                                                                      December 16, 2015




CHARLES N. DRAPER,

Appellant, Pro Se                     §       CAUSE NO. 03-15-00741-CV
                                      §
V.                                    §        IN THE THIRD COURT
                                      §       OF APPEALS
GREG GUERNSEY,                        §
IN HIS CAPACITY AS DIRECTOR OF        §       at Austin, Texas
PLANNING AND DEVELOPMENT              §
WATERSHED PROTECTION                  §
REVIEW DEPARTMENT,                    §
AND CITY OF AUSTIN                    §

Appellees.




                          Appellant's Brief

Appellant Pro Se:                             Appellee:

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

                                              Andralee Cain Lloyd,
                                              Law Department,
                                              Assistant City Attorney
                                              City Hall, 301 West 2nd Street
                                              PO Box 1546, Austin TX 78767-1546
                                              Phone: (512) 974-2925
                                              Fax:(512)974-1311




                                                    /'RECEIVED N
                                                         DEC 1 6 2015
                                                     THIRD COURT OFAPPEALS
                                                     \    JEFFREY p. KYLE /
                              TABLE OF CONTENTS


IDENTITY OF PARTIES & COUNSEL                                                      p.4

INDEX OF AUTHORITIES                                                               p.5

STATEMENT OF CASE                                                                  p.6

PERMISSION TO APPEAL                                                               p.6

STATEMENT ON ORAL ARGUMENT                                                         p.7

     LGC §43.002 Continuation of Land Use,
       •    Valid Travis County Flood HazardPermit               (Exhibit C)       p.9
            o Valid Travis County Flood Hazard Permit (Permit #85-2558); issued in
                     1985; prior to annexation                     (Affidavit: R. Glasper)
            o County permit has no expiration date, impervious cover, or height limitations.
            o Property is exempt from Barton Creek Watershed Ordinance and Site
                 development, per Sec. 9-l-303(b)        p.8. (Affidavit: C. McClendon)
     CPRC §101.0215 (29) Governmental Liability,
                       •   Planning and Zoning                                 p. 17, 18
                   Texas Tort Claims Act not applicable, 'intentional tort'
                       o Meadows v. Ermel, 483 F.3d (Fifth Circuit. 2007)          p.18
                       o   'Proprietary function* v. 'Governmental function        p.18
                       o Obstruction of civil process                              p.18
     Texas Constitution Article I, §17(a)(160)(161)                                  p.8
     Vested-Rights v. Inverse Condemnation                                           p.7


ISSUES TO BE PRESENTED FOR REVIEW                                                   p.9

             •   PAST HISTORY                                                      p.ll
             •   CURRENT HISTORY                                                  p.13
STATEMENT OF ARGUMENTS                                                                  p.15

     LGC §43.002 Continuation of Land Use,
                  •   Valid Travis County Flood Hazard Permit
                  o (Permit #85-2558) issued in 1985; prior to annexation
                  o Travis County permit was commercial without expiration date;
                      impervious cover, or height limitations was the regulatory authority.
                  o   Property is exempt from Barton Creek Watershed Ordinance and Site
                      development, per Sec. 9-1-303(b)
     LGC §245.00-02 Uniformity of Requirements-                                         p.16
         •   Schumaker Enterprise v. City ofAustin                     p.9, 17,20
         •   Harper Park II v. City ofAustin                                p. 9, 21
     CPRC §101.0215 (29) Governmental Liability- Zoning & Planning                      p.18
         •   City ofHouston v. Jenkins                                             ...p.18
         •   Nueces Cty v. Ferguson, 97 S.W. 3d 205, 217 (Tex. App. Corpus Christi 2002
         •   Edwards Aquifer v. SheffieldDev. Co, 369 S.W.3d at 838, 140 S.W.3d at 671
     CPRC §41.011(a)(5)
                 •    Aggravated and Reprehensible Conduct                             p.20
DAMAGES                                                                                p.20
             • Owen-Fiberglass Corp. v. Malone, 972 S.W.2d 35, 40 (Tex. 1998) ..p.21
PRAYER                                                                            ....p.21
CERTIFICATE OF SERVICE                                                            ...p.22
VERIFICATION

APPENDIX

         /. Plaintiffs No-Evidence Motion for SummaryJudgment
         2. Defendant's Response To Plaintiffs No-Evidence Motion for Summary
             Judgment, andDefendant's Motion to Strike Plaintiffs Summary Judgment
             Evidence

         3. Judge Charles Ramsay's Order, November 12th, 2015
     EXHIBITS:

     AFFIDAVITS

             Plaintiff Affidavits:
                      Robert Glasper. Travis County Transportation and Natural Resources
                      Carl McClendon, McClendon and Associates
                      Jim Schissler. Jones & Carter, Engineer
                      Charles Draper, Tejasland & Commerce. Real Estate Broker

       OTHER AUTORITIES:
              Attorney General John Cornyn, October 19. 2001- "conveyance to different owner
              Attorney General Greg Abbott. December 10. 2012- "project duration"'


       NOTICE OF APPEAL

       REGISTER OF THE COURT




                        IDENTITY OF PARTIES & COUNSEL




Appellant, Pro Se:                                Appellee:

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

                                                  Andralee Cain Lloyd, Law Department,
                                                  Assistant City Attorney
                                                  City Hall, 301 West 2n* Street
                                                  PO Box 1546, Austin TX 78767-1546
                                                  Phone: (512) 974-2925
                                                  Fax:(512)974-1311
                                       INDEX OF AUTHORITIES

 STATUTES & CASE LAW

Texas Local Government Code §245- Projects
Texas Government Code
       •    LGC Section §43.002- Continuation of Land Use

       •    LGC Section §245.00-02- Projects. Permits, Uniformity of Requirements
           •   Harper Park II v. CityofAustin (App. 3 Dist. 2011) 359 S.W.3d 247
           • Schumaker v. City ofAustin, 325. S.W.3d 812. 814-15 (Tex. App- Austin 2010)
Texas Civil Practices & Remedies Code
       •   Rule §101.0215(29)- Municipal Liability, Planning and Zoning
       •   Rule §101.106 Restatement (2d) Torts Rule §895 D, Rule §2.2
       •   Rule §41.011(a)(5)- Evidence to Exemplary damages
       •   Rule §51.014(d)(l); Tex. CPRC Rule §168- Controlling Question of Law

Texas CPRC §101.001- Government- General Provisions
       • City ofHouston v. Jenkins, 363 S.W.3d 808. 814 (Tex. App.-Houston [14th Dist.] 2012
         pet. filed 4-30-12)                                                             p.18
       • Nueces Cty. v. Ferguson, 97 S.W. 3d 205. 217 (Tex. App. Corpus Christi 2002)....p. 18
       • Steele v. City ofHouston, 603 S.W.2d 786, 791 (Tex. 1980) (????p.821COA)           p.18
       • Edwards Aquifer v. Sheffield Dev. Co, 369 S.W.3d at 838, 140 S.W.3d at 671         p.19

Texas Rules of Appeal Procedure
   • Rule §28.1- Accelerated Appeal
   •       Rule §29.1,2(b) - Orders pending Interlocutory Appeal
   •       Rule §39.1, (b)(c)


                                         CONSTITUTION

Texas Constitution Article I, §17(160)(161) -
   •
           Intent, Inverse condemnation (160)                                             p. 12
           1. Bass v. City ofDallas (App. 7 District 2000) 34 S.W.3d 1
   •
           Restriction on Use- (161)                                                      p.12
           2. Weingarten Realty Investors v. Albertson 's, (S.D. Tex. 1999) 66 F.Supp.2d, 825
                                STATEMENT OF THE CASE


        The nature of the case concerns Damages, Declaratory Judgment, and Summary
Judgment, against the City of Austin, and their governmental employee. Greg Guernsey a city
director, and Mr. Guernsey's liability for fraudulent misrepresentations, while acting in his
capacity as Director of Planning and Development Watershed Protection Review Department in
charge of the 'coordinated branch of government*. Guernsey engaged in 'occupational
discretion', utilized his "proprietary* function to intentionally, and knowingly aid and abet the
subversion of State law; Texas LGC§43.002- Continuation ofLand Use. and Texas
LGC§245.00- Project, Torts §876, Tex. CRPC Rule §101.0215(29)- Municipal Liability,
Planning andZoning by denying Appellant's valid Travis County FloodHazard Permit,
thereby, adversely condemning Appellant's 'vested-rights* without adequate compensation;
thereby, violating Texas Constitution Article I, §17(a) - Taking, Damaging, or Destroying
Propertyfor Public Use.


                                      PERMISSION TO APPEAL

        Plaintiff'sNo-Evidence Motion for Summary Judgment was filed on November 10th,
2015 in 419th Judicial District, Travis County.
        Honorable Justice Charles Ramsay issued interlocutory Orders from the trial court on
November 12, 2015.

        Honorable Justice Charles Ramsay denied, Plaintiff's No-Evidence Summary Judgment
motion and provided no legal basis in support of the Order. Justice Ramsay's Order was not
supported by case law. and leaves an unresolved controlling question of law. Rule
CPRC§51.014(d)(l); TRCP Rule §168.
       Appellant seeks permission from the Third Court of Appeals to appeal these
interlocutory orders, and causes of action.
       If permission is granted, the appeal will be an accelerated appeal.


       Additionally, Appellant requests an accelerated appeal based TRAP Rule §28.1
Interlocutory Orders quo warranto. Appeal is based on State statue. Notice of Appeal has been
filed with the trial court, and a Docking Statement has been filed with the Third Court of
Appeals.
                       STATEMENT OF THE ORAL ARGUMENTS


The Court should grant oral arguments for the following reasons:

   1. The issues presented have not been authoritatively decided.
       See Tex. R. App. P. 39.1(b).
           a. The issue undecided concerns, Greg Guernsey in the 'coordinated branch of
               government" as Director ofPlanning andDevelopment Watershed Protection
               Review Department, intentionally, breached his 'proprietary* duty, at his
               •occupational discretion', failed to perform his governmental function with
               'objective legal reasonableness'. aided and abetted the subversion of his
               constitutional duty, when he denied Draper's valid Travis County Flood
               Hazard Permit, and 'vested-rights*', issued prior to City Annexation; thereby,
               adversely condemning Draper property without adequate compensation.
               Appellants have produced no-evidence of'agency* intervention, since 1985.
   2. Oral arguments would give the court a more complete understanding of the facts
       presented in this appeal.
       See Tex. R. App. P. 39.1(c).
           a. In the evidence to be presented, Appellant would elaborate and expand the
               Court's understanding, that Appellee's actions are not an isolated event.
               Appellee's gross misrepresentations, sham-affidavits, breach of contracts, and
               obstruction of civil process by nature are so reprehensible, thatAppellees*
               offend the public trust, and undermine public justice, equally are paramount to
               the Court's deliberations.



  j.   Oral arguments would allow the to better analyze the complicated legal issues
       presented in this appeal.
       See Tex. R. App. P. 39.1(c).
          a. Vested-Rights v. Inverse Condemnation-
                   i. Conveyance does not diminish the rights of a subdivision.
       ii. No 'project' alterations have been filed, or permitted: which changed
           the original intent,
      iii. Appellant has never "consented* or received compensation,
           consideration, or notice of conveyance of'vested-rights*,
      iv. City of Austin has the burden to indicate more 'narrow-use',
       v. City of Austin has no-evidence of intervention for thirty years,
      vi. Travis County was the regulatory 'agency* at time of permit issuance,
     vii. Travis County issued a permit #85-2558, August 1985.
     viii. Commercial office project could have been built in 1985; therefore,
           'vested-rights* should still exist today: without limitations on
           impervious cover, or height. LGC§43.002, LGC § 245.002(a).
      ix. Property is zoned commercial, was rezoned December 2008, and is
           zoned VMU in Oak Hill's Neighborhood Plan, and FLUM.
       x. According to the City, the property is located in the Barton Creek
           Watershed, simultaneously; the property is in the Williamson Creek
           flood plain. Explain (?)
      xi. Property is exempt from Barton Creek Watershed Ordinance and Site
           development, per Sec. 9-1-303(b)


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


        Oral arguments would significantly aid in deciding this case.


                 ISSUES TO BE PRESENTED FOR REVIEW



Issue 1:         Case law. State statue, nor the evidence supports the Orders, or findings
of the trial court.

        1. Texas LGC§43.002- Continuation ofLand Use
            (a) A municipality may not, after annexing an area, prohibit a person from:

                        (1) continuing to use the land in the area in the manner that was
                        being used on the date the annexation proceedings were instituted if
                       the land use was legal at that time;


        2. Texas LGC§245.00- Project
            a. Harper Park II v. CityofAustin, Greg Guernsey, et al
                      • 'Vested-rights* are 'frozen'; not 'locked-in' as alleged by
                       defendants.

            b. Schumaker Enterprises v. City ofAustin,
              • "Vested rights attach to a project once an application for the first permit
              required in completing the project is filed with municipality, or 'agency'
              responsible for regulating the subject property"; according to defendants.
              (Defendants1 Motion in Opposition to Plaintiffs No Evidence Motion for
              Summary Judgment and Defendants' Motion to Strike Plaintiffs Motion for
              Summary Judgment. (Page 4 of 13, and page 5 of 13)



 3.     Travis County Flood Hazard Permit #85-2558 does not expire according to
 Section §105.5 ofthe International Building Code, alleged byMs. Andralee Cain
  Lloyd fSee, City ofAustin, and Greg Guernsey Response to Plaintiff's Motion for
  No-Evidence Summary Judgment (footnote2, p.8 of13)).
           a.   Appellee's arguments are in direct conflict with the Texas statute;
           according Texas Attorney General Greg Abbott, who concluded; " A court
           would likely conclude that the provisions about which you ask ^Project
           Duration; are void because they conflict with Chapter §245of the Local
           Government Code." (Other Authorities, Exhibit L)


 4.    Texas Constitution, Article 1, §17 (a), (160), (161)
       Appellees* actions, failed to comply with state statue and has 'taken, damaged,
       or destroyed for or applied to public use without adequate compensation being
       made* Appellant's property; resulting in damages for 96 (ninety-six) months
       for which appellant is entitled to economic compensation.


Issue 2:        The Honorable Justice Ramsay's trial court should granted PlaintiffNo-
Evidence Summary Judgment Motion based on;
   •   Justice Ramsay's Order prevented to materially advance the ultimate
       termination of litigation. CPRC §51.014(d)(2)
   • In Plaintiffs No-Evidence Motion for Summary Judgment, plaintiff requested;
       Alternative Relief. Alternative Relief requested; "...the court to sign an order
       specifying thefacts that are established as a matter law and directing other
       proceedings as arejust. Tex. R. Civ. P. 166a(e)*\ Judge Ramsay failed to grant
       Alternative Relief, specifying the facts.
   •   Appellees have produced no-evidence appellant's property rights are not
       'vested-rights'.

   • On the contrary7. Appellees emphasize: '"Vested rights attach to aproject once
     an applicationfor thefirst permit required in completing the project isfiled
       with municipality, or 'agency' responsiblefor regulating the subject property';
       according to defendants. (Defendants' Motion in Opposition to Plaintiffs No
       Evidence Motion for Summary Judgment and Defendants' Motion to Strike Plaintiffs
       Motion for Summary Judgment. (Page 4 of 13, and page 5 of 13).



                                        10
               •   Appellant concurs. Travis County was the regulating "agency* at the time of
                   permit issuance; 'vested-rights* attach to a project once an application for first
                   permit is filed, August 1985.
               •   In 1985 the project developer constructed 50 forty-foot piers.
               •   While the Appellees intervened, during Schumaker application process;
                   asserting their legal authority, at no time have Appellees intervened (ie. red
                   tagged) appellant's project in thirty years. Appellees cannot, today
                   retroactively, assert a change in land-use regulations over 'vested-right*
                   entitlements.



Issue 3:           Under Texas CPRC Rule §101.0215(29)- Municipal Liability, Planning and
           Zoning, employees of municipalities are libel for 'intentional torts**.
                    Greg Guernsey imposed his 'occupational discretion*, did not exercise
           'objective legal reasonableness*, when he 'intentionally* denied appellant's valid
           Travis County Permit. Rule §101.106 Restatement (2d) Torts Rule §895 D, Rule
       §2.2 Proprietary Acts ofGovernment.
                   Instead Guernsey and the City of Austin chartered a course of abuse, to prevent
       the execution of civil process knowingly made false statements to prevent the
       performance of civil process. Rule §41.011(a)(5)- Evidence to Exemplary Damages.
       •      An owner is entitled to compensation under the Texas Constitution, when the
              government physically appropriated or invades the property' or when unreasonably
              interferes with the landowner's right to use and enjoy the property, such as by
              restricting access or denying a permit for development. Weingarten Realty
              Investors v. Albertson's



Issue 4:           The brazen disregard, and disrespect the City of Austin, and their employees
       have exhibited, undermine the public trust.
       1.          Greg Guernsey, and City of Austin routinely exercise their occupational
                   discretion and intentionally subvert state statues.


                                          PAST- CASE HISTORY




                                                   11
                             6300-02 Highway 290 W (6300Hwv290W)

                       (Authority opinion: McClendon & Associates (PL Exhibit A)
1.   Subdivision-

a. 6300Hwy290W, a 2.357 acre tract, was "..Legally subdivided as Lots 10 and 11. Block 1,
     Town of Oak Hill, and recorded in the Travis County Deed Records on December 16,1872
     {PL Exhibit B).


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


2. Site Development Permit: issued August, 1985-
a. "Travis County approved a site development or floodplain permit (PL Exhibit Q on
     August 9, 1985 for the Patton Lane Office Building, a three story office development.
     Although the original subdivision was platted in 1872. the site development permit
     represents the first in a series of permits for the project.   The Travis County
     Engineer's office stamped approved, and issue a permit number: #85-2558 on August 9,
     1985. Construction commenced in 1985. Although construction was initiated and later
     paused due to economic conditions, the floodplain permit does not expire. The site
     included previously existing residential and commercial development from 1950*s and
     1970*s, which did not require City or County permits when it was constructed. All of
     the development was outside the City and within the County's jurisdiction, prior to
     adoption of the Barton Creek and Williamson Creek Ordinances."


3.    Annexation : City of Austin-
a. "The Patton Lane Office Building was under construction when the City' of Austin
     annexed the property for full purpose on December 30, 1985, and zoned the property'
     Single-Family-2 (SF-2). Since the property was annexed in 1985, there have been no
     building permits approved or issued for the existing development. In late 2011 and early
     2012, the City issued a certificate of non-compliance for the existing commercial

                                                12
           development, which is an exemption from compliance with City's existing permit
           process per LDC, Sec. 25-1-365.


     4.    Continued Progress-

     a. "The landowner has continued progress toward permitting by filing and recording an
           amended plat on October 10, 1991, which did not change or alter any of the previous
           restrictions or provisions ofthe original subdivision. On October 10. 1991. the City
           rezoned the property to Commercial Services- Conditional Overlay (CS-CO), (Ord.#:
          911010-B). Again on June 14, 1997. the landowner filed a related zoning request; which
          did not alter or change previous restrictions or provisions to the CS-CO zoning, (C14-
          91-0027). It was approved by a 7-0 vote by city Council. In 2008. Draper filed for
          rezoning of the property to Commercial Services- Conditional Overlay- Neighborhood
          Plan (CS-CO-NP), (Ord. #: 20090115-092). which amended the site development
          restrictions and permitted uses on the property to be consistent with those of the
          originally submitted permit. (PL Exhibit D).




                                      CURRENT- CASE HISTORY

                                 6300-02 Highway 290 W (6300Hwv290W)



1.        Oak Hill Neighborhood Plan-

     a. On, or around the spring of 2006. the City of Austin initiated development of the 'Oak
          Hill Neighborhood Plan''. OHNP. Draper participated as a board member of the 'Oak
          Hill Neighborhood Contact Teanr. OHNPCT. Concerned his property, potentially,
          could be down-zoned through the OHNP, Draper obtained legal counsel, through the
          law firm ofMunsch, Hardt, Kopf, &Harr, representation provided by Robert Kleeman.

     b. Mr. Kleeman conducted countless meetings and correspondence with Matt Hollon, Pat
          Murphy, Victoria Li, City of Austin Watershed Protection, and Development Review
          Department: none were able to produce conclusive evidence Draper's property



                                                  13
         6300Hwy290Wwas not entitled to 'vested-rights* provisions as instructed by LGC
         Chapters §43.002, or LGC §245.00. (PL Exhibit E,F).


     c. Consequently, through assistance of Mr. Kleeman. andMunsch, Hardt, Kopf, & Harr.
         Draper filed and obtained rezoning in December. 2008. (Case No. CI4-2008-0152).
         Draper has perpetuated project completion throughout his ownership of 6300Hwy290W.


