Opinion
Civil Action No. 3:96-CV-0666-D
July 12, 2000
MEMORANDUM OPINION AND ORDER
The court revisits prior rulings in this case, concluding that defendant is entitled to summary judgment dismissing the claims at issue, and reaffirming that the sole remaining cause of action arises under the Fair Housing Act ("FHA"), 42 U.S.C. § 3601 et seq.
I
Plaintiffs sued defendant City of Coppell, Texas (the "City") contending that the City made various land use and zoning decisions that violated their constitutional and statutory rights and that abridged the FHA. In a series of decisions, the court dismissed all of plaintiffs' claims except their FHA cause of action. See Jim Sowell Constr. Co. v. City of Coppell, Tex., Civil Action No. 3:96-CV-0666-D (ND. Tex. Oct. 15, 1997) ( "Sowell I"); Jim Sowell Constr. Co. v. City of Coppell, Tex., 82 F. Supp.2d 616 (N.D. Tex. 1998) ( "Sowell II"); and Jim Sowell Constr. Co. v. City of Coppell, Tex., 61 F. Supp.2d 542 (N.D. Tex. 1999) (" Sowell III").
The court also dismissed plaintiffs' claims against all other defendants.
The court also filed a February 11, 1998 order that disposed of one claim.
Plaintiff's moved the court to reconsider certain of its rulings based on subsequent changes in the law. On April 27, 2000 the court granted plaintiffs' motion in part. It held that it would reconsider whether the City is entitled to summary judgment dismissing plaintiffs' takings claims under the Fifth and Fourteenth Amendments and Tex. Const. Ann. art. I, § 17 (West 1997), asserted in counts III, IV, and VIII of their first amended complaint ("complaint"). The court ruled that it would reconsider its decisions in Sowell I and Sowell II based on the summary judgment evidence and briefing on file before it decided Sowell I and Sowell II and on the contents of plaintiffs' March 16, 2000 motion to reconsider summary judgment rulings and the City's April 4, 2000 response. See Apr. 27, 2000 Mem. Op. at 5.
The court also held, in light of the Texas Supreme Court's modified decision in Quick v. City of Austin, 7 S.W.3d 109 (Tex. 1999) (on rehearing), that it would reconsider its ruling in Sowell II dismissing without prejudice for lack of subject matter jurisdiction count VI of plaintiffs' complaint, in which they allege a statutory vested rights claim based on a violation of Tex. Gov't Code Ann. § 481.141 et seq. (repealed). The court stated that it would reconsider its ruling based on the briefs and summary judgment evidence on file before the court's decision in Sowell II and on the contents of plaintiffs' March 16, 2000 motion to reconsider summary judgment rulings and the City's April 4, 2000 response. See Apr. 27, 2000 Mem. Op. at 5-6.
With the controlling procedure established, the court now reconsiders its rulings on the claims at issue.
II
Plaintiffs allege in count III of their complaint that the City violated their Fifth and Fourteenth Amendment rights, remediable under 42 U.S.C. § 1983, by taking their property without just compensation. Compl. ¶ 168. They aver that the City's land use and zoning decisions — refusal to approve a building permit application for multifamily development, and application of single-family zoning regulations to plaintiffs and to their use of the Northern Multifamily Parcel of their property — did not substantially advance a legitimate government purpose. Id. at ¶ 170-71, 175-76.
A
The court granted summary judgment dismissing this claim in Sowell I. It held that "[a] land use regulation constitutes a taking where the regulation does not substantially advance legitimate state interests or denies an owner economically viable use of his land." Sowell I, slip op. at 6. The court observed that "[t]he Supreme Court has not explained in detail how to determine what constitutes a legitimate state interest or what type of nexus must be found between the regulation and the state interest." Id. at 7 (citing Nollan v. California Coastal Comm'n, 483 U.S. 825, 834 (1987)). It held that a "broad range" of governmental purposes satisfied the inquiry, see id. (citing Nollan, 483 U.S. at 834-35), and rejected application of the heightened scrutiny of Nollan to zoning regulations — such as those of which plaintiffs complain — that do not exact a benefit from the landowner, see id. at 7 n. 4. The court concluded that the City "ha[s] advanced several reasons for the zoning change from multifamily dwellings to single family dwellings . . . [that] substantially advance [legitimate] state interests." Id. at 8.
In defendants' January 10, 1997 motion for summary judgment, they addressed plaintiffs' federal takings claim, but cited count IV of plaintiffs' complaint rather than count III. See Ds. Jan. 10, 1997 Br. at 17-20. Plaintiffs responded to the motion, however, as if it addressed both counts III and IV. See Ps. Mar. 5, 1997 Br. at 31 (citing "fail[ure] to substantially advance a legitimate government purpose" as basis for their takings claims) and 31-36. At no time since the court's decision in Sowell I, nor in their March 16, 2000 motion to reconsider, have plaintiffs contended that the City did not properly seek summary judgment dismissing count III. The court holds that this ground for summary judgment is properly before the court and that plaintiffs have had a fair opportunity to oppose summary judgment on this basis.
