3) (defining "project"). Whether a particular project
I has changed so as to lose the protections granted by chapter 245 is a
question that must be resolved by the local regulatory agency with
jurisdiction in the matter. See id.§ 245.001(4) (defining "regulatory
I agency'').

,I
/f]7~
I ~ N C~NYN
Attorney General of Texas

I HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
'

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

December 10, 2012
I
I'
The Honorable Rene 0. Oliveira Opinion No. GA-0980
Chair, Committee on Land and Resource
Management Re: Whether a "project duration ordinance" adopted
Texas House of Representatives by the City of Austin contravenes section 245.005 of
Post Office Box 2910 the Local Government Code (RQ-1070-GA)
Austin, Texas 78768-2910

Dear Representative Oliveira:

You inquire about a potential conflict between the City of Austin's Project Duration
Ordinance ("Ordinance") and chapter 245 of the Local Government Code.' You contend that the
Ordinance violates chapter 245 by establishing expiration criteria for building projects that differ
from the expiration criteria specified in chapter 245. Request Letter at 3-4. The Ordinance
provisions about which you ask are contained in the Austin City Code as sections 25-l-533(B),
25-l-535(B)(4), and 25-l-535(C)(3). 2 See Request Letter at 3. Section 25-I-533(B) provides that:

[i]f a building permit for a building shown on a site plan or a notice
of constmction expires before constrnction begins, the project,
including the preliminary subdivision plan, expires. If all building
permits are not obtained or a notice of constrnction is not filed within
the time periods contained in ... [section] 25-1-535 ... , the project,
including the preliminary subdivision, expires .

. AUSTIN CITY CODE§ 25-l-533(B). Section 25-l-535(B)(4) applies in the City's "Drinking Water
Protection Zone" and provides that: ·

1See Letter from Honorable Rene Oliveira, Chair, House Comm. on Land & Res. Mgmt., to Honorable Greg
Abbott, Tex. Att'y Gen. al l (June 22, 2012), http://www.texasattorneygencral.gov/opin ("Request Letter").
2
The City of Austin informs us that it does not enforce certain provisions of the Ordinance. See Brief from Brent
D. Lloyd, Assistant City Att'y, City of Austin Law Dep'I at 2 (July 30, 2012) (attaching affidavit of Greg Guernsey, Dir.
of PlanniOg & Dev. Review, which identifies provisions no longer enforced) ("City of Austin Brief'). The provisions
the City asserts it still enforces arc the same provisions that you specifically cite to in your request letter. Thus 1 we
assume that you are concerned aboUJ only sections 25-l-533(B), 25-!-535(B)(4), and 25-!-535(C)(3) of the Austin City
Code. See AUSTIN, TEX., AUSTIN CITY CODE ch. 25-1, art. 12, §§ 25-t-533(B), 25-l-535(B)(4), (C)(3) (2012).
•

The Honorable Rene 0. Oliveira - Page 2 (GA-0980)

[a]n application for a project for which the first application was filed
on or after September 6, 1997, may comply with original regulations
if all building permits are approved and a notice of constmction is
filed within three years of the date the first application is filed.

Id.§ 25-l-535(B)(4). Section 25-l-535(C)(3) applies in the City's "Desired Development Zone"
and provides that:

[a]n application for a project for which the first application is filed ou
or after September 6, 1997, may comply with original regulations if
all building permits are approved and a notice of construction is filed
within five years of the date the first application is filed.

See id. § 25-l-535(C)(3).3

Home-mle cities, such as Austin, derive their powers from the Texas Constitution. TEX.
CONST. art. XI,§ 5; TEX. Loe. GOV'T CODE ANN.§ 51.072 (West 2008). They possess "the full
power of self government and look to the Legislature not for grants of power, but only for limitations
on their power." Dallas Merchant's & Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489,
490-91 (Tex. 1993).

