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

• Court: Court of Appeals of Texas
• Decided: December 16, 2015
• Docket: 03-15-00741-CV
• Status: Published

Opinion

December 16, 2015

CHARLES N. DRAPER,

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

Appellees.

Appellant's Brief

Appellant Pro Se: Appellee:

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

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

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

IDENTITY OF PARTIES & COUNSEL p.4

INDEX OF AUTHORITIES p.5

STATEMENT OF CASE p.6

PERMISSION TO APPEAL p.6

STATEMENT ON ORAL ARGUMENT p.7

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

ISSUES TO BE PRESENTED FOR REVIEW p.9

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

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

APPENDIX

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

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

AFFIDAVITS

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

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

NOTICE OF APPEAL

REGISTER OF THE COURT

IDENTITY OF PARTIES & COUNSEL

Appellant, Pro Se: Appellee:

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

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

STATUTES & CASE LAW

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

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

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

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

CONSTITUTION

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

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

PERMISSION TO APPEAL

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

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

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

The Court should grant oral arguments for the following reasons:

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

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

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

Oral arguments would significantly aid in deciding this case.

ISSUES TO BE PRESENTED FOR REVIEW

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

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

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

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

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

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

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

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

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

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

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

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

PAST- CASE HISTORY

11 6300-02 Highway 290 W (6300Hwv290W)

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

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

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

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

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

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

4. Continued Progress-

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

CURRENT- CASE HISTORY

6300-02 Highway 290 W (6300Hwv290W)

1. Oak Hill Neighborhood Plan-

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

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

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

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

2. Site Plan: Fair-Notice-

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

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

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

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

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

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

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

STATEMENT OF ARGUMENTS

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

Greg Guernsey in his Capacity ofDirector ofPlanning and Development Watershed

Protection and Review Department, and City ofAustin, Appellees.

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

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

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

provided ''through mandamus, declaratory or injunctive relief.

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

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

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

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

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

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

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

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

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

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

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

the government physically appropriated or invades the property or when unreasonably

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

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

Hearing: No-Evidence Summary Judgment

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

Summary Judgment, Appellees assert hearsay;

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

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

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

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

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

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

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

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

rights are protected under Chapter §43.002.

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

applicationfor the first permit required to complete a property-development

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

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

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

from enforcing subsequent regulatory changes to further restrict the property-

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

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

Austin2010. no pet.)

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

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

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

accordance with that permit before construction was halted forfinancial reasons andthe

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

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

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

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

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

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

Chapter §245 ofthe Local Government Code. "

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

Tex. Government General Provisions:

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

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

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

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

Process, all recorded in previous testimony.

Governmental Liability CPRC Rule §101.0215(29)

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

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

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

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

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

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

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

H. I. J)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Aggregated and Reprehensible conduct

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

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

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

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

Zoning, and Chapters §245, and §43.002.

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

capacity as Director ofPlanning and Development Watershed Protection, Guernsey,

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

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

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

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

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

evidence points to Greg Guernsey blatant disregard for the law.

19 DAMAGES

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

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

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

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

suffered.

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

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

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

Compensatory Damages - Economic relief

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

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

compliance of TRCP 197. Record Excerpt:

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

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

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

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

Total Compensatory Damages

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

PRAYER

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Respectfully submitted.

d_^l«-^ /**••& **j£zz^£-

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

CERTIFICATE OF SERVICE

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

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

22 VERIFICATION

THE STATE OF TEXAS

COUNTY OF TRAVIS

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

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

Charles N. Draper

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

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

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

SUMMARY JUDGEMENT EVIDENCE

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CONSTITUTIONAL PROVISIONS

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

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

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

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

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

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

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

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

DAMAGES

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

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

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

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

DECLARATORY RELIEF

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

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

CONCILSION

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

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

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

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

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

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

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

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

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

I. Introduction

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

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

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

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

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

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

II. Summarv Judgment Evidence

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

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

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

Exhibit 3: Affidavit of Susan Scallon with attachments.

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

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

III. Authority and Argument

A. Plaintiffs no-evidence motion is conclusory.

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

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

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

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

B. City's Response to Chapter 245 Arguments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

of Plaintiff s claims. Ex. 5.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

IV. Defendants' Motion to Strike Plaintiffs Evidence

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

V. Conclusion

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

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

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

ATTORNEYS FOR DEFENDANTS

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

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

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

Charles N. Draper 160 Maeves Way Austin. TX 78737

PROSE PLAINTIFF

s/ Andralee Cain Llovd Andralee Cain Lloyd Assistant City Attorney

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

ORDERS

}

:%

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

v.

