Charles N. Draper v. Greg Guernsey, in His Official Capacity as Director of Planning and Development Watershed Protection Review Department And City of Austin
03-15-00741-CV
Tex. App.Dec 16, 2015Background
- Property: Lots 10A & 11A (approx. 2.357 acres) at 6300–6302 US Hwy 290 W (Oak Hill). Owner began construction in 1985 under a Travis County Flood Hazard/Development Permit No. 85-2558 (issued Aug. 9, 1985) and installed ~50 drilled piers before work stopped. Annexed by City of Austin Dec. 30, 1985.
- Plaintiff (Draper) claims the 1985 county permit (and the 1872 plat) vested development rights under Tex. Loc. Gov’t Code ch. 245 and LGC § 43.002, shielding the project from later City regulations.
- In 2011 Draper submitted an HB 1704/Chapter 245 ("vested rights") fair-notice/site-plan application to the City; City staff (Director Greg Guernsey and others) denied the application, concluding the project was subject to current City code.
- Procedural posture: Draper filed suit (district court) seeking declaratory relief, inverse-condemnation/damages, and no‑evidence summary judgment. The trial court struck Draper’s exhibits as hearsay and denied his no‑evidence MSJ (Nov. 12, 2015). The record also shows a Third Court of Appeals memorandum opinion and mandate in the appellate history.
- Damages claimed: Draper seeks substantial economic damages (~$10–11 million) for lost rental income and alleges intentional torts and bad‑faith municipal action under Tex. Civ. Prac. & Rem. Code § 101.0215(29) (municipal liability — planning & zoning) and inverse‑condemnation under Tex. Const. art. I § 17.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Draper has vested rights under LGC ch. 245 (HB 1704) based on the 1985 Travis County permit / 1872 plat | Draper: first permit in series was Travis County permit (1985) and/or the 1872 plat; rights "locked-in" and protected from post‑annexation City regulation | City: permit/plat were not applications filed with the City and did not give the City "fair notice" of the project; county permit lapsed/expired and project changed or was abandoned, so no vesting to City regs | Trial court: denied Draper’s no‑evidence MSJ; City’s motion to strike Draper’s exhibits granted (exhibits stricken as hearsay) |
| Whether the City properly applied Chapter 245 scope (project definition / completion) — i.e., whether the original project remained the same | Draper: continued progress (rezoning filings, amended plat, partial construction) preserves the original project and vesting | City: evidence shows the project was abandoned/changed; subsequent development and lack of City application means Chapter 245 protections do not attach to City regulations | Trial court accepted City position in part by denying MSJ; factual disputes remain for record (City successfully challenged proffered evidence) |
| Whether municipal employees (Guernsey) are liable for intentional torts / malice under Tex. Civ. Prac. & Rem. Code § 101.0215(29) and whether official immunity applies | Draper: Guernsey acted in bad faith, exercised proprietary discretion, intentionally denied vested‑rights request, so municipal liability/no immunity for intentional torts | City: governmental immunity/official‑immunity and defendants acted reasonably; plaintiff’s allegations conclusory and evidence insufficient | Trial court did not grant Draper summary judgment; dismissal motions and immunity defenses were pursued by City (record reflects motions to dismiss granted at one stage) |
| Whether Draper proved entitlement to no‑evidence summary judgment and alternative relief (declaratory relief / mandamus) | Draper: no evidence from City shows absence of entitlement; requested alternative relief and declaration that permit/vesting stands | City: Draper’s motion was conclusory and relied on unauthenticated/hearsay exhibits; earlier identical motion had been denied and evidence previously struck | Trial court denied Draper’s no‑evidence MSJ and struck the disputed exhibits as hearsay; Draper pursued interlocutory appeal to the Third Court of Appeals |
Key Cases Cited
- Schumaker Enters. v. City of Austin, 325 S.W.3d 812 (Tex. App.—Austin 2010) (Chapter 245 vesting requires an application that gives the regulating agency fair notice; permits filed with a different agency may not vest against a municipality)
- Harper Park Two, L.P. v. City of Austin, 359 S.W.3d 247 (Tex. App.—Austin 2011) (interpreting ch. 245; discusses scope and freezing of regulations once first permit application is filed)
- City of Houston v. Jenkins, 363 S.W.3d 808 (Tex. App.—Houston [14th Dist.] 2012) (official immunity and the ministerial vs. discretionary duty analysis in municipal actions)
- Meadows v. Ermel, 483 F.3d 286 (5th Cir. 2007) (discusses limits of immunity and applicability of section 101.106 to intentional tort claims)
- Edwards Aquifer Auth. v. Sheffield Dev. Co., 369 S.W.3d 814 (Tex. 2012) (takings/regulatory‑taking principles and analysis of property‑owner expectations)
(Notes: This brief synthesizes a pro se appellant brief, city responses, district court orders, and appellate docket entries. The trial court struck many of Draper’s exhibits as hearsay and denied his no‑evidence summary judgment; Draper pursues interlocutory appellate review and asserts both statutory vesting and constitutional inverse‑condemnation claims.)