The Texas Constitution prohibits a city ordinance from containing "any prov1s10n
inconsistent with ... the generallaws enacted by the Legislature of this State." TEX. CONST. art. XI,
§ S(a); see also City of Fort Worth v. Atlas Enters., 311 S.W.2d 922,924 (Tex. Civ. App.-Fort
Worth 1958, writ ref'd n.r.e.) (discussing severability of municipal ordinances and stating that "[a]
municipal ordinance may be void as to some of its provisions and valid as to others"). A court
would not invalidate an ordinance as inconsistent with a statute unless the court can reach no
reasonable construction that leaves both the ordinance and the statute in effect. In re Sanchez, 81
S.W.3d 794, 796 (Tex. 2002). Nevertheless, "an ordinance which conflicts or is inconsistent with
state legislation is impermissible." City ofBrookside Vil/. v. Comeau, 633 S.W.2d 790, 796 (Tex.),
cert. denied, 459 U.S. 1087 (1982).

Chapter 245 of the Local Government Code is a legislative limit on cities' home-mle power
to regulate construction and development within their jurisdiction. The statute "prohibit[s] land-use
regulators from changing the rules governing development projects 'in the middle of the game,'
thereby insulating already underway development and related investment from the vicissitudes
and uncertainties of regulato1y decision making and all that may influence it." Harper Park Two,
LP v. City of Austin, 359 S.W.3d 247, 250 (Tex. App.-Austin 2011, pet. denied). Subsection
245.002(b) provides that "[i]f a series of permits is required for a project, the orders, regulations,

3The Municipal Code defines "Drinking Water Protection Zone" as "the areas within the Barton Springs Zone,
the Barton Creek watershed, all water supply rural watersheds, and all water supply suburban watersheds ... that are in
the planning jurisdiction." id. § 25-1-21 (30). The "Desired Development Zone means the area not within the drinking
water protection woe." Id. § 25-1-21(26).
The Honorable Rene 0. Oliveira - Page .3 (GA-0980)

ordinances, rules, expiration dates, or other properly adopted requirements in effect at the time the
original application for the first permit in that series is filed shall be the sole basis for consideration
of all subsequent permits required for the completion of the project." TEX. Loe. Gov'T CODE ANN.
§ 245.002(b) (West 2005). The effect of the statute is that "once an application for the first permit
required to complete a property-development 'project' is filed wiih the municipality or other agency
that regulates such use of the property, the agency's regulations applicable to the 'project' are
effectively 'frozen' in their then-current state and the agency is prohibited from enforcing subsequent
regulatory changes to further restrict the property's use." Harper Park Two, LP, 359 S.W.3d at
248-49.

Section 245.005, entitled "Dormant Projects," authorizes cities to enact ordinances that
expire projects when "no progress has been made towards completion of the project" TEX. Loe.
GoV'T CODE ANN.§ 245.005(b) (West 2005); see id. § 245.005(c) (providing a list of factors used
to determine whether progress is being made toward the completion of a project). A project's
"expiration" necessarily results in the project losing the "frozen" rights granted by chapter 245.
Although the Legislature has permitted cities to expire projects that meet the statutory criteria for
dormancy, it has not provided any further authority under which cities may cause a project to lose
the rights granted by chapter 245. As a result, any project expiration ordinance that does not comport
with section 245.005's dormancy criteria conflicts with chapter 245.

Section 245.005 provides:

Notwithstanding any other provision of this chapter, any ordinance,
rule, or regulation enacted pursuant to this section shall place an
expiration date on a project of no earlier than the fifth anniversary of
the date the first permit application was filed for the project if no
progress has been made towards completion of the project.

