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Draper v. Guernsey

Court of Appeals of Texas, Third District, Austin

May 18, 2017

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


          Before Justices Puryear, Pemberton, and Bourland.


          David Puryear, Justice.

         This 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.


         In 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.

         In 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.

         Appearing 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[2] (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.


         In 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 issues.

         Summary Judgment on Draper's Claims

         Vested rights

         Under chapter 245 of the Local Government Code, once an application for the first permit required to complete a property-development project is filed with the municipality or other agency that regulates such use of the property, the agency's 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.

         The 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 ...

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