1700 Redbud Boulevard, Suite 300 $ P.O. Box 1210 $ McKinney, Texas 75070-1210 

 Metro 214.544.4000 $ Fax 214.544.4040 

RICHARD M. ABERNATHY rabernathy@abernathy-law.com 

Board Certified - Civil Trial Law Direct Dial 214.544.4002 

Texas Board of Legal Specialization 

Qualified Mediator

A T T O R N E Y S A T L A W 

April 16, 2015 

Ms. Debra Spisak, Clerk 

2nd District Court of Appeals 

Tim Curry Criminal Justice Center 

401 West Belknap, Suite 9000 

Fort Worth, Texas 76196-0211 

 Via E-Filing

Re: No. 02-14-00335-CV; FLCT, Ltd., et al. v. City of Frisco

Dear Ms. Spisak: 

The evidence submitted by Appellants in response to Justice Sudderth’s 

request does not show an amendment to the project. Instead, the evidence cited in 

Mr. Anderson’s letter shows it has been a continuous project. The only 

amendment was a site plan amendment to clarify that the Appellants had sold 

approximately one (1) acre to Frisco Independent School District. 

While Appellants continue to insist there are fact issues in this case, such as 

whether the original 2008 site plan application was amended by a subsequent plat 

application, none are material to the jurisdictional grounds for the Appellee’s plea 

to the jurisdiction: (1) Chapter 245 is preempted by the TABC; (2) the scope of 

Chapter 245 ends with development and construction of the project and (3) the 

Appellee could not exert jurisdiction over the alcohol permit and therefore the 

certification of the TABC Pre-Application form was not a permit subject to 

Chapter 245. 

 Also, paragraph 9 of Mr. Kochalka’s Affidavit, supports the Appellee’s 

contention that the sale of products is irrelevant to the site plan process and thus 

beyond the scope of this land use project. The last sentence of paragraph 9 of the 

Affidavit of David Kochalka, P.E. states “It has been my experience that the 
Ms. Debra Spisak, Clerk 

April 16, 2015 

Page 2 

products sold are not relevant to the site plan process.” Appellee has never denied 

that Chapter 245 would apply to the site planning process and in fact has approved 

every application submitted; it is only Appellants’ insistence on selling alcohol that 

has prevented the construction of the convenience store “project”. 

 The second point in Appellants’ letter brief addresses the length of time a 

project lasts. While a large-scale project, such as a multi-lot subdivision can claim 

the benefits of Chapter 245 for many years, the statute contemplates that a project 

must be “completed.” A project is completed when development and construction 

is completed. In this case, the use of a single lot is at issue. In Anderton, the 

argument by the property owner was that a building permit for a sales office in 

1985 grandfathered the future expansion of a landscaping business for all time. 

The Court of Appeals properly rejected this contention, holding that the operation 

of a business was not part of a project. Here, the sale of a particular product once a 

convenience store is established is not part of the project in the first instance. 

 There has been a continuous project, but one that does not include the sale of 

alcohol beverages (or any other commodity). The fact that it is a continuous 

approval process means the project is the same one contemplated in 2008. 

 Thank you for your attention to this matter. 

Very truly yours, 

/s/Richard M. Abernathy

Richard M. Abernathy 

RMA/bac 

cc: Client 

 Counsel of Record (via e-filing) 

669057