2.    Site Plan: Fair-Notice-

     a. On the behalf of Draper, February 14, 2011, Jim Schissler, an engineerwith Jones &
         Carter, submitted a Site Plan Fair Notice andHB. 1704/ Chapter 245 Determination
        application for the Patton Lane Office Building project; located on the northeast corner
        of West U.S. Highway 290. and Patton Ranch Road in southwest Travis County. (PL
        Exhibit G).


     b. Greg Guernsey, City ofAustin Planning and Development Watershed Protection and
        Review Department, along with Susan Scallon, and the Chapter 245 Determination
        Committeee, intentionally, denied Draper's application. (PL Exhibit F). Scallon rejected
        Draper's application, for the reasoning: "project complete". (PL Exhibit F). Greg
        Guernsey, Susan Scallon, and the 1704 Committee at their 'occupational discretion'
        made fraudulent misrepresentations, breached their duty, while aiding, abetting the
        subversion of State law; LGC § 43.002- Continuation ofLand Use.


     c. Throughout the course of 2011. and 2012. Draper sought clarification from the 1704
        Committee, denial. Draper had to go as far as appeal to the Texas* Attorney General's
        office, in order to mandate the City of Austin's compliance with the Texas Open
        Records Act: which the City asserted "attorney/client" privileges. (PL Exhibit J).


     d. Draper employed McClendon &Associates in February of 2012. McClendon &
        Associates resubmitted Draper's 1704/Chapter 245 Determination request; after records
        documenting the issuance of Travis County Flood Hazard Permit, and original
        architectural permits were uncovered on microfiche, through the Travis County


                                                14
      archives. Again, the / 704/ Chapter 245 "vested-rights" entitlements were denied
      without statutory support.


   e. In attempt to exhaust his administrative appeal, on November 2, 2012, Draper met with
      City of Austin Council Member, Chris Riley, in attempt to amicably resolve the dispute.
      Council member Riley said: " .../'/ would require a Plan Amendment to S.O.S.; which
      requires a 'super-majority' ofCity Counsel... ". Draper, respectfully, disagrees.


  f. Draper contends, his property located at 6300-02 West Highway 290. has 'vested-
      rights" under Chapter §43.002 and 1704/Chapter §245 of Texas" Local Government
      Code. Having exhausted his administrative appeal. Draper files the above-mentioned
      cause of action on March 4 ,2013.



                                   STATEMENT OF ARGUMENTS


        Appellant, Charles Draper as a Pro Se litigant filed suit on March 4th 2013, against

Greg Guernsey in his Capacity ofDirector ofPlanning and Development Watershed

Protection and Review Department, and City ofAustin, Appellees.

        Having exhausted his administrative appeal, Appellant filed suit the 419th District

Court to compel the City of Austin to comply with State statutes, through the enforcement

provision Tex. LGC Chapters§43.002, and §245. Enforcement of Chapter §245.006 may be

provided ''through mandamus, declaratory or injunctive relief.

       Under CPRC Rule §43.002 Continuation ofLand Use- Appellant contends, the valid

commercial Travis County Flood Hazard Permit #85-2558, which had no expiration date, no

impervious cover, or height limitation was designed to host office/banking services. CS

zoning, in August 1985. The Appellees have produced no-evidence of intervention in 1985, or

subsequent intervention following annexation. Therefore, Appellant rights were vested, when

the permit was issued. Appellees cannot, retroactively, imposes new land-use limitations.

                                              15
        Under CPRC Rule §245.02, Uniformity of Requirements, states; "a regulatory

approval of a application...for a permit solely (based) on regulations... in effect at that time".

(See. Harper Park II v. City ofAustin).

        Appellant is entitled to compensation. Article 1,17 (161)- An inverse condemnation,

for which a owner is entitled to compensation under the Texas Constitution, may occur when

the government physically appropriated or invades the property or when unreasonably

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

access or denying a permit for development. Weingarten Realty Investors v. Albertson 's



Hearing: No-Evidence Summary Judgment

       In City ofAustin, andGreg Guernsey Response to Plaintiff's Motionfor No-Evidence

Summary Judgment, Appellees assert hearsay;

   •   Alleged by Appellees attorney, Ms. Andralee Cain Lloyd; "An application filed with

       one agency does not provide 'fairnotice " to another agency and is thus not sufficient

       to establish vestedrightsfrom that agency's regulations. Schumaker. 325 S.W. 3d at

       815." (See. City ofAustin, andGreg Guernsey Response to Plaintiffs Motion for No-

       Evidence Summary Judgment (footnote2\ p. 5 of 13)).

           o Wrong. Unlike Schumaker, who was in the application process, Appelleant

               'vested-rights* were granted upon filing 'first permit in a series of permits'.

               Appellant's 'vested-rights" existed prior to City of Austin annexation; which

               rights are protected under Chapter §43.002.

           o Additionally, "Under Chapter 245 ofthe localdevelopment code, once an

              applicationfor the first permit required to complete a property-development

               'project' isfiled with the municipality or other agency that regulates such use

                                                16
               ofthe property, the agency's regulation applicable to the "project" are

               effectively "frozen" in their then-current state and the agency isprohibited

               from enforcing subsequent regulatory changes to further restrict the property-

               use ". See TEX. GOV'T COCE Ann. 245.001-.007 (West 2005) Schumaker

               Enters. Inc. v. City ofAustin. 325,. S.W. 3d 812, 814-5 & n.5 (Tex. App-

               Austin2010. no pet.)

        Furthermore, in City ofAustin, and Greg Guernsey Response to Plaintiff's Motionfor

No-Evidence Summary Judgment (footnote }page 8of13) Appellees assert; "...Ifthe Travis
County development permit isregarded as the first permit application for the project, it

appears that aprior owner may have constructed 50piers on the Plaintiffs property in

accordance with that permit before construction was halted forfinancial reasons andthe

permit expired3. (3 According to Travis County Development Services, and Section §105.5 of
the International Building Code, a permit becomes invalid and expires if no work

commences after 180 days from the date of issuance, or work authorized).

       Nonsense. In Appellant's Plaintiff's First Amended Petition, Attorney General Greg

Abbott issued an opinion on December 10. 2012 on LGC §245- ''project duration ordinance"

(Exhibit L). In summary, the Attorney General concluded; " Acourt would likely conclude

that the Ordinance provisions about which you ask are void because they conflict with

Chapter §245 ofthe Local Government Code. "

       Perhaps, Appellees should reserve their defenses for an "international court" of law.



                           Tex. Government General Provisions:




                                             17
           While appellant could argue the wanton reckless behavior of the appellees, the

argument would only distract from the foundational issues, vested-rights. Therefore,

appelleant will refrain from legal and ethical issues addressed in appellees response to

Fraudulent Misrepresentation, Breech of Contract, and Preventing the Execution of Civil

Process, all recorded in previous testimony.



Governmental Liability CPRC Rule §101.0215(29)

           CPRC Rule §101.0215(29), Liability ofa Municipality, whereby, Greg Guernsey in

hiscapacity as Director of Planning and Development, habitually and 'intentionally', made

fraudulent misrepresentations, misconstrued the Legislature's intent, taking an "narrow* view

of Chapters §245, ignored § 43.002 at his 'occupational discretion' failed to comply with

State law, while engaged in his 'proprietary* special-authority, 'intentionally*, denied

Plaintiffs "vested rights* application. The Fifth Circuit held Section 101.106 did not apply to

intentional tort claims". Meadows v. ErmeL 483. F.3d (Fifth Cir. 2007). Idat424. , (Exhibits

H. I. J)

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

under this chapter for damages arising from it's governmental functions (29)zoning and

planning. "A governmental employee is entitled to official immunity for good-faith

performance of the discretionary duties within the scope of the employee's authority. [I]fthe

duty is imposed by law, then the performance of the duty is a ministerial act. and there is no

immunity for failure to perform it." City of Houston v. Jenkins. 363 S.W.3d 808. 814 (Tex.

App.-Houston [14th Dist.] 2012 pet. filed 4-30-12). Greg Guernsey failed to perform his duty'
in approval of Plaintiff'vested-rights* Chp. 245 Fair-Notice Application. (Exhibit F).



                                                18
        Sovereign immunity does not bar suit that alleges a violation of a self-enacting state

constitutional provision. Nueces Cty. v. Ferguson. 97 S.W.3d, 205, 217 (Tex. App- Corpus

Christi 2002, no pet). A constitutional provision is self-enacting when it supplies rules

sufficient to protect the rights given or to permitthe enforcement of the duty imposed. Steele

v. City OfHouston, 603 S.W.3d 795. 803 (Tex App. Amarillo 2002, pet. denied).

        Other factors the court must consider, what the property owner's reasonable

expectations were in the property (See. Edwards). A per se regulatory taking occurs when the

regulation requires the property owner to suffer a physical invasion of her property. Edwards

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



Aggregated and Reprehensible conduct


        Greg Guernsey has been named in the suit, acting in his capacity as Director of

Planning andDevelopment Watershed Protection, "the coordinate branch of government', for

his "occupational discretion*; and intentional breach of duty, acting in his "proprietary'

capacity as special-authority in the implementation of CPRC §101.0215 (29) Planning and

Zoning, and Chapters §245, and §43.002.

       Greg Guernsey did not act in good faith. Either in committee, or in his individual

capacity as Director ofPlanning and Development Watershed Protection, Guernsey,

intentionally, denied Appellant's valid "vested-rights' development entitlements. Case law-

precedent established Greg Guernsey in several additional suits for failure to comply with

Chapters §43.002 §245, §312.00 in his official capacity; more specifically, he was named as

a Defendant in Harper Park IIv. Greg Guernsey in his capacity as Director of Planning, and

Watershed Protection, andthe City ofAustin. (Plaintiff's Org. Pet. Exhibit L). Historical

evidence points to Greg Guernsey blatant disregard for the law.

                                               19
                                             DAMAGES


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

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

event. Defendants" actions were committed, knowingly and intentionally, and therefore

Appellant seeks to recover actual economic damages, and compensatory damages, he has

suffered.


        Asevidenced in Plaintiffs letter to Greg Guernsey, (dated: September, 2011), :"...As

a consequence ofyour un-relentedposition, I have experienced economic hardship, economic

loss, and inability to rent my property, or generate economic rent from my investment... ".
(Exhibit J).

Compensatory Damages - Economic relief

        Further, Draper evidenced his complaint of economic damages. OnJune 15th, 2013.

Draper filed, Plaintiff's Response to Defendant's Request for Disclosure: which was in

compliance of TRCP 197. Record Excerpt:

               City of Austin: Pursuant to Rule 194.2(d), provide the amount and method
               of calculating all economic damages which you seek to recover in this cause.

               Draper's Response:
                Correspondence between Draper's attorney, Robert Kleeman, Matt Hollon, Victoria Li.
               and Pat Murphy, reflect Draper contentions, he sought clarity onPatton LaneJVxalid
               permit inaccordance with 1704/Chp. 245 TX LGC (01/18/2008, PL Exhibit E).
                  Assuming the City ofAustin would have complied with State law. Draper contends, a
               tilt-wall construction project could have been completed within one year. Consequently,
               Draper has been denied four (*eight) years ofeconomic rent. Had Draper developed the
               bare minimum foot print issued by the Travis County permit, he could have constructed
               43,509sq. ft building (PL Exhibit Q
                The 43,509 sq. foot print times, the Southwest Austin market office rate of$24.00 p.s.f,
               equals $4,524,936.00, lost economic rent through June 20,2013.




                                                  20
                Under TRCP Rule 193.5, Draper amended and supplemented hisresponse with an
              Affidmit on February 18th. 2014. which was validated in Oxford Commercial Market
              Office Snapshot. Themarket rate forSouthwest Austin is $31.81, not$24.00 p.s.f; from
              previous response. (See, Affidavits)



              Appellant amended his Economic Loss: Ninety-four (96) months x (times)
       $2.65 ($31.81/12. S.W. monthly office rental) per month p.s.f. x (times) 43,509 sq.ft.
       (original building size) = (equals) $11,068,690.00, through January 2016.



Total Compensatory Damages


        Appellant requests total compensatory damages $11,068,690.00, as of January

2016


                                              PRAYER


        In conclusion, Appellant has experienced, wanton reckless behavior from an

intentionally abusive non-compliant municipality, under the subdivision of Texas State's

mandated authority; which undermines the public trust. Appellant prays the Third Court will

reverse Interlocutory Order issued by Justice Ramsay, and issue compensatory damages,

declaratory relief, alternative relief, and summary judgment in favor of the appellant.

        Equally, Appellant prays the Third Court will grant Appellant's compensatory,

economic damages for $11,068,690.00. An owner is entitled to compensation under the Texas

Constitution, may occur when the government physically appropriated or invades the property

or when unreasonably interferes with the landowner's right to use and enjoy the property, such

as by restricting access or denying a permit for development, Weingarten Realty Investors v.

Albertson's. While appellant is entitled to exemplary damages for the aggravated, reprehensible,

and malicious conduct of the Appellees, Rule §41.011(a)(5)- Evidence to Exemplary damages.



                                                     21
 Appellant has compassion for the additional victims in the charade, the City' of Austin taxpayer,
 who will bear the ultimate expense.

         Additionally, Appellant prays the Third Court will acknowledge Appellant 'vested-

 rights'; recognizing Travis County'"s Flood Hazard Permit was the first permit in a series of

permits, and grant Appellant •'vested-rights protections, entitled to develop, office, or any other

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

permit application; "project" was "commercial" development and was not limited to office

building or other specific type of "commercial" development". Harper Park IIv. Greg

Guernsey, in his capacity Director ofPlanning and Development Watershed Protection Review

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



                                                      Respectfully submitted.

                                                     d_^l«-^ /**••&   **j£zz^£-

                                                      Charles N. Draper
                                                      160 Maeves Way
                                                      Austin, Texas 78737
                                                      Phone: 512.699.2199
                                                      Email: cd@teiasland.com



CERTIFICATE OF SERVICE


I HEREBY CERTIFY that on December 16. 2015, a true and correct copy of the foregoing
Appellant's Brief, was sent by certified mail, return receipt request to Andralee Cain Lloyd,
Austin Law Department, Citv Hall. 301 West 2nd Street. P.O. Box 1546. Austin. Texas 78767-
1546


Andralee Cain Lloyd, Assistant City Attorney
Law Department, City of Austin
City Hall, 301 West 2nd Street
P.O.Box 1546
                                                                TO/G" /3~z& C^Oot 4&2.i             52-8*J
Austin, Texas 78767-1546
(512)974-2925




                                               22
                                        VERIFICATION



    THE STATE OF TEXAS


    COUNTY OF TRAVIS



           BEFORE ME, THE UNDERSIGNED AUTHORITY, on this day personally
    appeared Chares N. Draper, who, being by me first duly sworn, and deposed as follows:

          "Myname is Charles N. Draper. I am over theage of 21 years, and I am fully
    competent to make this verification. I have read the foregoing Appellant's Brief, Charles
    N. Draper v. Greg Guernsey», in his Capacity Director ofPlanning and Development
    Watershed Protection Review Department, andthe City ofAustin. All of the allegations
    contained in the petition are within my personal knowledge, and true and correct."




                                                Charles N. Draper




SUBSCRIBED AND SWORN TO BEFORE ME on the date _|_^_ day of L^rr.,^ .2015

                     m   -   ~   ^
                                                   AA
                                                Notary Public. State Texas
                 SEAN JESSE CROW
                My Commission Expires
                     June 14.2017
                                                Notary Expiration date
        ^   v    w   w   •   •
APPENDIX




   33
                                 IN THE DISTRICT COURT OF
                                  TRAMS COUNTY, TEXAS
                                     ith                                  Filed inThe District Court
                                  419mJUDICIAL DISTRICT                    of Travis County,Texas
                                                                                OCT 15 2015 (/D
CHARLES N. DRAPER,                                                       PX         i j.'3nlb_M.
                                                                         Velva L. Price, District Clerk
Plaintiff, Pro Se
                                                   §
V.
                                                   §         CAUSE NO.        D-1GN-13-000778
                                                   §
GREG GUERNSEY,                                     §
IN HIS CAPACITY AS DIRECTOR OF                     §
PLANNING AND DEVELOPMENT                           §
WATERSHED PROTECTION                               §
REVIEW DEPARTMENT,                                 §
AND CITY OF AUSTIN                                 §
                                                   §
Defendants.
          PLAINTIFF'S NO EVIDENCE MOTION FOR SUMMARY JUDGMENT
         Plaintiff. Charles N. Draper, ask the Court to sign a summary judgment under Texas
     Rules ofCivil Procedure Rule §166(a), and (e) on plaintiffs cause ofaction, against
     defendants. Greg Guernsey, and City ofAustin, under Tex. CRPC Rule §101.0215 (29),
     Municipal Liability. Planning and Zoning, and Texas Constitution, Article 1, §17 (a),
     (160), (161) Physical Taking. Intent. Inverse Condemnation. Restriction ofland use.
        Plaintiff. Charles Draper, sued defendants. Greg Guernsey in his official capacity as
     Director ofPlanning and Watershed Protection Review Department, and the City ofAustin
     for intentional torts and failure to conduct their municipal duties under Tex. CRPC Rule
     §101.0215 (29), Municipal Liability. Planning and Zoning.
       Repeatedly. Greg Guernsey and his staff have habitually, and intentionally, made
   fraudulent misrepresentations, misconstrued legislative intent, taking a 'narrow view* of
   Chapter Rule §245, while ignoring Rule §43.002. Defendants. Greg Guernsey, and the Citv
   ofAustin in their 'occupational discretion failed to comply with State law. engaged in
   'proprietary' special authority, intentionally denied plaintiffs "vested-rights*. Texas Third
   Court ofAppeal affirmed plaintiffs claims. The Texas Tort Claims Act grants no immunity,
   under Tex. CRPC §101.106(a) and (e). Meadows v. ErmeL 483. F.3d (Fifth Cir.2007). Id
   at 424.



                           SUMMARY JUDGEMENT EVIDENCE

   To support the facts in this motion, plaintiff offers the following summary judgment
evidence attached to this motion incorporates the evidence into this motion by reference.

      Exhibit 1:      7>m7.v ( oitntv Flood Hazard Permit #85-2558: issued August 9th. 1985.
                     prior to city annexation.

      Exhibit 2:     Patton Lane- Architectural Bldi>. plans filed with Travis Countv. August
                     5th. 1984

      F.xhibit 3:    Email correspondence between Atty. Robert Kleeman and City of Austin
                      Watershed Protection and Development Review Dept.: Pat Murphv and
                     Matt Hollon. January 18th. 2008

      Exhibit 4:     Letter of correspondence between Atty. Robert Kleeman and City of
                     Austin's Director of Watershed Protection and Development Review
                     Department. Victoria Li. July 22. 2008

      Exhibit 5:     Jones &Carter. Jim Schissler's letter in support ofPatton Lane Project
                     Application 11. B. I~()4 Chapter 245 Determination. February 15th 2011

      Exhibit 6:     Patton Lane Project Application H.B. I"04 Chapter 245 Determination.
                     February 15Ih 2011

      Exhibit 7:     First letter ofdenial: City ofAustin's Greg Guernsey. Director Planning
                     &Development Review Department. Mas 13th. 2011

      Exhibit 8:     Second letter of denial: City of Austin's Greg Guernsey. Director
                     Planning cv Development Review Department. September 23rd. 2011
 Exhibit 9:     Letter ofclarification: Charles Draper. Tejasland &Commerce to City of
                Austin's Greg Guernsey. Director Planning &Development Review
                Department. September 29h. 2011

 Exhibit 10:    McClendon &Associates Resubmission, letter ofcorrespondence Carl
                McClendon to City of Austin's Greg Guernsey. Director Planning &
                Development Review Department. July 16th. 2012

 Exhibit 11:    Third letter of denial: City of Austin's Greg Guernsey. Director
                Planning &Development Review Department. September 21st. 2012

Exhibit 12:     Texas Third Court of Appeals. Austin Division reversal of District Court
                Order. ('ause Xo. 03-14- 00265-CV. February 25. 2015

Exhibit 13:    Cushman Wakefield Oxford Austin commercial office report Q4/2013
                       PLAINTIFF'S CAUSES OF ACTION

Texas CRPC Rule §101.0215 (29), Municipal Liability. Planning and Zoning, and
Texas Constitution, Article 1, §17 (a), (160), (161) Physical Taking. Intent. Inverse
                        C'ondemnation. Restriction ofland use

  To succeed on a traditional motion for summary judgment on its cause of action, the
plaintiff must show that there is no genuine issue of material fact and that it is entitled
to summary judgment as a matter of law. Tex. R. Civ. P. 166a(c): Mann. Frankfort,
Stein &Lipp Advisors. Inc v. Fielding. 289 S.W. 3d 844. 848 (Tex. 2009).: Sixon v. Mr.
Prop. Management Co.. 690 S.W. 2d 546. 548 (Tex. 1985). To meet this burden, the
plaintiff must conclusively prove all the elements of its claim. .MMP, Ltd. V. Jones. 170
S.W. 2d 59. 60 (Tex. 1986). A matter is conclusively established if reasonable people
could not differ on the conclusion to be drawn from the evidence. City of Keller v.
Wilson. 168 S.W. 3d 802. 816 (Tex. 2005). If the plaintiff establishes its right to
summary judgment as a matter of law. the burden shifts to the defendant to present
evidence that raises a genuine issue of material fact. Bourdreau v. Fed. Trust Bank. 115
S.W. 3d 740. 743 (Tex. App. - Dallas 2003. pet. denied)

    Plaintiff is entitled to summary judgment on his causes of action for Texas CRPC
Rule §101.0215 (29), Municipal Liability. Planning and Zoning, and Texas
Constitution, Article 1, §17 (a), (160), (161) Physical Taking. Intent. Inverse
Condemnation. Restriction ofland use. because the undisputed facts in this case and
plaintiffs summary judgment evidence conclusively establish each essential element.
The essential elements of the plaintiffs cause ofaction for Texas CRPC Rule
§101.0215 (29), Municipal Liability. Planning and Zoning are the following:

    Under Texas CRPC Rule §101.0215 (29), employees ofmunicipalities are libel for
•intentional torts'. Plaintiffs Exhibits ". ,V. 9. &//. evidence Greg Guernsey failure to
exercise "objective legal reasonableness" by imposing "occupational discretion", while
operating in his proprietary capacity, denied plaintiffs valid Travis County Flood
hazard Permit -(S5-255X.


