The City of Bee Cave has gained a reprieve as it pursues a permanent restraining order against AusPro Enterprises.

Bee Cave Municipal Court granted the City of Bee Cave a temporary injunction against AusPro Enterprises, also known as Planet K, on Aug. 10 to block the company’s attempts at construction work on the site of the former Trading Post restaurant on Texas 71.
Judge David Garza ruled that AusPro’s violations of the city’s zoning ordinances and water quality controls along with unpermitted electrical wiring work, parking lot paving and deck improvements posed a threat of injury or public health impact.
In two days of testimony, city engineer associate Giancarlo Patiño stated that AusPro’s initial building permit application lacked a summary, general notes and details on a slope map, water quality controls, landscaping, facade, elevations, drainage and hydrology.
“It’s an incomplete application. Therefore, it was not accepted,” Patiño said.
He conducted a courtesy review of the application, but Planet K and AusPro owner Michael Kleinman said neither he nor his representatives received the review.
“The courtesy review went to the city manager [sic] who then stonewalled the information and didn’t pass it along to us,” said Kleinman referring to City Administrator Frank Salvato. “We never knew we had to have a site requirement, and there’s still a question as to whether a site plan is necessary.”
Phil Moncada, hired by AusPro to expedite the permitting process, said the city never communicated what was necessary to complete and submit the permits.
Moncada said he was told his application was denied because he failed to include a site plan and review fee, which he said he didn’t know was required at the time.
He also claimed that the city had granted a permit in 1993 to Jim Bob’s Barbeque for a parking lot, which would be safer than unpaved caliche because it reduces dirt and associated maintenance.
Moncada, however, admitted that he had not read any of the city’s ordinances relating to site plans and water control requirements.
Bee Cave attorneys said AusPro’s disregard for ordinances and permits constituted a threat to public welfare and cited worker safety as well as the potential risk of police or fire department personnel who enter the building.
“We’re here to protect public health and safety, and nothing is more important than city ordinances and codes to enforce that,” Bee Cave attorney Mick McKamie said.
The city and AusPro also have debated what the use of the building is with the city believing its intent is to locate an adult novelty store in town center zoning, which is a prohibited use.
Salvato testified that the building permit application was incomplete and unclear so he could not determine a use.
“It’s insufficient because it doesn’t answer all the questions we have asked for,” Salvato said.
He listed several adult novelty store items that are prohibited in the city’s zoning ordinances and told the court that AusPro and its attorneys did not fully explain which ones the business intended to sell at the Bee Cave location.
“They list books and magazines but don’t specify which kinds. The ‘not limited to’ doesn’t tell me they are not going to sell sex toys,” Salvato explained. “Adult novelty [use] is not allowed in town center zoning, and the property is in the town center.”
After Kleinman told Bee Cave City Council members in March that he intended to open a business at the former Trading Post, they tightened the city’s definitions of sexually oriented businesses and defined murals as signs that are prohibited if visible from a public street, added several uses such as planters and fixtures to the list of signs and prohibited the covering or “blacking out” of storefront windows while a location is under construction.
The council also prohibited synthetic cannabinoids, which are commonly known as bath salts, and substances containing MDPV, or methylenedioxypyrovalerone.
“Since my client announced his plans in March, the city has done everything in its power to try to stop it. We consider this proceeding to be additional harassment and part of a calculated plan to drive Planet K out of Bee Cave,” AusPro attorney Terry Irion said. “This is abusive and we would ask that you deny” the temporary restraining order.
Garza granted the injunction that prohibits any work to the building and site and set a pre-trial hearing for a permanent injunction hearing for Sept. 22 in Bee Cave Municipal Court.
Afterward, Kleinman he expected the outcome.
“I don’t think there’s a surprise here. The judge works for the City of Bee Cave. He’s paid by the City of Bee Cave,” Kleinman said. “Even though we demonstrated that the City of Bee Cave has acted in bad faith all along, the judge gave the ruling that was expected.”
AusPro filed a writ of mandamus July 21 in Travis County District Court which petitions the court to order the city and Salvato to respond to its building permit, sign and site plan applications.