Id. § 245.005(b). Under the Ordinance, a project's expiration date could be sooner than five years
after the filing of the first permit application. AUSTIN CITY CODE§ 25-1-533(B). Under the statute,
however, a project's expiration date must be no earlier than five years after the filing of the first
permit application. TEX. Loe. Gov'TCODEANN. § 245.005(b) (West2005). Thus, the Ordinance's
expiration periods conflict with those of the statute. Similarly, under the Ordinance, a project would
expire if "all building permits are not obtained or a notice of construction is not filed w.ithin the time
periods" established by the city. AUSTrN CITY CODE§ 25-l-533(B). However, under the statute, a
project may not expire unless it meets the dormancy criteria contained in section 245.005. TEX.Loe.
Gov'T CODE ANN. § 245.005(c)(2) (West 2005). The failure to obtain all building permits or file
a notice of construction within a time period set by the city is not one of the criteria set forth in
section 245.005. Thus, the Ordinance's criteria for expiring a project conflicts with that of the
statute. See In re Sanchez, 81 S.W.3d at 796.4

4Briefing we received in connection with your request argues that subsection 245.002(a)'s refetence to
«expiration dates" implicitly authorizes a regulatory agency to impose expiration dates on permits. See City of_Austin
(continued ... )
The Honorable Rene 0. Oliveira - Page 4 (GA-0980)

Accordingly, a court would likely conclude that the Ordinance is void to the extent it causes
a project to expire sooner than it would under the provisions of section 245.005 of the Local
Government Code. Likewise, a court would likely conclude that the Ordinance is void to the extent
it causes a project to expire regardless of whether the project meets the section 245.005 criteria for
progress towards completion of the project. 5

'( ... continued)
Briefat 3; Brief from Scott N. Houston, General Counsel, Texas Municipal League at 2 (Aug. 9, 2012). No Texas court
has addressed this issue, and we need not address it here. The argument is unavailing to our consideration because the
Ordinance results in the expiration of projects, not permits. The rights guaranteed to projects by chapter 245 coi1tinue
to apply regardless of the expiration of individual permits within a project.

5lt has been suggested in briefing submitted to this office that, because the Ordinance became effective on

September 6, 1997, it is in violation of sections 2 and 3(a) of House Bill 1704 enacted in 1999. See Brief from Andrew
Weber, Kelly Hart & Hallman, on behalf of the Real Estate Council of Austin at2-4 (June 29, 2012). See also Act of
Apr. 29, 1999, 76th Leg., R.S., ch. 73, §§ !(a), 2, 1999 Tex. Gen. Laws 431,432,434 (eff. May 11, 1999) (finding that
former subchapter I, chapter 481 of the Government Code "was inadvertently repealed" and adding chapter245). House
Bill 1704 provides that chapter 245 appUes retroactive]y to a "project in progress on or commenced after September 1,
1997" and that "any actions taken by a regulatory agency for the issuance of a permit, as those terms are defined by
Section 245.001, Local Government Code, ... afterthat repeal and hefore the effective date of this Act, shall not cause
or requi"re the expiration or termination of a project, permit, or series of permits to which Section 2 of this Act applies."
Id. §§ 2, 3(a). We do not address the question because we have concluded that the Ordinance conflicts with chapter 245.
00\ I_", •

The Honorable Rene 0. Oliveira - Page 5 (GA-0980)

SUMMARY

.A court would likely conclude that the Ordinance provisions
about which you ask are void because they conflict with chapter 245
of the Local Government Code.

Very truly yours,

~
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chairman, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee
NOTICE OF APPEAL

30
 Filed in The District Court
of Travis County, Texas
IN THE DISTRICT COURT OF OCT 24 2016 JJ )\)lz_
I TRAVIS COUNTY, TEXAS
419th JUDICIAL DISTRICT
At (sg t1M
Velva L. Price, District clierk·

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 NOTICE OF APPEAL
DEFENDANTS' NO-EVIDENCE SUMMARY JUDGEMENT

COMES NOW, Charles Draper and files Plaintiff's Notice ofAppeal on Order on Motion for No-

Evidence Summary Judgment.