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

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

TO THE HONORABLE JUDGE OF THE DISTRICT COURT:

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

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

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

counsel makes the following rulings:

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

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

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

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

Motion for Summary Judgment) is DENIED.

SIGNED this / Q— day of November. 2015.

E Honorable Judge Presiding

••••mum11 004306017 t& EXHIBITS

34 McClendon & Associates Development Consulting, LLC

July 16.2012

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

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

Dear Mr. Guernsey:

i hank you for your previous determination of the above referenced application. Susan Scallon. 1704 Committee staff representative, was kind enough to visit with me regarding the application and share some basis for not approving the application. In response, it seems additional information, materials, and signed plans may provide clarification of the facts and additional documentation of the justification and "continuing progress" by which we would respectfully request for the 1704 Committee to reconsider the application.

A site development summary follows providing a chronology of development permitting 1 subject property in an effort to clarify and augment the facts of the application previously

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

Site Development Permit

Travis County approved a site development or floodplain permit on August 8. 1985 for the Patton Lane Office Building, a 3-story office development. Although the original subdivision was platted in 1872. the site development permit represents the first in a series of permits for the project. Two copies of the complete (11" x 17") plans are attached which show approvals from the Travis County Engineer's office. Although construction was initiated and later paused due to economic conditions, the lloodplain permit does not expire. The Travis County Engineers Office issued a letter in 1987. indicating that a lloodplain elevation certificate verifying the McClendon & Associates Development Consuming, LI C Phone 512 363 • 4B0fi Canyonwood Dr. Fax. 512 332 X ~:~Zr e-r--,&!:: csrl::icc;e n r cor. finished floor elevation of tlie building (to be constructed) had not been filed within one year of the issuance of the permit and, therefore, is a violation, (not expiration of the permit).

Construction commenced in 1985, with removal of existing homes on the site and construction of drilled pier locations for the building's foundation, as evidenced by notes from a City of Austin environmental inspectorand an aerial photo in 1986. (attached).

The site included previously existing residential and commercial development from the 1950:s and 197(Fs, which did not require City or County permits when it was constructed. All of this development was outside the City and within the County's jurisdiction, prior to the adoption of the Barton Creek and Williamson Creek Ordinances.

Annexation to City of Austin

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

Continuing Progress

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

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

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

Carl McClendon, AICP

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

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

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

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

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

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

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

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

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

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

TRAVIS COUNTy, TBCAS V0L>^ PAGE v fi^

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

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

Sat. -T-Ti: Or' TElAS y

COU2OT Cv T:,aVI3 J 230W jj, jSkh 3 j ^ ?5fcS?G?S ^ 2> ^ _ G,ofiricfc Qf ^Gooa- the County of Travis ana state of Te:

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

Trr.s on ban Jacinto Street; running one hundred and thirty-eight (138) feet on Willow C.H. Street being lots numbers Pour (4) Five (5) and £iz (6) inBloc* one hundred and eighty-one (lbl) in the City of Austin. Together with all and singular the -right. asmbers, appurtenance a. hereditaments and .Improvements or fixtures to the sane belonging or in anywise incident or appertaining or belonging -hereto unto the eai d ?«•»« H. Hayaond. To hare and to bold the ease in fee simple. In true/for the following neea end purpoeee. That is to Bay 1 hate this day re*.i<*ed from IS. C. Bartnolemaw, the «um of Six hundred and eighty -doll-era in U. S. Curxenoy; and as evident of aaid debt and to Eeoure the payment of tte eame hove this day made,. executed ar.d deliverer to '£, iholomew the c.omis.orv noi hereto attached fo.r tear I « twer.t: ioreiher with this Trust deed to sec? and comrei \m- faithful payment of the same therefore,, if j shall well and .; puy off and discharge said note at ?t. arr.eatle 1.0 it:' leeal te'noS -:.c ef:eet, then and in that event this conveyer.ce t o he null and void, cancelled should Ifail to par: said oebt at its- maturity ( or whan' :.t. •/ c(". • her jfter t- C. Bartholomew or his- lernl re presentativee, then 1; tut nor ire and smcower Jensei F.u viao nd . rn se (or in c»?eof ht

