Court of Appeals of Texas, Third District, Austin
Charles N. Draper, Appellant
Greg Guernsey, in his Official Capacity as Director of Planning and Development Watershed Protection Review Department; and City of Austin, Appellees
THE DISTRICT COURT OF TRAVIS COUNTY, 419TH JUDICIAL DISTRICT
NO. D-1-GN-13-000778, HONORABLE KARIN CRUMP, JUDGE PRESIDING
Justices Puryear, Pemberton, and Bourland.
proceeding concerns the same land-use dispute that was the
subject of two previous opinions and judgments of this Court.
See Draper v. Guernsey, No. 03-15-00741-CV, 2016 WL
462763 (Tex. App.-Austin Feb. 3, 2016, pet. denied) (mem.
op.); Draper v. Guernsey, No. 03-14-00265-CV, 2015
WL 868991 (Tex. App.-Austin Feb. 25, 2015, no pet.) (mem.
op.). Following our ruling in the later appeal, appellees
filed a traditional and no-evidence motion for summary
judgment, which the trial court granted, dismissing appellant
Charles N. Draper's claims for fraudulent
misrepresentation, perjury, and breach of contract as well as
for declaratory judgment and injunctive relief with respect
to a "vested rights permit application" that he
filed with appellee City of Austin. See Tex. Loc.
Gov't Code § 245.002; City of San Antonio v.
Rogers Shavano Ranch, Ltd., 383 S.W.3d 234, 245 (Tex.
App.-San Antonio 2012, pet. denied) (explaining that effect
of "vested rights" under chapter 245 of Local
Government Code is to "freeze" land-use regulations
as they existed at time first permit application was filed
through completion of particular project so that project with
vested rights is not subject to intervening regulations or
changes after vesting date). Draper appeals the summary
judgment, and we affirm it for the following reasons.
1985, Travis County approved a site-development permit for
construction of what Draper refers to as the Patton Lane
Office Building, a three-story office development, to be
built on real property currently owned by Draper in Southwest
Austin (the Property). Construction of the office building
began shortly thereafter but was halted for an unspecified
period of time due to the then-owner's financial
circumstances. Draper later acquired the Property.
2011, Draper filed an application with the City of Austin
entitled "Site Plan Fair Notice and H.B. 1704/Chapter
245 Determination" (commonly referred to as a
"vested-rights application") seeking to develop the
Property with an exemption from the City's current
development regulations based on a plat recorded in 1872 and
the 1985 Travis County permit. See Tex. Loc.
Gov't Code § 245.002(a-1) ("Rights to which a
permit applicant is entitled under this chapter accrue on the
filing of an original application or plan for development or
plat application that gives the regulatory agency fair notice
of the project and the nature of the permit sought.").
The City denied Draper's application.
pro se, Draper filed this lawsuit against appellees the City
of Austin and Greg Guernsey in his official capacity as
Director of the City's Planning and Development Review
Department (collectively, the City) seeking
injunctive relief and a declaration that he is entitled to
vested rights under chapter 245 of the Local Government Code
to develop the Property under regulations that were in effect
on the date of the 1985 Travis County permit. See
Tex. Loc. Gov't Code § 245.002. His petition also
sought damages for allegations of appellees' fraudulent
misrepresentation, perjury, breach of contract,
"preventing the execution of civil process, " and
"failure to comply" with section 43.002 of the
Local Government Code. See id. § 43.002(a)(1).
On appeal, Draper contends that the trial court erred in
granting the City's motion for summary judgment and
raises two matters outside of the claims asserted in his
pleadings and addressed in the City's motion.
three issues, Draper asserts that: (1) the trial court's
summary judgment is improper because it is "not
supported by any case law, statutes, or evidence"; (2)
the trial court erred in not issuing findings of fact and
conclusions of law; and (3) the trial court erred in granting
summary judgment because there is evidence that the City has
inversely condemned the Property, for which he is entitled to
compensation. See Tex. Const. art. 1, § 17. We
will address Draper's first issue by reviewing the
propriety of summary judgment with respect to each claim that
he raises in his pleadings and then discuss his remaining two
Judgment on Draper's Claims
chapter 245 of the Local Government Code, once an application
for the first permit required to complete a
property-development project is filed with the municipality
or other agency that regulates such use of the property, the
agency's 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 v. City of Austin, 359
S.W.3d 247, 249 (Tex. App.-Austin 2011, pet. denied) (citing
Tex. Loc. Gov't Code §§ 245.001-.007);
Shumaker Enters., Inc. v. City of Austin, 325 S.W.3d
812, 814 (Tex. App.-Austin 2010, no pet.). Draper's
petition alleges that the City improperly denied his
vested-rights application, which if granted would have
entitled him to develop the Property in accordance with the
City's regulations that were in effect at the time Travis
County issued its site-development permit. The City's
motion for summary judgment contended that the evidence
supporting Draper's vested-rights claim was legally
insufficient and that the rights conferred by chapter 245 are
not so broad that "any permit application filed for the
development of property with one regulatory agency [i.e.,
Travis County] is sufficient to exempt it from current
regulations with respect to a different regulatory agency
[i.e., City of Austin]." We agree with the City.
general rule is that "the right to develop property is
subject to intervening regulatory changes." Quick v.
City of Austin, 7 S.W.3d 109, 128 (Tex. 1999) (op. on
reh'g). Section 245.002(a) creates a "narrow
exception to this rule" by ensuring that if, after
receiving a development application or plan, a regulatory
agency changes its land-use regulations, the agency cannot
enforce such regulatory change to the detriment of the
applicant. Shumaker Enters., 325 S.W.3d at 814;
see Tex. Loc. Gov't Code § 245.002(a),
(a-1). However, an application filed with one agency does not
provide "fair notice" to a different agency and is
thus not sufficient to establish vested rights from the
second agency's regulations. Shumaker Enters.,
325 S.W.3d at 815 (holding that plaintiff's application
for development permit filed with Travis County prior to
annexation of ...