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Harper Park Two LP v. City of Austin

This is a dispute between a property owner, appellant Harper Park Two, and the City of Austin, appellee, over whether the identification of a single lot as "office" use in an application for a preliminary plan for a larger mixed-use commercial development project -- a label that the parties agree would not have bound the owner to "office" use at the time -- established that the relevant "project" with respect to that individual lot was limited to construction of an office building and did not extend to construction of a hotel. The district court rendered judgment declaring that Texas Local Government Code chapter 245's vested-rights protections would apply only to development of the lot for office use and that any other type of commercial development must comply with the city's current, and more restrictive, land-use regulations. The relevant project must be viewed in the context of the applicable land-use regulations in effect at the time the initial permit application was filed. In this case, the "project" was "commercial" development that would encompass a hotel. The district court's judgment is reversed and rendered in part, and remanded in part. Austin Court of Appeals, No. 03-10-00506-CV, 08-18-2011.

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OPINION

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. See Tex. Loc. Gov’t Code Ann. §§ 245.001-.007 (West 2005); Shumaker Enters., Inc. v. City of Austin, 325 S.W.3d 812, 814-15 & n.5 (Tex App.–Austin 2010, no pet.). However, these vested-rights protections are, in effect, lost or forfeited to the extent that the development being pursued constitutes a new or different “project” from the one for which the initial permit was sought. See City of San Antonio v. En Seguido, Ltd., 227 S.W.3d 237, 242-43 (Tex. App.–San Antonio 2007, no pet.). This appeal presents questions concerning how one identifies the relevant “project” to which vested rights attach under chapter 245. We address these questions in the context of a dispute between a property owner, appellant Harper Park Two, and the City of Austin (City), appellee, over whether the identification of a single lot as “office” use in an application for a preliminary plan for a larger mixed-use commercial development project–a label that the parties agree would not have bound the owner to “office” use at the time–established that the relevant “project” with respect to that individual lot was limited to construction of an office building and did not extend to construction of a hotel. The district court rendered judgment declaring that chapter 245′s vested-rights protections would apply only to development of the lot for office use and that any other type of commercial development must comply with the City’s current–and more restrictive–land-use regulations. We disagree, and will reverse.

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