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

Internal HeVenue -tamp $1.00 Cancelled «.^lein TEE ti'.a.T£ CF ir.Knii 5 i. fl«fe OOUSri OF TBVVIS f iCHOW eLL HOT BX TKiiSE -BBSBHTS, that 1, flrnold Elein*f^ To the bounty of Travis and State of Texae, for and in consideration of on, doll* Trust ieed in hand paid,, tba reeelnt whereof is hereby acknowledged, tovetfels «e^ C.B.Joana by theee present.„ &*•% granted, Irar^ained,, aoid, alienated *nd -convene and delivered to C, H. Johns all ay ri^ht,, title, lntere.-tt and claim in and kb following deecribed property-to-wit: Situate, lying and **-ing in th> 'County • Travie, 3t*ta of Texas,, and deecribed fcj aeree -ajfl bounds ae follow.- •Baartsial waiving all homee-tead* Bowery, int-rest or other right*, secured -water '*ne tution and law* of Texae, and me^t fr

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

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

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

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

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

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

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

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

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

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

Please be advised that the City ofAustin has received an application for a zoning change. Owner: Tejas Land & Commerce (Charles Draper) Telephone: 512-358-7191 Agent: 1hrower Design (Ron Thrower) Telephone: 512-476-4456 Address and/or Legal Description: 6300 US Hwy 290 West Proposed Zoning Change From CS-CO-NP - General Commercial Services district is intended predominately for commercial and industrial activities of a service nature having operating characteristics or traffic service requirements generally incompatible with residential environments. CO - Conditional Overlay combining district may be applied in combination with any base district. The district is intended to provide flexible and adaptable use or site development regulations by requiring standards tailored to individual properties. NP - Neighborhood Plan district denotes a tract located within the boundaries of an adopted Neighborhood Plan.

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

This application is scheduled to be heard by the City Council on January 15, 2009. The meeting will be held at City Hall Council Chambers, 301 West 2nd Street beginning at 4:00pm. You are being notified because City Ordinance requires that all property owners within 500 feet, those who have a City utility service address within 500 feet and registered environmental or neighborhood organizations whose declared boundaries are within 500 feet be notified when an application is scheduled for a public hearing.

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

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

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

Kleeman, Robert

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

Robert,

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

Pat

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

Guys:

1need some guidance. The property in question has an original plat that goes back to a plat called the "Town of Oak Hill" recorded in Volume X, Page 242. Deed Records of Travis County. I am working on getting a copy of this plat but 1feel comfortable in guessing that this plat goes back to at least the 1960s if notearlier. The plat was amended in 1991 by moving lot lines. The current property description is Town of Oak Hill, Amended Lots 10 and 11,according to the plat recorded in Volume 90, Page 61, Travis County Plat Records. The amended plat was administratively approved by the City of Austin.

The Williamson CreekOrdinance, Ord No. 810319-M, states in Section 101.2 that the requirement for a site development permitdoes apply to development within a recorded subdivision which was finally approved by the Planning Commission prior to December 18, 1980. I strongly suspect that the original plat pre-dates December 18, 1980.

Was there a Williamson Creek Ordinance prior to Ord. No. 810319-M? Was there another Williamson Creek Ordinance between 1981 and the C WO?

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

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

Now going Back to the Future, I am thinking that under 13-2-502(d), May 18, 1991 would be the first date that a site development permit requirement would apply to this property. Under 13-2-502(b). this platted property would have been exempt from the Comprehensive Watersheds Ord. Under l3-2-502(g), development of the property would have been governed by the applicable watershed ordinance, if any, in effect on May 18, 1986. Unless there is a pre-1981 ordinance, I believe that there was not a site development permit requirement applicable to this property on May 18, 1986.

