Preview
8/11/2016 12:57:32 PM
Velva L. Price
District Clerk
Travis County
CAUSE NO. D-1-GN-13-000778 D-1-GN-13-000778
Terri Juarez
CHARLES N. DRAPER,
Plaintiff, Pro Se,
IN THE DISTRICT COURT
v.
GREG GUERNSEY,
IN HIS CAPACITY AS DIRECTOR OF
PLANNING AND DEVELOPMENT
WATERSHED PROTECTION
REVIEW DEPARTMENT,
AND CITY OF AUSTIN,
Defendants.
TRAVIS COUNTY, TEXAS
LAP QP MP LM LN OS LN MH MP
419th JUDICIAL DISTRICT
DEFENDANTS’ TRADITIONAL AND NO-EVIDENCE
MOTION FOR SUMMARY JUDGMENT
COMES NOW, Defendants City of Austin and Greg Guernsey’ (collectively referred to
as “Defendants” and respectively referred to as the “City” or “Guernsey”) file their Motion for
Summary Judgment and respectfully show the Court the following:
I.
INTRODUCTION
Plaintiff's legal theories and factual allegations are difficult to follow. See Ex. A
(Plaintiff's Final Amended Petition). What is clear, however, is the City denied Plaintiff's
application for vested rights, codified at Chapter 245 of the Local Government Code (“Chapter
245”), to develop property at 6300-02 Highway 290, requesting an exemption from current City
regulations based on a plat recorded in 1872 and/or an expired permit issued by Travis County
on August 9, 1985.7 Plaintiff's lawsuit challenges Defendants’ denial of his vested rights
application and asserts that various City employees made fraudulent misrepresentations,
' Greg Guernsey has been dismissed from this suit for all claims other than Plaintiff's ultra vires claim as ruled by
the Third Court of Appeals in Memorandum Opinion No. 03-14-00265-CV.
? The City’s application for vested rights is titled “Project Application H.B. 1704/Chapter 245 Determination”, but
for ease of reference is referred to herein as a “vested rights application.”committed perjury, and breached a contract in connection with the denial of his vested rights
application and the handling of the current lawsuit.
In general, Chapter 245 provides that all permits required to complete a development
project are “locked-in” to the regulations in effect on the date that the first permit application,
development plan or plat application for the project is filed which “gives the regulatory agency
fair notice of the project and the nature of the permit sought.” TEx. LOCAL Gov’T CODE §
245.002. Contrary to Plaintiff's Final Amended Petition, the rights conferred by Chapter 245 are
not so broad that any permit application filed for the development of property with one
regulatory agency is sufficient to exempt it from current regulations with respect to a different
regulatory agency. The evidence presented by Plaintiff in this case—a plat from 1872 and a
lapsed Travis County permit issued in 1985—is legally insufficient in establishing vested rights
from current City regulations. As for the remainder of Plaintiffs claims (fraudulent
misrepresentation, perjury, and breach of contract), these claims are confusing, unsubstantiated
and conclusory. Plaintiffs claims must be dismissed and Defendants are entitled to summary
judgment as a matter of law.
Il.
SUMMARY JUDGMENT EVIDENCE
To support the facts in this response, Defendants offer the following summary-judgment
evidence and incorporates them by reference.
Exhibit A: Plaintiffs Final Amended Petition.
Exhibit B: Supplemental Affidavit of Susan Scallon with attachments.
Exhibit C: Affidavit of Stacey Scheffel.
Exhibit D: Affidavit of Christopher Johnson.
Exhibit E: Rule 11 Agreement dated May 3, 2013 regarding rescheduling a hearing.
DEFENDANTS’ TRADITIONAL AND NO-EVIDENCE
MOTION FOR SUMMARY JUDGMENT PAGE 2 OF 16Exhibit F: Affidavit dated May 17, 2013 signed by Defense counsel in support of
Defendants’ Motion for Continuance.
ExhibitG: Order dated May 30, 2013 granting Defendants’ Motion for Continuance.
TIL.
STANDARD OF REVIEW
Under Rule 166a (c), a court must grant summary judgment if the movant presents
sufficient evidence to show that there are no issues of material fact and that it is entitled to
summary judgment as a matter of law. Park Place Hospital v. Estate of Milo, 909 S.W.2d 508
510 (Tex. 1995); TEX. R. Civ. P. 166a (c). A defendant whose summary judgment evidence
conclusively negates at least one of the elements of plaintiffs cause of action, or whose evidence
conclusively proves all of the elements of an affirmative defense, is entitled to summary
judgment as a matter of law. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995).
Under a no-evidence motion, a defendant asserts that there is no evidence of one or more
essential elements of a plaintiffs claim(s) upon which the plaintiff would have the burden of
proof at trial. Tex. R. Civ. P. 166a (i). The defendant, as movant, does not bear the burden of
establishing each element to its own claim or defense. General Mills Restaurants v. Texas Wings,
Inc., 12 $.W.3d 827, 832 (Tex. App.—Dallas 2000, no pet.); Lampasas v. Spring Ctr., Inc., 988
S.W.2d 428, 432-33 (Tex. App—Houston [14th Dist.] 1999, no pet.). Rather, the movant lists
the elements for which the party lacks evidentiary support. The burden then shifts to the plaintiff
to present enough evidence to be entitled to a trial, ie., evidence that raises a genuine fact issue
on the challenged elements. TEX. R. Crv. P. 166a (i).
A plaintiff must produce evidence of probative force to raise a fact issue on the material
questions presented. General Mills, 12 S.W.3d at 833. If plaintiff is unable to provide more than
a scintilla of probative evidence to raise a genuine issue of material fact as to an essential
DEFENDANTS’ TRADITIONAL AND NO-EVIDENCE
MOTION FOR SUMMARY JUDGMENT PAGE 3 OF 16element of plaintiff's claim, the trial judge must grant the motion. Jd. at 832-33; Lampases, 988
S.W.2d at 433. More than a scintilla of evidence exists when the evidence “rises to a level that
would enable reasonable and fair-minded people to differ in their conclusions.” Merrell Dow
Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). Less than a scintilla of
evidence occurs “when the evidence offered to prove a vital fact is so weak so as to do no more
than create a mere surmise or suspicion of its existence and in legal effect is no evidence.”
Coastal Conduit & Ditching v. Noram Energy, 29 S.W.3d 282, 284-85 (Tex. App.—Houston
[14th Dist.] 2000, no pet.) (citing Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).
Iv.
ARGUMENT
A. Plaintiff is not entitled to vested rights under Chapter 245.
Under Plaintiffs interpretation of Chapter 245, a property would remain forever exempt
from current City development regulations based on nothing more than a plat recorded for the
property in the year of 1872 and/or an expired permit issued by another regulatory agency in
1985. Plaintiff's arguments are inconsistent with controlling precedent and fail as a matter of law
to establish vested rights under Chapter 245.
i. A permit application submitted to one regulatory agency does not establish
vested rights for purposes of another agency’s regulations.
“Generally, the right to develop property is subject to intervening regulatory changes.”
Shumaker Enterprises, Inc. v. City of Austin, 325 S.W.3d 812, 814 (Tex. App.—Austin 2010, no
pet.); Harper Park Two, L.P. v. City of Austin, 359 S.W.3d 247, 256 (Tex. App.—Austin 2011,
pet denied); Quick v. City of Austin, 7 S.W.3d 109, 124 (Tex. 1998), Chapter 245 creates a
“narrow exception to this rule.” Jd. (emphasis added). Under Chapter 245, once an individual
files a development application or plan with a regulatory agency, that agency may not enforce
DEFENDANTS’ TRADITIONAL AND NO-EVIDENCE
MOTION FOR SUMMARY JUDGMENT PAGE 4 OF 16any subsequent changes to its land-use regulations to the detriment of the applicant. Shumaker,
325 S.W.3d at 814; see also TEx. LOCAL Gov’T CODE § 245.002(a). These vested rights may
only accrue against a regulatory agency, however, if the application under Chapter 245 “gives
the regulatory agency fair notice of the project and the nature of the permit sought.” TEx. LOCAL
Gov’t CODE § 245.002(a-1) (emphasis added); see also Shumaker, 325 S.W.3d at 815.
Accordingly, an application filed with one agency does not provide “fair notice” to another
agency and is thus not sufficient to establish vested rights from that agency’s regulations.
Shumaker, 325 8.W.3d at 815.
The present case is almost identical to the Shumaker case. In Shumaker, a landowner was
required to obtain a city permit after the city’s extraterritorial jurisdiction (“ETJ”) expanded to
include the landowner’s property. Shumaker, 325 S.W.3d at 815. The landowner argued that it
was not required to obtain a city permit for its intended sand-and-gravel mining operations
because it had already applied for an application with the county before the expansion of the
city’s ETJ included the property in question. /d. at 812-13. In rejecting that argument, the
Shumaker court held the reference to “permits” as opposed to a “project” or “property,” in
Section 245.002(a)(1) of the Local Government Code meant a landowner can only establish
vested rights with an agency’s regulations if he or she filed a permit application with that same
agency. /d. at 814-15. The landowner in Shumaker was required to file an application with the
city after the city’s ETJ expanded to include the landowner’s property in order to establish vested
rights with the city, and the previous filing with the county could not accomplish this result. /d.
at 815; TEx. LOCAL Gov’T CobE § 245.002(a)(1).
Similar to the landowner in Shumaker, Plaintiff requests this Court recognize vested
rights under City regulations following the filing of an 1872 plat of unknown origin or a 1985
DEFENDANTS’ TRADITIONAL AND NO-EVIDENCE
MOTION FOR SUMMARY JUDGMENT PAGE 5 OF 16Travis County development permit. Ex. A. Neither was filed with the City, and in accordance
with Shumaker, vested rights with the City was not established on either date. Ex. B (Affidavit of
Susan Scallon). In fact, Plaintiffs claims are even weaker than those rejected by the court in
Shumaker because the subject property came within the City’s ETJ on July 19, 1951, prior to the
issuance of the 1985 Travis County development permit, and would therefore have required a
City permit in 1985, Ex. B.
Since no application giving the City “fair notice” of a development project was ever filed
with the City, Plaintiffs argument that development of the subject property is vested to City
regulations in effect on August 9, 1985, or in the year 1872, directly contradicts Shumaker and
fails as a matter of law. Ex. B. Only an application filed with the City in 1985 could possibly
afford Plaintiff vested rights to City regulations in effect in 1985. Accordingly, Plaintiff is not
entitled to vested rights.
ii. A permit does not entitle a project to vested rights if the original project has
changed, been completed, abandoned, or become dormant.
Even if this Court could find that the City was somehow given fair notice of the subject
property development and thus Plaintiff entitled to vested rights, the overall project was
completed, abandoned, or dormant well before Plaintiff submitted his request for vested rights to
the City on February 14, 2011. Accordingly, any proposed development on the subject property
as of 2011 or thereafter constitutes a new project subject to current regulations.
1. The scope of a “project” under Chapter 245 is defined by the original
permit.