           Case law- "Determining amunicipality's immunity from suit is atwo-step
           inquiry. First we determine whether the function is governmental or
           proprietary." Texas Bay Cherry Hill. LP. ('ity of Fort Worth 257 S.W.3d
           379. 389 (Tex.App- Forth Worth 2008. no pet.)

                   i. Greg Guernsey at his 'occupational discretion' preformed a
                      •proprietary" function and denied plaintiffs vested-rights,
                      without just-cause,
                  ii. To prove immunity the defendants must establish, defendants
                      acted in 'good faith'. The element ofgood faith is generally
                      pivotal issue in official immunity.

          Case law-"The courts measure 'good faith" in official-immunity cases by
          the standard of••objective legal reasonableness". Wadewitz v Montgomery
          951 S.W.2d 464. 466.


              'Under the standard, adefendant acts in 'good faith", ifa reasonably
          prudent official under the same circumstances could have believed that'the
          official action was justified based on the information possessed when the
          conduct occurred." Joe v. Two Thirty Xine Jt. I' 145S.W.3d 150. 164

          Case law- "[l]f the duty is imposed by law. then the performance of the duty
          is a ministerial act. and there is no immunity for failure perform it." City of
          Houston v. Jenkins. 363 S.W.3d 808. 814 (tex.App-Houston [14th dist."]
          2012 pet.

               iii. Greg Guernsey in his official capacity as Director Planning &
                    Development Review Department has a ministerial duty to uphold
                    constitutional provisions designated by the legislature.

         Case law-"A constitutional provision is self-enacting when it supplies rules
         sufficient to protect the rights given or to permit enforcement ofaduty
               imposed. Steele v. City ofHouston. 603 S.W.3d 795. 803 (Tex.App-Amarillo
               2002. pet. denied)

                              CONSTITUTIONAL PROVISIONS

          Greg Guernsey failed to perform his ministerial duty, upholding legislative intent,
 a self-enacted constitutional provision. Instead. Defendants charted a maligned course,
 failed to exercise "objective legal reasonableness", failed to act in 'good faith*, and
pursued 'narrow' interpretation ofChapters §43.002, and §245.002.

Tex. LGC §43.002- Continuation of Land Use-(a) "A municipality mav not. after
annexing an area, prohibit a person from: (1) continuing to use the land in the area in
the manner that was being used on the date the annexation proceedings were instituted
if the land use was legal at that time".

Tex. LGC §245.002- Uniformity ofRequirements (a) Each regulator) agencv
shall consider the approval, disapproval, or conditional approval ofan application for a
permit solely on the basis ofany orders, regulations, ordinances, rules, expiration dates,
or other properly adopted requirements in effect at the time"


   On August 5 \ 1984. when Fspy. Huston. &Associates site plan permit was
submitted. Travis County had no expirations or limitation on development permits.
Greg Guernsey retro-actively at his occupational discretion, defied constitutional
provisions protecting vested-rights, and exercised proprietary prejudice, and denied
plaintiff valid development permit. Guernsey has produced no-evidence in support of
denial.


   a. Texas Constitution, Article 1, §17 (a), (160), (161) Physical Taking, Intent.
      Inverse Condemnation, Restriction ofland use- - No person's property shall be
      taken, damaged, or destroyed for or applied to public use without adequate
      compensation being made, unless the consent ofsuch person, and only ifthe
      taking, damage or destruction is for: (1) the ownership, use. and enjoyment of
      the property, notwithstanding an incidental use. by: (A) the State, a political
          subdivision of the State, or public at large.

   b. Article 1,17 (160)- To establish an inverse condemnation claim, a property
          owner must establish that (1) the State or other governmental entity intentionallv
          performed a certain act (2) that resulted in the taking, damaging or destruction of
          the owner's property (3) for public use. Buss v. City ofDallas.*'
        c. Article 1,17(161)- An inverse condemnation, for which a owner is entitled to
            compensation under the Texas Constitution, may occur when the government
            physically appropriated or invades the property or when unreasonably interferes
            with the landowner's right to use and enjoy the property, such as bv restricting
            access or denying a permit for development. Weingarten Realty Investors v.
            Albertson's



                    ADAQlATE TIME FOR DISCOVERY HAS PASSED
            Plaintiff is entitled to a no-evidence summary judgment on defendants* failure to
    produce evidence in support oftheir denial, because defendants have had adequate time
    to produce discovery. To determine whether adequate time for discover) has passed,
    courts consider the following nonexclusive factors: (1) the nature ofthe suit. (2) the
    evidence necessary to convert the motion. (3) the length of time the case has been on
    file. (4) the length oftime the motion has been on file. (5) the amount ofdiscovery
    already taken place. (6) whether the movant requested stricter deadlines ofdiscovery
    that has already taken place. (7) whether discovery deadlines in place were specific or
    vague. Cmty. Initiatives. Inc v. Chase Bank. 153. S.W.3d 270. 278 (Tex. App-El Paso
    2004. no pet.) Rest. Teams hit 7. v. MG Se. Corp.. 95 S.W.3d 336. 339 (Tex. App.
    Dallas. 2002. no pet.): Martinez v. City ofSan Antonio. 40 S.W.3d 587. 591 (Tex. App-
    San Antonio 2001. pet denied).


            Defendants have had adequate time to perfect discovery. Plaintiff responded to
    Defendants requests for Admission. Documents Production, andDisclosure: on June
    15 \ 2013. almost two and a half years ago.


                                           DAMAGES


   The damages for plaintiffs cause of action are liquidated. Based on the facts stated in
this motion and supported by summary judgment evidence, plaintiff is entitled to damages
in the mount of SI 0.610.000.00 (Ten million, six hundred ten thousand).

   CPRC § 101.0215- Liability of a Municipality- "a municipality is liable under this chapter
   for damages arising from it's governmental functions, which are those functions that are
   enjoined on the municipality and are given it by the States as part ofthe State sovereignty to be
   exercised by the municipality in interest ofthe general public, including but not limited to: (29)
   zoning, planning and plat approval."
 On June 15th. 2013. Draper filed. Plaintiff's Response to Defendant '.v Request for
 Disclosure.
      Record Excerpt:
       Citv of Austin; Pursuant to Rule 194.2(d), provide the amount and method of
       calculating all economic damages which you seek to recover in this cause.
        Draper's (2013) Response:
          Correspondence between Draper's attorney. Robert Kleeman. Matt Hollon. Victoria Li. and Pat
        Murphy, reflect Draper contentions, he sought claritv on Patton Lane J] 'valid pemiit in accordance
        with lW4Chp. 245 TX LGC (PL Exhibit E).
         ConsequentK. Draper has been denied over six years ofeconomic rent. Had Draper developed the
        bare minimum foot print issued bv the Trav is Countv permit, he could have constructed 43 509 sq
        ft. building (PI. Exhibit C*)
          Tlie 43,509 sq.footprint times, the Sout/mest Austin market office rate of$24.00p.s.f equals
        S4,524,936.00, lost economic rent through June 20. 2013.

 Exhibit 13. Cushman Wakefield/ Oxford Commercial Report for the Fourth Quarter
 of 2013. more correctly, reports: Office rents for Austin's Southwest market place are
 S31.81 psf: not S24.00 psf.
                                   COMPENSATORY DAMAGES

         Southwest market rent at S31.81 p.s.f (times). Patton Lane JV building foot print
of43,509 sfi; equals Sl,384,021.29 in economic losses per year (or. SI 15,335.108 per
month). Given plaintiffs emails have sought clarification from Directors ofAustin's
Watershed Protection, and Development Review Department for the Citv ofAustin,
since January 18th. 2008: plaintiff is entitled to seven years and eight months. (92
months of economic loss). Ninetv-two month (times) the Austin Southwest monthly
market rate ($2.65 x43.509 =$115.335.108). ($115.335.108 monthly rate x92 months)
= S10,610,830.00.


                                        DECLARATORY RELIEF

        In addition to damages on economic loss, plaintiff requests a Court Order for
declarator} relief, an order to compel defendant's compliance, acknowledging
plaintiffs Project Application IIB 1~()4 Clip. 245 Determination claims of vested-rights
are valid.
                                        ALTERNATIVE RELIEF

                 In the alternative, if the court denies any part of plaintiff s motion for summarv
         judgment, plaintiff asks the Court to sign an order specifying the facts that are
         established as a matter of law and directing any further proceedings as are just. Tex. R.
         Civ. P. 166a(e).


                                          CONCILSION


         Plaintiff is entitled to summary judgment on his causes of action for Texas CRPC Rule
§101.0215 (29), Municipal Liability. Planning and Zoning, and Texas Constitution, Article 1,
§17 (a), (160), (161) Physical Taking. Intent. Inverse Condemnation. Restriction ofland use.
because the undisputed facts in this case and plaintiffs summarv judgment evidence
conclusively establish each essential element. The Citv of Austin's Watershed Protection c£
Development Review Department, and Greg Guernsey, it's executive director, has habitually,
failed to operate in 'good-faith". Austin's Watershed Protection &Development Review
Department, and Greg Guernsey as evidenced, intentionally used proprietary discretion, acted
with malice, failed to perform their ministerial duty: to exercise 'objective legal
reasonableness" in their interpretation of Tex. LGC §43, §245. Defendants' actions resulted in
physical taking of plaintiffs vested-rights under Texas Constitution, Article 1, §17 (a), (160),
(161).


                                             PRAYER


         Therefore, plaintiff. Draper requests relief from the Court, an Order signed for final Xo-
Evidence Summary Judgment. Compensatory Damages, and Declaratory Relief on Draper's
/~04 Chapter 245 Application, acknowledge. Draper's permit is valid, and current: entitling
Draper to proceed towards 'project completion'
         As provided under LGC §43, §245 of the Tex. Local Gov't Code, grant Draper's...
"vested-rights protections, was entitled to develop      office, or any other commercial use
consistent with rules, regulations, and ordinances in effect at time of initial permit
application...."project" was "commercial" development, as defined under then-applicable
ordinances, and was not limited to office building or otherspecific type of "commercial"
development....".. Harper Park II v. Greg Guernsey, in his capacity Director ofPlanning and
Development Watershed Protection Review Department. S.W.3d (App. 3 Dist. 2011). 359. S.W
3d 247.




                                                    Respectfully submitted.



                                                    Charles N. Draper
                                                    160 Maeves Way
                                                    Austin. Texas 78737
                                                    Phone: 512.699.2199
                                                    Email: cd ateiasland.com



CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on October 10. 2015. a true and correct copy of the foregoing
Appellant's Brief was sent by certified mail, return receipt request to Sandra Kim. Austin Law
Department. City Hall. 301 West 2nJ Street. P.O. Hox 1546. Austin. Texas 7X767-1546

Sandra Kim. Assistant Citv AUornev
Law Department. City of Austin
Citv Hall. 301 West T' Street
P.O. Box 1546
Austin. Texas 78767-15-16
(512)974-2925
                                         CAUSE NO. D-l-GN-13-000778

  CHARLES N. DRAPER,                                         §                  in THE DISTRICT COURT
      Plaintiff Pro Se,                                      §
                                                             §

                                                             §
  GREG GUERNSEY,                                             §                  TRAVIS COUNTY, TEXAS
  IN HIS CAPACITY AS DIRECTOR OF                             §
  PLANNING AND DEVELOPMENT                                   §
  WATERSHED PROTECTION                                       §
  REVIEW DEPARTMENT,                                         §
  AND CITY OFAUSTIN,                                         §
        Defendants.                                          §                  419th JUDICIAL DISTRICT

           DEFENDANTS' RESPONSE TO PLAINTIFF'S NO-EVIDENCE MOTION
              FOR SUMMARY JUDGMENT AND DEFENDANTS' MOTION
             TO STRIKE PLAINTIFF'S SUMMARY JUDGMENT EVIDENCE

           COMES NOW, City ofAustin and Greg Guernsey ("Defendants") file its Response to
 Plaintiffs No-Evidence Motion for Summary Judgment ("Motion" or "MSJ") and Defendants'
 Motion to Strike Plaintiffs Summary Judgment Evidence ("Motion to Strike"). The City asks the
 Court to deny Plaintiffs Motion and strike Plaintiffs evidence in support of such Motion. It
 support thereof, the City shows the following:

                                                            I.
                                                     Introduction

          1.       On August 29, 2013, Plaintiff filed Plaintiffs Final Amended Petition
("Petition"). Plaintiffs legal theories and factual allegations are difficult to follow. What is clear,
however, is that the City denied Plaintiffs application for vested rights, codified at Chapter 245
of the Local Government Code ("Chapter 245"), to develop property at 6300-02 Highway 290
under regulations in effect on the date of an expired permit issued by Travis County on August 9.
1985, and/or aplat recorded in 1872.1 Chapter 245 provides that all permits required to complete

 The City's application form for asserting vested rights is titled Project Application H.B. 1704/Chapter 245
Determination, but for ease ofreference is referred to herein as "vested rights application."
    •:J*-n t-~ t)Ccv\"5^
r



        a development project are "locked-in" to the regulations in effect on the date that the first permit
        application for the project was submitted. Plaintiff challenges the City's denial of his vested
        rights application and asserts that various City employees committed fraudulent
        misrepresentation, perjury, breach of contract, preventing the execution of civil process, and
        administrative failure to comply with Chapters 43.002, 245, and 312.005 of the Texas Local             '

        Government Code in connection with the denial ofPlaintiffs vested rights application and the
        handling of the current lawsuit.

                 2.        Plaintiffs MSJ must be denied as a matter of law. His claims lack evidentiary
        basis and are contrary to well established law. Contrary to Plaintiffs allegations, the rights
        conferred by Chapter 245 are not so broad that any permit application filed for development of a
       property is sufficient to exempt it from current regulations in perpetuity. The evidence presented
       in this case—a plat from over 125 years ago and a lapsed Travis County permit from 28 years
       ago—is legally insufficient to establish vested rights from current City regulations. Moreover.
       Plaintiffs allegations offraudulent misrepresentation, perjury, breach ofcontract, and preventing
       the execution ofthe civil process are confusing, unsubstantiated and conclusory.
                3.         Finally, this matter has already been decided by this Court. On October 9. 2013.
       Plaintiff filed a Motion for No Evidence Summary Judgment, making the same legal arguments
       and attaching the same inadmissible hearsay evidence. Ex. 1. On November 13, 2013, this Court
       struck Plaintiffs evidence and denied Plaintiffs motion for summary judgment. Ex. 2. Since this
       Court's ruling, Plaintiff has not amended his pleadings, presented any new authenticated
      evidence or cited new legal authority to support this Motion. Accordingly, this Court should
      deny Plaintiffs MSJ as Plaintiff has not presented sufficient evidence to show that there are no



      Defendants' Response in Opposition to Plaintiff's No-Evidence
      Motion for Summary Judgment and Defendants' Motion
      to Strike Plaintiff's Summary Judgment Evidence                                         PAGE 2of 13
  issues of material fact or that he is entitled to summary judgment as a matter of law. Tex. R. Civ.
 P. 166a(c).

                                               II.
                                   Summarv Judgment Evidence

         4.      To support the facts in this response, Defendants offer the following summary-
 judgment evidence attached to this response and incorporate the evidence into this response by
 reference.


         Exhibit 1:     Plaintiffs first No-Evidence Motion for Summary Judgment filed on
                        October 9. 2013.


         Exhibit 2:     November 13. 2013 order denying Plaintiffs first No-Evidence Motion
                        for Summary Judgment and striking Plaintiffs exhibits.

         Exhibit 3:     Affidavit of Susan Scallon with attachments.

        Exhibit 4:      May 3. 2013 Rule 11 Agreement regarding rescheduling a hearing.
        Exhibit 5:      May 17. 2013, affidavit signed by Assistant City Attorney Sandra Kim in
                        support of Defendants' Motion for Continuance.

        Exhibit 6:      May 30. 2013 order granting Defendants' Motion for Continuance.

                                                 III.
                                     Authority and Argument

A.      Plaintiffs no-evidence motion is conclusory.

        5.      Ano-evidence motion for summary judgment must be specific in challenging the
evidentiary support for an element ofa claim or defense. Tex. R. Civ. P. 166a(i). The rule does
not authorize conclusory motions or general no-evidence challenges to an opponent's case.
Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009); see Tex. R. Civ. P. 166a(i). When
a no-evidence motion for summary judgment does not challenge specific elements, it should be
treated as a traditional motion for summary judgment under Texas Rule of Civil Procedure
166a(c). See Michael v. Dyke, 41 S.W.3d 746, 751-52 (Tex. App.—Corpus Christi 2001, no
Defendants' Response in Opposition to Plaintiff's No-Evidence
Motion for Summary Judgment and Defendants' Motion
to Strike Plalntiff's Summary Judgment Evidence                                        PAGE 3 OF J3
      pet.); Amouri v. Sw. Toyota Inc.. 20 S.W.3d 165, 168 (Tex. App.—Texarkana 2000, pet. denied):
      Weaver v. Highlands Ins. Co., 4 S.W.3d 826, 829 n. 2 (Tex. App.-Houston [1st Dist.] 1999, no
      pet.). This switches the burden of prooffrom the nonmovant to the movant. See Tex. R. Civ. P.
      166a(c),(i).

             Plaintiffs Motion for No-Evidence Summary Judgment is conclusory as it simply states
      that the City had no basis for denying his application for vested rights. Plaintiff appears to
      presume that simply citing a plat recorded in 1872 and/or an expired development permit from
      1985 that was issued by Travis County, and not by the City, is sufficient to exempt new
      construction from current City regulations. Plaintiff globally argues various City employees
   fraudulently denied his application.

             Plaintiffs arguments regarding both vested rights and fraud are conclusory and fail to
   establish that the City erred in denying his application. The burden shifts to Plaintiff to prove that
  his application for vested rights should be granted and he has failed to establish Defendants

  improperly denied Plaintiffs vested rights application as a matter of law.

  B.        City's Response to Chapter 245 Arguments

            Under Plaintiffs interpretation ofChapter 245, a property would remain forever exempt
  from current City development regulations based on nothing more than an expired permit issued
  by another regulatory agency in 1985 and'or a plat recorded for the property in the year of 1872.
  Plaintiffs arguments are inconsistent with controlling precedent and fail, as a matter of law, to
  establish vested rights under Chapter 245.
                                                                                        ~~           Vi;
L?)         *•       A permit application submitted to one regulatory agency does not establish
                     vested rights for purposes of another agency's regulations.

       g) Vested rights attach to a project once an application for the first permit required in
  completing the project is filed with the municipality or other agency responsible for regulating
  Defendants' Response in Opposition to Plaintiff's No-Evidence
  Motion for Summary Judgment and Defendants' Motion
 to Strike Plaintiff's SummaryJudgment Evidence                                              Page 4 of 13
  the subject property. Shumaker Enterprises, Inc. v. City ofAustin, 325 S.W.3d 812. 815 (Tex.
  App.—Austin 2010. no pet.): Harper Park Two, L.P. v. City ofAustin, 359 S.W.3d 247. 248-49
  (Tex. App.—Austin 2011. pet denied): Tex. Local Govt Code § 245.002(a)(1). Once vested
  rights are established, all subsequent permits required to complete the project are subject to the
 regulations in effect on the date ofthe first permit application and, with limited exceptions, are
 exempt from subsequently adopted regulations. Shumaker Enterprises, Inc., 325 S.W.3d at 814:
 Harper Park Two, 359 S.W.3d at 250; see also Tex. Local Gov't Code §245.004.
         In order for an application to establish vested rights from current regulations, however,
 the application must have been sufficient to "giv[e] the regulatory agency fair notice of the
 project and the nature of the permit sought." Tex. Local Govt Code § 245.002(a)(1)
 (emphasis added). An application filed with one agency does not provide "fair notice" to another
 agency and is thus not sufficient to establish vested rights from that agency's regulations.
 Shumaker. 325 S.W.3d at 815.

        In Shumaker Enterprises, Inc. v. City ofAustin, a landowner was required to obtain a city
 permit after the city's extraterritorial jurisdiction (ETJ) expanded to include the landowner's
property. Id. The landowner argued that it was not required to obtain a city permit for its
intended sand-and-gravel mining operations because it had already applied for an application
with the county before the expansion of the city's ETJ. Id. at 812-13. The Shumaker court
rejected that argument and held that because Section 245.002(a)(1) refers to "permits" as
opposed to a "project" or "property," a landowner can only establish vested rights from an
agency regulations ifhe or she filed apermit application with that same agency. Id. at 814-15. In
other words, the landowner in Shumaker failed to establish vested rights from city regulations by



Defendants' Response in Opposition to Plaintiff's No-Evidence
Motion for Summary Judgment and Defendants' Motion
to Strike Plalntiff's Summary Judgment Evidence                                       Page5OF13
 filing an application with the county before the city's ETJ expanded to include the property. Id.
 at 814-15.


         Plaintiffs request that this Court recognize vested rights from City- regulations based on
 either the 1985 Travis County development permit orthe 1872 plat is inconsistent with the Court
 of Appeals' holding in Shumaker because neither application was submitted to the City. Ex. 3.
 Indeed, to the extent he relies primarily on the 1985 Travis County development permit.
 Plaintiffs claims in this case are even weaker than those rejected by the Court in Shumaker
 because, unlike the property at issue in that case. Plaintiffs property came within the City's ETJ
 on July 19, 1951, and would therefore have required a city permit in 1985. Ex. 3.