2/25/2008 Page 2 of 3

Thanks

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

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

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

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

Definitely feel free to call us back to talk more about it ifyou have questions. Pat Murphy (974-2821) will likely be your best contact in terms of interpretation of the rules. Matt

Matt Hollon Env. Program Manager, Planning & GIS Watershed Protection & Development Review City of Austin 505 Barton Springs Rd. 11th Floor; Austin, Texas 78704 512.974.2212 voice / 512.974.2846 fax

2/25/2008 ot Austin :--aj^B ;S ".•"••*"'•-:•'• J '.'•^rc-:-. KtpLihiic r>f Texas, 1S3V .... ':• •!'. r-h;.J ; ; >WXtir*'.. ,?Tid IV'd' >plTUT:r Ro.tcw 1VpartJnrtlt

August 28.2008

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

Dear Mr. Kieeman:

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

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

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

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

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

Sincerel bim:t

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

AUSTIN DALLAS

HOUSTON BRENHAM

SAN ANTOMIO ROSEMEERG

COLLEGE STATiON THEWOOOLA^S

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

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

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

Dear Susan:

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

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

James M. Schissler, P.E.

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

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

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

Insufficient Information to establish Chapter 245 rights.

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

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

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

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

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

Preliminary Subdivision

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

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

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

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

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

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

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

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

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

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

Small Project: Yes/No

Fees:

Total # of Plans / Engineering Reports required at formal

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

Comments: Please respond to each comment in letter form.

TR: OK for HB 1704 determination only

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

SP: Submit new project Site Plan Packet

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

May 13, 2011

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

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

Dear Mr. Draper:

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

Sincerely,

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

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

September 23, 2011

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

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

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

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

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

September 29. 2011

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

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

Dear Mr. Guernsey.

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

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

I request. You furnish, through the Freedom ofInformation Act all copies of correspondences the City of Austin, and Travis County have on record for Lots 11A. and Lot l()A Block 1 ofthe Oak Hill Township: as well as those which your decision was moored.

It is my understanding: you are not an attorney. Mr. Guernsey. Given the City recent rescission in Harper Park Two, LLC vs. City ofAustin, I believe. I am entitled to more than: "...Ihave decided to uphold my original decision...".

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

As a consequence of your un-relented position. 1have experienced economic hardship, economic loss, and inability to rent my private property, or generate economic rent from my investment. I believe, the law affords me a reason for the basis of your decision.

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

Sincere regards.

Charles Draper Tejasland & Commerce. President

CC: Susan Scallon City Manager. Marc Ott Honorable Mayor Lee Luffingwell Greg Anderson, Chief-of-Staff. Mayor Pro Tern Sherly Cole Honorable Representative Paul Workman Jim Schissler. Jones & Carter Tejasland & Commerce 6300 Highway 290 West Austin, TX 78735 Phone: 512.699.2199 Emai|. cdateiasland.com

August 17,2011

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

RE: 6302 Highway 290 West. Lot 11A. Block 1, Oak Hill Township 1704 Application/Chapter 245 City Admin Code; Tracking # 10547 Dear Mr. Guernsey,

Following our last week's discussion at First Evangelical Free Church, I have, patiently, awaited acknowledgement ofmy 1704 Application; submitted in early spring of2011. Attached is a copy ofyour denial from May 2011 Again. I appeal to your judgment; on what 'legal basis' are you denying the application?

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

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

I pray. You recognize my project conforms to State law, and you will issue a letter of approval. I look forward to hearing from you.

Sincere regards,

Charles Draper Tejasland & Commerce, President

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

.--—^.

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

Plaintiff, Pro Se

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

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

Defendants.

PLAINTIFFS SUPPLEMENT TO THE RECORD AFFIDAVITS OF EVEIDENCE

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

1. Travis County - Transportation and Natural Resources

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

2. McClendon <& Associates- Carl McClendon

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

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

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

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

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

Summarv

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

*-*-

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

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

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

Exhibit I TRANSPORTATION AND NATURAL RESOURCES STEVEN M. MANILLA, P.E., COUNTY EXECUTIVE

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

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

Re: Requested copies for Permit # 85-2558

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

AFFIDAVIT

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

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

Affiant, Robert Z^^^^^Glasper*^

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

A.\fc jayne j \^A/]\rr\A—CWp-v •t |ij« .»•,-.. », ••_*. - j T. /«>,>• v 'i .fisi *» -titSt-A1'£**•?»J*i*"?V-f- ftj ^*^ -*;. • iV

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

STATE OF TKXAS )

I lii- IV» Miit \< is

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

INSPECTION Itf-X'OliD

II, •: PaV

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

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

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

\ ,,,. M . . . 1 Ins I ermit is issued , fo Patton L'

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

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

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

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

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

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

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

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

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

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

Dear Mr. Goodson

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Application No.