The rationale for Chapter 245 protections only works with the assumption that the same
“project” is being pursued by the developer—as rights are vested in a particular project not the
property. Seguido, 227 S.W.3d at 242, 250. For purposes of Chapter 245, a “project” is “an
DEFENDANTS’ TRADITIONAL AND NO-EVIDENCE
MOTION FOR SUMMARY JUDGMENT PAGE 6 OF 16endeavor over which a regulatory agency exerts its jurisdiction and for which one or more
permits are required to initiate, continue, or complete the endeavor.” TEX. LOCAL GOV’T CODE §
245.001(3). A project is the single endeavor reflected in the original application for the first
permit in the series of permits connected to a project. Harper Park Two, L.P., 359 S.W.3d at
256. The term “endeavor” is not defined in the statute, but the common definition is “the action
of endeavoring; effort, or pains, directed to attain an object.” City of San Antonio v. En Seguido,
Ltd, 227 $.W.3d 237, 243 (Tex. App.—San Antonio 2007, no pet.) (citing Op. Tex. Att’y Gen.
No. JC-0425, 3).
2. Plaintiffs project was completed or changed subsequent to the 1872
plat and 1985 Travis County development permit, and is therefore
subject to current regulations.
A development is no longer entitled to vested rights if it constitutes a new or different
“project” from the one sought in the initial permit application. Harper Park Two, L.P., 359
S.W.3d at 249-50; Seguido, 227 S.W.3d at 242-43 (holding that property owner could not
develop property more than thirty years after a previous owner filed a subdivision plat because a
permit is for a specific project, rights vest in a particular project, and rights are no longer vested
when a project changes); Op. Tex. Att’y Gen. No. JC-0425, 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”).
If the 1872 plat is regarded as the first permit application for the “project,” there is no
evidence construction was intended on the lot in question after issuance of the permit. See Exs.
A-B. Certainly the 1872 plat does not evidence a specific “endeavor” or plan for development of
this lot or any other lot included in the plat. /d. The plat itself does nothing more than evidence a
transfer in ownership. Even if the plat had been filed with the City, which it was not, it would not
DEFENDANTS’ TRADITIONAL AND NO-EVIDENCE
MOTION FOR SUMMARY JUDGMENT PAGE 7 OF 16have provided notice of the intent to develop the subject lot for purposes of vested rights accrual.
See Ex. B; see also TEX. LOCAL GOv’T CODE § 245.002.
If the 1985 Travis County development permit is regarded as the first permit application
for the project, based on evidence provided to the City in Plaintiffs vested rights application
dated February 14, 2011 and additional research conducted by City staff, it appears that the
development began on the property in 1985 and that any “project” contemplated by the 1985
Travis County development permit was completed by 2006. Ex. B. The permit was issued for the
construction of an office building. Ex. B. Geographic information system (GIS) aerial maps of
the subject property show that a structure was completed in 1987. Ex. B. The last structure to be
built on the property was in 2006, making a total of nine structures constructed on the subject
property over a twenty-one year period. Ex. B. Clearly, any development contemplated by the
1985 permit was completed well before Plaintiff submitted his 2011 vested rights application.
3. A dormant project is no longer entitled to vested rights protections.
A project becomes dormant if no progress has been made towards completion of the
project. TEx. LOCAL Gov’T CODE § 245.005; Seguido, 227 S.W.3d at 244. Even if the 1985
Travis County development permit could have conferred vested rights with the City, vested
rights do not continue in perpetuity and Plaintiff's project became dormant pursuant to Section
245.005 long before Plaintiff submitted his vested rights application in 2011. TEX. LOCAL Gov’T
CODE § 245.005.
Chapter 245’s dormancy rules first went into effect on May 11, 1999. 1999 Tex. Sess.
Serv. Ch. 73 (H.B. 1704). The 1999 version of this subsection reads as follows:
Notwithstanding any other provision of this chapter, after the first anniversary of
the effective date of this chapter, a regulatory agency may enact an ordinance,
rule, or regulation that places an expiration date on a permit if as of the first
anniversary of the effective date of this chapter: (i) the permit does not have an
DEFENDANTS’ TRADITIONAL AND NO-EVIDENCE
MOTION FOR SUMMARY JUDGMENT PAGE 8 OF 16expiration date; and (ii) no progress has been made towards completion of the
project. Any ordinance, rule, or regulation enacted pursuant to this section shall
place an expiration date of no earlier than the fifth anniversary of the effective
date of this chapter. Progress towards completion of the project shall include any
one or more of the following:
(1) an application for a final plat or plan is submitted to a regulatory
agency;
(2) a good-faith attempt is made to file with a regulatory agency an
application for a permit necessary to begin or continue towards
completion of the project;
(3) costs have been incurred for developing the project including, without
limitation, costs associated with roadway, utility, and other
infrastructure facilities designed to serve, in whole or in part, the
project (but exclusive of land acquisition) in the aggregate amount of
five percent of the most recent appraised market value of the real
property on which the project is located;
(4) fiscal security is posted with a regulatory agency to ensure
performance of an obligation required by the regulatory agency; or
(5) utility connection fees or impact fees for the project have been paid to
a regulatory agency.
1999 Tex. Sess. Serv. Ch. 73 (H.B. 1704).
In 1985, a Travis County “land development permit expire[d] after (1) 180 days
from the date of issuance if no work commenced on the subject property or (2) work
authorized under the permit is suspended or abandoned for a period of at least 180
days.”° Ex. C (Affidavit of Stacey Scheffel). Accordingly, reading Travis County’s rules
in harmony with Section 245.005, at the latest possible date, Plaintiffs project became
dormant and his 1985 Travis County permit expired on May 11, 2004, five years after the
enactment of the dormancy provisions. The only continued progress alleged by Plaintiff
which occurred after the enactment of Section 245.005 occurred in 2008, Ex. A at pp. 3-
* This appears to have been amended in 2008 to comply with Chapter 245 five years expiration requirement. See
Travis County Code § 64.061(d).
DEFENDANTS’ TRADITIONAL AND NO-EVIDENCE
MOTION FOR SUMMARY JUDGMENT PAGE 9 OF 164, well after Plaintiffs permit expired and the project became dormant. Accordingly,
Plaintiff's project was dormant long before he requested vested rights in 2011.
iii. Amnesty was requested and granted, further evincing the absence of the
proper filings with the City of Austin that would constitute notice of legal
development of the subject property.
On December 2, 2011 and January 10, 2012, Plaintiff requested an Amnesty Certificate
of Occupancy (ACO) in regards to two existing structures on the subject property. Ex. D
(Affidavit of Christopher Johnson). An ACO establishes the continued use of property from 1986
until the present and is typically granted to properties without an existing certificate of
occupancy. Ex. D, An ACO does not authorize the development of property. See Ex. D. In other
words, amnesty is often granted to structures not otherwise known to exist by the City.
ACO’s for the two structures on the subject property were granted because the applicant
presented evidence of the continuing use of one structure as an office and the other as a nursery.
Ex. D. This fact further supports the lack of filings with the City by Plaintiff that would
otherwise notify the City of development on the subject property. Ex. D. Any development
commenced between 1986 and the present would only evince illegal development, proving
vested rights never accrued in connection with Plaintiffs property. Further, for the reasons
addressed above, any project commenced between 1986 and 2006 is now complete and cannot
support the grant of vested rights for the new project currently under dispute.
iv. Ultra Vires Claim*
“Governmental immunity protects political subdivisions of the state, such as cities and
their officers, from liability.” Houston Belt & Terminal Railway Co. v. City of Houston, 487
S.W.3d 154, 157 (Tex. April 1, 2016). An witra vires claim, however, does not “waive”
* Plaintiff did not explicitly plead an ultra vires claim. The Third Court of Appeals, however, interpreted Plaintiff's
pleadings as an ultra vires claim. See Third Court of Appeals in Memorandum Opinion No. 03-14-00265-CV.
DEFENDANTS’ TRADITIONAL AND NO-EVIDENCE
MOTION FOR SUMMARY JUDGMENT PAGE 10 OF 16immunity, as “it is the Legislature’s sole province to waive or abrogate sovereign immunity.” See
Id. at 158, fn. 1 (citing Tex. Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 853
(Tex. 2002). Instead, when an official performs an act that is without legal authority or fails to
perform a ministerial act—an ultra vires act—governmental immunity does not apply from the
outset. Jd. This is because an official derives his immunity from the State, and when an official
performs acts that are not lawfully authorized, they are not considered acts of the State. E.g.
Texas Dept. of Ins. v. Reconveyance Services, Inc., 306 S.W.3d 256, 258 (Tex. 2010); City of El
Paso v. Heinrich, 284 S.W.3d 366, 373 (Tex. 2009). Thus, the Texas Supreme Court has long
recognized “that suits complaining of ultra vires action may not be brought against a
governmental unit possessed of sovereign immunity, but must be brought against the allegedly
responsible government actor in his official capacity.” Texas Dept. of Ins. v. Reconveyance
Services, Inc., 306 S.W.3d 256, 258 (Tex. 2010).
Accordingly, any u/tra vires claim that could be read from Plaintiff's pleadings would
have to be that Guernsey, in the process of reviewing Plaintiff's vested rights application, failed
to perform a ministerial act or acted without legal authority. Southwestern Bell Telephone, L.P. v.
Emmett, 459 S.W.3d 578, 587 (Tex. 2015). Ministerial acts are those required and defined under
law with such specificity that the state actor cannot exercise any discretion or judgment. /d.
Conversely, discretionary acts are those requiring judgment and personal deliberation. Jd.
Any allegation by Plaintiff that Guernsey failed to perform a ministerial task or acted
without legal authority while in his official capacity when denying Plaintiffs vested rights
applications is unfounded. At all times, Guernsey was performing the ministerial task of
determining whether Plaintiffs application met the requirements of Chapter 245, and in finding
it did not, he was acting within the confines of his official capacity. Plaintiff, however, has no
DEFENDANTS’ TRADITIONAL AND NO-EVIDENCE
MOTION FOR SUMMARY JUDGMENT PAGE 11 OF 16evidence that Guernsey failed to perform a ministerial task or that he acted without legal
authority in denying Plaintiff's vested rights application for the same reasons addressed above
for why Plaintiff was not entitled to vested rights. Accordingly, no ultra vires claim applies to
the facts of this case and Plaintiff's allegations regarding such are baseless and fail as a matter of
law.
Cc. Fraudulent Misrepresentation
Municipalities enjoy governmental immunity for claims “arising out of assault, battery,
false imprisonment, or any other intentional tort.” TEX. CIv. PRAC. & REM. CODE § 101.057
(emphasis added). Fraudulent misrepresentation is an intentional tort for which the City, as a
municipality, is entitled to governmental immunity. See e.g. LTTS Charter School, Inc. v.
Palasota, 362 S.W.3d 202, 209 (Tex. App.—Dallas, no pet.). Furthermore, a civil action against
a municipal employee acting in his official capacity is essentially an action against the
municipality itself. Morris v. Copeland, 944 S.W.2d 696, 698 (Tex. App.—Corpus Christi 1997,
no writ); see also Aguilar v. Frias, 366 S.W.3d 271, 273 (Tex. App.—El Paso 2012, pet. denied).