        Since no application giving the City "fair notice" ofa development project was ever filed
 with the City, Plaintiffs argument that development of the subject property is vested to the
 regulations in effect on August 9, 1985. or in the year 1872, directly contradicts Shumaker and
 fails as a matter of law. Ex. 2. Only a permit application submitted to the City in 1985 could
possibly afford Plaintiff vested rights to City regulations in effect in 1985.

        ii.    A permit is not entitled to vested rights if the original project has changed or
               been completed.

        Even if the expired 1985 Travis County development permit or the 1872 plat may at one
time have constituted a "project" for purposes of vested rights under Chapter 245, based on the
facts ofthis case, the City correctly determined that any such project had long been completed
and that further development on the property would constitute a new project subject to current
regulations.

               1.      The scope of a "project" under Chapter 245 is defined by the original
                       permit.




Defendants' Response in Opposition to Plaintiff's No-Ev idence
Motion for Summary Judgment and Defendants' Motion
to Strike Plaintiff's Summary Judgment Evidence                                       Page 6 of 13
    ^y A development is no longer entitled to vested rights if it constitutes a new or different

 "project" from the one sought in the initial permit application. Harper Park Two, L.P.. 359
 S.W.3d at 249. 250: Seguido. 227 S.W.3d at 242-43 (holding that property owner could not
 develop property more than thirty years after a previous owner filed a subdivision plat because a
 permit is for a specific project, rights vest in a particular project, and rights are no longer vested
 when aproject changes); Op. Tex. Att'y Gen. No. JC-0425. 1(opining "property remains subject
 to the development regulations in effect at the time the original application for the first permit
 was filed, but only if the project remains the same").

        For purposes ofChapter 245. a "project" is "an endeavor over which a regulatory agency
 exerts its jurisdiction and for which one or more permits are required to initiate, continue, or
 complete the endeavor." Tex. LocalGov't Code §245.001(3). Aproject is the single endeavor
 reflected in the original application for the first permit in the series of permits connected to a
 project. Harper Park Two, L.P., 359 S.w.3d at 256. The term "endeavor" is not defined in the

 statute, but the common definition is "the action of endeavoring; effort, or pains, directed to
attain an object." Seguido. 227 S.W.3d at 243 (citing Op. Tex. Atfy Gen. No. JC-0425, 3).
               2.      Plaintiffs project was completed or changed subsequent to the 1985
                       Travis County development permit and is therefore subject to current
                       regulations.

        Based on the evidence provided to the City in connection with Plaintiffs vested rights
application dated February 14, 2011, together with additional research conducted by City staff, it
appears that significant development has occurred on the property and that any "project"
contemplated by either the 1985 Travis County development permit or the 1872 plat was
completed long ago. Ex. 3.




Defendants' Response in Opposition to Plaintiff's No-Evidence
Motion for Summary Judgment and Defendants' Motion-
to Strike Plaintiff's Summary Judgment Evidence                                          PAGE 7 OF13
                 If the 1872 plat is regarded as the first permit application for the "project," it appears
        from GIS maps that land included in the plat was developed with at least nine structures
        constructed over a period ofnineteen years, beginning in 1987 and continuing until 2006. Ex. 3.
       While no construction was ever completed on the subject property or lot in question, the 1872
       plat does not evidence aspecific "endeavor" or plan for development of his property or. for that
       matter, any other lot included in the plat. Ex. 3. Thus, even ifthe plat had been provided to the
       City in 1872, it would have provided "fair notice" ofnothing other than the original landowner's
       intention to divide a larger tract into discrete parcels.2

._£             Ifthe 1985 Travis County development permit is regarded as the first permit application
       for the project, it appears that aprior owner may have constructed 50 piers on the lot in question
       in accordance with that permit before construction was halted for financial reasons and the
                         3^
       permit expired. Even if the 1985 application had been submitted to the City, which it was not,
       Plaintiff has failed to cite any legal authority that allows a landowner to establish vested rights
      based solely on an expired permit for asubsequently abandoned construction project.
               Using either the 1985 Travis County development permit application or the 1872 plat as a
      starting point, it would appear that the overall project was complete or abandoned well before
      Plaintiff submitted his request for vested rights to the City of Austin on February 16, 2011.
      More importantly, the 1985 Travis County permit and the 1872 plat were not filed with the City
      and no rights were vested on either date. Therefore, Plaintiff must submit a new vested rights
      application with the City before he can begin a new project.

      - Perhaps for this reason, there is noevidence that any of the developers who constructed the nine existine structures
      between 1987-2006 asserted claims of vested rights to the 1872 plat.
§? 3According to Travis County Development Services and Section 105.5 ofthe International Building Code, apermit
      becomes invalid and expires if no work commences after 180 days from the date of issuance, or if work authorized
      underthepermit is suspended or abandoned for 180 days afterwork is commenced,
      hrtp:- 'publicecodes.cyberregs.comicodibc/2000 icod_ibc_2000_1_par046.htm

      Defendants' Response in Opposition to Plaintiff's No-Evidence
      Motion for Summary Judgment and Defendants' Motion
      to Strike Plaintiff's Summary Judgment Evidence                                                        Page 8 of 13
  C.     Fraudulent Misrepresentation

         The elements of fraud are (1) a material representation was made; (2) the representation
  was false: (3) when the representation was made, the speaker knew it was false or made it

  recklessly without any knowledge ofthe truth and as a positive assertion: (4) the speaker made
 the representation with the intent that the other party should act upon it: (5) the party acted in
 reliance on the representation: and (6) the party thereby suffered injury. Aquaplex, Inc. v. Rancho
 La Valencia, Inc., 297 S.W.3d 768. 774 (Tex. 2009).

         Although Plaintiffs allegations of fraudulent misrepresentation are hazy at best, it
 appears based on the pleadings filed in this case that Plaintiff is alleging that Greg Guernsey.
 Susan Scallon, and the Chapter 245 completeness check team, all City employees, made false
 misrepresentations in denying Plaintiffs vested rights application. Every City employee
 involved in determining the denial of Plaintiffs application merely carried out his or her job
 duties in good faith by making a Chapter 245 Determination as requested by Plaintiff. Plaintiffs
 dissatisfaction with the denial ofhis request does not falsify the premise for such denial.
        Further, there is no evidence of intent to induce Plaintiffs reliance based on this denial.

Any action by Plaintiff as a result of this determination was outside the control of Defendants.

The denial ofPlaintiffs vested rights application simply meant that Plaintiffs rights were not
vested upon the filing ofdocuments with a regulatory agency other than the City, including the
1985 Travis County development permit and the 1872 plat. Plaintiff was free to develop his
property and pursue a project under the current land development rules and regulations at any
time after receiving the denial ofhis vested rights application.
D.      Perjury and Breach of Contract




Defendants' Response in Opposition to Plaintiff's No-Evidence
Motion for Summary Judgment and Defendants' Motion
to Strike Plaintiff's Summary Judgment Evidence                                         PAGE 9OFI3
        Plaintiffs allegations of perjury relate to criminal matters, the venue for which would

 take place in the criminal courts. Texas Penal Code §§37.02. 38.16(a). Such allegations are not
 properly before this civil proceeding and must be dismissed. Tex. Educ. Agency v. Leeper. 893
 S.W.2d 432, 441 (Tex. 1994) ("a party cannot seek to construe or enjoin enforcement of a
 criminal statute in a civil proceeding unless it challenges the constitutionality ofthe provision
and proves an irreparable injury to its vested property rights...."); State v. Morales, 869 S.W.2d
941, 944 (Tex. 1994).

        Plaintiff alleges that prior defense counsel Assistant City Attorney Sandra Kim's affidavit
in support of Defendants' Motion for Continuance filed May 17, 2013 constitutes an affidavit
made in bad faith pursuant to Texas Rules of Civil Procedure 166a(h), which pertains to
affidavits in support of summary judgment. Ex. 5. The affidavit in question supported a motion
for continuance, not a motion for summary judgment, so this argument is irrelevant, baseless,
and fails as a matter of law. Ex. 5.


        Plaintiff alleges this same affidavit constitutes a sham affidavit. Sham affidavits

contradict an affiant's prior deposition testimony with no explanation for the change in

testimony, offered for the sole purpose of creating a fact issue to avoid summary judgment.

Farroux v. Denny's Rests., Inc., 962 S.W.2d 108, 111 (Tex. App.—Houston [1st Dist.] 1997, no

pet.); Pando v. Southwest Convenience Stores. 242 S.W.3d 76. 79 (Tex. App.—Eastland 2007.

no pet.). Such a sham affidavit should be disregarded and cannot raise a fact issue for purposes

of summary judgment. Pando, 242 S.W.3d at 79. Again, the affidavit in question was filed in

support of a motion for continuance, not a motion for summary judgment, so this argument is

misplaced. Ex. 5. Defense counsel, Assistant City Attorney Sandra Kim, did not contradict prior




Defendants' Response in Opposition to Plaintiff's No-Evidence
Motion for Summary Judgment and Defendants' Motion
to Strike Plaintiff's Summary Judgment Evidence                                      Page 10 of 13
  testimony but merely explained the basis for a motion for continuance of a hearing on the merits

  of Plaintiff s claims. Ex. 5.


  E.       Breach of Contract and Preventing the Execution of Civil Process

           The Rule 11 Agreement in this case pertained to a rescheduling of a hearing set by

 Plaintiff based on a scheduling conflict that arose because of the Plaintiffs failure to confer with

 Defense counsel regarding the original hearing date.4 Ex. 4. The new date stated in the Rule 11
 Agreement was not feasible in light of the fact that Plaintiff requested a trial on the merits

 without providing the requisite 45-day notice, and requested injunctive relief tantamount to an

 adjudication of the merits of the underlying case. Ex.'s 4-5. No case or rule addresses whether a

 Rule 11 Agreement regarding a rescheduling ofa hearing constitutes a contract. Any allegation
 of a breach of contract in connection with the Rule 11 Agreement is therefore misplaced and
 irrelevant.


          Furthermore, the underlying issue of the rescheduling of the hearing was addressed in an

 Order granting Defendants* Motion for Continuance byJudge Wisser on May 30. 2013. Ex. 6. A

 court may grant a motion for continuance if the motion is supported by an affidavit and states

 sufficient cause. Tex. R. Civ. P. 247. 251. &252. Acourt is within its sound discretion to grant a
motion for continuance and will not be disturbed unless the record reveals a clear abuse of

discretion. Villegas v. Carter. 711 S.W.2d 624, 626 (Tex. 1986). Therefore, the Court has

already addressed the issue regarding the Rule 11 Agreement and made a ruling confirming its
validity. Ex. 6.

          Lastly, the Rule 11 Agreement or the affidavit in support of Defendants' Motion for
Continuance did not prevent the execution ofcivil process, as the Rule 11 merely reset the date


** It should be noted that Plaintiff again failed to confer with defense counsel for this MSJ hearing setting.
Defendants' Response in Opposition to Plaintiff's No-Evidence
Motion for Summary Judgment and Defendants' Motion
to Strike Plaintiff's Summary Judgment Evidence                                                           Page 11 of 13
 for a hearing, which was later continued by court order on May 30. 2013. as discussed above.
 Ex.'s 3-5. .Any alleged prevention from process can be remedied by a setting of a new hearing
 regarding the matter.

                                             IV.
                         Defendants' Motion to Strike Plaintiffs Evidence

        Plaintiff failed to authenticate Exhibits 1through 13 and Defendants object on the basis
 of hearsay under Texas Rules of Evidence 801 and 802. These documents are not authenticated.
 but offered to prove the truth of the matter asserted, constituting inadmissible hearsay.
 Defendants request the Court strike such documents from the record and disregard them in
 considering Plaintiffs Motion for No-Evidence Summary Judgment.

                                               V.
                                           Conclusion


        For the reasons cited above, Defendants request this Court deny Plaintiffs No-Evidence
Motion for Summary Judgment and strike Plaintiffs No-Evidence Summary Judgment evidence.
                                           Respectfully submitted.

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

                                           /s/ Andralee Cain Llovd
                                           ANDRALEE CAIN LLOYD
                                           State Bar No. 24071577
                                           Andralee.Lloyd@austintexas.gov
                                           City of Austin - Law Department
                                           P.O.Box 1088
                                           Austin, Texas 78767-1088
                                          Telephone: (512)974-2918
                                          Facsimile: (512)974-1311

                                          ATTORNEYS FOR DEFENDANTS




Defendants' Response ln Opposition to Plaintiff's No-Evidence
Motion for Summary Judgment and Defendants' Motion
to Strike Plaintiff's Summary Judgment Evidence                                   Page 12 of 13
                                 CERTIFICATE OF SERVICE

         This is to certify that on this day. Tuesday. November 3. 2015. I have served a copy of
 Defendants' Response to Plaintiff's Xo-Evidence Motion for Summaiy Judgment and
 Defendants' Motion to Strike Plaintiff's Summaiy Judgment Evidence on Charles Draper, pro se
 plaintiff, in compliance with the Texas Rules of Civil Procedure.

 VIA CMRRR m 91 7199 9991 7035 9003 9596^
 & U.S. Mail to:


 Charles N. Draper
 160 Maeves Way
 Austin. TX 78737


 PROSE PLAINTIFF


                                         s/ Andralee Cain Llovd
                                        Andralee Cain Lloyd
                                        Assistant City Attorney




Defendants' Response in Opposition to Plaintiff's No-Evidence
Motion for Summary Judgment and Defendants' Motion
to Strike Plaintiff's Summary Judgment Evidence                                  Page 13 of 13
•-"•>




        ORDERS




    }




:%

          37
                                      DC             BK15317 PG1280
                                                                                 Filed in The District Court
                                                                                  of Travis County, Texas
                                                                                       NOV 12 2015 *d
                                 CAUSE NO. D-l-GN-13-000778
                                                                                Velva L. Price, District
CHARLES N. DRAPER,                                                IN THE DISTRICT COURT
    Plaintiff Pro Se.


               v.



GREG GUERNSEY,                                                    TRAVIS COUNTY, TEXAS
IN HIS CAPACITY AS DIRECTOR OF
PLANNING AND DEVELOPMENT
WATERSHED PROTECTION
REVIEW DEPARTMENT,
AND CITY OF AUSTIN,
        Defendants.                                               419th JUDICIAL DISTRICT


            ORDER DENYING PLAINTIFFS NO-EVIDENCE MOTION FOR
  SUMMARY JUDGMENT AND GRANTING DEFENDANTS* MOTION TO STRIKE
                     PLAINTIFF'S SUMMARY JUDGMENT EVIDENCE


TO THE HONORABLE JUDGE OF THE DISTRICT COURT:

        On November 10. 2015. came to be heard Plaintiffs No-Evidence Motion for Summary

Judgment. Defendants" Response and Defendants' Motion to Strike Plaintiffs Summarv

Judgment Evidence. The Court, after reviewing the pleadings and hearing the argument of

counsel makes the following rulings:

  n     \X IS ORDERED. ADJUDGED                     DECREED that Defendants' Motion to Strike
c4-        \
Plaintiffs SjjHfmarv Judgment Evide)<£e on the basis of imWrru^sible hearsay is GRANTED

                    libits 1-13 are'stricken and disregarded as stirnrnfcry judgment evidence.

        IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Plaintiffs No-

Evidence Motion for Summarv Judgment (construed by the Court as Plaintiffs Traditional

Motion for Summary Judgment) is DENIED.

        SIGNED this / Q— day of November. 2015.

                                                                                E
                                                               Honorable Judge Presiding




   ••••mum11
      004306017                                                                                            t&
    EXHIBITS




1




       34
 McClendon & Associates
 Development Consulting, LLC


 July 16.2012



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

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

Dear Mr. Guernsey:

 i hank 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 1
subject property in an effort to clarify and augment the facts of the application previously




The land was legally subdivided as Lots 10 and 11. Block 1. Town of Oak 1[ill, 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 lloodplain permit does not expire. The Travis County Engineers
Office issued a letter in 1987. indicating that a lloodplain elevation certificate verifying the
McClendon & Associates Development Consuming, LI C                  Phone 512 363 •
4B0fi Canyonwood Dr.                                                Fax.  512 332
       X ~:~Zr                                                     e-r--,&!::   csrl::icc;e   n r cor.
 finished floor elevation of tlie 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 inspectorand an aerial photo in 1986. (attached).

 The site included previously existing residential and commercial development from the 1950:s
 and 197(Fs, 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 die
 property for full purpose on December 30. 1985, and zoned the property Single-FamiIy-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 Tssued acertificate ofnon
 compliance for existing commercial development, which is an exemption from compliance with
 the City's building permit process per LDC, Sec. 25-1-365.

 Continuing Progress

The Local Government Code Chapter 245.005(a) states for permits without an expiration date
and for which there is no continuing progress towards completion, 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 ofthis chapter (Sept. 1. 2005).
The landowner has continued progress toward permitting by filing and recording an amended
plat on October 10, 1991, which did not change or alter any ofthe previous restrictions or
provisions ofthe original subdivision. On October 17, 1991, the City rezoned the property to
Commercial Services-Conditional Overlay (CS-CO), (Case #: C14-91 -0027).

In 2008, the current owner filed for rezoning ofthe property to Commercial Services-Conditional
Overlay-Neighborhood Plan (CS-CO-NP), (Case # CI4-2008-0152), which amended the site
development restrictions and permitted uses on the property to be consistent with those of the
originally submitted permit.

Pleasej^ontact me ifthere are^uestions or further items for discussion.


Carl McClendon, AICP

cc: Charles Draper
McCendon & Associates Development Consulting LLC                  Phone- 512 333 3675
4808 Canyonwood Dr.                                               Fax    512 382 1017
Austin, Tx. 73735
                                                                  e-maii: carlmcclendon@austm.rr.com
                                       Development Summary
                                          Patton Lane Office Bldg


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

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

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

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

 12/30/1985         City of Austin annexes property, and approves zoning for Single-Family-2 (SF-2).
10/10/1991 City of Austin approves rezoning from SF-2 to CS-CO for Lots 10 and 11. Town
of Oak Mill (Case No. CI 4-91-0027).

10/17/1991   Amended plat recorded for Town of Oak Hill. Lots 10 and 11 to create Lots 10A
and 11 A, Town of Oak Hill, (Case #: C8-91-0039.0A).

1/15/2009           Based upon landowner's request for rezoning, the City of Austin revises the
zoning and conditional overlay for Lots 10Aand 11 A, Block 1, Town of Oak Hill Amended
Subdivision from CS-CO-NP to CS-CO-NP, (Case #: CI4-2008-0152). The conditional overlay
amendments revised the permitted uses and site restrictions on theproperty.