In their motion to reconsider, plaintiffs assert that "[t]here are clearly disputed fact issues as to whether [the City's] downzoning bore a reasonable relationship to the governmental interest[s] it claims have been advanced." Ps. Mar. 16, 2000 Recon. Br. at 6. They base their contentions on City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999), which the Supreme Court decided after Sowell I.
B
In City of Monterey the district court allowed a regulatory takings claim to be tried to a jury because the plaintiff, Del Monte Dunes, had submitted evidence that could undermine the legitimacy of the City of Monterey's asserted premises for denying development of the disputed property. Id. at 698-700. After instructing the jury on the proper legal standards for a regulatory taking, the district court submitted to the jury the remaining fact issues: whether the City of Monterey denied Del Monte Dunes all economically viable use of its land and whether its proffered reasons for denying development were substantially advanced for a legitimate public purpose. Id. at 700. The Ninth Circuit held on appeal that the regulatory takings claim was properly submitted to a jury because Del Monte Dunes had adduced sufficient evidence for a reasonable jury to find each issue in its favor. Id. at 701. In the Supreme Court, the City of Monterey did not challenge the sufficiency of Del Monte Dunes' evidence, but maintained instead that the Ninth Circuit had adopted a legal theory for regulatory takings claims that would allow juries to second-guess public land-use policy. See id. at 703-04. The Supreme Court rejected this argument, holding that the district court's jury instructions properly summarized the legal standards for a takings claim, Id. at 705-06, and that the case was properly tried to a jury because Del Monte Dunes' § 1983 claim was an action at law and therefore within the Seventh Amendment's jury guarantee, id. at 706-22. The City maintains, and the court agrees, that City of Monterey does not change this court's summary judgment holding in Sowell I.
C
The court takes this opportunity, however, to reaffirm the outcome of Sowell I and to elaborate on the reasoning of that opinion.
"The authority of state and local governments to enact land use restrictions has long withstood constitutional scrutiny." Texas Manufactured Hous. Ass'n v. City of Nederland, 101 F.3d 1095, 1104 (5th Cir. 1996) (citing Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926)). "Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law." Id. (quoting Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413 (1922)). "A land use regulation does not effect a taking if it 'substantially advance[s] legitimate state interests[.]'" Dolan v. City of Tigard, 512 U.S. 374, 385 (1994) (quoting Agins v. City of Tiburon, 447 U.S. 255, 260 (1980)); see also Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 127 (1978) ("[A] use restriction on real property may constitute a "taking" if not reasonably necessary to the effectuation of a substantial public purpose[.]"). Nevertheless, "[t]he Supreme Court's entire "regulatory takings' law is premised on the notion that a city's exercise of its police powers can go too far, and if it does, there has been a taking." John Corp. v. City of Houston, ___ F.3d ___ 2000 WL 758347, at *4 (5th Cir. June 12, 2000). "[T]he Supreme Court has declined to define precisely the nature of this analysis, explaining that it involves an 'essentially ad hoc, factual inquir[y].'" Clajon Prod. Corp. v. Petera, 70 F.3d 1566, 1578 (10th Cir. 1995) (quoting Kaiser Aetna v. United States, 444 U.S. 164, 175 (1979)). "The burden [of persuasion] properly rests on the party challenging the regulation to prove that it constitutes an arbitrary regulation of property rights." Dolan, 512 U.S. at 391 n. 8 (citing Village of Euclid, 272 U.S. 365). "[T]he type of taking alleged is . . . an often critical factor. It is well settled that a taking may more readily be found when the interference with property can be characterized as a physical invasion by government . . . than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good." Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 488 n. 18 (1987) (quotations omitted).