On October 1 l'\ 2016 Honorable Judge Karin Crump erred in the 419tl' Travis County Civil Court on ·

Defendants' Motion for No-Evidence Summary Judgment. Agents appeared, before the court for conference,

and offer testimony. The Order fails to stipulate findings-of-fact, and conclusions of law. On October 24,

2016, under CRCP Rule §296, plaintiff requested clarity.

Under TRCP Rule §168, and TRAP §29, plaintiff formalizes Notice ofAppeal to be sent to the

Texas' Third Court of Appeals.

I. Rule of Law

Under CPRCRules §51.012, and §51.014(d)(l), An interlocutory appeal from an order involving a ,

controlling question of law which there is substantial ground for a difference of opinion, and (2) an immediate

appeal may materially advance the ultimate termination of the litigation; plaintiff petitions the court of appeals.

t Under TRCP §166(a), and (e), plaintiff filed appropriate causes of action, to assist in the disposition

of the case without undue expense or burden to the parties.
 Plaintiffs claims are based CPRC Rule §101.0215(29), Liability of a Municipality's for fraudulent
I misrepresentations; whereby, Greg Guernsey engaged in 'proprietary', special-authority, denied Plaintiffs

valid Travis County Permit #85-2558 at his 'occupational discretion', and failed to perform his

'governmental-function' within the context of State law; during the scope of his employment.

Under Chapters LGC § 245, 'vested rights' attach to a project once the application for the first permit

required in completing the project is filed with the agency responsible for regulating the subject property.

Schumaker Enterprises, Inc. V. City ofAustin, 325 S.W.3d 812, 815 (Tex. App. -Austin 201 I, no pet.),

Travis County was the 'agency responsible for regulating' and issued, Patton Lane Office Building Permit

#85-2558 in 1885. Plaintiff has valid 'vested rights'.

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.

Additionally, a constitutional question arises under Texas Constitution, Article 1, §17 (a), (160), (161)

Physical Taking, Intent, Inverse Condemnation, Restriction of land use.

Plaintiff contends, there is controlling question of law, misplaced in Travis County District Court

419 th , which honorable Judge Karin Crump·presided.

II. Order

On October 18, 2016, Justice Karin Crump issued an Order; GRANTING Defendants' Motion for

No-Evidence Summary Judgment, and DISMISSED plaintiff's lawsuit against defendants.

Contrary to defendants' motion, plaintiff's claims, and evidence are self-authenticated under Rules:

§801(1)(e)(A), (B)(C)(D), §801(2), §803(14), §803(15), §803(16), and supported in Affidavits.

Having reviewed defendants' petition for No Evidence Summary Judgment, Justice Karin Crump

GRANTED defendants' petition without providing; alternative relief, justification, rule of law, base, nor court

reported testimony in support of her Order.

Under CRCP Rule §296, plaintiff has requested; the court provide in writing stated findings-of-fact

and conclusions oflaw.

2
• ill.Summary

In March of 2013, Plaintiff, Charles Draper, sued defendants, Greg Guernsey in his official

capacity as Director ofPlanning and Watershed Protection Review Department, and the City of Austin for

fraudulent misrepresentations, intentional torts and failure to conduct their municipal duties under Tex.

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

Repeatedly, Defendants and his staff have habitually, and intentionally, made fraudulent

misrepresentations, produced perjured affidavits, misconstrued legislative intent, taking a 'narrow view' of

Chapter Rule §245, while ignoring Rule §43.002. Travis County was the 'agency responsible for regulating'

Patton Lane Office Building Permit #85-2558 in 1985.

Defendants, Greg Guernsey, and the City of Austin in their 'occupational discretion failed to comply

with State law, engaged in 'proprietary' special authority, intentionally denied plaintiff's 'vested-rights'.

Texas Third Court of Appeal affirmed plaintiffs previous claims, the Texas Tort .Claims Act grants

no immunity, under Tex. CRPC §101.106(a) and (e). Meadours v. Ermel, 483, F.3d (Fifth Cir.2007). Id at

424. (Cause No. 03-14-00265-CV -Mandate filed, February 25th 2015).