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




McClendon &Associates Development Consulting. LLC                     Phone- 512 353 5675
4608 Canyonwood Dr.                                                   Fax:   512 332 1017
Austin, Tx. /8/35                                                    e-mail: carlmcciendon@austinrr.ccm
                        •.•Illl^iW.j       IMULLIJIWIWP^HMW IIIJIUIlllllMim

                                                       TRAVIS COUNTy, TBCAS
                                                       V0L>^ PAGE v fi^




                                                                                                           •   %




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

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

                 Sat. -T-Ti: Or' TElAS y

                  COU2OT Cv T:,aVI3 J 230W jj, jSkh 3 j ^ ?5fcS?G?S ^            2> ^    _ G,ofiricfc Qf
   ^Gooa-
                 the County of Travis ana state of Te:<ae, fox and in consideration of one dollar
    ricfc
                 to me in hand paid the receipt of which it hereby acknowledge** have this day and
    To
                 by these presets, given, granted, bargai neo, sold, alienated and conr.y.-d unto
Trust    Deed
                 and delivered to James S, *a;.mond of said County and State, all of my right, title
Jbk.d.&aj-      interest and claim in and to the following described property, to-wit: Situate
        aond

                iyin^ and bfttop in Travis County, in the -tate of Texas and described by metes and
                bounds as follows: specially waiving all homes-ead, dowery, inten-.-t or other
                rirbte. secured under the Constitution and bn of Texas, and exempt from forced
                sale thereby 10 th. following described property, viz: Southeast o.uarter of Sloe-
                one Beared and eighty-one |l81) fronting one hundred and twenty-eight (12&) feet                      Ti

                                                                                                                   Trr.s
                on ban Jacinto Street; running one hundred and thirty-eight (138) feet on Willow
                                                                                                                   C.H.
                Street being lots numbers Pour (4) Five (5) and £iz (6) inBloc* one hundred and
                eighty-one (lbl) in the City of Austin. Together with all and singular the -right.
                asmbers, appurtenance a. hereditaments and .Improvements or fixtures to the sane
                belonging or in anywise incident or appertaining or belonging -hereto unto the eai d
                ?«•»« H. Hayaond. To hare and to bold the ease in fee simple. In true/for the
                following neea end purpoeee. That is to Bay 1 hate this day re*.i<*ed from IS. C.
                Bartnolemaw, the «um of Six hundred and eighty -doll-era in U. S. Curxenoy; and as
                evident of aaid debt and to Eeoure the payment of tte eame hove this day made,.
                executed ar.d deliverer to '£,                             iholomew the c.omis.orv noi               hereto attached
                                       fo.r
                tear I «          twer.t:
                                                                                       ioreiher with this Trust deed to sec?
                and comrei \m- faithful payment of the same                                       therefore,, if j    shall well and .;
                            puy off and              discharge said note at ?t.                        arr.eatle     1.0 it:' leeal te'noS
                -:.c ef:eet, then and in that event this conveyer.ce t o he null and void, cancelled
                                                               should Ifail to par: said oebt at its- maturity ( or                whan'
                 :.t.   •/ c(".    • her     jfter t-          C. Bartholomew or his- lernl re presentativee, then 1;
                             tut nor ire            and   smcower Jensei     F.u viao nd   . rn    se (or in c»?eof ht<? death or
                                  act.      tr;--                                vcuit;      to advert is e   said property herein
               described ior sale; givi:.? written lotioe at three public places in the Count; of
               Iravis, ior twctj days; setting fort:: the place ,-. 6 oat ;.f ;.ie a::d the property
               to i, sold, use at the expiration of said notice should said note remain unjj
               an:, part thereo:/to sell s^io property between the hours cf 10 o'clock A. H. a';
               .. o'clock r. ... at the ..euel piace of public sales in Travis Couaty to the :«4
               ticcer :o* cash; and upon ..aymei.t of the purchase money ty the bidder to make,
               execute and deliver to the purchaser a warrantee deed to the property soldv,
               i:v m; .-.s.me thereto, and I bind myeelf to warrant and refend the same aga; be**'
              lawful claime of any and all persons. The proceeds of said sale to Tje applied"
              toe payment of said note, interest and costs; the residue, if any to be paid to
              or my legal representatives. Sitress my hand and seal this 14th -day of December
              L'* i678«                                                     Mary .-v. Goodrich (Seal)
              ?:-:_ ST.aTii OF TSi^i j

               COUM.' OF TiUVIS # BBFDHE HE. :.. I. Fulmore a Kotery Public for said Counl
              d%l3 commissioned and qualified, personally appeared toe, Mary ~. Goodrich^
              sole to me well ,.nown who acknowledged the execution of the instrument of w:
              her to attached, for the uses., purposes; and considerations therein stated, Vitxti
              my hand and affix my official seal at office in the City of ^uajtim, this the
              day of leer ^. B. 167£.                      ^ r&. FuTnowe,, K. x< ^ c^
              Filed Beer 14th 1672 at i. i>. a.                      Eecorded Beer loth 1872.
                                                               ~. R. Jlorria^ -Clk. By *. S. iunn, Beputy
                                                              ----------                   _______



              Internal HeVenue -tamp $1.00 Cancelled
«.^lein
             TEE ti'.a.T£ CF ir.Knii 5
  i. fl«fe
              OOUSri OF TBVVIS f iCHOW eLL HOT BX TKiiSE -BBSBHTS, that 1, flrnold Elein*f^
   To
             the bounty of Travis and State of Texae, for and in consideration of on, doll*
Trust ieed
                   in hand paid,, tba reeelnt whereof is hereby acknowledged, tovetfels «e^
C.B.Joana
             by theee present.„ &*•% granted, Irar^ained,, aoid, alienated *nd -convene
             and delivered to C, H. Johns all ay ri^ht,, title, lntere.-tt and claim in and kb
             following deecribed property-to-wit: Situate, lying and **-ing in th> 'County •
             Travie, 3t*ta of Texas,, and deecribed fcj aeree -ajfl bounds ae follow.- •Baartsial
             waiving all homee-tead* Bowery, int-rest or other right*, secured -water '*ne
             tution and law* of Texae, and me^t fr<m forced :2«le therapy to the folic
             deecribed property, vis: Be lag Two bondred *aS sixteen a«iee of land
              Santiago del Valla Grant,, boaoded aad deeeiiea.- *« follewe.;
                                          NOTiCK ok ciiAK:-' '-'ir
                       TRAVIS COUNTY FLOOi) 11/.7AR1) AREA
                                      DKVKLOPMKNT J'KRMIT

staif. or TKXAS                           )
<:<>•. \t\ or Tij.wis j
Thiv iNMM.it \o. 85-2558                             ..l(.,l or,    August 9, 1985
and i< effective immediately.
.„,.    .....
 : !i»s I enmt :s issueu
                        ,           '•»
                                           Patton
                                            .
                                                  Lane Joint Venture                            .    .   -
ami is not transferrahie.

Thi- I'ermit authorize- the permittee to construct development in ;u cordage v.ith
the requirements of Travi- G»ui,!\ Flood Plain Management KeLulath/n- nn rhe
c i, • , it,,. ,.,,v.2.14 acres of the Thomas Anderson Sur.£17
                               5300 Hwy. 290 West Tax .Map #4rQ834r06=05. .&.JJ8 ..
                               , (Lot. nio.k. Suhdivision. Street AfjW-^OS34-01-Cl
                               (offices)
Foundation In-pection (is. X^&K1 required.
Mei hard. a< and F.leetrical In-pectiou 'XX'" n°l > required.
Sj»-< i.ii l'|o\ i-dom- <){$'. Hem'!* attached.
\ \.li.r of Pi-noil \u\< hi-en !--'.!<(! v. ith 5hi- i»«- •i: iii which -Imidd he n.«-N'd :n a
    '••'iti'Vi            ,. ;,| ujjj !„> i.roi«( led fio;;j v. eath.ei ;iik! Mrnrc from vandalism, and '..!•.
                     v. .H 1

n    rn.iin      • ...-ted until the uoi k :- i (ij!!|-ii!i


j'!.: j.. ••iiitti •• -hall ini;if\ the C.>unt\ Fn-.ineci I'oj !\ ei-dit 'h*)» hour- In-fore en-
•!,       fj mi ';- iead\ for foundation ami -u me.h:i:ii'ai and electrical inspection, if
                 1
!'<;u:n


Fiei-hcd -iah to 'ir at or aho\r elewilion
                                                                   81

                                                                    for H.E. VtoUtingtqg, P.E
                                                              <;<>r\TY KXOINFKK
                                                             TKAVIS i'i)[ NTY. TKXAS



    1:['<•<• i I.";             ! n.-jN ••'«or                 Pate              !'•..:<•.]         Failed

     i.UMia::«.(!
                               NOTE: All construction £• site development shall
M.-fl.ani.-:.!                 be in cornpliance with Travis County Flood Plain
   ar.d
KVrfira!                       fenageraent Regulations, §ec. 5.B. and as per
                               plans approved by Travis County.
- Mhi-r


I I' I;,..-
            PATTON            (.'.no HIGHWAY .">() WIS I
                                                                    LANE
                                   AIM IN IIXAS 787 i'»
    SITE DEVELOPMENT PERMIT PLANS
             (NOT FOR CONSTRUCTION)
                        ()WNI R: Nl I h IS \ l( I)(>NAI I > l'R< >H R III S
                                     ',00 | I \KI   \l MIN Ml VI )
                                    SUIII    KL'
                                    AUSIIN      IIXAS
                                                          •rV -='
                                                                                                      <<• 'J. c* -   ;Vi6 *
                             !•          Mi_&
            ESPEY, HUSTON & ASSOCIATES, INC.
            engineering & environmental consultants
      916 Capital of Texas        Hwy.   South                                P. O.   Box   519
     (512) 327-6840                                            %              Austin, Texas       78767
i
                                                                                                                               rM                                                        yjf
                          >
                     ......v..
                     .= '/                                                                                                                                                   / v\
                                                                                            I'T                \                                     I
                                                                                                                                                                       VICINITY MAP
                                                                             ...^^fe^:^SS
                                                                                                         v {-4™«<
                                                           t   .      ;- .           . ,M   it ... , J                                     "I   '<
                                                                                                                                                               A
                                                                                 ^ihpH-t'                  J-.1TOMV ^UILJI/H
                                                                                                                                                         ^ !
                "i
                                                                                                 y\                                 >.. .'_ffi
                                               : . j. TiLj ,Ly
                                                                       \
                v.    \
                                                                   . ,• i    .....
                                                               •<:>•
AREA TABULATIONS                                                            -ia<£
                                                                        '^l^&m&zh                                                                                  OWNUH     caitoii lan_; joi.'u
•   sue aoca               > »«   *r.«f.s      !•!.«» 11   SO. t I.
                                                                                                                                                                   ADDRESS    Bio-i »«« nfsi
    010U. AULA lOtH'.ll                        •ij.:.jj so. i ;.
    PAIISItm OA1A
                                                                                                                                      C;                           LEGAL DESCRIPTION
      rtr.oo d;s , o                                                                 BITE PLAN
                                                                                                                                                                        LOTS 10 4   II
                                                                                                                                                                        OAIMANV.UH SIIOOIVISIC
         coup.                                       «» :.paci:s
         PAIIALIC!.                                                                                                                                                     VOL.X Kg. Hi {tO/lll Of
                                                       a SPACES
         si a                                       i m spaces                                                                                                          TilAVIS KOUNSY. ILKAJ
         u'c*r                                         5 SPACES
                                            IOI *ll}i>*SPAiU'.>'
                                                                                                                                                         I                *---»
                                                       -k:           ;;     iiZ..m: 1                                                                                                                             ? J 01 i
                                                                                                                                                                                                           I»l               s
                                                 .*s                                                                                            ; •' ^V                                                    CM £ a
                                                                                                                                                                                                           'Jnr
                                                                                                                                                                                                           CJ ' ,] w
                                                                                                                                                                                                                   _. *
                                                                                                                                              IKA4E SPACE
                                                                                                                                                                                                   5   J
 -'•,? v«>.',                                                                                &»~«<.L--.
                                                             11   r" i. j
                                                                                                        fi                                                                                                 a ';.{S
                                                                                                                                                                                                                   V' *
                                                                                                                                                                                                                   > ) u             s
                            -
                                                                                                                                                                                                                   . >«
         UFIIVC   •,T.'"W           >;V     4*                                                                                                                                                                     • « <          u
                   • /
                                                                                                                       ._ jAnnon .;''•;''      /\\//,              Jltf
.*   $                                                                                                                                                                                                     z1           ~*\ /•~
                                           *"
                                .      r
                                      it                                                                                                                                                                          n
                                                                   Ll'.VSfi SPACt:
            \                        it                                                                                                                                                                          3!
                                                                                                                                                                                                                 5                    *
                            v
                                                                                                                                                                                                                  ~j
                                                                                                                                                                                                                  5
                                                                                                                                                                                                                  iii
                                                                                                                                                                                                                 LU
                    ^-.;;. ;•'                                                                   . .*         .»          •     w     /'Of     v / ri.ecr./          •                                           o
                                                                  C v :;l •'
                                                                                        .:       V           y'           ' ,. *». ^ •'?,        t. MfTSH.           '
                                                                                                                                                                                                                 l»~
                                                                                             V          V,
                                                                                                                              -. Vlf.-.r.-.!."* _->                 _                                            tl.
                                                                                                                  \.(ma\ /'•        . r-r1.-'.',      •.•i--.il.     „.                                           o     .
                                                                                                                                                                                                                 w
                                                                                                                     /'               . "-_     -        ' -----                                                 a.
                                                                                                                                                                                                                  «<
                                                                                                                                                                                                                  _j
                                                                                                                                                                                                                                 7.
                                                                                                                                                                                                                 ;-
                                                                                                                                                                                                                                 <
                                                                                                                                                                                                                  p
                                                                                                                                                                                                                                 •u
                                                                                                                                                                                                            ia :-"•r^
                                                                                                                                                                                                                                 a
                                                                                                                                                                                                            *" a.
                                                                                                                                                                                                           ^-.           ^   o
                                                                                                                                                                                       l».
                                                                                                                                        IUAS(. SPAfifi
                                                                                                                                                                                             Vi"
                                                                                                                                                                                                                                 "
                                                                                                                                                                      ,-.,. » .. • '                       (£'
                                      i-'vivN\ FJRST^FLOOR PLAN^
                                       VlSiV
                                                                                                             if n
                                •*' !l
                                                                                                             . , a
                                                                                                             :      i w
                                                                                                             •      . u>
                                                                                                                         Z
                                                                        I.                          **'      #, o
                                                                                                    (0                   z
                                                                                                    Or ] u
                                             vnotoacu
                          •'.    }'
                                         i-ataiir   iiuiLoiun
                                                                                                    «SCI**!'
                                                                                                          „ •' *a
                                                                                                    &• t S
                                                                                                             'MI
                                                                                                              _*' I • 1
                                                                                                             ••jg
                    • i
                                                                                                     (               1 f~
                                                                                                             o
                    /               I1                                                                       2T
                                                                                                             Q
                                                                                                             =>
                                                                                                             Kl
                                                                                                             LU
                                                                             -~.   /                         O
-^                                                                                                           U.
                                                                                                             O      ,
                                                                                                             !IJ
                                                                                                             K
                                                                                                             •**.
                                                                                                                             z
                                         P^!°f"-^                                                            o
                                                                                                         ii J"               ••j
                                                                                                         " n.
UTILITY SITE PLAN                                                                                    *               /
                                                                                       -J'
                                                                                               ./
                                                                                                      ^!
                                                                                                          DAAV -4 4T Jr<
                                                                OWNER
                                                                LEGAL DCSCHIPTIOM
                                                                                         iV
                                                                                         ! 7
                                                                                                    r:.
                                                                                                     p •
                                                                STREET ADDRPSW
I                             NOTICE OF PUBLIC HEARING
                                                REZONING


    Mailing Date: December 30, 2008                                             Case Number: C14-2008-0152

    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 espanol, por
    favor llame at (512) 974-7668.

    Please be advised that the City ofAustin has received an application for a zoning change.
         Owner: Tejas Land & Commerce (Charles Draper)                       Telephone: 512-358-7191
         Agent: 1hrower 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.

Ifyou have any questions concerning this application, please contact Stephen Rye. ofthe Neighborhood
Planning and Zoning Department at 512-974-7604 and refer to the Case Number at the top right ofthis
notice. However, you may also find information on this case at our web site:
https://wvwv.ci.austin.tx.us/devreview/index.jsp.
For additional information on the City ofAustin's land development process, please visit our
www.ci.austin.tx.us/development.
                   \\ \v
                    \       <    ••
                        \   \
                                      6B
                        \%\
                         \ 'VN




                                                    ZONING
                  SUBJECT TRACT
  N                                        ZONING CASE?   C14-2008-0152
           *••»
                  ZONING BOUNDARY              ADDRESS    6300 W US 290 HWY WB


A                                          SUBJECTAREA    2.357   ACRES
           f~7*"l PENDING CASE                     GRID   C19
                                              MANAGER.    C.PATTERSON
           OPERATOR S MEEKS
I" =400'                                                                         •   ""'•
                                                                                                              Page 1 of 3



  Kleeman, Robert

   From:              Murphy, Pat [pat.murphy@ci.austin.tx.usl
   Sent:              Wednesday, February 20, 2008 10:22 AM
   To:                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:

1need 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 1feel
comfortable in guessing that this plat goes back to at least the 1960s if notearlier. 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 CreekOrdinance, Ord No. 810319-M, states in Section 101.2 that the requirement for a site development
permitdoes 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 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 C WO?


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.

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 18, 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 l3-2-502(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 permit requirement applicable to this property on May 18, 1986.




2/25/2008
                                                                                                                               Page 2 of 3


Thanks


Robert Kleeman
MUNSCH HARDT
KOPF & HARR, P.C.
DALLAS | HOUSTON | AUSTIN

One American Center
600 Congress Avenue, Suite 2900
Austin, Texas 78701-3057
Direct: (512)391-6115
Fax:    (512)482-8932
rkleeman@mu nsch .com
munsch.com

NOTICE: This e-mail message is for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any
unauthorized review, use, disclosure or distribution is prohibited. Ifyou are not the intended recipient, please contact the sender by reply e-
mail. Please virus check all attachments to prevent widespread contamination and corruption of files and operating systems. Nothing
contained in this message or in any attachment shall constitute a contract or electronic signature under the Electronic Signatures in Global and
National Commerce Act, any version of the Uniform Electronic Transactions Act or any other statute governing electronic transactions.


IRS Circular 230 Notice: To ensure compliance with requirements imposed by the IRS, we inform you that any
U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used,
and cannot be used, for the purpose of (a) avoiding penalties under the Internal Revenue Code or (b) promoting,
marketing or recommending to another party any transaction or matter addressed herein.




        From: Hollon, Matt [mailto:Matt.Hollon@ci.austin.tx.us]
        Sent: Friday, January 18, 2008 3:40 PM
        To: Kleeman, Robert
        Cc: Murphy, Pat
        Subject: info on property

         Robert,

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

         Definitely feel free to call us back to talk more about it ifyou 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
                        ot Austin
:--aj^B
    ;S ".•"••*"'•-:•'• J '.'•^rc-:-. KtpLihiic r>f Texas, 1S3V
     .... ':• •!'. r-h;.J ; ; >WXtir*'.. ,?Tid IV'd' >plTUT:r Ro.tcw 1VpartJnrtlt


           August 28.2008

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

           Dear Mr. Kieeman:


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


          As you know, City Code Section 25-8-27providesan exceptionto compliancewith
          the City's water quality regulations in the BartonSprings Zone under limited
          circumstances. Applicable to your client's situation is the requirement that only
          existing commercial developmentthat does not increase non-compliance with code
          requirements qualifies. My understanding is that your client wishes to redevelop
          commercial property in the Barton Springs Zone, but at least some of the existing
          development on the property was not built in compliance with City Code
          requirements.

           1he development on the site has occurred in several phasesas you have evidenced
          by comparing the City's aerialphotographs fromdifferent dates. The site is located
          within the BartonCreek watershed and the first watershed regulations limiting
          imperviouscover that would have appliedto your client's propertywas the 1980
          Bnrr.on Creek Ordnance. Becauseof the lack of City recordsdocumentingany
          permits or construction dates, i agres.that it is reasonable for you to document
          through aerial photographsor other credible evidence the portion ofthe commercial
          development that was built in compliance with City regulations in existenceat that
          lime.


           You are required to providedocumentation and impervious cover calculations
          based on this agreed upon methodology at the time that your clienl files a
          development permitapplication requesting the redevelopment exception underCity
          Code section 25-8-27. To clarify, this means thatany impervious coverplacedon
          the site not in compliancewith City regulations at the time it was constructed must
          be removed. The remaining impervious cover, i.e., the portion that was built in
compliance withCity regulations, mayremain in accordance with 25-8-27 aslong
as the redevelopment otherwise fully complies with 25-8-27.

My staffand I look forward to working with you on this project.

Sincerel
bim:t




victoriaJ. Li., Director
Watershed Protection and Development Review Department
                JONES&CARTEHiac                                      1701 Directors Blvd., Suite 40G        TEL   512 441 9433
                ENGINEERS-PLANNERS-SURVEYOR:                         Austin.Texas 78744-1024                FAX   512 445 2286

                                                                                              AUSTIN                     DALLAS

                                                                                            HOUSTON                    BRENHAM

                                                                                         SAN ANTOMIO                 ROSEMEERG

                                                                                    COLLEGE STATiON               THEWOOOLA^S

                                                                         TaosBoard ofProfession! Engineers Registration Xo F-*?9
       February 15, 2011


       Ms. Susan Scallon
       Planning and Development Review
       505 Barton Springs Road
       Austin, Texas 78705

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

      Dear Susan:


      On behalfofthe owner, Charles Draper, Jones &Carter, Inc. is submitting aSite Plan FairNotice and
      aH.B. 1704 Chapter 245 Determination Application for the Patton Lane Office Buildingproject Tlv
      project is located on the northeast comer ofWest US Hwy 290 and Patton Ranch Road insouthwest
      Austin. Abriefhistory of the project is that the building was desisTied, tlie project site was cleared
      and construction began in 1985 with the construction of 50 building piers. Due to the economic
      downturn ofthe mid 1980's, the project was halted and the property became owned by the lending
     institute. At tlie time, the project was outside the Austin city limits, so no permit was required for the
     project. Attached are site plan, floor plan and utility plan for the Droject, a copy tf maerial
     photograph from February 16,1984 showing the site, plus acopy ofan aerial photouraph from April
     •o, 1986 showing tlie site had been cleared, the houses and other buildine had been demolished and
     construction activity had commenced. There are currently fifty building triers that were constructed
     for the building foundation prior to the project being halted.
     On December 30,1985, the property was annexed into the City. Based on the feet that the projecthad
     commenced prior to annexation by the City, the project should be grandfathered to the regulations at
     tlie time construction began and can continue construction.

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


    James M. Schissler, P.E.

    Cc:         Charles Draper, Tejas Land Company
    J:.'project_'A63.i/001/general/letter/J704 Isttcr 0201 i i.doc




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

   „,._,_.         <ro J^// ,/,, F0R                          DEPARTMENTAL USE               „ ,
   File #Assigned: ^f  &>H-C&f((>C.                                            Tbate Filed: JMHo/7&l
   2ri___al AfP1'03*500 Da*e: ftA^fidlCfafdj? Sionat.ii-.-
   Comments:
                                                                                      'T">                                   .Date: PrV#3ty/

                Insufficient Information to establish Chapter 245 rights.

  ProposedProject Name: Patton Lane Office Building
  Address / Location: 6302 West US Hwv 290. Austin . TX 78735

   Legal Description: Lots 10 and 11 Town of Oak Hill
   A. [ ] The proposed application is for a New Project and is submitted under regulations currently in effect.
 | NOTE: If Ais checked above, proceed to signature block below.
  B. [ JThe proposed application is for an ongoing project not requesting House Bill 1704 consideration The choice of this option
          does not constitute a waiver ofany rights under Chapter 245.
  °'f ] ]_T#£_K°,?d ?_liCati°nDi?, f?rJ project re(*uestin9 review under regulations other than those currently in effect, but not
          on AM basis of House Bill 1704. All appropriate supporting documentation must be attached to this request Provide
          a bnef descnption of the basis for this request here:
  D. [ JThe^Proposed application is for a project requesting review under aspecific agreement not on the basis of House Bill
          k • ,A" appropriate supporting documentation must be attached to this request Provide a brief description of the
          basis for this request here:                                            ^^

 E. [X] Original Application Filing Date: Not required at time construction began                    File #:
 The proposed application is submitted as a Project in Progress under Chapter 245 (HB 1704) and should be reviewed under the
 applicable regulations pursuant to state law. The determination will be based on information submitted on and with this
 form.