Accordingly, Greg Guernsey, who is only being sued in his official capacity, is entitled to the
same immunities as the City.° Both are immune from suit and liability and this claim must be
dismissed in its entirety.
Moreover, Plaintiff has no evidence that the City or any of its employees made fraudulent
misrepresentations. The elements of fraudulent misrepresentation are (1) defendant made a
material representation to the plaintiff; (2) the representation was false; (3) when the
representation was made, the defendant knew it was false; (4) the defendant made the
* It appears, based on the pleadings filed in this case, that Appellant is also alleging fraudulent misrepresentations
made by Susan Scallon and the rest of the Chapter 245 completeness check team, none of whom are defendants in
this case.
DEFENDANTS’ TRADITIONAL AND NO-EVIDENCE
MOTION FOR SUMMARY JUDGMENT PAGE 12 OF 16representation with the intent that the plaintiff act on it; (5) the plaintiff detrimentally relied on
the defendant’s misrepresentation. Baribeau v. Gustafson, 107 S.W.3d 52, 58 (Tex. App.—San
Antonio, pet. denied (citing 7.0. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 222
(Tex. 1992)).
Plaintiff alleges that Greg Guernsey and Susan Scallon, both City employees, made false
misrepresentations, acted in malice, and ignored and misconstrued Chapters 43, 245, and Section
312.005 of the Local Government Code, when denying Plaintiffs vested rights application. Ex.
A. Every City employee involved in determining the denial of Plaintiffs application merely
carried out their job duties in good faith by making a Chapter 245 Determination as requested by
Plaintiff. Ex. B. Plaintiffs dissatisfaction with the denial of this request does not falsify the
premise for such denial. Plaintiff has no evidence that Defendants made a knowingly false
representation to Plaintiff.
Further, there is no evidence of intent to induce Plaintiffs reliance. Any action by
Plaintiff as a result of this determination was outside the control of the City. The denial of
Plaintiff's vested rights application simply meant Plaintiffs rights were not vested because
documents were issued by regulatory agencies other than the City, including the 1872 plat of
unknown origin and the 1985 Travis County development permit. Plaintiff was free to develop
his property and pursue a project under the current land development rules and regulations at any
time after receiving the denial of his vested rights application.
D. Perjury
Plaintiff alleges that former defense counsel Assistant City Attorney Sandra Kim
committed perjury when she signed an affidavit in support of Defendants’ Motion for
Continuance filed May 17, 2013. See Exs. A, F (Affidavit of Sandra Kim). A claim of perjury
DEFENDANTS’ TRADITIONAL AND NO-EVIDENCE
MOTION FOR SUMMARY JUDGMENT PAGE 13 OF 16relates to criminal matters, the venue for which would take place in the criminal courts. Tex.
Penal Code §§37.02 & 38.16(a) (Vernon 2011). Such allegations are not properly before this
civil proceeding and must be dismissed. Tex. Educ. Agency v. Leeper, 893 S.W.2d 432, 441
(Tex. 1994) (“a party cannot seek to construe or enjoin enforcement of a criminal statute in a
civil proceeding unless it challenges the constitutionality of the provision and proves an
irreparable injury to its vested property rights....”); State v. Morales, 869 S.W.2d 941, 944 (Tex.
1994).
To the extent this Court can construe Plaintiff's claim to be some sort of fraud claim,
Defendants retain immunity for the reasons already outlined above. Furthermore, Ms. Kim is not
a defendant to this action and Plaintiff has no evidence that any of the statements made in Ms.
Kim’s affidavit were false or that such false statements were made with any intent to deceive
Plaintiff or the Court. This claim is meritless and must be dismissed.
E. Breach of Contract and Preventing the Execution of Civil Process
Plaintiff also alleges a breach of contract preventing the execution of the civil process.
The basis of this allegation appears to be a Rule 11 Agreement entered into by Plaintiff and Ms.
Kim to reschedule a hearing for which Ms. Kim had a conflict. See Exs. A, E (May 3, 2013 Rule
11 Agreement). Plaintiff had set the hearing without conferring with Ms. Kim. Ex. F. After
entering into the Rule 11 Agreement, Ms. Kim realized that the hearing date was not feasible in
light of Plaintiff requesting a trial on the merits without providing the requisite notice, and
requested injunctive relief tantamount to an adjudication of the merits of the underlying case. Ex.
F, After Plaintiff refused to move the hearing date, Ms. Kim filed a Motion for Continuance
showing sufficient cause. See TEX. R. Civ. P. 247, 251, and 252. This motion was granted by
Judge Wisser. Ex. G (May 30, 2013 Order).
DEFENDANTS’ TRADITIONAL AND NO-EVIDENCE
MOTION FOR SUMMARY JUDGMENT PAGE 14 OF 16No case or rule holds that a Rule 11 Agreement regarding a rescheduling of a hearing
constitutes a contract. Any allegation of a breach of contract in connection with the Rule 11
Agreement is therefore misplaced and irrelevant. Furthermore, the underlying issue of the
rescheduling of the hearing was addressed in Judge Wisser’s order. Ex. G. A court is within its
sound discretion to grant a motion for continuance and will not be disturbed unless the record
reveals a clear abuse of discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986).
Therefore, the Court has already addressed the issue regarding the Rule 11 Agreement and made
its ruling. Ex. G.
Lastly, the Rule 11 Agreement did not prevent the execution of the civil process but
merely reset the date for a hearing, which was later continued by court order on May 30, 2013, as
discussed above. Exs. F, G. This claim is also baseless and must be disregarded.
F. Damages
Plaintiff seeks ten million in damages. Ex. A. Defendants are immunity from monetary
damages for the types of claims alleged by Plaintiff—a Chapter 245 determination and an ultra
vires claim. See TEx. LOCAL Gov’T CODE § 245.006; City of El Paso v. Heinrich, 284 8.W.3d
366, 374-77 (Tex. 2009); City of Houston v. Williams, 216 S.W.827, 828 (Tex. 2007).
Accordingly, should Plaintiff prevail at trial, he is entitled to nothing more than a declaration that
he is entitled to vested rights.
Vv.
CONCLUSION
For the reasons cited above, Defendants request this Court grant Defendants’ Motion for
Summary Judgment because Plaintiffs claims fail as a matter of law.
DEFENDANTS’ TRADITIONAL AND NO-EVIDENCE
MOTION FOR SUMMARY JUDGMENT PAGE 15 OF 16RESPECTFULLY SUBMITTED,
ANNE L. MORGAN, CITY ATTORNEY
MEGHAN L. RILEY, CHIEF LITIGATION
{s/ Andralee Cain Lloyd
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
CERTIFICATE OF SERVICE
I certify that on this Thursday the 11th day of August 2016, I served a copy of
Defendants Transitional and No-Evidence Motion for Summary Judgment on Pro Se Plaintiff
Charles Draper in compliance with the Texas Rules of Civil Procedure.
VIA CMRRR #91 7199 9991 7036 2335 8762
& Electronic Mail
Charles N. Draper
4609 Trail Crest Circle
Austin, TX 78735
cd@tejasland.com
PRO SE PLAINTIFF
/s/Andralee Cain Lloyd
Andralee Cain Lloyd
Assistant City Attorney
DEFENDANTS’ TRADITIONAL AND NO-EVIDENCE
MOTION FOR SUMMARY JUDGMENT
PAGE 16 OF 16Exhibit AIN THE DISTRICT COURT OF
TRAVIS COUNTY, TEXAS
419" JUDICIAL DISTRICT
CHARLES N. DRAPER, §
§
Plaintiff, Pro Se §
§
Vv. § CAUSENO. D-1GN-13-000778
§
GREG GUERNSEY, §
IN HIS CAPACITY AS DIRECTOR OF §
PLANNING AND DEVELOPMENT §
WATERSHED PROTECTION §
REVIEW DEPARTMENT, §
AND CITY OF AUSTIN 8
§
Defendants. §
PLAINTIFE’S FINAL AMENDED PETITION
Charles N. Draper, plaintiff, brings this suit against the City of Austin, Greg Guernsey, in
his capacity as Director of Planning and Development Review Department for the City of
Austin, as party defendants, and for: fraudulent misrepresentations, malice, administrative
failure to comply with Chapters: §43.002, §245, and Chapter §312.005 of the Texas Local
Government, Draper shows the Court the following:
Parties and Venue
1. Charles N. Draper is an individual residing in Austin, Travis Country, Texas 78735.
2. The property, in possession, and questions of fact are located at: 6300-02 Highway 290
(6300Hwy290W) West, Austin, Texas 78735, Travis County, Texas and are owned
individually by Draper.3.
City of Austin, and Director Greg Guernsey, which conduct business in Travis County,
and may be served: at 505 Barton Springs Road, One Texas Center, 4h floor, Austin,
Texas 78704.
Venue of this action is proper because, the property is located in Travis County, and the
plaintiff's was denied his vested-property rights as defined in SB 1701, and Chapters:
§43, §245, and Chapter § 312.005 of the Texas Local Government Code, by the City of
Austin.
Case History: - 6300-02 Highway 290 W
(Authority opinion: McClendon & Associates (Pl. Exhibit A)
1. Subdivision-
a.
6300Hwy290W, a 2.357 acre tract, was “..legally subdivided as Lots 10 and 11, block
1, Town of Oak Hill, and recorded in the Travis County Deed Records on December 16,
1872 (PI. Exhibit B).
In 1982, the City of Austin adopted the Barton Creek Watershed Ordinance, however,
legally subdivided land was exempt from the ordinance and site development standards
per Sec. 9-10-303(b). In short, a site development, or watershed development permit
from the City of Austin was not required”.
2. Site Development Permit: issued August, 1985-
a.
“Travis County approved a site development or floodplain permit (P/. Exhibit C) on
August 9, 1985 for the Patton Lane Office Building, a three story office development .
Although the original subdivision was platted in 1872, the site development permit
represents the first in a series of permits for the project.” The Travis County
Engineer’s office stamped approved, and issue a permit number: 85-2558 on August 9,
1985. Although construction was initiated and later paused due to economic conditions,the floodplain permit does not expire Construction commenced in 1985. The site
included previously existing residential and commercial development from 1950's and
1970’s which did not require City or County permits when it was constructed. All of the
development was outside the City and within the County’s jurisdiction, prior to
adoption of the Barton Creek and Williamson Creek Ordinances.”
3. Annexation to the City of Austin-
a.
“The Patton Lane Office Building was under construction when the City of Austin
annexed the property for full purpose on December 30, 1985, and zoned the property
Single-Family-2 (SF-2). Since the property was annexed in 1985, there have been no
building permits approved or issued for the existing development. In late 2011 and early
2012, the City issued a certificate of non-compliance for the existing commercial
development, which is an exemption from compliance with City’s existing permit
process per LDC, Sec. 25-1-365.
4, Continued Progress-
a.
“The landowner has continued progress toward permitting by filing and recording an
amended plat on October 10, 1991, which did not change or alter any of the previous
restrictions or provisions of the original subdivision. On October 10, 1991, the City
rezoned the property to Commercial Services- Conditional Overlay (CS-CO), (Ord.#:
911010-B). Again on June 14, 1997, the landowner filed 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 developmentrestrictions and permitted uses on the property to be consistent with those of the
originally submitted permit. (Pl. Exhibit D).