Defendants' actions violated plaintiff's constitutional rights, under Texas Constitution, Article 1,

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

Plaintiff requests Travis District Clerk to forward the Record, Registry, and Notice of Appeal to the

District Clerk's Office, Texas' Third Court of Appeals. Record request pertain to Cause# D-lGN-13-000778:

I) Plaintiff's Final Amended Petition- filed, August 27th, 20 I 3

2) Defendants' Traditional And No-Evidence Summary Judgment - filed, August 11th, 2016

3) Plaintiff Response to Defendants' No-Evidence Motion for Summary Judgment and

Counterclaim for Summary Judgment. - filed, September I, 2016

4) Defendants' Reply in Support of its Traditional And No-Evidence Summary Judgment

-filed, October 4th, 2016

5) Order on Motion for Summary Judgment - filed, October 18th, 2016

6) Honorable Karin Crump's 'Finding ofFact& Conclusion ofLaw"- ( ...to be determined).

3
• Respectfully submitted,

Charles N. Draper
160 Maeves Way
Austin, Texas 78737
Phone: 512.699.2199 .
Email: cd@tejasland.co1i:J.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on O~tober 24, 2016, a true and correct copy of the foregoing Plaintiff's Notice ofAppeal
was sent by certified mail, return receipt request to Andralee Cain Lloyd, Austin Law Department, City Hall, 301
West2"" Street. P.O. Box 1088, Austin, Texas 78767-1088

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
Fax: (512) 974-2918

4
 "
Filed In The District Court
of Travis County, Texas k
OCT 18 2016 [If'
NO. D-1-GN-13-000778 At ., ;J!..-
Velva L. Price, District
CHARLES N. DRAPER § IN THE DISTRICT COURT OF
§
Plaintiff, §
§
. v. § TRAVIS COUNTY, TEXAS
§
GREG GUERNSEY, IN HIS CAPACITY §
AS DffiECTOR 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 Plaintiff's

Evidence. Plaintiff appeared representing himself Pro Se and Defendants appeared through their

• counsel ofrecord. 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 IS THEREFORE ORDERED that Defendants' Motion 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 1 of2
Order on Motion for Summary Judgment
. \

I This Order disposes of all parties and all claims pending before the Court. It is, therefore,

a final and appealable judgment.

SIGNED this October £,o I6

Page 2ofl
Order on Motion for Summary Judgment
REGISTER OF THE COURT

31
 '
Case:D-1-GN-13-000778 with (80) documents

• FILEDDATE

4/2/2013 ANS-RESP AMENDED/ PLAINTIFF'S SUPPLEMENT
SUPPLEMENTED RESPONSE TO DEFENDANT'S
ANSWER GREG GUERNSEY AND THE
CITY OF AUSTIN'S ORIGINAL
ANSWERS

5/16/2013 ANS-RESP SPECIAL DEFENDANTS GREG
EXCEPTIONS GUERNSEY AND CITY OF
AUSTIN'S SPECIAL
EXCEPTIONS

5/17/2013 NOTICE NTC:HEARING/ NOTICE OF HEARING ON
SETTING DEFENDANTS GREG
· GUERNSEY AND CITY OF
AUSTIN'S SPECIAL
EXCEPTIONS
t FILED DATE CATEGORY DESCRIPTION ADDITIONAL INFO

5/20/2013 MOTION MTN:OTHER MOTION PLAINTIFF'S MOTION TO
QUASH DEFENDANT'S
MOTION FOR CONTINUANCE
OF PLAINTIFF'S ORIGINAL
PETITION, DECLARATORY
ruDGMENT, INJUNCTION
RELIEF, AND SUPPLEMENT
TO THE RECORD