 The following information is required for Chapter 245 Review:
 Attach supporting documentation, including asummary letter with acomplete project history from the Original Application to
 the present, with acopy ofthe original subdivision or site plan approval by the City and subsequent application approvals.
 Specify project information for date claiming 1704 grandfathering; include acopy ofthe relevant permit upon which Chapter
 245 vesting is claimed.

 Project Application History                            File #                             Application Date                 Approval Date
         Annexation/zoning
         (ifapplicable to history)

          Preliminary Subdivision

          Final Subdivision Plat     Volume X. Page 242                                                                  December 16. 1872

          Site Plan / Devel. Permit Not required at timeconstruction began
Proposed Project Application [check one):           Preliminary Subdivision..                Final Plat                 Site Plan   X

Proposed Project Land Use: Specify acreage in each ofthe following land use categories.
       Single Family / Duplex _             Townhouse / Condo / Multi-family                                       Office

         Commercial 2.1313               Industrial / R&D               .Other (Specify)
Total acreage: 2.1313         Watershed Williamson Creek                         Watershed Classification Barton Springs Zone

This proposed project application will still be reviewed under those rules and regulations that are not subject to Chapter 245, such as
TJOOL Pre         tm™™nt destruction of property or injury to persons, including regulations dealing with stormwater detention
temporary erosion and sedimentation controls, and regulations to protect critical/significant recharge features
Signature -Property Owner or Agent j^Srrti _f_4^^e^^_f _• ^                                                     Date    : 2.-/4-//
Printed Name James M. Schissler. P                                             Phone / Fax512-441-9493 / 512-445-2286
                                                                                                                            Form Date 5/06/2005
                                              City ofAustin / Planning and Development Review Department
                                      505 Barton Springs Road. Austin, Texas78704 Ph 974-2659 / Fax 974-2934
    Land Use Review
   Site Plan Completeness Check

   Before an application is accepted for formal review, City Staff conducts a completeness check to ensure the
   application packet contains the necessary components to complete a review.
   Acompleteness check application must be deemed complete before formal application can be submitted.
   A formal application must be filed within 45 calendar days ofthe initial completeness
   check (by 04/02/2011) or the application will expire and a new completeness check
   application must be filed.

  Applicants must pick up the completeness check packet at the Intake office within 72 hours of receiving a
  response The City is not responsible for lost or stolen packets. The applicant must schedule an appointment
  with the Intake office for formal application submittal Please call 974-2681, 974-2350 or974-7208 for
  more information.



  Completeness Check Results: Incomplete                            45 Day Expiration date: 04/02/2011
  Tracking #: 10547374                        Revision #: 00                           Watershed: Williamson Creek
  Project Name: Patton LaneOffice Building
  Ch.245 Team Review Req'd: Yes              Prig. Submittal Date: 02/16/2011          Resubmittal Date
  Date Sent to Ch.245:
  Date Rec'd.back in LUR:
                                             Current Results to Applicant: 03/02/2011


 This application is incomplete for the reasons given below. The Applicant mustaddress the noted
 deficiencies and resubmit italong with acomment response letter to the Intake Office, atOne Texas
 Center, 505 Barton Springs Rd., 4th Floor, Austin TX 78704.
 Checked for Completeness by the following             reviewers:                 Complete/Incomplete                  Initials
 Drainage Engineering       Jay Baker                       512-974-2636                   Complete                      JB
 Transportation             Joe Almazan                         974-2674                Complete                         JA
 Site Plan                  Lynda Courtney                       974-2810              Incomplete                        LC
 Environmental              Ingrid McDonald                      974-2711               Complete                         IM
 Water Quality Eng          Jay Baker                            974-2636               Complete                         JB
 Env.Res.Mgmt.              David Johns                          974-2781               Complete                         DJ
 Floodplain                 Jameson Courtney                     974-3399               Complete                         JC
 Row Mgmt.                  Joan Caldwell                        974-7024               Complete                         JC
 Utility Coord.             Eva Moore                            974-7671               Complete                        EM
Traffic Control             Javier Martinez                      974-1584               Complete                        JM
AWU-DPR                     Monty Lowell                         974-2882               Complete                        ML
AWU                         Neil Kepple                          972-0077              Incomplete                       NK
UST                         Schuyler Schwarting                  974-2715



Staff Reviewers as follows                                       Case Manager:
Team A                        Team B                             Team C                        Team D
Nikki Hoelter (SP)            Donna Galati (SP)                  Sue Welch (SP)                Sarah Graham (SP)
Jennifer Groody (DR/WQ)       Leslie Daniel (DR/WQ)              Kevin Selfridge (DR/WQ)       Jay Baker (DR/WQ)
Ron Czajkowski (DR/WQ)        Michael Duval (DR/WQ)              Beth Robinson (DR/WQ)         Benny Ho (DR/WQ)
Jim Dymkowski (EV)            Mike McDougal (EV)                 Joydeep Goswami (DR/WQ)       Brad Jackson (EV)
Candace Craig (TR)            Jeb Brown (EV)                     Michael Clay (EV)             Shandrian Jarvis (TR)
                                                                 Sangeeta Jain (TR)
                                                  Other Disciplines required:
Mapping                       Traffic Control-No addn. review    WWW                           PARD
Electric (3)                  Fire                               Floodplain                    Industrial Waste
RSMP: Yes/No                    Waiver:         Yes/No          Onsite Drainage:        Yes/No
Additional Copies to ERM/Other:

Small Project: Yes/No

Fees:


Total # of Plans      / Engineering Reports        required at formal

The City ofAustin encourages applicants to contact neighborhood organizations prior to formal submittal. To
find out contact information for neighborhood associations visit ourweb page at
http://www.ci.austin.tx.us/neiahborhoodservices/ or contact our Neighborhood Liaisons for more information-
Carol Gibbs @ 974-7219 or Jody Zemel @ 974-7117.

Comments:
Please respond to each comment in letter form.


TR:     OK for HB 1704 determination only

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

SP:     Submit new project Site Plan Packet

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


May 13, 2011

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


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

Dear Mr. Draper:

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

Sincerely,



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



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


September 23, 2011

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


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


Dear Mr. Draper:

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

Sincerely,



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



CC: Susan Scallon, PDRD
    Brent Lloyd, Law Department
      Mitzi Cotton, Law Department
                                  Tejasland & Commerce
                                         6300 Highway 290 West
                                           Austin, TX 78735
      Phone: 512.699.2199                                              Email: cd</tejasland.com

September 29. 2011

Mr. Greg Guernsey. AICP Director
City of Austin
Planning and Review Department
POBox 1088
Austin. TX 78767


RE: Freedom ofInformation Act. andrequest for meeting:
6302 Highway 290 West. Lot 11A. Block 1. Oak Hill Township
1704 Application/Chapter 245 City Admin Code: Tracking # 10547

Dear Mr. Guernsey.

I appreciated your letter, you submitted on September 23. 201 1. The letter states:".../// lightof the
attachments toyour email. I requested andobtained additional permit information from Travis
C'ounty....! have decided to uphold my original decision that the siteplan would he subject to
current code... ".


Regrettably, your letter does not respond to my letter of August 17. 2011. I will repeat the
question: "Again. 1appealtoyourjudgment; on what legal basis'areyou denying the
application?"

I request. You furnish, through the Freedom ofInformation Act all copies of correspondences the
City of Austin, and Travis County have on record for Lots 11A. and Lot l()A Block 1 ofthe 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: "...Ihave
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 un-relented position. 1have 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.

I look forward to meeting with you in the next couple of weeks.

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
                                  Tejasland & Commerce
                                        6300 Highway 290 West
                                          Austin, TX 78735
      Phone: 512.699.2199                                             Emai|. cdateiasland.com


 August 17,2011

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

RE: 6302 Highway 290 West. Lot 11A. Block 1, Oak Hill Township
1704 Application/Chapter 245 City Admin Code; Tracking # 10547
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 of2011. Attached is a copy
ofyour denial from May 2011 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 pennit 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 conforms to State law, and you will issue a letter of approval.
I look forward to hearing from you.


Sincere regards,


Charles Draper
Tejasland & Commerce, President


CC:     Susan Scallon
        City Manager, Marc On
        Honorable Mayor Lee Luffingwell
        Greg Anderson, Chief-of-Staff, Mayor Pro Tern Sherly Cole
        Honorable Representative Paul Workman
        Jim Schissler, Jones & Carter
         AFFIDAVITS




.--—^.




             35
                                IN THE DISTRICT COURT OF
                                                                               •safcaasr
                                 TRAVIS COUNTY, TEXAS                               FEB f 8 2014
                                  419th JUDICIAL DISTRICT


 CHARLES N. DRAPER,

 Plaintiff, Pro Se

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

 GREG GUERNSEY,
 IN HIS CAPACITY AS DIRECTOR OF
 PLANNING AND DEVELOPMENT
 WATERSHED PROTECTION
 REVIEW DEPARTMENT,
 AND CITY OF AUSTIN

 Defendants.



                          PLAINTIFFS SUPPLEMENT TO THE RECORD
                                AFFIDAVITS OF EVEIDENCE



          On January 31, 2014. Defendants, requested additional disclosure, and
Defendant's Second Set ofInterrogatories. Under TRCP Rule 193.5 Amending or
Supplementing Response to Written Discovery. Plaintiff. Draper files the following
affidavits and evidence in sworn testimony:
                                        AFFIDAVITS


1. Travis County - Transportation and Natural Resources

      Robert Glasper, custodian of Travis County archives, affirms and attests all the
attached records attached in Plaintiffs Supplement Exhibit 1 are original or exact
duplicates of the original.

2.    McClendon <& Associates- Carl McClendon

      Carl McClendon, an independent development consultant, affirms and attests all
      records attached in Plaintiffs Supplement Exhibit 2 are to the best ofhis knowledge
      true and correct.
 3- Oxford Commercial Austin Office Report - Charles Draper
     Charles Draper, a licensed real estate broker with the State of Texas, affirms and
     attests all records attached in Plaintiffs Supplement Exhibit 3 are to the best of his
     knowledge true and correct.


 4- Tilt-Wall Dormitory Construction Report- Biscavne. FL

     Charles Draper, experienced developer, affirms and attests all records attached in
     Plaintiffs Supplement Exhibit 4 are to the best ofhis knowledge true and correct

 5- 6300/6302 US HWY 290 West Subdivision, 1704/Chp 245. and Construction
     Report- Jones & Carter


     Jim Schissler with Jones &Carter, a professional consulting and engineering firm
     with 25 years of experience, and offices in Austin, affirm and attest all records
     attached in Plaintiffs Supplement Exhibit 5 are to the best oftheir knowledge true
     and correct.



                                                  Summarv


         Draper present to the court, the attached exhibits as authenticated documents Supplement*
to the Record under TRCP Rule 193.5

                                                          Respectfully submitted.

                                                                                            *-*-

                                                                                        T
                                                          Charles N. Draper
                                                          4609 Trail Crest Circle
                                                          Austin, Texas 78735
                                                          Phone: 512.699.2199
                                                          Email: cd'ateiasland.com
CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on February 18. 2014. a true and correct copy ofthe foregoing
Plaintiff's Supplement to the Record; Affidavits were sent by certified mail, return receipt request
to Sandra Kim, Austin Law Department, Citv Hall, 301 West 2nd Street. P.O. Box 1546 Austin
Texas 78767-1546

Sandra Kim, Assistant City Attorney
Law Department, City of Austin
City Hall, 301 West 2nd Street
P.O.Box 1546
Austin, Texas 78767-1546
PlaintiffSupplement to the Record

          Exhibit   I
 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 of records are kept by
Transportation And Natural Resources in the regular course of business, and it was the regular
course ofbusiness 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
                                                                 Z^^^^^Glasper*^

SUBSCRIBED AND SWORN TO BEFORE ME on the Sib                        day ofJ__^_______2__s^ 2013
to certify which witness my hand and seal of office.


                 A.\fc jayne             j             \^A/]\rr\A—CWp-v<?_
                  tfaiary »ubfic         \             NOTARY PUBLIC
               STm'^E OF TEXAS           :'
                 :Ss:on Exp. 04-04-2015 >
                                        •t   |ij« .»•,-.. », ••_*. - j T. /«>,>•   v         'i <?«. •. i~. ••.»'. i;.;>.fisi *» -titSt-A1'£**•?»J*i*"?V-f- ftj ^*^ -*;.   • iV




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

       STATE OF TKXAS                        )
       <V.\ MY OF 'lit AVIS                  J
      Thu Pi-i-riiit \n.     85-2558                           !-•   |ssl   .rd on. .August.9, 1985
      aval i< infective immediately.

       I lii- IV» Miit \< is<iH*(i to                 Patton Lane Joint Venture
      .::id is nor •. ansfei niMe.

       I l.i- PcMi.i1   .mIioh/c- the permittee to construct development in ..ccordaii-e v.itli
       lk- reouin ?::. i.is <»f Travis Coui:t\                          Flood Plain Management Regulations on the
      r.-H.min" iirwrri!,,.,! prm.crtytots 10 & IK Oatmanvll 1e _Subd1v_1 sloru
     2.14 acres of the Thomas Anderson Sur. #17, 6300 Hvjy. "290 West
                                  I Lot. Ulork. Subdivision. Street Addre-s)
     Ta>: Map ^4-0834-06-05 S 0B (offices)
      T.jin.l.ttiitn Inspection ^•jJ'fVV'Y remiirrd.
      \]< •< mml' .J and liceliical Inspection rW i- not i required.
       "*;•'• :.:l l"'!o\ i«.'n,ns yWrK are noO a"aelied.
       \ " !;.i of 'Yin.il has '.mi isvued v.itli this permit which should lie posted in a
      I aiioij v. here il will l>e j pit»'< !ed U<u\\ weather and secure from 'andalism. and will
      j; u'.iiii pos'ed unii' l'i.- v "ik is <ompleie.
       \'<   (ii-i !i:iP ••»• «lial! n<;if\ t ri«- C'»u;il\ I'riL'ineer ioi tveiuhl <1J5» lumr- before »•.:»•
      •!:..••! !i»»: ;• :<ad'. f«>r fonnd.it ion .jrid or meehanhal ami electrical inspection, if
      reunited.
      I i'i! };>i\ -la!- to In- ;i| i-r .Jo\t r|e...iii
                                                                                                    ^'KAA/
                                                                                               .E. Whittington, P.E.
                                                                                       COINTV K\r.|NKKI.
                                                                                       ri; WIS COI \TY. TKWS

                                                      INSPECTION Itf-X'OliD

                              II, •:                                                   PaV


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




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




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

    \           ,,,.   M . . .
                 1 Ins I ermit is issued
                                        ,                 fo
                                                                 Patton L' <e Joint Venture                                                 -   —
                and is not t rarisferrahie.
    •




                Tin*, pe.mil aiilhoriz'-s llie permittee In construct development in aeeordanee with
                l!i,. le.j-.jiremenh nf Trav»- (iminly Klnod Plain Mana»entr:i! Regulation* on the
                feiiowin, de.,nhe,i ,,*.,„•,«>: 2-14 acres of the Thomas Anderson Sur Ml
                                                   6300 H*c/» 2W West Tax Tap #4-0834-06-05 SJffi
                                                   , lint. I'lpVk. Sul.di\ision. Stnvt A#4^0634~Q1 -01
•
                                                   (offices)
                K<»undalio!i Inspection (is. X'-RSX1 reouiied.
                Me. haniial ami Klcehical Impcctioii ijg( i-.i.»t) required.
                Spe. j.sl Piit\isioris •){$•. are in.t 1 attached.
                 \ %,,;',«• r»f Pim mil has ).,,!, 'e-ucd wi'h this permit which hould he posted in n
                |.„;«t'n,n ..her.- it sill !•:• prole, led frnin weathei and -cup- from vai-.da'iym. and wili
                i, e, .in posted unlil l!"' w«'i r. i- «nrnplele.
                 I i.i-    ••   r illllle        |i.:|l iiutif\     the CountN       r.n::ineer l«iiiv-iM"hl             nour      hefor e      f (.n


                s'.u-       • -n     :-      , .u|\ for found lion and or mei ha-.:; al and elei-frii ;\\ inspection, if
                n iiniii •!

                           Leu       l.l: • i"        ,'! o| ,i Iio\ e c|e\ at I" Ml        812.0i
                                                                                               W-f
                                                                                             for H.E
                                                                                         COI NTY KXT.INKKH
                                                                                        THAVIS COl'NTY. TKXAS

                                                                        INSPKl'l ION KKCOh'I)

                                                     I ;i: in ft i.|-

                I•.. •, j •i..:      •
                                                    NOTE: All construction 3 site development shall
                Mi        -.:.!-..                  be In compliance v/lth Travis County Flood Plain
                                                    Management Regulations, Sec. 5.B. and as per
                                                    plans approved by Travis County,
            t




                                                                                                                                                 <   •.
                         PATTON LANE   6300 HIGHWAY 290 WEST
                                         AUSTIN TEXAS 78735



                 SITE DEVELOPMENT PERMIT PLANS
                          (MOT FOR CONSTRUCTION}
                                    OWNER:   NELMS/MCDONALD PROPER 1IES
                                             3001 LAKE AUSTIN BLVD.
                                             SURE 402
                                             AUSTIN. IEXAS




                                        if-                   f   L=>V


                                       l«^wlciSiU:-.-?                                                __&#_




                                                  ^r <f- ^ •'•';'^


                                                LOCAHOH MAP




                         ESPEY, HUSTON & ASSOCIATES, INC.
                         engineering & environmental consultants
                   916 Capital of Texas Hwy. South                        P. O.   Box   519
    V
                   (512) 327-6840                                         Austin, Texas       78767
t
                                                                     %                                        X
        It
             •
U In*: oB SAkai Zej.




                                                                                           P-M7^           71E         <m
                                                                                                  ,r-   L-t :•• • •'




                Henry E. Whittincton, P.E
                TRAVIS COUNTY ENGINEER                                           lXk}<*i           oU
                                                                                                                               IC J
                Travis County Administration Buildir.t                            Vrc _c UWaj- .o-'JC
                314 West 1llh Street, Suite 200
               P.O. Box 17 48                                                                                          i ' !
                                                                                       '.!.*> • •. \
               Austin, Texas 73767
               (512)473-9122
               April 10, 1987



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

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

               Dear     Mr.   Goodson

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

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

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

              If you need another elevation certificate form, contact Melba Archer of our office
              so that we may complete Section I. Then a registered professional engineer, surveyor
              or architect shall complete Section II or Section III (where applicable", verifvinr
              the lowest floor elevation. One copy shall be returned to this office s< that our''
              files wil1 be cvnplete.

              If we have not received the completed certificate or a written explanation stating
              reasons for lack of certification within 30 days of receipt of this letter, we
              will assume that the structure is in non-compliance with the Travis Ccnty Hood
              Plain Management Regulations and will refer this permit file to the Countv Attorn«v
              for appropriate actio.i.                                                                          "              *"-

              If there are any questions, please feel irrz to contact this office.
              Sincerely,


       f.
     •S\y '••'•'••     '•• m onr.osky
   /         Travis County llydrologist
                               3ASIC DEVELOPMENT PERMIT APPLICATION FORM
 \    •                                                                       Application No. '• . •_. ________^

A-.v.-or each of the following questions, or comply with the following instructions:
1. state the nature of the construction, and if your answer 1s "other% state briefly the
       structure:
       embankments, etc.:
                                                           /   Waste
                                    Hon-Residential:           Disposal System «:
       Residential:        .
       Leo*** " Description of Property - Fll^lii all Blanks that Apply: Abstract„__
       Surv_y "                     " Lot.^.„. _1 Block                     Subdivision Qc\rj f^qniJU^.
       Sc, ti0n                        Reser^7___                  Street Addressj______Q MW* ZOLUU-
           .p,1PP . .".                    Square Footage of Structure___fj_
       No. of Units_.                      Other: fA

                                                         I.'Ill**
7      Is the proposed construction a new structure or
       of an existing structure? "Substantial improver
                                        "at the time the permit application is made.




       be requested, ii
,. Mum a,,p of sufficient scale to locate the building site, along with surrounoing
          property. Mark the building site on the map.
 5. Attach a copy of all State at.d/or federal permits applicable.



 7.       If the permit applicant is a cp«"
          a natural person, state the nat
          to Commissioners Court to see th
          faithfully complied with. ______


     8. State the estimated cost of construction^ S                    _.      _
                                                     hereby file this application for
     basic devilment pornit. and . the peranx nere.u^.~ - •- ?          hat „ 0
     mvself to be bound to Commissioners Court of Travis County, lexas
     visions of the permit are faithfully performed^
                                                                            or Attorney.
              TuaFeT                            I"     wpnca
                                                       _____________




                                                NAMr: <£->C.
     rfor County L"se Wi'A^-V                   AODRESS: __/>__.
     fre:    • •_
     Rec'd by:
                                                 PHONE; -•• <' '_
     Ck'd bv":      Ti                                         [Please Print,
     Approved:           {_.




                                                        ^'0t\:^ 5
                                                                    -FF W
                         BASIC DEVELOPMENT f-ERMIT APPLICATION FORM

                                                                                        Application No.

Answer each of the following questions, or comply with the following instructions:

1.    State the nature of the construction, and if your answer is "other'", state briefly the
      nature and purpose of the proposed constr.cticn. :'0tr.er" is used to designate such
      structures as sewage disposal plants, water supply and distribution systems, fills and
      embankments, etc.:           '
                                                                             Waste
      Residential:                     Non-Residential:         :•'.-.       Disposal System *-.