Current History: 6300-02 Highway 290 W.
1. Oak Hill Neighborhood Plan-
a. On, or around the spring of 2006, the City of Austin initiated development of the ‘Oak
Hill Neighborhood Plan’, OHNP. Draper participated as a board member of the ‘Oak
Hill Neighborhood Contact Team’, OHNPCT. Concerned his property, potentially,
could be down-zoned through the OHNP, Draper obtained legal counsel, through the
law firm of Munsch, Hardt, Kopf, & Harr. Representation was provide by Robert
Kleeman.
b. Mr. Kleeman conducted countless meetings and correspondence with Matt Hollon, Pat
Murphy, Victoria Li, City of Austin Watershed Protection, and Development Review
Department.; none were able to produce conclusive evidence Draper’s property
6300Hwy290W was not entitled to ‘grand-fathering’ provisions as instructed by LGC
Chapter 245.00. (Pl. Exhibit E,F).
c. Consequently, through assistance of Mr. Kleeman, and Munsch, Hardt, Kopf, & Harr,
Draper filed and obtained rezoning in December, 2008, (Case No. C14-2008-0152).
Draper has perpetuate project completion throughout his ownership of 6300Hwy290W.
2. Site Plan Fair Notice-
a. On the behalf of Draper, February 14, 2011, Jim Schissler, an engineer with Jones &
Carter, submitted a Site Plan Fair Notice and H.B. 1704/ Chapter 245 Determination
application for the Patton Lane Office Building project; located on the northeast comerof West U.S. Highway 290, and Patton Ranch Road in southwest Travis County. (PI.
Exhibit G).
. Greg Guernsey, City of Austin Planning and Development Watershed Protection and
Review Department, along with Susan Scallon, and the Chapter 245 Determination
Committee denied Draper’s application. (Pl. Exhibit F). Scallon rejected Draper’s
application, for the reasoning: “project complete”. (Pl. Exhibit F). Greg Guernsey,
Susan Scallon, and the 1704 Committee made a fraudulent misrepresentations, and
ignored; LGC § 43.002. Continuation of Land Use.
. 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).
. Draper employed McClendon & Associates in February of 2012. McClendon &
Associates resubmitted Draper’s 1704/Chapter 245 Determination request; after records
documenting the issuance of Travis County Flood Plain Permit, and original
architectural permits were uncovered through the Travis County archives. Again, the
1704/ Chapter 245 entitlements were denied without statutory support.
. In attempt to exhaust his administrative appeal, on November 2, 2012, Draper met with
City of Austin Member, Chris Riley, in attempt to amicably resolve the dispute. Council
member Riley said; “ ...i¢ would require a Plan Amendment to S.0.S.; which requires a
‘super majority’ of City Counsel..” . Draper respectfully disagrees.
Draper contends, his property located at 6300-02 West Highway 290, is ‘grand-
fathered’ under Chapter §43.002 and 1704/Chapter 245 of Texas’ Local Government(a
Code. Having exhausted his administrative appeal Draper files the above mentioned
cause of action.
Texas Local Government Code, and Civil Practices & Remedies Code
LGC § 43.002. Continuation of Land Use-
(a) A municipality may not, after annexing an area, prohibit a person from:
(1) continuing to use the land in the area in the manner that was being used on the date the
annexation proceedings were instituted if the land use was legal at that time; or
(2) beginning to use the land in the area in the manner that was planned for the land before the
90" day before the effective date of the annexation if:
(A) one or more licenses, certificates, permits, approvals, or other forms of authorization by
a governmental entity were required by law for the planned land use; and
(B) a completed application for the initial authorization was filed with governmental entity
before the date the annexation proceedings were instituted.
LGC § 245.001. Definitions-
(1) “Permit” means a license, certificate, approval, registration, consent, permit, contract or other
agreement for construction related to, or provision of, service from a water or wastewater utility
owned, operated, or controlled by a regulatory agency, or other form of authorization required by
law, rule, regulation, order, or ordinance that a person must obtain to perform an action or initiate,
continue, or complete a project for which the permit is sought.
(3) “Project” means an endeavor over which a regulatory agency exerts its jurisdiction and for
which one or more permits are required to initiate, continue, or complete the endeavor.
(4) “Regulatory agency” means the governing body of, or a bureau, department, division, board,
commission, or other agency of, a political subdivision acting in its capacity of processing,
approving, or issuing a permit.
LGC § 245.002. Uniformity of Requirements
Each regulatory agency shall consider the approval, disapproval, or conditional approval of an
application for a permit solely on the basis of any orders, regulations, ordinances, rules, expiration
dates, or other properly adopted requirements in effect at the time;
(1) the original application for the permit is filed for review for any purpose, including review for
administrative completeness; or
(2) a plan for development of real property or plat application is filed with a regulatory agency.(a-1) Rights to which a permit applicant is entitled under this chapter accrue on the filing of an
original application or plan for development or plat application that gives the regulatory agency fair
notice of the project and the nature of the permit sought. An application or plan is considered filed
on the date the applicant delivers the application or plan to the regulatory agency or deposits the
application or plan with the United States Postal Service by certified mail addressed to the
regulatory agency.
LGC § 245.006. Enforcement of Chapter-
(a) This Chapter may be enforced only through mandamus or declaratory or injunctive relief.
CPRC § 101.021 - Governmental Liability - “ a governmental unit is liable for:
(1) property damage, personal injury, and death proximately caused by a wrongful act or
omission, or negligence of an employee acting within the scope of employment if: (B) the
employee would be personally liable to claimant to Texas law.”
CPRC § 101.0215 — Liability of a Municipality- “a municipality is liable under this chapter for
damages arising from it’s governmental functions, which are those functions that are enjoined on
the municipality and are given it by the States as part of the State sovereignty to be exercised by the
municipality in interest of the general public, including but not limited to: (29) zoning, planning
and plat approval.”
Case Law
Harper Park Two, LP v. City of Austin
LGC § 245.00- .002
Uniformity of Requirements, Projects, 2.5, Permits- “Project” was single endeavor
reflected in original application for first permit in series, rather than individual components of
larger, original project/endeavor that could subsequently require separate permit, and thus, owner,
under vested-rights protections, was entitled to develop six-acre lot as hotel, office, or any other
commercial use consistent with rules, regulations, and ordinances in effect at time of initial permit
application, along with zoning and restrictive covenants that were previously voluntarily imposed
on property; “project” was “commercial” development, as defined under then-applicable
ordinances, and was not limited to office building or other specific type of “commercial”
development. Harper Park Two, LP v. City of Austin (App. 3 Dist. 2011) 359 S.W.3d 247,
rehearing overruled, review denied.
“Under chapter 245 of the local government code, once an application for the first permit
required to complete a property-development “project” is filed with the municipality or other
agency that regulates such use of the property, the agency’s regulation applicable to the "project”
are effectively “frozen” in their then-current state and the agency is prohibited from enforcingsubsequent regulatory changes to further restrict the property use”. See TEX. GOV’T CODE Ann.
§§ 245.001-.007 (West 20005) Shumaker Enters, Inc. v. City of Austin, 325, S.W. 3d 812, 814-15 &
n.5(Tex. App- Austin 2010, no pet.)
Greg Guernsey, Susan Scallon and the 1704 Committee violated State law, ignored
oe
’project” are effectively “frozen
from further restrictions, acted in defiance of State law, and
fraudulently misrepresented Draper’s project as; “project-complete”. (Pl. Exhibit F)
“See Act of May 11, 1999, 76” Leg., R.S. Chp73 § 2, 1999 Tex. Gen. Laws 432, codified
as amended, Tex. Loc Gov’t Code Ann. § 245.002(a)-(b). The effect of these requirements, is to
“freeze” most of the regulatory authority’s land-use regulations as they existed at the time the first
permit application is filed through completion of the “project”.” Harper Park II v. City of Austin,
S.W. 3d (App. 3 Dist. 2011), 359, S. W. 3d 247.
“See Act of May 11, 1999, 76" Leg., R.S. Chp73 § 2, 1999 Tex. Gen. Laws 432; see Quick
v. City of Austin 7 S.W. 3d 109 (Tex 1998) at 128n (purpose of the chapter 245’s statutory
predecessor, former chapter 481 of the government code, was to “ establish requirements relating
to the processing and issuance of permits and approvals by the government regulatory agencies in
order to alleviate bureaucratic obstacles to economic development”)”. Harper Park II v. City of
Austin, S.W. 3d (App. 3 Dist. 2011), 359, S. W. 3d 247.
“Moreover, as an incidental matter of historical fact, the legislative record reflects that bill
proponents advocated chapter 245 as an appropriate response to instances when the City of Austin
had purportedly imposed new regulatory restrictions, retroactively on development projects that
were already underway causing project failures, bankruptcies, and regulatory uncertainty for
developers, and landowners”. Harper Park II v. City of Austin, S.W. 3d (App. 3 Dist. 2011), 359,
S. W. 3d 247
“Jn any event, we are to construed chapter 245 in a manner consistent with legislature’s
intent, and whether that leads to a particular “narrow” or “broad” application is entirely a function
the words the Legislature has chosen. The words that the Legislature has chosen in chapter 245
guide us to view the relevant project in context of the applicable land-use regulations in effect at
the time the initial permit application was filed”. Harper Park Il v. City of Austin, S.W. 3d (App. 3
Dist. 2011), 359, S. W. 3d 247LGC § 245.006-
Statutes allowing enforcement of permit application regulations through declaratory or
injunctive relief and waiving immunity from suit only applied to permit applicants, and thus did not
result in a waiver of city's immunity from neighbor's claims that city violated its ordinances in
issuing drilling permit to owner of underground hydrocarbon storage facility. Cernosek
Enterprises, Inc. v. City of Mont Belvieu (App. 1 Dist. 2011) 338 S.W.3d 655. Municipal
Corporations
LGC § 312.005. Legislative Intent-
In interpreting a statue, a court shall diligently attempt to ascertain legislative intent and shall
consider at all times the old law, the evil, and the remedy. “The Court of Appeals presumes that
legislature used every word for a purpose and excluded every word for a purpose”. (Brown v. State
(App 5 Dist. 1995) 915 S.W. 2" 533). Where language is unambiguous and it meaning is clear, a
court should give effect to the statue, according to its terms.” (Rio Grande Valley Sugar Growers,
Inc v. Campesi (Civ. APP.1779) 580 S.W. 2" 850). “The primary objective in construing statue is to
give effect to Legislature intent. (Mitchell Energy Corp. v. Ashworth (Sup.1997) 943 S.W. 2" 436).
“City’s contention that it will not construe challenged ordinance in unconstitutional manner is
irrelevant to constitutional question of ordinance’s susceptibility to such construction: well-
intentioned prosecutors and judicial safeguards do not neutralize vice of vague law”. (City of
Mesquite v. Aladdin’s Castle Inc. (Civ. App. 1997) 559 S.W. 2" 92).