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

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

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

Survey Lot iOill Subdivision o_—

Section Reserve Street Address e y _________

Acreage Square Footage of Structure

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

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

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

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

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

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

ppTTcant/Agent or Attorney;

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

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

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

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

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

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

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

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

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

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

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

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

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I '. PlaintiffSupplement to the Record

Exhibit 2. AFFIDAVIT

BEFORE ME. THE UNDERSIGNED AUTHORITY, on this day personally appeared Carl McClendon. who. being by me first duly sworn, and deposed as follows: "My name is Carl McClendon with McClendon &Associates. Iam over the age of21 years. I am independent development consultant in the Austin real estate market. On July 16. 2012.1 filed a Reconsideration of1704/Chapter 245 Application on behalf ofCharles Draper for Lots 10A and 1JA. Block 1. Town ofOak Hill; located at 6300 and 6302 US Hwy 290 West (Tracking# 10547874). Iam fully competent to make this verification. I have read the foregoing: 1704/Chp.245 Reconsideration Application. All ofthe information contained in the publication are within my personal knowledge, and true and correct."

Carl McClendon

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

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

July 25, 2012

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

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

Dear Mr. Guernsey;

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

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

Subdivision

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

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

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

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

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

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

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

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

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

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

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

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

Exhibit **lH AFFIDAVIT

COUNTY OF TRAVIS §

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

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

Ca A?s

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

ic. State Teras ,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

• RENTAL RATES REFLECT ASKING SPSF/YEAR

MARKET HIGHLIGHTS

Significant 2013 Lease Transactions 7171 Southwest Parkway SW SolarWinds A 229.793

9505 Arboretum Blvd. FNW AT&T A 150.033

7700 Parmer Lane FNW Oracle A 66,000

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

Significant 2013 Sale Transactions •" ' : :

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

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

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

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

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

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

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

Colorado Tower CBD Dubois Bryant & Campbell; Q3 2014 371.348

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

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

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

Exhibit •*££ ^ AFFIDAVIT

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

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

lim Schissler. P.E

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

Notarv Public. State Texas

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

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

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

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

Dear Susaji:

ud rtQ 0Wner'Char]eS Drapcr'j0nes &Carter

We appreciate your favorable review of the H.B. 17U4 Chapter 245 determination. If there is additional information that you require, please contact me at (512) 441 -9493. Very truly yours.

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

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

B I October 19,2001

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

Dear Senator Madia:

Section 245.002 ofthe Local Government Code locks in, for the duration ofareal-property "project," the development regulations in effect when the original application for the first necessary permit is filed. See Tex. Loc. Gov't Code Ann. § 245.002(a), (b) (Vernon Supp. 2001); seealso Quick v. City ofAustin. 7 S.W.3d 109,131 (Tex. 1998). Under the statutory definition ofthe term "project," it isirrelevant whether the owner who files the original application for the first permit retains the property for the duration of the project or conveys the property. See Tex. Loc. Gov't Code Ann. §245.001(3) (Vernon Supp. 2001). You ask a question regarding a tract of land for which an owner has filed an original application for the first necessary permit' Ifanother person purchases that tract of land, you inquire, is the purchaser "entitled to the rights and benefits" that chapter245 provides to the owner who filed the original application for the first permit, see Request Letter, note 1, at 1, and we thus understand you to ask whether the property remains subject tothe development regulations in effect when the original application for the first pennit was filed despite the conveyance. We conclude that the property remains subject to the development regulations in effect at the time the original application for the first permit was filed, but only ifthe project remains the same. Whether a project remains thesame is a fact question, and this office cannot resolve it. See, e.g., Tex. Att'y Gen. Op. Nos. JC-0032 (1999) at 4 (stating that question of fact is beyond purview of this office); JC-0027 (1999) at 3 (stating the questions of fact cannot be addressed in

lSee Letter from Honorable Frank Madia, Chair, Committee on Intergovernmental Relations, Texas Senate, toHonorable John Cornyn, Texas Attorney General (May 24, 2001) (on file with Opinion Committee) [hereinafter Request Letter]. TheHonorable Frank Madia - Page 2 (JC-0425)

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

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

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

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

(3) "Project" means an endeavor over which a regulatory agency exerts its jurisdiction and for which oneormore permits are required to initiate, continue, or complete the endeavor. The Honorable Frank Madia - Page 3 (JC-0425)

(4) "Regulatory agency" means the governing body of, or a bureau,department, division, board, commission, orotheragency of, apoliticalsubdivisionacting initscapacity ofprocessing, approving, I or issuing a permit.