      Location or Description of Property - Fill in all Blanks that Apply: Abst.ect_.

      Survey                              Lot   iOill                                Subdivision   o_—

      Section                             Reserve                             Street Address e y _________

      Acreage                                   Square Footage of Structure

      No. of Units                              Other:
                                                                         [Project Name, etc.;

2. Is the proposed construction a new structure or is it a proposed substantial improvement
      of an existing structure? "Substantial improvement" means any repair, reconstruction,
      or improvement of a property, the cost of which equals or exceeds 50S of the fair market
      value of the property either (a) at the time the permit application is made, or (b)
      before the damage occurred, if the property has been damaged and is being restored.
      Answer:        •'-'"•' -':
3. Supply
   _ rr j
          with this application
                     rr
                                one (1) copy  of general plans of
                                         -.____ _\ ; - _„-.. <_-.•!
                                                                      construction. [If Class "B*
                                                                    iHHi+inn.l l nf r>rnw t inn Will

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

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


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

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

                                                              ppTTcant/Agent or Attorney;


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




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


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

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

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

    *creage___                                -C_src- To:

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

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

    of cr. cv'.•.."!'.. .t«•_.:•._•"(..•» ,S_..t<s'-.tial i : •;..< .C'f                             , any r*.
    or irr-r..'. cnt -f a property, tre .est c* *v :• er..'                                          e/'.L-c-'j'.                                   ' i / r*i r 11'
                                                                                                     .p" ;caf        •|   ir   .''«i:               ;r   1,
    value _f •»«.' property e*. ther 'a, at t-.c- t'7* tr •:- -f:
                                                                                                                     •    ofc'rr.                   Lprec.
    Deter* :m- -_•-..:_& :::-rr_d, if tr.c- ^r:p.rty r.s t-jc-r

    f.r iftt-'*:




                                                                  ' ••• f
       •rr    t
                                             ro.ett :



                                e t.r.dvj s-tv rr. f-.-

                                jli _W:tc ar,C/tr •'__&''_'




             ,t..r_* ..i.-rs.:", Stati: t!
                                                                                                                      p_ r:*^ t         **.
               • ii.M .." _.'-i:i't .Cur* to S--C- t'.a. a
               '_U.    :c..'; :ied *-♦.!..              ;_




                                                                                                                                    . ».•     _•*    . t---t

                                                                                                 ,   •;•»-:>   ..    -•--£
r-.vse*!*" *.- '•;• :<^'2 to C:n:.'.«.r.orL-rs -:-"*. ;*
/iiior: .*" t'c pen.it zye fai thtV.'.y cerrcr*;.-.:




{Fc- ::-'
Fee:
fiec-u"":,:
CV: :•>:
Appro.eJ:
             BO
       I*'   **
             #                                            2ASIC DEVELOPMENT P:;?.:-*!T APPLICATION F0".V

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

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



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

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



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


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

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

;<n                                                                                                                                                 ;c;'t'e
                                               •y Of .,11 St.lto -                                 n::!i..r.i!       tev.r



                     ' f :'(•      t'i.-                   .'   '.• ••   ; 0'" :'




                            t.:.e : •:•''•'       t      .:pr.-. !*:•:! t    V'   ••: '-' •• • :-rr !v.n
                           •jt.r.jl         pe'".,"H, sti*'- '.'<: ''•^'••r-                             :.' f:

                           [ *;:;: ;<:._ !:.'.'-r: f-j-jft '..' S•:•»»• tl                 j   .


                            th*'jl :v '                  : :-0 ! .-.'ith.            .__




                                                                                                                                           lice -:r 'S gr.rtc
                  :asic ':r-vorjp".enT :;ernt, .-.nd •.                               v.e ;.:•;..._'
                                                                                                                                           •••••• t.'     ">..._s *o :ee
                   vfo'i' to t-e bo-..r.i to Ccr.-.issiows '.Ourt •_: •
                  .•V-ir.ns o- the potvit sre f3itn:'u'ly noi"'.-' .••:.

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

                  'Fcr County L'se C'nly

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

                                                                                                                                                                 -A
                                                                                                         **>                                 ,s_/l^-.«
                                                                                       r\ _.<y
                                                                                    c^




                                                                                                                     I      '.
PlaintiffSupplement to the Record

          Exhibit   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. Iam over the age
  of21 years. I am independent development consultant in the Austin real estate market.
  On July 16. 2012.1 filed a Reconsideration of1704/Chapter 245 Application on
  behalf ofCharles Draper for Lots 10A and 1JA. Block 1. Town ofOak Hill; located at
  6300 and 6302 US Hwy 290 West (Tracking# 10547874). Iam fully competent to make
  this verification. I have read the foregoing: 1704/Chp.245 Reconsideration
  Application. All ofthe information contained in the publication are within my personal
  knowledge, and true and correct."




                                              Carl McClendon




 SUBSCRIBED AND SWORN TO BEFORE ME on the date|>iiav of fWrcv^. 2                          014




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


 July 25, 2012


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

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

 Dear Mr. Guernsey;

 Thank you for your previous determination of the above referenced application. Susan Scallon,
 1704 Committee staff representative, was kind enough to visit with me regarding the application
 and share some basis for the Committee's disapproval. In response, it seems additional
 information, materials, and signed plans may provide clarification of the facts and additional
 documentation ofthe justification and "continuing progress" by which we would respectfullv
 request for the 1704 Committee to reconsider the application.

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


 Subdivision


 The land was legally, subdivided as Lots 10and 11, Block 1, Town of Oak Hill, and recorded in
the Travis County Deed Records on December 16, 1872, (copy attached). In 1982, the City
adopted the Barton Creek Watershed Ordinance, however, legally subdivided land was exempted
from the ordinance and site development standards per Sec. 9-10-303(b). In short, a site
development, or waterway development permit from the City ofAustin was not required.
Site Development Permit

Travis County approved a site development orfloodplain permit on August 9, 1985 for the
Patton Lane Office Building, a 3-story office development. Although the original subdivision
was platted in 1872, the site development permit represents the first in a series ofpermits for the
project. Two copies ofthe complete (11" x 17") plans are attached which show approvals from
the Travis County Engineer's office. Although construction was initiated and later paused due to
economic conditions, the floodplain permit does not expire. The Travis County Engineer's
Office issued a letter in 1987, indicating that a floodplain elevation certificate verifying the
McClendon & Associates Development Consulting. LLC                  Phone: 512 363 8676
4808 Canyonwood Dr.                                                 Fax:   512 382 1017
Austin, Tx. 78735                                                   e-mail: carlmcclendon@austin.rr.com
   finished floor elevation of the building (to be constructed) had not been filed within one year of
   the issuance ofthe permit and, therefore, is aviolation, (not expiration ofthe permit).
   Construction commenced in 1985, with removal of existing homes on the site and construction
   ofdrilled pier locations for the building's foundation, as evidenced by notes from aCity of
   Austin environmental inspector and an aerial photo in 1986, (attached).
  The site included previously existing residential and commercial development from the 1950's
  and 1970's, which did not require City or County permits when it was constructed All ofthis
  development was outside the City and within the County's jurisdiction, prior to the adoption of
  the Barton Creek and Williamson Creek Ordinances.

  Annexation to City of Austin

  The Patton Lane Office Building was under construction when the City of Austin annexed the
  property for full purpose on December 30, 1985, and zoned the property Single-Family-2 (SF-2).
  Since the property was annexed in 1985, there have been no building permits approved or issued
  for the existing development. In late 2011 and early 2012, the City issued acertificate ofnon
  compliance for existing commercial development, which is an exemption from compliance with
  the City s building permit process per LDC, Sec. 25-1-365.

  Continuing Progress

 The Local Government Code Chapter 245.005(a) states for permits without an expiration date
 and for which there is no continuing progress towards completion, alocal regulatory agency mav
 enact an ordinance, rule, or regulation that places an expiration date on aproject ofno earlier "
 than the fifth anniversary ofthe effective date ofthis chapter (Sept. 1, 2005).
 The landowner has continued progress toward permitting by filing and recording an amended
 plat on October 10, 1991, which did not change or alter any ofthe previous restrictions or
 provisions ofthe original subdivision. On October 10, 1991, the City rezoned the property to
 Commercial Services-Conditional Overlay (CS-CO), (Ord. #: 911010-B).
 In 2008, the current owner filed for rezoning of the property to Commercial Services-Conditional
 Overlay-Neighborhood Plan (CS-CO-NP), (Ord. #: 20090115-092), which amended the site
 development restrictions and permitted uses on the property to be consistent with those ofthe
 originally submitted permit.

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

cc: Mr. Charles Draper
McClendon &Associates Development Consulting, LLC                 Phone: 512 363 8676
4808 Canyonwood Dr.
Austin. Tx. 78735                                                 Fax:   512 382 1017
                                                                  e-mail: carlmcclendon@austin.rr.com
                                         Development Summary
                                           Patton Lane Office Bldg


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

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

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

  8/9/1985          Travis County approves site development (or floodplain) permit (Case #: 85-
                    2558) for Patton Lane Office Building and site construction commences.
                    Foundation piers are drilled, but construction pauses due to economic conditions:
                    aerial photo from 4/23/86 showing drilled piers is attached.
  12/30/1985        City ofAustin annexes property, and approves zoning for Single-Family-2 (SF-2).
  10/10/1991        City of Austin approves rezoning from SF-2 to CS-CO for Lots 10and 11 Town
                    of Oak Hill (Case No. CI4-91-0027).
 10/17/1991         Amended platrecorded for Town of Oak Hill, Lots 10 and 11 to create Lots 10A
                    and 11 A, Town of Oak Hill, (Case #: C8-91-0039.0A).
 1/15/2009          Based upon landowner's request for rezoning, the City of Austin revises the
                    zoning and conditional overlay for Lots 10A and 11A, Block 1, Town of Oak Hill
                    Amended Subdivision from CS-CO-NP to CS-CO-NP, (Case #: CI4-2008-0152).
                    The conditional overlay amendments revised the permitted uses and site
                    restrictions on the property.

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




McClendon &Associates Development Consulting, LLC                     Phone: 512 363 8676
4808 Canyonwood Dr.                                                   Fax:   512 382 1017
Austin. Tx. 78735
                                                                      e-mail: carlmcclendon@austin.rr.com
PlaintiffSupplement to the Record

          Exhibit **lH
                                    AFFIDAVIT




THE STATE OF TEXAS


COUNTY OF TRAVIS                      §


       BEFORE ME. THE UNDERSIGNED AUTHORITY, on this day personally
appeared Chares N. Draper, who. being by me first duly sworn, and deposed as
follows:


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




                                            Ca         A?s


                                             Charles N. Draper




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


                                                         ic. State Teras          ,

                                                                  +     +     m


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

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

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




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

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

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

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

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



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

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



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

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



Oxford Commercial                                     For more information, contact:                 '•r mvfcntenrouitj dcftl           Ill fepc: ire caied on NAJOP ilar.da'di   Nc
                                                                                                                                        * implitd, « —iocti the srcj-icy c cefnpletencu
200 W. Cesar Chavez. Suite 250                        Justin Bibb, Research Director                                                    id umc n mbmtted uyier: :c eriori om.ii cm
Austin. TX 78701                                      512637 5515                                                                        uoru withdrawalwithout"cute, anc tc ia> tpeaa
                                                                                                    Iiltmj condition)i-pzsed by ou- p'in:>jali
www.oxfordcommercial.com                              |bibb@oxfordcommercial com                    Z 2013 Cuilimu A Wakefield. In: 'I nfl :-.
  AUSTIN, TX

    :   '   ."                        •             •                           "   /-   •-                                               'Tt : •: '"                                   •




                                               •        •


                                                                      •.-.


                                                                                                               •




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

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

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

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

  • RENTAL RATES REFLECT ASKING SPSF/YEAR




  MARKET HIGHLIGHTS

  Significant 2013 Lease Transactions
  7171 Southwest Parkway                                           SW                           SolarWinds                                                  A                                                      229.793

  9505 Arboretum Blvd.                                             FNW                          AT&T                                                        A                                                      150.033

  7700 Parmer Lane                                                 FNW                          Oracle                                                      A                                                       66,000

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


  Significant 2013 Sale Transactions                                 •" ' : :

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

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

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

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

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

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

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

 Colorado Tower                                                    CBD                          Dubois Bryant & Campbell;                                   Q3 2014                                                371.348

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

 Champion Office Park                                              NW                           N'A                                                         Q2 20I4                                                220.600

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

 Seaholm                                                           CBD                          N/A                                                         Q2 20I4                                                145,138

 Domain 2                                                          NC                           HomeAway                                                   Q3 20I4                                                 140.000

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




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

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

          Exhibit •*££ ^
                                    AFFIDAVIT




THE STATE OF TEXAS


COUNTY OF TRAVIS



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

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




                                              lim Schissler. P.E




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


                                             Notarv Public. State Texas




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

                   JOfv ES&CARTERi.,
    JC             r. •;•.. i mi i:& s • f l f- u \ t = s •c :• r .*: v:- r
                                                                              i7c:
                                                                              a.m.
                                                                                     r,   r-.
                                                                                                \:r. F.'.'d       Sl't1- <"-'•'       ILL
                                                                                                                                      ia>:
                                                                                                                                             i-
                                                                                                                                                      ; ^-:   •,.




                                                                                                                                                           uf-.




                                                                                                              st'i anto '.:•:

                                                                                                     t.;.jGi cv-;y.                          ~r   r
                                                                                                                                                      v. :::.*-


                                                                                 Tt±j> A;uv'l)''/>|,irij;i,i_'.v,_..-.v., A'ri;: •:.•_•; <•. \ /
          February 15. 2011


          Ms. Susan Scallon
         Planning and Development Review
         505 Barton Springs Road
        Austin, Texas 78705

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

        Dear Susaji:


          ud               rtQ 0Wner'Char]eS Drapcr'j0nes &Carter<Inc-is submitting aSite Plan Fair Notice and
       aH.B. i70* Chapter 245 Determination Application for the Patton I^ne Office Building project IV
       project is located on the northeast comer of West US Hwy 290 and Panon 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 in 1985 with the construction of 50 building piers. Due to the economic
       downturn of the mid 1980's, the projeci was halted and the property became owned bv the lend.rip
      institute. At tlie time, the projeci was outside the Austin city limits, so no permit was required for the
      project. Attached are site plan, floor plan and utility plan for tlie project, a copy c< m aerial
      photograph from February 16, 1984 shoeing the site, plus acopy ofan aerial photocranh from April
      •o, 1986 showing the sue had been cleared, the houses and other building had been demolished and
      construction activity had commenced, ["here are current!v fifty building piers that were conducted
      lor the building foundation prior to the project being halted.
      On December 30,1985, the property was annexed into the City Based on the fac- ;hat the pro-ec; h/?
     commenced prior to annexation 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. 17U4 Chapter 245 determination. If there is
     additional information that you require, please contact me at (512) 441 -9493.
     Very truly yours.


   Barnes M. Schissler, P.E.
    Cc:         Charles Draper, Tejas Land Comps
                                                                                                                                             w-fr^-JJjjfjr-
    -' 'prvie-t: A63*> J( I'genera!-lertci,!7l-5 letter 020; i • J.;




Smart Enainehring.Sfna-t Solutions.                                                                                               v.•••..joiii-schrUi.rcr:
Other Authorities
1/
     / ^ ' Office of the Attorney General • State of Texas
     X        John Cornyn



B
I                                                      October 19,2001


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

          Dear Senator Madia:


                 Section 245.002 ofthe Local Government Code locks in, for the duration ofareal-property
          "project," the development regulations in effect when the original application for the first necessary
          permit is filed. See Tex. Loc. Gov't Code Ann. § 245.002(a), (b) (Vernon Supp. 2001); seealso
          Quick v. City ofAustin. 7 S.W.3d 109,131 (Tex. 1998). Under the statutory definition ofthe term
         "project," it isirrelevant whether the owner who files the original application for the first permit
         retains the property for the duration of the project or conveys the property. See Tex. Loc. Gov't
         Code Ann. §245.001(3) (Vernon Supp. 2001). You ask a question regarding a tract of land for
         which an owner has filed an original application for the first necessary permit' Ifanother person
         purchases that tract of land, you inquire, is the purchaser "entitled to the rights and benefits" that
         chapter245 provides to the owner who filed the original application for the first permit, see Request
         Letter, note 1, at 1, and we thus understand you to ask whether the property remains subject tothe
         development 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 time the original application for the first permit was filed, but only ifthe project remains
         the same. Whether a project remains thesame 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 (1999) at 3 (stating the questions of fact cannot be addressed in



                lSee Letter from Honorable Frank Madia, Chair, Committee on Intergovernmental Relations, Texas Senate,
         toHonorable John Cornyn, Texas Attorney General (May 24, 2001) (on file with Opinion Committee) [hereinafter
         Request Letter].
              TheHonorable 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).

B                     Section 245.002 ofthe Local Government Code specifies that areal-property "project" will
              be subject to the development regulations in effect when the original application for the first permit
             required for the projectis filed:
I
                                     (a) Each regulatory agency shall consider the approval,
I                            disapproval, orconditional approval of an application for a permit
                             solely on the basis of any orders, regulations, ordinances, rules,
                             expiration dates, orother properly adopted requirements in effect at
I                            the time the original application for the permit is filed.
                                     (b) If a series ofpermits is required for a project, theorders,
I                            regulations, ordinances, rules, expiration dates, or other properly
                             adopted requirements ineffect at the time the original application for
                             the first permit in that series is filed shall be the sole basis for
( c o n s i d e r a t i o n of all subsequent permits required for the completion
                             ofthe project. All permits required for theproject are considered to
                             be a single series of permits. Preliminary plans and related
|                            subdivision plats, site plans, and all other development permits for
I                           land covered by the preliminary plans or subdivision plats are
                            considered collectively tobeone series of permits for a project.



             TEX. Loc. Gov'TCODE ANN. §245.002(a), (b) (Vernon Supp. 2001). The terms "permit," "project,"
             and"regulatory agency" are defined in section 245.001:

                                    (1) "Permit" means a license, certificate, approval,
                            registration, consent, permit, or other form ofauthorization required
                            bylaw, rule, regulation, order, orordinance that aperson mustobtain
                            to perform an action or initiate, continue, orcomplete a project for
                            which the pennit is sought.



                                   (3) "Project" means an endeavor over which a regulatory
                            agency exerts its jurisdiction and for which oneormore 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, orotheragency of,
                       apoliticalsubdivisionacting initscapacity ofprocessing, approving,
I                      or issuing a permit.

        Id. § 245.001. Chapter 245 applies only to a project "in progress on or commenced after
I
!
        September 1, 1997," see id. § 245.003, and certain permits and regulations areexempt from the
        chapter, see id. § 245.004. In addition, a regulatory agency may,by ordinance orregulation, 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 thatthe propertyaboutwhich you are
        concerned is not exempt from chapter245 andis not dormant. Seegenerally Request Letter, supra
        note 1.


               With respect to property for whichanoriginal application for a first permithasbeen filed,
I       the property is subject to thedevelopment regulations that are effectiveatthetimeofthe filing (with
        the exceptions listedin chapter 245 of the Local Government Code) for the duration ofthe project
        regardless ofany conveyances that may occurduringthe project. Nothing in chapter 245 suggests
I       that the development regulations to which a property is subject, locked in at the time of filing the
        original application for the first permit, no longerapply to the propertysolely because the property
        has been conveyed to another owner. Section 245.002 facially directs that a property is, for the
    I   duration ofa 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, 1
        S.W.3d at 131 (examining priorstatute, which"provides thatif a seriesof permits is for a project,
    I   the ordinancesin effect at the time the original application for the first permit is filed shall be the
        sole basis for consideration of all subsequent permits required for the completion of a project").
        Additionally, the term "project," as defined in section245.001(3), does not indicate that a project
    I   is specific to a personor terminates eachtime the property is sold. SeeTex. Loc. Gov'tCode ANN.
        §245.001(3) (Vernon Supp. 2001). A projectis an"endeavor,"see id., which is commonly defined
        as "the action of endeavouring; effort, or pains, directedto attain an object." V Oxford English
    |   Dictionary 226 (2d ed. 1989); see Tex. Gov'tCode Ann. §311.011(a) (Vernon 1998) (requiring
    I   us to read statutorywords and phrases in context and to construe them according to rules ofgrammar
        andcommon usage); Thompson v. Corbin, 137 S.W.2d 157,159 (Tex. Civ. App.-Texarkana 1940,
    I   no writ) (defining verb "endeavor" as "to exert physical and intellectual strength toward the
    •   attainment ofan object; a systematic orcontinuous effort") (quoting Webster's New International
        Dictionary).

                Nevertheless, neither apurchaser nor an owner mayalter a project without thepossibility 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 haschanged soasto lose theprotections granted by chapter 245 is aquestion that
        must be resolvedby the local regulatory agency with jurisdiction in the matter. The statutedefines
     The Honorable Frank Madia - Page 4              (JC-0425)



i.
"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,
B    approving, orissuing apennit." Tex. Loc. 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).
I    Furthermore, this agency cannot determine whether aproject has changed, as the question cannot
     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
I    beyond purview of this office); JC-0027 (1999) at 3 (stating the questions of fact cannot be
     addressed inattorney general opinion); JC-0020 (1999) at 2(stating that investigation and resolution
     of fact questions cannot be done in opinion process).