Draper contends Greg Guernsey, and the City of Austin breeched CPRC § 101.0215,
Liability of a Municipality, made fraudulent misrepresentations, misconstrued the Legislature’s
intent taking a “narrow” view of chapter 245, ignored § 43.002 , and refusing to provide a
definitive explanation for the refusal of Draper’s application.
Attorney General John Cornyn Opinion, October 13, 2001-
“Section § 245.002 of the Local Government Code locks in, for the duration of a real-property
“project”, the development regulation in effect when the original application for the first necessary
permit is filed. See TEX. LOC. GOV’T CODE ANN. § 245.002(a), (b) (Vernon Supp. 2001); see
also Quick v. City of Austin, 7 S.W. 3d 109, 131 (Tex. 1998). Under the statutory definition of
term “project”, it is irrelevant whether the owner who files the original application for the first
permit retains the property for the duration of the project or conveys the property. See TEX. LOCGOV’T CODE § 245.001(3)(Vernon Supp. 2001) If another person purchases the tract of land, you
inquire, is the purchaser “entitled to the rights and benefits” that Chapter 245 provides to the owner
who filed the original application for the first permit, see Letter, not 1, at 1, and we thus understand
you ask whether the property remains subject to the development regulations in effect when the
original application for the first permit was filed despite the conveyance. We conclude that the
property remains subject to the development regulations in effect at the time the original
application for permit was filed, but only if the project remains the same.” (P/. Exhibit K)
Attorney General Greg Abbott’s Opinion, December 10 , 2012-
“You inquire about a potentia
Preview
8/11/2016 12:57:32 PM Velva L. Price District Clerk Travis County CAUSE NO. D-1-GN-13-000778 D-1-GN-13-000778 Terri Juarez CHARLES N. DRAPER, Plaintiff, Pro Se, IN THE DISTRICT COURT v. GREG GUERNSEY, IN HIS CAPACITY AS DIRECTOR OF PLANNING AND DEVELOPMENT WATERSHED PROTECTION REVIEW DEPARTMENT, AND CITY OF AUSTIN, Defendants. TRAVIS COUNTY, TEXAS LAP QP MP LM LN OS LN MH MP 419th JUDICIAL DISTRICT DEFENDANTS’ TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT COMES NOW, Defendants City of Austin and Greg Guernsey’ (collectively referred to as “Defendants” and respectively referred to as the “City” or “Guernsey”) file their Motion for Summary Judgment and respectfully show the Court the following: I. INTRODUCTION Plaintiff's legal theories and factual allegations are difficult to follow. See Ex. A (Plaintiff's Final Amended Petition). What is clear, however, is the City denied Plaintiff's application for vested rights, codified at Chapter 245 of the Local Government Code (“Chapter 245”), to develop property at 6300-02 Highway 290, requesting an exemption from current City regulations based on a plat recorded in 1872 and/or an expired permit issued by Travis County on August 9, 1985.7 Plaintiff's lawsuit challenges Defendants’ denial of his vested rights application and asserts that various City employees made fraudulent misrepresentations, ' Greg Guernsey has been dismissed from this suit for all claims other than Plaintiff's ultra vires claim as ruled by the Third Court of Appeals in Memorandum Opinion No. 03-14-00265-CV. ? The City’s application for vested rights is titled “Project Application H.B. 1704/Chapter 245 Determination”, but for ease of reference is referred to herein as a “vested rights application.”committed perjury, and breached a contract in connection with the denial of his vested rights application and the handling of the current lawsuit. In general, Chapter 245 provides that all permits required to complete a development project are “locked-in” to the regulations in effect on the date that the first permit application, development plan or plat application for the project is filed which “gives the regulatory agency fair notice of the project and the nature of the permit sought.” TEx. LOCAL Gov’T CODE § 245.002. Contrary to Plaintiff's Final Amended Petition, the rights conferred by Chapter 245 are not so broad that any permit application filed for the development of property with one regulatory agency is sufficient to exempt it from current regulations with respect to a different regulatory agency. The evidence presented by Plaintiff in this case—a plat from 1872 and a lapsed Travis County permit issued in 1985—is legally insufficient in establishing vested rights from current City regulations. As for the remainder of Plaintiffs claims (fraudulent misrepresentation, perjury, and breach of contract), these claims are confusing, unsubstantiated and conclusory. Plaintiffs claims must be dismissed and Defendants are entitled to summary judgment as a matter of law. Il. SUMMARY JUDGMENT EVIDENCE To support the facts in this response, Defendants offer the following summary-judgment evidence and incorporates them by reference. Exhibit A: Plaintiffs Final Amended Petition. Exhibit B: Supplemental Affidavit of Susan Scallon with attachments. Exhibit C: Affidavit of Stacey Scheffel. Exhibit D: Affidavit of Christopher Johnson. Exhibit E: Rule 11 Agreement dated May 3, 2013 regarding rescheduling a hearing. DEFENDANTS’ TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT PAGE 2 OF 16Exhibit F: Affidavit dated May 17, 2013 signed by Defense counsel in support of Defendants’ Motion for Continuance. ExhibitG: Order dated May 30, 2013 granting Defendants’ Motion for Continuance. TIL. STANDARD OF REVIEW Under Rule 166a (c), a court must grant summary judgment if the movant presents sufficient evidence to show that there are no issues of material fact and that it is entitled to summary judgment as a matter of law. Park Place Hospital v. Estate of Milo, 909 S.W.2d 508 510 (Tex. 1995); TEX. R. Civ. P. 166a (c). A defendant whose summary judgment evidence conclusively negates at least one of the elements of plaintiffs cause of action, or whose evidence conclusively proves all of the elements of an affirmative defense, is entitled to summary judgment as a matter of law. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). Under a no-evidence motion, a defendant asserts that there is no evidence of one or more essential elements of a plaintiffs claim(s) upon which the plaintiff would have the burden of proof at trial. Tex. R. Civ. P. 166a (i). The defendant, as movant, does not bear the burden of establishing each element to its own claim or defense. General Mills Restaurants v. Texas Wings, Inc., 12 $.W.3d 827, 832 (Tex. App.—Dallas 2000, no pet.); Lampasas v. Spring Ctr., Inc., 988 S.W.2d 428, 432-33 (Tex. App—Houston [14th Dist.] 1999, no pet.). Rather, the movant lists the elements for which the party lacks evidentiary support. The burden then shifts to the plaintiff to present enough evidence to be entitled to a trial, ie., evidence that raises a genuine fact issue on the challenged elements. TEX. R. Crv. P. 166a (i). A plaintiff must produce evidence of probative force to raise a fact issue on the material questions presented. General Mills, 12 S.W.3d at 833. If plaintiff is unable to provide more than a scintilla of probative evidence to raise a genuine issue of material fact as to an essential DEFENDANTS’ TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT PAGE 3 OF 16element of plaintiff's claim, the trial judge must grant the motion. Jd. at 832-33; Lampases, 988 S.W.2d at 433. More than a scintilla of evidence exists when the evidence “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). Less than a scintilla of evidence occurs “when the evidence offered to prove a vital fact is so weak so as to do no more than create a mere surmise or suspicion of its existence and in legal effect is no evidence.” Coastal Conduit & Ditching v. Noram Energy, 29 S.W.3d 282, 284-85 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (citing Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). Iv. ARGUMENT A. Plaintiff is not entitled to vested rights under Chapter 245. Under Plaintiffs interpretation of Chapter 245, a property would remain forever exempt from current City development regulations based on nothing more than a plat recorded for the property in the year of 1872 and/or an expired permit issued by another regulatory agency in 1985. Plaintiff's arguments are inconsistent with controlling precedent and fail as a matter of law to establish vested rights under Chapter 245. i. A permit application submitted to one regulatory agency does not establish vested rights for purposes of another agency’s regulations. “Generally, the right to develop property is subject to intervening regulatory changes.” Shumaker Enterprises, Inc. v. City of Austin, 325 S.W.3d 812, 814 (Tex. App.—Austin 2010, no pet.); Harper Park Two, L.P. v. City of Austin, 359 S.W.3d 247, 256 (Tex. App.—Austin 2011, pet denied); Quick v. City of Austin, 7 S.W.3d 109, 124 (Tex. 1998), Chapter 245 creates a “narrow exception to this rule.” Jd. (emphasis added). Under Chapter 245, once an individual files a development application or plan with a regulatory agency, that agency may not enforce DEFENDANTS’ TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT PAGE 4 OF 16any subsequent changes to its land-use regulations to the detriment of the applicant. Shumaker, 325 S.W.3d at 814; see also TEx. LOCAL Gov’T CODE § 245.002(a). These vested rights may only accrue against a regulatory agency, however, if the application under Chapter 245 “gives the regulatory agency fair notice of the project and the nature of the permit sought.” TEx. LOCAL Gov’t CODE § 245.002(a-1) (emphasis added); see also Shumaker, 325 S.W.3d at 815. Accordingly, an application filed with one agency does not provide “fair notice” to another agency and is thus not sufficient to establish vested rights from that agency’s regulations. Shumaker, 325 8.W.3d at 815. The present case is almost identical to the Shumaker case. In Shumaker, a landowner was required to obtain a city permit after the city’s extraterritorial jurisdiction (“ETJ”) expanded to include the landowner’s property. Shumaker, 325 S.W.3d at 815. The landowner argued that it was not required to obtain a city permit for its intended sand-and-gravel mining operations because it had already applied for an application with the county before the expansion of the city’s ETJ included the property in question. /d. at 812-13. In rejecting that argument, the Shumaker court held the reference to “permits” as opposed to a “project” or “property,” in Section 245.002(a)(1) of the Local Government Code meant a landowner can only establish vested rights with an agency’s regulations if he or she filed a permit application with that same agency. /d. at 814-15. The landowner in Shumaker was required to file an application with the city after the city’s ETJ expanded to include the landowner’s property in order to establish vested rights with the city, and the previous filing with the county could not accomplish this result. /d. at 815; TEx. LOCAL Gov’T CobE § 245.002(a)(1). Similar to the landowner in Shumaker, Plaintiff requests this Court recognize vested rights under City regulations following the filing of an 1872 plat of unknown origin or a 1985 DEFENDANTS’ TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT PAGE 5 OF 16Travis County development permit. Ex. A. Neither was filed with the City, and in accordance with Shumaker, vested rights with the City was not established on either date. Ex. B (Affidavit of Susan Scallon). In fact, Plaintiffs claims are even weaker than those rejected by the court in Shumaker because the subject property came within the City’s ETJ on July 19, 1951, prior to the issuance of the 1985 Travis County development permit, and would therefore have required a City permit in 1985, Ex. B. Since no application giving the City “fair notice” of a development project was ever filed with the City, Plaintiffs argument that development of the subject property is vested to City regulations in effect on August 9, 1985, or in the year 1872, directly contradicts Shumaker and fails as a matter of law. Ex. B. Only an application filed with the City in 1985 could possibly afford Plaintiff vested rights to City regulations in effect in 1985. Accordingly, Plaintiff is not entitled to vested rights. ii. A permit does not entitle a project to vested rights if the original project has changed, been completed, abandoned, or become dormant. Even if this Court could find that the City was somehow given fair notice of the subject property development and thus Plaintiff entitled to vested rights, the overall project was completed, abandoned, or dormant well before Plaintiff submitted his request for vested rights to the City on February 14, 2011. Accordingly, any proposed development on the subject property as of 2011 or thereafter constitutes a new project subject to current regulations. 