Plaintiffs contend that the court should apply the "rigorous standard of judicial review" discussed in Nollan and Dolan to determine whether the City's actions substantially advanced a legitimate government interest. See Ps. Mar. 5, 1997 Br. at 33-34. These cases, however, involved extractions of benefits in exchange for regulatory approvals. The exactions were tantamount to physical invasions of the plaintiffs' properties. In Nollan the California Coastal Commission required that the Nollans dedicate a lateral public easement across their beachfront property in exchange for permission to demolish an existing bungalow and replace it with a three-bedroom house. Nollan, 483 U.S. at 828. In Dolan the City of Tigard demanded that Dolan dedicate a public greenway on her property in exchange for permission to develop her commercial lot. Dolan, 512 U.S. at 388. Outright dedication of private property for public enjoyment raises serious concerns in takings jurisprudence because "this right to exclude others is 'one of the most essential sticks in the bundle of rights that are commonly characterized as property.'" Id. at 393 (quoting Kaiser Aetna, 444 U.S. at 176). Plaintiffs do not raise similar concerns in this case. The court pointed out in Sowell I that
[c]ontrary to plaintiffs' assertion, the heightened scrutiny of Nollan does not apply in this case. The Fifth Circuit [has] made clear . . . that zoning regulations that do not extract a benefit from the landowner in the Nollan sense of requiring some dedication of property to the city," such as in Nollan where the city conditioned a building permit on the landowner's granting an easement to the city, do not invoke a heightened level of scrutiny.Id. at 7 (quoting Texas Manufactured Hous., 101 F.3d at 1105).
Accord Clajon, 70 F.3d at 1579 ("Given the important distinctions between general police power regulations and development exactions, and the resemblance of development exactions to physical takings cases, we believe that the 'essential nexus' and 'rough proportionality' tests are properly limited to the context of development exactions."); Ehrlich v. City of Culver City, 911 P.2d 429, 439 (Cal. 1996) ("It is the imposition of land use conditions in individual cases, authorized by a permit scheme which by its nature allows for both the discretionary deployment of the police power and an enhanced potential for its abuse, that constitutes the sine qua non for application of the intermediate standard of scrutiny formulated by the court in Nollan and Dolan.").
In City of Monterey the Supreme Court implicitly confirmed the accuracy of this court's analysis by refusing to extend the more rigorous tests of Nollan and Dolan "beyond the special context of exactions-land-use decisions conditioning approval of development on the dedication of property to public use." City of Monterey, 526 U.S. at 702 (citing Dolan, 512 U.S. at 385; Nollan 483 U.S. at 841). Plaintiffs concede in their motion to reconsider that the court's refusal in Sowell I to apply stricter scrutiny to the City's proffered reasons for denying development is consistent with City of Monterey. See Ps. Mar. 16, 2000 Recon. Br. at 5 n. 1 (acknowledging that this court's conclusion is consistent with Supreme Court's holding that "rough proportionality" standard of Dolan, while applicable to excessive exactions case, is unnecessary and irrelevant in denial of development case). Accordingly, the court declines to apply a heightened level of scrutiny.
Accord Recreational Devs. of Phoenix, Inc. v. City of Phoenix, 83 F. Supp.2d 1072, 1100 n. 14 (D. Ariz. 1999) (noting Supreme Court's rejection of 'rough proportionality' test in takings claim not involving an exaction); Bonnie Briar Synd., Inc. v. Town of Mamaroneck, 94 N.Y.2d 96, 107 (1999) ("Thus, in explicitly rejecting the application of the 'rough proportionality' test when, as here, the zoning law merely 'den[ies] . . . development' ([ City of Monterey, 526 U.S. at 702]), limiting its application to those cases involving exactions, the Supreme Court necessarily rejected the applicability of the 'essential nexus' inquiry to general zoning regulations as well."), cert. denied, ___ US ___, 120 S.Ct. 1735 (2000). But see Tandy Corp. v. City of Livonia, 81 F. Supp.2d 800, 811-14 n. 6 (E.D. Mich. 1999) (applying heightened scrutiny to rezoning decision challenge).
Plaintiffs allege in their complaint that the City exacted numerous benefits from them in return for approval of their development permit, see, e.g., Compl. ¶ 34 (amenities for community park), ¶ 39 (sale of 10 acres to Village at Cottonwood Creek to construct a school), ¶ 40 (construction of roads), ¶ 44 (grading and floodplain modifications), and ¶ 47 (screening wall), but they do not challenge these exactions on constitutional grounds.
Instead, where, as here, the record does not support a finding that the City conditioned approval of development on the dedication of property to public use, the court will apply a more deferential test and determine whether the land use decisions substantially advanced legitimate state interests. In doing so, the court will accord deference to the City's decision. See, e.g., Texas Manufactured Hous., 101 F.3d at 1105 (noting reason that City proffered for restricting development of manufactured housing to trailer parks — conservation of property values — was legitimate concern); Jackson Court Condominiums, Inc. v. City of New Orleans, 874 F.2d 1070, 1080 (5th Cir. 1989) (applying deferential analysis from substantive due process claim to find that "substantially advances" prong of takings claim was satisfied). Where a regulation "serves the public purpose and promotes the public welfare . . . [the court] must accept the legitimacy of the state interest behind [the regulation]." Clajon, 70 F.3d at 1579.
In this context, the "substantially advances" test is akin to the "rational basis" standard of substantive due process. That standard is met "if there was any conceivable rational basis for the zoning decision." Shelton v. City of College Station, 780 F.2d 475, 477 (5th Cir. 1986) (en banc).