I
     TheHonorable Frank Madia - Page 5              (JC-0425)




I                                          SUMMARV


B                          Under section 245.002 of the Local Government Code,
                   property for which an original application for the first development
                   permit has been filed remains subject to the orders, regulations,
I                  ordinances, rules, expiration dates, orother requirements that were
                   effective at the time the application was filed for the duration of a
                   project, regardless ofany changes inownership that mayoccurbefore
I                  the project is completed. See Tex. Loc. Gov't Code Ann. §
                   245.002(a), (b) (Vernon Supp. 2001). If aproject changes, however,
                   the project becomes subject tocurrent development regulations. See
I                  id. § 245.001(3) (defining "project"). Whether a particular project
                   has changed so as tolose the protections granted by chapter 245 isa
                   question that must be resolved by the local regulatory agency with
                   jurisdiction in the matter. See id. §245.001(4) (defining Regulatory
                   agency").

                                                 Yours
                                                 i ours very truly,


                                                                CT**-y—
                                                 JOHN
                                                    N      C
                                                           CORNYN
                                                 Attorney General ofTexas


    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
                                                     fir, •%


                                Attorney General of Texas
                                              GREG        ABBOTT




                                                 December 10.2012




The Honorable Rene O. 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.1 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 25-1-533(B),
25-1-535(B)(4), and 25-1 -535(C)(3).2 See. Request Letter at 3. Section 25-1-533(B) provides that:

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

AUSTIN CITY CODE § 25-1-533(B). Section 25-1-535(B)(4) applies in the City's "Drinking Water
Protection Zone" and provides that:



          See Letter from Honorable Rone Oliveira, Chair. House Coinm. on Land & Res. Mgml., to Honorable Greg
Abbott, Tex. Att*y Gen. at 1 (June 22, 2012), http://www.tcxasaltorneygencral.gov/opin ("'Request Letter").

         :TheCityof Austin informs usthat itdoes not enforce certain provisions oftheOrdinance. Sec Brieffrom Brent
D. Lloyd, Assistant City Atl'y, City of Austin Law Dcp't at 2 (July 30, 2012) (attaching affidavit of Greg Guernsey, Dir.
of Planning & Dev. Review, which identifies provisions no longer enforced) ("City of Austin Brief"). The provisions
the City asserts il still enforces are the same provisions that you specifically cite to in your request letter. Thus, we
assume that you are concerned about only sections 25-1-533(B), 25-1-535(B)(4). and 25-1-535(C)(3) of the Austin City
Code. See AUSTIN, Tex., Austin City Codf. ch. 25-1. art. 12, §§ 25-1-533(B), 25-1-535(B)(4), (C)(3) (2012).
The Honorable Rene O. Oliveira - Page 2                    (GA-0980)




                  lain 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 construction is
                  filed within three years of the date the first application is filed.

Id. § 25-l-535(B)(4). Section 25-1-535(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 on
                  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-rule cities, such as Austin, derive their powers from the Texas Constitution. TEX.
Const, art. XI, § 5; Tex. Loc 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 provision
inconsistent with ... the general laws enacted by the Legislature of this State." Tex. Const, art. XI,
§ 5(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 thai 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 Vill. v. Coineau, 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-rule power
to regulate construction and development within theirjurisdiction. 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 regulatory decision making and all thai 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,


         ^The Municipal Code defines "Drinking Water Protection Zone" as "the areas within the Barton Springs Zone,
the Barton Creek watershed, all watersupply rural watersheds, andall water supply suburban watersheds ... that are in
the planning jurisdiction." Id. § 25-1-21(30). The "Desired Development Zone means thearea not within thedrinking
water protection/one." Id. §25-1-21(26).
The Honorable Rene O. Oliveira - Pase 3                    (GA-0980)




ordinances, rules, expiration dates, or other properly adopted requirements in effect at the time the
original application for the first pennit in that series is filed shall be the sole basis for consideration
of all subsequent permits required for the completion of the project." Tex. Loc Gov't Code Ann.
§ 245.002(b) (West 2005). The effect of ihe statute is that "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 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. LOC.
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- l-533(B). Under the statute,
however, a project's expiration date must be no earlier than five years after the filing of the first
permit application. TEX. Loc Gov't CODE ANN. § 245.005(b) (West 2005). 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 within the time
periods" established by the city. AUSTIN City Code § 25-1 -533(B). Ilowevcr, under the statute, a
project may not expire unless it meets the dormancy criteria contained in section 245.005. Tkx. Loc.
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



         4Bricfing we received in connection with your request argues that subsection 245.002(a)'s reference to
"expiration dales" implicitly authorizes a regulatory agency to impose expiration dates on permits. See City of Austin
                                                                                                        (continued...!
The Honorable Rene O. 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)
Brief at 3; Brief from Scoti 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 Ihc expiration of projects, not permits. The rights guaranteed to projects by chapter 245 continue
to apply regardless of the expiration of individual permits within a project.

         ''It has been suggested in briefing submitted to this office that, because the Ordinance became effective on
September 6, 1997, il is in violation of sections 2 and 3(a) of House Bill 1704 enacted in 1999. See Brief from Andrew
Weber, Kelly Harl & Hallman, on behalf of the Real Estate Council of Austin at 2-4 (June 29, 2012). See also Act of
Apr. 29, 1999,76th Leg., R.S.,ch. 73, §§ 1(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 chapter 245). House
Bill 1704 provides that chapter 245 applies retroactively 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,... after that repeal and before the effective date of this Act, shall not cause
or require 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.
The Honorable ReneO. 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,




                                                         BBOTT
                                            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
Plaintiff's Notice of Appeal
       Interlocutory Orders
                                                                               Filed in The District Court
                                                                                   of Travis County, Texas
                                       IN THE DISTRICT COURT OF                        NOV 2 0 2015
                                        TRAVIS COUNTY, TEXAS                  At         3*'I?) _pM.
                                         419,h JUDICIAL DISTRICT              Velva   L Price, District tflerk
  CHARLES N. DRAPER,
  Plaintiff, Pro Se
  V.                                                                 CAUSE NO. D-1GN-13-000778
  GREG GUERNSEY,
  IN HIS CAPACITY AS DIRECTOR OF
  PLANNING AND DEVELOPMENT
  WATERSHED PROTECTION
  REVIEW DEPARTMENT,
  AND CITY OF AUSTIN
  Defendants.
                                   PLAINTIFFS NOTICE OF APPEAL
                                       INTERLOCUTORY ORDERS
        COMF.S NOW. Charles Draper and files Plaintiff's Xotice of Appeal on Interlocutory Orders.
        The Order DENYING Plaintiff's Motion for Xo Evidence' Summary Judgment, and Order
  GRANTING Defendants 'Motion to Strike Plaintiff's Summary Judgment Evidence. Judge Charles Ramsay
  erred in the 419th Tra\is Count) Ci\il Court on November 12th. 2015.
        UnderTRCP Rule §168, and TRAP §29, plaintiffformalizes Xotice ofAppeal to be sent to the
  Texas' Third Court of Appeals.
                                                    I. Rule of Law
        Under CPRC Rule §51.014(d)(l), An interlocutor} appeal from an order involving a controlling
question of law which there is substantial ground for a difference ofopinion, and (2) an immediate appeal
may materially advance the ultimate termination of the litigation.
        Under TRCP §166(a), and (e). plaintiff filed appropriate cause of action, to assist in the disposition
of the case without undue expense or burden to the parties. Agents appeared before the court for conference.
                                                                                                     £89
         Plaintiffs claims are based CPRC Rule §101.0215(29). Liability ofa Municipality whereby. Greg

Guernse} engaged in "proprietary", special-authority. denied Plaintiffs \alid Travis Count} Permit at his

"occupational discretion" and failed to perform his "go\ernmental-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 tiled with the agenc} responsible for regulating the subject property.

Schumaker Enterprises. Inc. V. City ofAustin. 325 S.W.3d 812. 815 (Tex. App. -Austin 2011. no pet.), and

LGC § 43.002. Continuation of Land Use, (a) A municipality ma} not. after annexing an area, prohibit a

person from:( 1) continuing to use the land in the area in the manner that was being used on the date the

annexation proceedings were instituted if the land use was legal at that time.

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

Physical Taking. Intent. Inverse ('ondemnation. Restriction ofland use.

        Plaintiff contends, there is controlling question of law. misplaced in Travis Count} District Court

4I9'1'. which honorable Judge Charles Ramsay presided.


                                               II. Interlocutory Orders




        On No\ ember 12. 2015. Justice Charles Ramsa} issued an Order. DENYING Plaintiff's Motionfor

 Xo Evidence 'Summary Judgment. Justice Charles Ramsa} erred in the rule of law. GRANTING Defendants

Motion to Strike Plaintiff's Summary Judgment Evidence. Contrary to defendants' motion, plaintiff's

evidence are self-authenticated under Rules: §801(l)(e)(A), (B)(C)(D), §801(2), §803(14), §803(15),

§803(16), and §901(b)(8).

        Having reviewed plaintiffs petition for Xo Evidence Summary Judgment. Justice Charles Ramsa}

provided, no Alternative Relief(as requested in plaintiffs petition), nojustification, no rule of law. and no

basis, no court reported testimony, or court record in support of his Order.
                                                    III. Summary




         Plaintiff. Charles Draper, sued defendants. Greg Guernse} in his official capacity as Director of

Planning and Watershed Protection Review Department, and the City of Austin for 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, misconstrued legislative intent, taking a 'narrow view' of Chapter Rule §245, while

ignoring Rule §43.002. Defendants. Greg Guernse}. and the Cit} of Austin in their 'occupational discretion

failed to comply with State law. engaged in "proprietary" special authority, intentionally denied plaintiffs

"vested-rights". Texas Third Court of Appeal afiirmed plaintiffs pre\ ious claims, the Texas Tort Claims Act

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

Id at 424. (Cause No. 03-14-00265-CV).

        Defendants" actions violated plaintiffs constitutional rights, under Texas Constitution. Article 1,

§17 (a), (160), (161) Physical Taking. Intent. Inverse ('ondemnalion. Restriction ofland use.



        Plaintiff requests Tra\ is District Clerk to forward the Record. Registry, and Notice of Appeal to the

District Clerk's Office. Texas" Third Court of Appeals.
                                                             Respectfully submitted




                                                             Charles N. Draper
                                                             160 Maeves Way
                                                             Austin. Texas 78737
                                                             Phone: 512.699.2199
                                                             Email: cdf?tejasland.com



CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on November 3flL 2015. a true and correct copy of the foregoing Plaintiff's Xauea-ef
Appeal was sent bycenified mail, return receipt request to Andralee Cain Llovd. Austin Law Depanment. Citv Hall.
301 West 2nd Street. P.O. Box 1546. Austin. Texas 78767-1546                "                            ' •

Andralee Cain Llo}d. Assistant Cit} Attorney
Law Department
City of Austin
City Hall. 301 West 2mi Street
P.O. Box 1546
Austin. Texas 78767-1546
(512)974-2925
Fax:(512)974-1311
Case:D-l-GN-13-000778 with (54) documents

 FILED DATE     CATEGORY         DESCRIPTION         ADDITIONAL INFO

3/4/2013        PET-PL          ORIGINAL PETITION/   PLAINTIFF'S ORIGINAL
                                APPLICATION          PETITION

3/5/2013         SRVPROCESS      EXE SERVICE OF      CITY OF AUSTIN
                                 CITATION

3/5/2013        SRVPROCESS      EXE SERVICE OF       GREG GUERNSEY
                                CITATION

3/7/2013        SRVPROCESS      EXE SERVICE OF       CITY OF AUSTIN
                                CITATION

3/27/2013       ANS-RESP        ORIGINAL ANSWER      DEFENDANTS GREG
                                                     GUERNSEY AND CITY OF
                                                     AUSTIN'S ORIGINAL ANSWE
                                                     R

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

4/19/2013       MOTION          MTN:OTHER MOTION     PLAINTIFF'S MOTION FOR
                                                     COURT HEARING

4/30/2013       NOTICE          NTCHEARING/          NOTICE OF HEARING
                                SETTING

5/6/2013        OTHER           RULE 11              RULE 11 AGREEMENT
                                AGREEMENT

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

5/17/2013       MOTION          miscontinuance       DEFENDANTS GREG
                                                     GUERNSEY AND CITY OF
                                                     AUSTIN'S MOTION FOR CON
                                                     TINUANCE OF PLAINTIFFS
                                                     HEARING ON PLAINTIFF'S
                                                     ORIGINAL PETI HON,
                                                     DECLARATORY JUDGMENT,
                                                     INJUNCTIVE RELIEF, AND
                                                     SUPPLEMEN

5/17/2013       NOTICE          NTCHEARING/          NOTICE OF HEARING ON
                                SETTING              DEFENDANTS GREG
                                                     GUERNSEY AND CITY OF
                                                     AUSTIN'S SPECIAL
                                                     EXCEPTIONS
FILED DATE   CATEGORY   DESCRIPTION        ADDITIONAL INFO

5/17/2013    NOTICE     NTC:HEARING/       NOTICE OF HEARING ON
                        SETTING            DEFENDANTS GREG
                                           GUERNSEY AND CITY OF
                                           AUSTIN'S MOTION FOR
                                           CONTINUANCE OF
                                           PLAINTIFF'S HEARING ON
                                           PLAINTIFFS ORIGINAL
                                           PETITION, DECLARATORY
                                           JUDGMENT, INJUNCT

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

5/20/2013    MOTION     MTNrOTHER MOTION   PLAINTIFF'S MOTION TO
                                           QUASH DEFENDANTS
                                           MOTION FOR SPECIAL
                                           EXCEPTIONS

5/30/2013    ORD        ORD:OTHER ORDER    ORDER ON DEFENDANTS
                                           GREG GUERNSEY AND CITY
                                           OF AUSTIN'S MOTIO N FOR
                                           CONTINUANCE OF
                                           PLAINTIFF'S HEARING ON
                                           PLAINTIFF'S ORIG INAL
                                           PETITION. DECLARATORY
                                           JUDGMENT. INJUNCTIVE
                                           RELIEF. AND

5/31/2013    ANS-RESP   RESPONSE TO        PLAINTIFF'S RESPONSE
                        MOTION/PLEADING    SUPPLEMENT TO
                                           DEFENDANT'S MOTION FOR
                                           SPECIAL EXCEPTIONS

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

6/18/2013    OTHER      LETTER             FROM SANDRA KIM (ORDER
                                           FORWARDED TO 98TH FOR
                                           JUDGES SIGNATUR E)
7/17/2013    ORD        ORD:OTHER ORDER    ORDER ON DEFENDANTS
                                           GREG GUERNSEY AND CITY
                                           OF AUSTIN'S SPECI AL
                                           EXCEPTIONS
FILED DATE   CATEGORY   DESCRIPTION        ADDITIONAL INFO

8/27/2013    PET-PL     AMENDED PETITION   PLAINTIFF'S FIRST
                                           AMENDED PETITION

10/9/2013    MOTION     MTNrOTHER MOTION   PLAINTIFFS MOTION FOR
                                           JUDGMENT ON AGREED
                                           STATEMENT OF FACTS

10/9/2013    MOTION     MTNrSUMMARY        PLAINTIFFS MOTION FOR
                        JUDGMENT           NO EVIDENCE SUMMARY
                                           JUDGMENT

10/31/2013   MOTION     MTNrOTHER MOTION   DEFENDANTS GREG
                                           GUERNSEY AND CITY OF
                                           AUSTIN'S OBJECTION TO P
                                           LAINTIFF'S MOTION FOR
                                           JUDGMENT ON AGREED
                                           STATEMENT OF FACTS

10/31/2013   ANS-RESP   RESPONSE TO        CITY OF AUSTIN AND GREG
                        MOTION/PLEADING    GUERNSEY'S RESPONSE TO
                                           PLAINTIFF'S M OTION FOR
                                           NO-EVIDENCE SUMMARY
                                           JUDGMENT AND MOTION TO
                                           STRIKE PLAINTIFF'S NO-
                                           EVIDENCE SUMMARY
                                           JUDGMENT EVIDENCE

11/4/2013    ANS-RESP   OTHER ANSWER/      PLAINTIFFS RESPONSE TO
                        RESPONSE           DEFENDANTS OBJECTION
                                           PLAINTIFFS MOT ION FOR
                                           JUDGMENT ON AGREED
                                           STATEMENT OF FACTS

11/4/2013    ANS-RESP   OTHER ANSWER/      PLAINTIFFS RESPONSE TO
                        RESPONSE           DEFENDANTS CITY OF
                                           AUSTIN AND GREGG
                                           UERNSEY MOTION TO
                                           STRIKE PLAINTIFFS MOTION
                                           FOR NO EVIDENCES
                                           UMMARY

11/13/2013   ORD        ORDrDENIED         ORDER (DENIED)
                        MOTION/
                        APPLICATION

12/2/2013    ANS-RESP   OBJECTIONS         PLAINTIFFS OBJECTIONS TO
                                           JUDICIAL ORDER NO
                                           EVIDENCE SUMMARY
                                           JUDGMENT

2/18/2014    OTHER      OTHER FILING       PLAINTIFF'S SUPPLEMENT
                                           TO THE RECORD
                                           AFFIDAVITS OF EVEIDENCE
FILED DATE   CATEGORY   DESCRIPTION         ADDITIONAL INFO

3/26/2014    MOTION     MTNrDISMISS/        CITY OF AUSTIN AND GREG
                        NONSUIT             GUERNSEY'S MOTION TO
                                            DISMISS PURSUAN T TO
                                            TEX.CIV.PRAC.& REM. CODE
                                            101.106(a) AND (e)
3/26/2014    MOTION     MTNrDISMISS/        CITY OF AUSTIN AND GREG
                        NONSUIT             GUERNSEYS MOTION TO
                                            DISMISS PURSUANT TO TEX
                                            CIV PRAC & REM CODE
                                            101.106(A)AND(E)

3/28/2014    NOTICE     NTCrHEARING/        NOTICE OF HEARING ON THE
                        SETTING             CITU OF AUSTIN AND GREG
                                            GUERNSEY'S MOTION TO
                                            DISMISS PURSUANT TO
                                            TEX.CIV.PRAC. & REM.CODE
                                            101.106(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)

4/10/2014    ANS-RESP   RESPONSE TO         CITY OF AUSTIN AND GREG
                        MOTION/PLEADING     GUERNSRY'S REPLY TO
                                            PLAINTIFFS RESP ONSE TO
                                            DEFENDANTS' MOTION TO
                                            DISMISS PURSUANT TO
                                            TEX.CIV. PRAC. & REM.
                                            CODE 101.106(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)

4/21/2014    OTHER      FORM                TEXAS RULES OF
                                            APPELLATE PROCEDURE
                                            RULE 13.5 (A,B,C)

4/22/2014    NOTICE     NTCrNOTICE OF       PLAINTIFFS NOTICE OF
                        APPEAL              APPEAL INTERLOCUTORY
                                            ORDERS

4/30/2014    OTHER      LETTER              LETTER FROM COURT OF
                                            APPEALS

5/6/2014     OTHER      LETTER              LETTER REQUESTING
                                            REPORTERS RECORD
FILED DATE   CATEGORY     DESCRIPTION        ADDITIONAL INFO

5/7/2014     OTHER        DESIGNATION        PLAINTIFFS REQUEST TO
                          CLERKS RECORD      FORWARD THE RECORD

5/8/2014     OTHER        DESIGNATION        PLAINTIFF'S REQUEST TO
                          CLERKS RECORD      FORWARD THE RECORD

5/20/2014    OTHER        OTHER FILING       COPY OF BILL OF COST FOR
                                             CLERK'S RECORD

5/29/2014    CV           CLERKS RECORD      CLERK'S RECORD
             MISCELLANE
             OUS

5/30/2014    OTHER        LETTER             LETTER FROM COURT OF
                                             APPEALS

2/25/2015    ORD          ORDrOTHER ORDER    MEMORANDUM OPINION
                                             AND JUDGMENT

10/15/2015   MOTION       MTNrOTHER MOTION   PLAINTIFFS NO-EVIDENCE
                                             MOTION FOR SUMMARY
                                             JUDGMENT

10/15/2015   ORD          ORDrMANDATE        MANDATE

10/21/2015   NOTICE       NTCrATTORNEY/      DEFENDANT'S NOTICE OF
                          COUNSEL            SUBSTITUTION OF COUNSEL
                                             AND DESIGNATIO N OF
                                             ATTORNEY IN CHARGE

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)

11/12/2015   ORD          ORDrOTHER ORDER    ORDER DENYING
                                             PLAINTIFFS NO-EVIDENCE
                                             MOTION FOR SUMMARY JUD
                                             GMENT AND GRANTING
                                             DEFENDANTS' MOTION TO
                                             STRIKE PLAINTIFFS
                                             SUMMARY JUDGMENT
                                             EVIDENCE

11/12/2015   ORD          ORDrOTHER ORDER    ORDER DENYING
                                             PLAINTIFFS NO-EVIDENCE
                                             MOTION FOR SUMMARY JUD
                                             GMENT AND GRANTING
                                             DEFENDANTS' MOTION TO
                                             STRIKE PLAINTIFF'S
                                             SUMMARY JUDGMENT
                                             EVIDENCE
FILED DATE   CATEGORY   DESCRIPTION     ADDITIONAL INFO

11/20/2015   NOTICE     NTCrNOTICE OF   PLAINTIFFS NOTICE OF
                        APPEAL          APPEAL rNTERLOCUTORY
                                        ORDERS

11/20/2015   NOTICE     NTCrNOTICE OF   PLAINTIFFS NOTICE OF
                        APPEAL          APPEAL INTERLOCUTORY
                                        ORDERS