Id. § 245.001. Chapter 245 applies only to a project "in progress on or commenced after I ! September 1, 1997," see id. § 245.003, and certain permits and regulations areexempt from the chapter, see id. § 245.004. In addition, a regulatory agency may,by ordinance orregulation, place an expiration date on dormant projects, after which date the project would be subject to current ! development regulations. See id. § 245.005. We understand thatthe propertyaboutwhich you are concerned is not exempt from chapter245 andis not dormant. Seegenerally Request Letter, supra note 1.

With respect to property for whichanoriginal application for a first permithasbeen filed, I the property is subject to thedevelopment regulations that are effectiveatthetimeofthe filing (with the exceptions listedin chapter 245 of the Local Government Code) for the duration ofthe project regardless ofany conveyances that may occurduringthe project. Nothing in chapter 245 suggests I that the development regulations to which a property is subject, locked in at the time of filing the original application for the first permit, no longerapply to the propertysolely because the property has been conveyed to another owner. Section 245.002 facially directs that a property is, for the I duration ofa project, subject to the development regulations in effect when the original application for the first permit was filed, without mentioning the possibility of a conveyance. Cf. Quick, 1 S.W.3d at 131 (examining priorstatute, which"provides thatif a seriesof permits is for a project, I the ordinancesin effect at the time the original application for the first permit is filed shall be the sole basis for consideration of all subsequent permits required for the completion of a project"). Additionally, the term "project," as defined in section245.001(3), does not indicate that a project I is specific to a personor terminates eachtime the property is sold. SeeTex. Loc. Gov'tCode ANN. §245.001(3) (Vernon Supp. 2001). A projectis an"endeavor,"see id., which is commonly defined as "the action of endeavouring; effort, or pains, directedto attain an object." V Oxford English | Dictionary 226 (2d ed. 1989); see Tex. Gov'tCode Ann. §311.011(a) (Vernon 1998) (requiring I us to read statutorywords and phrases in context and to construe them according to rules ofgrammar andcommon usage); Thompson v. Corbin, 137 S.W.2d 157,159 (Tex. Civ. App.-Texarkana 1940, I no writ) (defining verb "endeavor" as "to exert physical and intellectual strength toward the • attainment ofan object; a systematic orcontinuous effort") (quoting Webster's New International Dictionary).

Nevertheless, neither apurchaser nor an owner mayalter a project without thepossibility of a consequence. If a project is altered by a purchaser, for example, the development regulations are no longer locked in under chapter 245 and current development regulations apply. Whether a particular project haschanged soasto lose theprotections granted by chapter 245 is aquestion that must be resolvedby the local regulatory agency with jurisdiction in the matter. The statutedefines The Honorable Frank Madia - Page 4 (JC-0425)

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

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

I SUMMARV

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

Yours i ours very truly,

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

HOWARD G. BALDWIN, JR. First Assistant Attorney General

NANCY FULLER Deputy Attorney General - General Counsel

SUSAN D.GUSKY Chair, Opinion Committee

Kymberly K. Oltrogge Assistant Attorney General, Opinion Committee fir, •%

Attorney General of Texas GREG ABBOTT

December 10.2012

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

Dear Representative Oliveira:

You inquire about a potential conflict between the City of Austin's Project Duration Ordinance ("Ordinance") and chapter 245 of the Local Government Code.1 You contend that the Ordinance violates chapter 245 by establishing expiration criteria for building projects that differ from the expiration criteria specified in chapter 245. Request Letter at 3-4. The Ordinance provisions about which you ask are contained in the Austin City Code as sections 25-1-533(B), 25-1-535(B)(4), and 25-1 -535(C)(3).2 See. Request Letter at 3. Section 25-1-533(B) provides that:

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

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

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

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

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

Id. § 25-l-535(B)(4). Section 25-1-535(C)(3) applies in the City's "Desired Development Zone" and provides that:

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

See id. § 25-l-535(C)(3).3

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

The Texas Constitution prohibits a city ordinance from containing "any provision inconsistent with ... the general laws enacted by the Legislature of this State." Tex. Const, art. XI, § 5(a); see also City of Fort Worth v. Atlas Enters., 311 S.W.2d 922, 924 (Tex. Civ. App.—Fort Worth 1958. writ ref d n.r.e.) (discussing severability of municipal ordinances and stating that "[a] municipal ordinance may be void as to some of its provisions and valid as to others"). A court would not invalidate an ordinance as inconsistent with a statute unless the court can reach no reasonable construction thai leaves both the ordinance and the statute in effect. In re Sanchez, 81 S.W.3d 794, 796 (Tex. 2002). Nevertheless, "an ordinance which conflicts or is inconsistent with state legislation is impermissible." City ofBrookside Vill. v. Coineau, 633 S.W.2d 790, 796 (Tex.), cert, denied, 459 U.S. 1087 (1982).

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

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

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

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

Section 245.005 provides:

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

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

4Bricfing we received in connection with your request argues that subsection 245.002(a)'s reference to "expiration dales" implicitly authorizes a regulatory agency to impose expiration dates on permits. See City of Austin (continued...! The Honorable Rene O. Oliveira - Page 4 (GA-0980)

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

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

''It has been suggested in briefing submitted to this office that, because the Ordinance became effective on September 6, 1997, il is in violation of sections 2 and 3(a) of House Bill 1704 enacted in 1999. See Brief from Andrew Weber, Kelly Harl & Hallman, on behalf of the Real Estate Council of Austin at 2-4 (June 29, 2012). See also Act of Apr. 29, 1999,76th Leg., R.S.,ch. 73, §§ 1(a), 2. 1999 Tex. Gen. Laws 431,432,434 (eff. May 11. 1999) (finding that former subchapter I, chapter 481 of the Government Code "was inadvertently repealed" and adding chapter 245). House Bill 1704 provides that chapter 245 applies retroactively to a "project in progress on or commenced after September 1. 1997" and that "any actions taken by a regulatory agency for the issuance of a permit, as those terms are defined by Section 245.001, Local Government Code,... after that repeal and before the effective date of this Act, shall not cause or require the expiration or termination of a project, permit, or series of permits to which Section 2 of this Act applies." Id. §§ 2,3(a). We do not address the question because we have concluded that the Ordinance conflicts with chapter 245. The Honorable ReneO. Oliveira - Page 5 (GA-0980)

SUMMARY

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

Very truly yours,

BBOTT Attorney General of Texas

DANIEL T.HODGE First Assistant Attorney General

JAMES D. BLACKLOCK Deputy Attorney General for Legal Counsel

JASON BOATRIGHT Chairman, Opinion Committee

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

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

"occupational discretion" and failed to perform his "go\ernmental-function" within the context of State law:

during the scope of his employment.

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

required in completing the project is tiled with the agenc} responsible for regulating the subject property.

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

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

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

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

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

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

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

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

II. Interlocutory Orders

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

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

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

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

§803(16), and §901(b)(8).

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

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

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

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

Planning and Watershed Protection Review Department, and the City of Austin for intentional torts and

failure to conduct their municipal duties under Tex. CRPC Rule §101.0215 (29). Municipal Liability.

Planning and Zoning.

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

misrepresentations, misconstrued legislative intent, taking a 'narrow view' of Chapter Rule §245, while

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

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

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

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

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

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

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

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

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

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

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

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

FILED DATE CATEGORY DESCRIPTION ADDITIONAL INFO

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

4/10/2014 ANS-RESP RESPONSE TO CITY OF AUSTIN AND GREG MOTION/PLEADING GUERNSRY'S REPLY TO PLAINTIFFS RESP ONSE TO DEFENDANTS' MOTION TO DISMISS PURSUANT TO TEX.CIV. PRAC. & REM. CODE 101.106(a)AND(e) 4/16/2014 ORD ORD:NTC/ORD ORDER GRANTING CITY OF DISMISSAL/NONSUIT AUSTIN AND GREG GUERNSEY'S MOTION TO DISMISS PURSUANT TO TEX. CIV. PRAC. & REM. CODE 101.106 (a) AND (e)

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

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

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

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

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

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

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

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

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

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

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

10/15/2015 ORD ORDrMANDATE MANDATE

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

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

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

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

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

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