1. The scope of a “project” under Chapter 245 is defined by the original permit. The rationale for Chapter 245 protections only works with the assumption that the same “project” is being pursued by the developer—as rights are vested in a particular project not the property. Seguido, 227 S.W.3d at 242, 250. For purposes of Chapter 245, a “project” is “an DEFENDANTS’ TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT PAGE 6 OF 16endeavor over which a regulatory agency exerts its jurisdiction and for which one or more permits are required to initiate, continue, or complete the endeavor.” TEX. LOCAL GOV’T CODE § 245.001(3). A project is the single endeavor reflected in the original application for the first permit in the series of permits connected to a project. Harper Park Two, L.P., 359 S.W.3d at 256. The term “endeavor” is not defined in the statute, but the common definition is “the action of endeavoring; effort, or pains, directed to attain an object.” City of San Antonio v. En Seguido, Ltd, 227 $.W.3d 237, 243 (Tex. App.—San Antonio 2007, no pet.) (citing Op. Tex. Att’y Gen. No. JC-0425, 3). 2. Plaintiffs project was completed or changed subsequent to the 1872 plat and 1985 Travis County development permit, and is therefore subject to current regulations. A development is no longer entitled to vested rights if it constitutes a new or different “project” from the one sought in the initial permit application. Harper Park Two, L.P., 359 S.W.3d at 249-50; Seguido, 227 S.W.3d at 242-43 (holding that property owner could not develop property more than thirty years after a previous owner filed a subdivision plat because a permit is for a specific project, rights vest in a particular project, and rights are no longer vested when a project changes); Op. Tex. Att’y Gen. No. JC-0425, 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”). If the 1872 plat is regarded as the first permit application for the “project,” there is no evidence construction was intended on the lot in question after issuance of the permit. See Exs. A-B. Certainly the 1872 plat does not evidence a specific “endeavor” or plan for development of this lot or any other lot included in the plat. /d. The plat itself does nothing more than evidence a transfer in ownership. Even if the plat had been filed with the City, which it was not, it would not DEFENDANTS’ TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT PAGE 7 OF 16have provided notice of the intent to develop the subject lot for purposes of vested rights accrual. See Ex. B; see also TEX. LOCAL GOv’T CODE § 245.002. If the 1985 Travis County development permit is regarded as the first permit application for the project, based on evidence provided to the City in Plaintiffs vested rights application dated February 14, 2011 and additional research conducted by City staff, it appears that the development began on the property in 1985 and that any “project” contemplated by the 1985 Travis County development permit was completed by 2006. Ex. B. The permit was issued for the construction of an office building. Ex. B. Geographic information system (GIS) aerial maps of the subject property show that a structure was completed in 1987. Ex. B. The last structure to be built on the property was in 2006, making a total of nine structures constructed on the subject property over a twenty-one year period. Ex. B. Clearly, any development contemplated by the 1985 permit was completed well before Plaintiff submitted his 2011 vested rights application. 3. A dormant project is no longer entitled to vested rights protections. A project becomes dormant if no progress has been made towards completion of the project. TEx. LOCAL Gov’T CODE § 245.005; Seguido, 227 S.W.3d at 244. Even if the 1985 Travis County development permit could have conferred vested rights with the City, vested rights do not continue in perpetuity and Plaintiff's project became dormant pursuant to Section 245.005 long before Plaintiff submitted his vested rights application in 2011. TEX. LOCAL Gov’T CODE § 245.005. Chapter 245’s dormancy rules first went into effect on May 11, 1999. 1999 Tex. Sess. Serv. Ch. 73 (H.B. 1704). The 1999 version of this subsection reads as follows: Notwithstanding any other provision of this chapter, after the first anniversary of the effective date of this chapter, a regulatory agency may enact an ordinance, rule, or regulation that places an expiration date on a permit if as of the first anniversary of the effective date of this chapter: (i) the permit does not have an DEFENDANTS’ TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT PAGE 8 OF 16expiration date; and (ii) no progress has been made towards completion of the project. Any ordinance, rule, or regulation enacted pursuant to this section shall place an expiration date of no earlier than the fifth anniversary of the effective date of this chapter. Progress towards completion of the project shall include any one or more of the following: (1) an application for a final plat or plan is submitted to a regulatory agency; (2) a good-faith attempt is made to file with a regulatory agency an application for a permit necessary to begin or continue towards completion of the project; (3) costs have been incurred for developing the project including, without limitation, costs associated with roadway, utility, and other infrastructure facilities designed to serve, in whole or in part, the project (but exclusive of land acquisition) in the aggregate amount of five percent of the most recent appraised market value of the real property on which the project is located; (4) fiscal security is posted with a regulatory agency to ensure performance of an obligation required by the regulatory agency; or (5) utility connection fees or impact fees for the project have been paid to a regulatory agency. 1999 Tex. Sess. Serv. Ch. 73 (H.B. 1704). In 1985, a Travis County “land development permit expire[d] after (1) 180 days from the date of issuance if no work commenced on the subject property or (2) work authorized under the permit is suspended or abandoned for a period of at least 180 days.”° Ex. C (Affidavit of Stacey Scheffel). Accordingly, reading Travis County’s rules in harmony with Section 245.005, at the latest possible date, Plaintiffs project became dormant and his 1985 Travis County permit expired on May 11, 2004, five years after the enactment of the dormancy provisions. The only continued progress alleged by Plaintiff which occurred after the enactment of Section 245.005 occurred in 2008, Ex. A at pp. 3- * This appears to have been amended in 2008 to comply with Chapter 245 five years expiration requirement. See Travis County Code § 64.061(d). DEFENDANTS’ TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT PAGE 9 OF 164, well after Plaintiffs permit expired and the project became dormant. Accordingly, Plaintiff's project was dormant long before he requested vested rights in 2011. iii. Amnesty was requested and granted, further evincing the absence of the proper filings with the City of Austin that would constitute notice of legal development of the subject property. On December 2, 2011 and January 10, 2012, Plaintiff requested an Amnesty Certificate of Occupancy (ACO) in regards to two existing structures on the subject property. Ex. D (Affidavit of Christopher Johnson). An ACO establishes the continued use of property from 1986 until the present and is typically granted to properties without an existing certificate of occupancy. Ex. D, An ACO does not authorize the development of property. See Ex. D. In other words, amnesty is often granted to structures not otherwise known to exist by the City. ACO’s for the two structures on the subject property were granted because the applicant presented evidence of the continuing use of one structure as an office and the other as a nursery. Ex. D. This fact further supports the lack of filings with the City by Plaintiff that would otherwise notify the City of development on the subject property. Ex. D. Any development commenced between 1986 and the present would only evince illegal development, proving vested rights never accrued in connection with Plaintiffs property. Further, for the reasons addressed above, any project commenced between 1986 and 2006 is now complete and cannot support the grant of vested rights for the new project currently under dispute. iv. Ultra Vires Claim* “Governmental immunity protects political subdivisions of the state, such as cities and their officers, from liability.” Houston Belt & Terminal Railway Co. v. City of Houston, 487 S.W.3d 154, 157 (Tex. April 1, 2016). An witra vires claim, however, does not “waive” * Plaintiff did not explicitly plead an ultra vires claim. The Third Court of Appeals, however, interpreted Plaintiff's pleadings as an ultra vires claim. See Third Court of Appeals in Memorandum Opinion No. 03-14-00265-CV. DEFENDANTS’ TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT PAGE 10 OF 16immunity, as “it is the Legislature’s sole province to waive or abrogate sovereign immunity.” See Id. at 158, fn. 1 (citing Tex. Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 853 (Tex. 2002). Instead, when an official performs an act that is without legal authority or fails to perform a ministerial act—an ultra vires act—governmental immunity does not apply from the outset. Jd. This is because an official derives his immunity from the State, and when an official performs acts that are not lawfully authorized, they are not considered acts of the State. E.g. Texas Dept. of Ins. v. Reconveyance Services, Inc., 306 S.W.3d 256, 258 (Tex. 2010); City of El Paso v. Heinrich, 284 S.W.3d 366, 373 (Tex. 2009). Thus, the Texas Supreme Court has long recognized “that suits complaining of ultra vires action may not be brought against a governmental unit possessed of sovereign immunity, but must be brought against the allegedly responsible government actor in his official capacity.” Texas Dept. of Ins. v. Reconveyance Services, Inc., 306 S.W.3d 256, 258 (Tex. 2010). Accordingly, any u/tra vires claim that could be read from Plaintiff's pleadings would have to be that Guernsey, in the process of reviewing Plaintiff's vested rights application, failed to perform a ministerial act or acted without legal authority. Southwestern Bell Telephone, L.P. v. Emmett, 459 S.W.3d 578, 587 (Tex. 2015). Ministerial acts are those required and defined under law with such specificity that the state actor cannot exercise any discretion or judgment. /d. Conversely, discretionary acts are those requiring judgment and personal deliberation. Jd. Any allegation by Plaintiff that Guernsey failed to perform a ministerial task or acted without legal authority while in his official capacity when denying Plaintiffs vested rights applications is unfounded. At all times, Guernsey was performing the ministerial task of determining whether Plaintiffs application met the requirements of Chapter 245, and in finding it did not, he was acting within the confines of his official capacity. Plaintiff, however, has no DEFENDANTS’ TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT PAGE 11 OF 16evidence that Guernsey failed to perform a ministerial task or that he acted without legal authority in denying Plaintiff's vested rights application for the same reasons addressed above for why Plaintiff was not entitled to vested rights. Accordingly, no ultra vires claim applies to the facts of this case and Plaintiff's allegations regarding such are baseless and fail as a matter of law. Cc. Fraudulent Misrepresentation Municipalities enjoy governmental immunity for claims “arising out of assault, battery, false imprisonment, or any other intentional tort.” TEX. CIv. PRAC. & REM. CODE § 101.057 (emphasis added). Fraudulent misrepresentation is an intentional tort for which the City, as a municipality, is entitled to governmental immunity. See e.g. LTTS Charter School, Inc. v. Palasota, 362 S.W.3d 202, 209 (Tex. App.—Dallas, no pet.). Furthermore, a civil action against a municipal employee acting in his official capacity is essentially an action against the municipality itself. Morris v. Copeland, 944 S.W.2d 696, 698 (Tex. App.—Corpus Christi 1997, no writ); see also Aguilar v. Frias, 366 S.W.3d 271, 273 (Tex. App.