5/30/2013 ORD ORD:OTHER ORDER ORDER ON DEFENDANTS
GREG GUERNSEY AND CITY
OF AUSTIN'S MOTION FOR
CONTINUANCE OF
PLAINTIFF'S HEARING ON
PLAINTIFF'S ORIGINAL
PETITION, DECLARATORY
JUDGMENT, INJUNCTIVE
RELIEF,AND

6/13/2013 ANS-RESP OBJECTIONS PLAINTIFF'S OBJECTIONS TO
COURT ORDER'S
DEFENDANT'S MOTION FOR
SPECIAL EXCEPTIONS AND
MOTION FOR CONTINUANCE

7/17/2013 ORD ORD:OTHER ORDER ORDER ON DEFENDAi'\JTS
GREG GUERNSEY AND CITY
OF AUSTIN'S SPEC! AL
EXCEPTIONS

2
 10/31/20 I 3 MOTION MTN:OTHER MOTION DEFENDANTS GREG
GUERNSEY AND CITY OF
AUSTIN'S OBJECTION TO P
LAINTIFF'S MOTION FOR
JUDGMENT ON AGREED
STATEMENT OF FACTS

• I 1/4/2013 ANS-RESP OTHER ANSWER/ PLAINTIFF'S RESPONSE TO
RESPONSE DEFENDANTS OBJECTION
PLAINTIFF'S MOT ION FOR
JUDGMENT ON AGREED
STATEMENT OF FACTS

PLAINTIFF'S SUPPLEMENT
TO THE RECORD
AFFIDA VJTS OF EVEIDENCE

3
3/26/2014 MOTION MTN:DISMISS/ CITY OF AUSTIN AND GREG
NONSUIT GUERNSEYS MOTION TO
DISMISS PURSUANT TO TEX
CIV PRAC & REM CODE
IOl.106(A)AND(E)

4/2/2014 ANS-RESP RESPONSE TO PLAINTIFFS RESPONSE TO
MOTION/PLEADING CITY OF AUSTIN GREG
GUERNSEYS MOTION TO
DISMISS PURSUANT TO TEX
CIV PRAC & REM CODE
101.105 (A) AND (E)

4/16/2014 ORD ORD:NTC/ORD ORDER GRANTING CITY OF
DISMISSAL/NONSUIT AUSTIN AND GREG
GUERNSEY'S MOTION TO
DISMISS PURSUANT TO TEX.
CIV. PRAC. & REM. CODE
101.106 (a) AND (e)

•~-----------____,
5/6/2014 OTHER LETTER LETTER REQUESTING
REPORTERS RECORD

4
11/3/2015 ANS-RESP OTHER ANSWER/ DEFENDANTS RESPONSE TO
RESPONSE PLAINTIFFS NO-EVIDENCE
MOTION FOR SUM MARY
JUDGMENT(WITH ORDER
FORWARDED TO CLERK OF
THE 419TH COURT)

5
12/2/2015 OTHER OTHER FILING LETTER - 3RD COURT OF
APPEALS NOTICE OF
RECEIPT OF CLERK'S R
ECORD FILED

8/23/2016 MOTION MTN:SUMMARY DEFENDANTS' FIRST
JUDGMENT AMENDED TRADITIONAL
AND NO-EVIDENCE MOTION
FOR SUMMARY JUDGMENT

8/24/2016 MOTION MTN:SUMMARY DEFENDANTS' FIRST
JUDGMENT AMENDED TRADITIONAL
AND NO-EVIDENCE MOTION
FOR SUMMARY JUDGMENT

6
 .•

10/4/2016 ANS-RESP RESPONSE DEFENDANTS' REPLY IN
SUMMARY SUPPORT OF ITS
JUDGMENT MTN TRADITIONAL AND NO-
EVIDENCE MOTION FOR
SUMMARY JUDGMENT AND
RESPONSE TO PLAINTIFF'S
OUNTERCLAIM FOR
SUMMARY JUDGMENT

10/28/2016 OTHER OTHER FILING LETTER FROM THE
HONORABLE KARIN CRUMP

7

.J