—El Paso 2012, pet. denied). Accordingly, Greg Guernsey, who is only being sued in his official capacity, is entitled to the same immunities as the City.° Both are immune from suit and liability and this claim must be dismissed in its entirety. Moreover, Plaintiff has no evidence that the City or any of its employees made fraudulent misrepresentations. The elements of fraudulent misrepresentation are (1) defendant made a material representation to the plaintiff; (2) the representation was false; (3) when the representation was made, the defendant knew it was false; (4) the defendant made the * It appears, based on the pleadings filed in this case, that Appellant is also alleging fraudulent misrepresentations made by Susan Scallon and the rest of the Chapter 245 completeness check team, none of whom are defendants in this case. DEFENDANTS’ TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT PAGE 12 OF 16representation with the intent that the plaintiff act on it; (5) the plaintiff detrimentally relied on the defendant’s misrepresentation. Baribeau v. Gustafson, 107 S.W.3d 52, 58 (Tex. App.—San Antonio, pet. denied (citing 7.0. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 222 (Tex. 1992)). Plaintiff alleges that Greg Guernsey and Susan Scallon, both City employees, made false misrepresentations, acted in malice, and ignored and misconstrued Chapters 43, 245, and Section 312.005 of the Local Government Code, when denying Plaintiffs vested rights application. Ex. A. Every City employee involved in determining the denial of Plaintiffs application merely carried out their job duties in good faith by making a Chapter 245 Determination as requested by Plaintiff. Ex. B. Plaintiffs dissatisfaction with the denial of this request does not falsify the premise for such denial. Plaintiff has no evidence that Defendants made a knowingly false representation to Plaintiff. Further, there is no evidence of intent to induce Plaintiffs reliance. Any action by Plaintiff as a result of this determination was outside the control of the City. The denial of Plaintiff's vested rights application simply meant Plaintiffs rights were not vested because documents were issued by regulatory agencies other than the City, including the 1872 plat of unknown origin and the 1985 Travis County development permit. Plaintiff was free to develop his property and pursue a project under the current land development rules and regulations at any time after receiving the denial of his vested rights application. D. Perjury Plaintiff alleges that former defense counsel Assistant City Attorney Sandra Kim committed perjury when she signed an affidavit in support of Defendants’ Motion for Continuance filed May 17, 2013. See Exs. A, F (Affidavit of Sandra Kim). A claim of perjury DEFENDANTS’ TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT PAGE 13 OF 16relates to criminal matters, the venue for which would take place in the criminal courts. Tex. Penal Code §§37.02 & 38.16(a) (Vernon 2011). Such allegations are not properly before this civil proceeding and must be dismissed. Tex. Educ. Agency v. Leeper, 893 S.W.2d 432, 441 (Tex. 1994) (“a party cannot seek to construe or enjoin enforcement of a criminal statute in a civil proceeding unless it challenges the constitutionality of the provision and proves an irreparable injury to its vested property rights....”); State v. Morales, 869 S.W.2d 941, 944 (Tex. 1994). To the extent this Court can construe Plaintiff's claim to be some sort of fraud claim, Defendants retain immunity for the reasons already outlined above. Furthermore, Ms. Kim is not a defendant to this action and Plaintiff has no evidence that any of the statements made in Ms. Kim’s affidavit were false or that such false statements were made with any intent to deceive Plaintiff or the Court. This claim is meritless and must be dismissed. E. Breach of Contract and Preventing the Execution of Civil Process Plaintiff also alleges a breach of contract preventing the execution of the civil process. The basis of this allegation appears to be a Rule 11 Agreement entered into by Plaintiff and Ms. Kim to reschedule a hearing for which Ms. Kim had a conflict. See Exs. A, E (May 3, 2013 Rule 11 Agreement). Plaintiff had set the hearing without conferring with Ms. Kim. Ex. F. After entering into the Rule 11 Agreement, Ms. Kim realized that the hearing date was not feasible in light of Plaintiff requesting a trial on the merits without providing the requisite notice, and requested injunctive relief tantamount to an adjudication of the merits of the underlying case. Ex. F, After Plaintiff refused to move the hearing date, Ms. Kim filed a Motion for Continuance showing sufficient cause. See TEX. R. Civ. P. 247, 251, and 252. This motion was granted by Judge Wisser. Ex. G (May 30, 2013 Order). DEFENDANTS’ TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT PAGE 14 OF 16No case or rule holds that a Rule 11 Agreement regarding a rescheduling of a hearing constitutes a contract. Any allegation of a breach of contract in connection with the Rule 11 Agreement is therefore misplaced and irrelevant. Furthermore, the underlying issue of the rescheduling of the hearing was addressed in Judge Wisser’s order. Ex. G. A court is within its sound discretion to grant a motion for continuance and will not be disturbed unless the record reveals a clear abuse of discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986). Therefore, the Court has already addressed the issue regarding the Rule 11 Agreement and made its ruling. Ex. G. Lastly, the Rule 11 Agreement did not prevent the execution of the civil process but merely reset the date for a hearing, which was later continued by court order on May 30, 2013, as discussed above. Exs. F, G. This claim is also baseless and must be disregarded. F. Damages Plaintiff seeks ten million in damages. Ex. A. Defendants are immunity from monetary damages for the types of claims alleged by Plaintiff—a Chapter 245 determination and an ultra vires claim. See TEx. LOCAL Gov’T CODE § 245.006; City of El Paso v. Heinrich, 284 8.W.3d 366, 374-77 (Tex. 2009); City of Houston v. Williams, 216 S.W.827, 828 (Tex. 2007). Accordingly, should Plaintiff prevail at trial, he is entitled to nothing more than a declaration that he is entitled to vested rights. Vv. CONCLUSION For the reasons cited above, Defendants request this Court grant Defendants’ Motion for Summary Judgment because Plaintiffs claims fail as a matter of law. DEFENDANTS’ TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT PAGE 15 OF 16RESPECTFULLY SUBMITTED, ANNE L. MORGAN, CITY ATTORNEY MEGHAN L. RILEY, CHIEF LITIGATION {s/ Andralee Cain Lloyd 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 CERTIFICATE OF SERVICE I certify that on this Thursday the 11th day of August 2016, I served a copy of Defendants Transitional and No-Evidence Motion for Summary Judgment on Pro Se Plaintiff Charles Draper in compliance with the Texas Rules of Civil Procedure. VIA CMRRR #91 7199 9991 7036 2335 8762 & Electronic Mail Charles N. Draper 4609 Trail Crest Circle Austin, TX 78735 cd@tejasland.com PRO SE PLAINTIFF /s/Andralee Cain Lloyd Andralee Cain Lloyd Assistant City Attorney DEFENDANTS’ TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT PAGE 16 OF 16Exhibit AIN THE DISTRICT COURT OF TRAVIS COUNTY, TEXAS 419" JUDICIAL DISTRICT CHARLES N. DRAPER, § § Plaintiff, Pro Se § § Vv. § CAUSENO. D-1GN-13-000778 § GREG GUERNSEY, § IN HIS CAPACITY AS DIRECTOR OF § PLANNING AND DEVELOPMENT § WATERSHED PROTECTION § REVIEW DEPARTMENT, § AND CITY OF AUSTIN 8 § Defendants. § PLAINTIFE’S FINAL AMENDED PETITION Charles N. Draper, plaintiff, brings this suit against the City of Austin, Greg Guernsey, in his capacity as Director of Planning and Development Review Department for the City of Austin, as party defendants, and for: fraudulent misrepresentations, malice, administrative failure to comply with Chapters: §43.002, §245, and Chapter §312.005 of the Texas Local Government, Draper shows the Court the following: Parties and Venue 1. Charles N. Draper is an individual residing in Austin, Travis Country, Texas 78735. 2. The property, in possession, and questions of fact are located at: 6300-02 Highway 290 (6300Hwy290W) West, Austin, Texas 78735, Travis County, Texas and are owned individually by Draper.3. City of Austin, and Director Greg Guernsey, which conduct business in Travis County, and may be served: at 505 Barton Springs Road, One Texas Center, 4h floor, Austin, Texas 78704. Venue of this action is proper because, the property is located in Travis County, and the plaintiff's was denied his vested-property rights as defined in SB 1701, and Chapters: §43, §245, and Chapter § 312.005 of the Texas Local Government Code, by the City of Austin. Case History: - 6300-02 Highway 290 W (Authority opinion: McClendon & Associates (Pl. Exhibit A) 1. Subdivision- a. 6300Hwy290W, a 2.357 acre tract, was “..legally subdivided as Lots 10 and 11, block 1, Town of Oak Hill, and recorded in the Travis County Deed Records on December 16, 1872 (PI. Exhibit B). In 1982, the City of Austin adopted the Barton Creek Watershed Ordinance, however, legally subdivided land was exempt from the ordinance and site development standards per Sec. 9-10-303(b). In short, a site development, or watershed development permit from the City of Austin was not required”. 2. Site Development Permit: issued August, 1985- a. “Travis County approved a site development or floodplain permit (P/. Exhibit C) on August 9, 1985 for the Patton Lane Office Building, a three story office development . Although the original subdivision was platted in 1872, the site development permit represents the first in a series of permits for the project.” The Travis County Engineer’s office stamped approved, and issue a permit number: 85-2558 on August 9, 1985. Although construction was initiated and later paused due to economic conditions,the floodplain permit does not expire Construction commenced in 1985. The site included previously existing residential and commercial development from 1950's and 1970’s which did not require City or County permits when it was constructed. All of the development was outside the City and within the County’s jurisdiction, prior to adoption of the Barton Creek and Williamson Creek Ordinances.” 3. Annexation to the City of Austin- a. “The Patton Lane Office Building was under construction when the City of Austin annexed the property for full purpose on December 30, 1985, and zoned the property Single-Family-2 (SF-2). Since the property was annexed in 1985, there have been no building permits approved or issued for the existing development. In late 2011 and early 2012, the City issued a certificate of non-compliance for the existing commercial development, which is an exemption from compliance with City’s existing permit process per LDC, Sec. 25-1-365. 4, Continued Progress- a. “The landowner has continued progress toward permitting by filing and recording an amended plat on October 10, 1991, which did not change or alter any of the previous restrictions or provisions of the original subdivision. On October 10, 1991, the City rezoned the property to Commercial Services- Conditional Overlay (CS-CO), (Ord.#: 911010-B). Again on June 14, 1997, the landowner filed 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 developmentrestrictions and permitted uses on the property to be consistent with those of the originally submitted permit. (Pl. Exhibit D). Current History: 6300-02 Highway 290 W. 1. Oak Hill Neighborhood Plan- a. On, or around the spring of 2006, the City of Austin initiated development of the ‘Oak Hill Neighborhood Plan’, OHNP. Draper participated as a board member of the ‘Oak Hill Neighborhood Contact Team’, OHNPCT. Concerned his property, potentially, could be down-zoned through the OHNP, Draper obtained legal counsel, through the law firm of Munsch, Hardt, Kopf, & Harr. Representation was provide by Robert Kleeman. b. Mr. Kleeman conducted countless meetings and correspondence with Matt Hollon, Pat Murphy, Victoria Li, City of Austin Watershed Protection, and Development Review Department.; none were able to produce conclusive evidence Draper’s property 6300Hwy290W was not entitled to ‘grand-fathering’ provisions as instructed by LGC Chapter 245.00. (Pl. Exhibit E,F). c. Consequently, through assistance of Mr. Kleeman, and Munsch, Hardt, Kopf, & Harr, Draper filed and obtained rezoning in December, 2008, (Case No. C14-2008-0152). Draper has perpetuate project completion throughout his ownership of 6300Hwy290W. 2. Site Plan Fair Notice- a. On the behalf of Draper, February 14, 2011, Jim Schissler, an engineer with Jones & Carter, submitted a Site Plan Fair Notice and H.B. 1704/ Chapter 245 Determination application for the Patton Lane Office Building project; located on the northeast comerof West U.S. Highway 290, and Patton Ranch Road in southwest Travis County. (PI. Exhibit G). . Greg Guernsey, City of Austin Planning and Development Watershed Protection and Review Department, along with Susan Scallon, and the Chapter 245 Determination Committee denied Draper’s application. (Pl. Exhibit F). Scallon rejected Draper’s application, for the reasoning: “project complete”. (Pl. Exhibit F). Greg Guernsey, Susan Scallon, and the 1704 Committee made a fraudulent misrepresentations, and ignored; LGC § 43.002. Continuation of Land Use. . 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). . Draper employed McClendon & Associates in February of 2012. McClendon & Associates resubmitted Draper’s 1704/Chapter 245 Determination request; after records documenting the issuance of Travis County Flood Plain Permit, and original architectural permits were uncovered through the Travis County archives. Again, the 1704/ Chapter 245 entitlements were denied without statutory support. . In attempt to exhaust his administrative appeal, on November 2, 2012, Draper met with City of Austin Member, Chris Riley, in attempt to amicably resolve the dispute. Council member Riley said; “ ...i¢ would require a Plan Amendment to S.0.S.; which requires a ‘super majority’ of City Counsel..” . Draper respectfully disagrees. Draper contends, his property located at 6300-02 West Highway 290, is ‘grand- fathered’ under Chapter §43.002 and 1704/Chapter 245 of Texas’ Local Government(a Code. Having exhausted his administrative appeal Draper files the above mentioned cause of action. Texas Local Government Code, and Civil Practices & Remedies Code LGC § 43.002. Continuation of Land Use- (a) A municipality may not, after annexing an area, prohibit a person from: (1) continuing to use the land in the area in the manner that was being used on the date the annexation proceedings were instituted if the land use was legal at that time; or (2) beginning to use the land in the area in the manner that was planned for the land before the 90" day before the effective date of the annexation if: (A) one or more licenses, certificates, permits, approvals, or other forms of authorization by a governmental entity were required by law for the planned land use; and (B) a completed application for the initial authorization was filed with governmental entity before the date the annexation proceedings were instituted. LGC § 245.001. Definitions- (1) “Permit” means a license, certificate, approval, registration, consent, permit, contract or other agreement for construction related to, or provision of, service from a water or wastewater utility owned, operated, or controlled by a regulatory agency, or other form of authorization required by law, rule, regulation, order, or ordinance that a person must obtain to perform an action or initiate, continue, or complete a project for which the permit is sought. (3) “Project” means an endeavor over which a regulatory agency exerts its jurisdiction and for which one or more permits are required to initiate, continue, or complete the endeavor. (4) “Regulatory agency” means the governing body of, or a bureau, department, division, board, commission, or other agency of, a political subdivision acting in its capacity of processing, approving, or issuing a permit. LGC § 245.002. Uniformity of Requirements Each regulatory agency shall consider the approval, disapproval, or conditional approval of an application for a permit solely on the basis of any orders, regulations, ordinances, rules, expiration dates, or other properly adopted requirements in effect at the time; (1) the original application for the permit is filed for review for any purpose, including review for administrative completeness; or (2) a plan for development of real property or plat application is filed with a regulatory agency.(a-1) Rights to which a permit applicant is entitled under this chapter accrue on the filing of an original application or plan for development or plat application that gives the regulatory agency fair notice of the project and the nature of the permit sought. An application or plan is considered filed on the date the applicant delivers the application or plan to the regulatory agency or deposits the application or plan with the United States Postal Service by certified mail addressed to the regulatory agency. LGC § 245.006. Enforcement of Chapter- (a) This Chapter may be enforced only through mandamus or declaratory or injunctive relief. CPRC § 101.021 - Governmental Liability - “ a governmental unit is liable for: (1) property damage, personal injury, and death proximately caused by a wrongful act or omission, or negligence of an employee acting within the scope of employment if: (B) the employee would be personally liable to claimant to Texas law.” CPRC § 101.0215 — Liability of a Municipality- “a municipality is liable under this chapter for damages arising from it’s governmental functions, which are those functions that are enjoined on the municipality and are given it by the States as part of the State sovereignty to be exercised by the municipality in interest of the general public, including but not limited to: (29) zoning, planning and plat approval.” Case Law Harper Park Two, LP v. City of Austin LGC § 245.00- .002 Uniformity of Requirements, Projects, 2.5, Permits- “Project” was single endeavor reflected in original application for first permit in series, rather than individual components of larger, original project/endeavor that could subsequently require separate permit, and thus, owner, under vested-rights protections, was entitled to develop six-acre lot as hotel, office, or any other commercial use consistent with rules, regulations, and ordinances in effect at time of initial permit application, along with zoning and restrictive covenants that were previously voluntarily imposed on property; “project” was “commercial” development, as defined under then-applicable ordinances, and was not limited to office building or other specific type of “commercial” development. Harper Park Two, LP v. City of Austin (App. 3 Dist. 2011) 359 S.W.3d 247, rehearing overruled, review denied. “Under chapter 245 of the local government code, once an application for the first permit required to complete a property-development “project” is filed with the municipality or other agency that regulates such use of the property, the agency’s regulation applicable to the "project” are effectively “frozen” in their then-current state and the agency is prohibited from enforcingsubsequent regulatory changes to further restrict the property use”. See TEX. GOV’T CODE Ann. §§ 245.001-.007 (West 20005) Shumaker Enters, Inc. v. City of Austin, 325, S.W. 3d 812, 814-15 & n.5(Tex. App- Austin 2010, no pet.) Greg Guernsey, Susan Scallon and the 1704 Committee violated State law, ignored oe ’project” are effectively “frozen from further restrictions, acted in defiance of State law, and fraudulently misrepresented Draper’s project as; “project-complete”. (Pl. Exhibit F) “See Act of May 11, 1999, 76” Leg., R.S. Chp73 § 2, 1999 Tex. Gen. Laws 432, codified as amended, Tex. Loc Gov’t Code Ann. § 245.002(a)-(b). The effect of these requirements, is to “freeze” most of the regulatory authority’s land-use regulations as they existed at the time the first permit application is filed through completion of the “project”.” Harper Park II v. City of Austin, S.W. 3d (App. 3 Dist. 2011), 359, S. W. 3d 247. “See Act of May 11, 1999, 76" Leg., R.S. Chp73 § 2, 1999 Tex. Gen. Laws 432; see Quick v. City of Austin 7 S.W. 3d 109 (Tex 1998) at 128n (purpose of the chapter 245’s statutory predecessor, former chapter 481 of the government code, was to “ establish requirements relating to the processing and issuance of permits and approvals by the government regulatory agencies in order to alleviate bureaucratic obstacles to economic development”)”. Harper Park II v. City of Austin, S.W. 3d (App. 3 Dist. 2011), 359, S. W. 3d 247. “Moreover, as an incidental matter of historical fact, the legislative record reflects that bill proponents advocated chapter 245 as an appropriate response to instances when the City of Austin had purportedly imposed new regulatory restrictions, retroactively on development projects that were already underway causing project failures, bankruptcies, and regulatory uncertainty for developers, and landowners”. Harper Park II v. City of Austin, S.W. 3d (App. 3 Dist. 2011), 359, S. W. 3d 247 “Jn any event, we are to construed chapter 245 in a manner consistent with legislature’s intent, and whether that leads to a particular “narrow” or “broad” application is entirely a function the words the Legislature has chosen. The words that the Legislature has chosen in chapter 245 guide us to view the relevant project in context of the applicable land-use regulations in effect at the time the initial permit application was filed”. Harper Park Il v. City of Austin, S.W. 3d (App. 3 Dist. 2011), 359, S. W. 3d 247LGC § 245.006- Statutes allowing enforcement of permit application regulations through declaratory or injunctive relief and waiving immunity from suit only applied to permit applicants, and thus did not result in a waiver of city's immunity from neighbor's claims that city violated its ordinances in issuing drilling permit to owner of underground hydrocarbon storage facility. Cernosek Enterprises, Inc. v. City of Mont Belvieu (App. 1 Dist. 2011) 338 S.W.3d 655. Municipal Corporations LGC § 312.005. Legislative Intent- In interpreting a statue, a court shall diligently attempt to ascertain legislative intent and shall consider at all times the old law, the evil, and the remedy. “The Court of Appeals presumes that legislature used every word for a purpose and excluded every word for a purpose”. (Brown v. State (App 5 Dist. 1995) 915 S.W. 2" 533). Where language is unambiguous and it meaning is clear, a court should give effect to the statue, according to its terms.” (Rio Grande Valley Sugar Growers, Inc v. Campesi (Civ. APP.1779) 580 S.W. 2" 850). “The primary objective in construing statue is to give effect to Legislature intent. (Mitchell Energy Corp. v. Ashworth (Sup.1997) 943 S.W. 2" 436). “City’s contention that it will not construe challenged ordinance in unconstitutional manner is irrelevant to constitutional question of ordinance’s susceptibility to such construction: well- intentioned prosecutors and judicial safeguards do not neutralize vice of vague law”. (City of Mesquite v. Aladdin’s Castle Inc. (Civ. App. 1997) 559 S.W. 2" 92). Draper contends Greg Guernsey, and the City of Austin breeched CPRC § 101.0215, Liability of a Municipality, made fraudulent misrepresentations, misconstrued the Legislature’s intent taking a “narrow” view of chapter 245, ignored § 43.002 , and refusing to provide a definitive explanation for the refusal of Draper’s application. Attorney General John Cornyn Opinion, October 13, 2001- “Section § 245.002 of the Local Government Code locks in, for the duration of a real-property “project”, the development regulation in effect when the original application for the first necessary permit is filed. See TEX. LOC. GOV’T CODE ANN. § 245.002(a), (b) (Vernon Supp. 2001); see also Quick v. City of Austin, 7 S.W. 3d 109, 131 (Tex. 1998). Under the statutory definition of term “project”, it is irrelevant whether the owner who files the original application for the first permit retains the property for the duration of the project or conveys the property. See TEX. LOCGOV’T CODE § 245.001(3)(Vernon Supp. 2001) If another person purchases the tract of land, you inquire, is the purchaser “entitled to the rights and benefits” that Chapter 245 provides to the owner who filed the original application for the first permit, see Letter, not 1, at 1, and we thus understand you ask whether the property remains subject to the development regulations in effect when the original application for the first permit was filed despite the conveyance. We conclude that the property remains subject to the development regulations in effect at the time the original application for permit was filed, but only if the project remains the same.” (P/. Exhibit K) Attorney General Greg Abbott’s Opinion, December 10 , 2012- “You inquire about a potentia