The "substantially advances" prong can be traced to due process law. See, e.g., Agins, 447 U.S. at 260 (citing Nectow v. Cambridge, 277 U.S. 183, 188 (1928), a due process case, for the proposition that "[t]he application of a general zoning law to particular property effects a taking if the ordinance does not substantially advance legitimate state interests[.]"); Penn Cent., 438 U.S. at 127 (citing Nectow, 277 U.S. at 188, for the proposition that "a use restriction on real property may constitute a 'taking' if not reasonably necessary to the effectuation of a substantial public purpose[.]"); Santa Monica Beach, Ltd. v. Superior Court, 968 P.2d 993, 997-98 (Cal.) (Kennard, J., concurring) (noting that "substantial relation" language of takings law had its origins in due process case law), cert. denied, ___ U.S. ___ 119 S.Ct. 1804 (1999); Goldberg Cos. v. City of Richmond Heights, 690 N.E.2d 510, 513-14 (Ohio 1998) (distinguishing between due process challenge inherent when zoning ordinance is reviewed only to determine if it substantially advances legitimate state interest and takings challenge more properly applied where ordinance allegedly denies all economic uses). The test traces back to Mugler v. Kansas, 123 U.S. 623, 661 (1887), in which the Supreme Court formulated a substantive due process test that provided that "[i]f . . . a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects . . . it is the duty of the courts to so adjudge, and thereby give effect to the Constitution." Santa Monica Beach, 968 P.2d at 1009-10 (Kennard, J., concurring) (quoting Mugler, 123 U.S. at 661).
The court recognizes that, in the Fifth Circuit, takings and substantive due process analyses are not identical and that the two claims are considered distinct. See John Corp., ___ F.3d at ___ 2000 WL 758347, at *8 ("[W]e can say that a blanket rule that under [ Graham v. Connor, 490 U.S. 386 (1989)], the Takings Clause subsumes any substantive due process claim relating to a deprivation of property is both inconsistent with our precedents and with the approach taken by a majority of other circuit courts."). Compare Texas Manufactured Hous., 101 F.3d at 1106 (applying separate analysis to substantive due process claim and to "substantially advances" takings claim) with Jackson Court Condominiums, Inc. v. City of New Orleans, 874 F.2d 1070, 1077-80 (5th Cir. 1989) (analyzing substantive due process claim and then applying that analysis to "substantially advances" prong of takings claim).
The court will nevertheless more closely scrutinize a takings challenge that is based on an adjudicative decision — such as denial of plaintiffs' permit application — rather than from a facial challenge to a legislatively-enacted ordinance or law. Cf Texas Manufactured Hous., 101 F.3d at 1105 (noting greater concern in takings challenge where landowner has been singled out by land-use decision, as in Nollan, than in challenge to general zoning regulation that applies evenhandedly to entire city); Santa Monica Beach, Ltd v. Superior Court, 968 P.2d 993, 1002 (Cal.) ("[I]ndividualized development fees warrant a type of review akin to the conditional conveyances at issue in Nollan and Dolan, whereas generally applicable development fees warrant the more deferential review that the Dolan court recognized is generally accorded to legislative determinations."), cert. denied, ___ U.S. ___ 119 S.Ct. 1804 (1999). "The basis for the inquiry is to assure that the state does not effect a collateral purpose or end under the guise of a legitimate purpose or end, regulating where it has no right to do so." Department of Nat. Resources v. Indiana Coal Council, Inc., 542 N.E.2d 1000, 1005 (Ind. 1989).
D
Plaintiffs have the burden of proving that the land use decisions in question did not substantially advance legitimate state interests. See Dolan, 512 U.S. at 391 n. 8 (citing Village of Euclid, 272 U.S. 365). Because the City will not have the burden at trial, it can meet its summary judgment obligation by pointing the court to the absence of evidence to support the claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If it does so, plaintiffs must go beyond their pleadings and designate specific facts showing that there is a genuine issue for trial. See id. at 324; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). They must produce evidence sufficient to establish the existence of all elements essential to their claim. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). Summary judgment is mandatory where the nonmoving parties fail to meet their burden. Little, 37 F.3d at 1076; see Texas Manufactured Hous., 101 F.3d at 1105 (affirming summary judgment and holding "that plaintiffs have not made an evidentiary showing sufficient to create a genuine issue as to the existence of a taking.").
The City asserts in its brief that "Plaintiffs have failed to substantiate their takings claim asserted under federal law." Ds. Jan. 10, 1997 Br. at 17. As the court explains supra at note 3, plaintiffs attempted in their response to argue as a basis for their takings claims that the City failed to substantially advance a legitimate government purpose for the decisions at issue. See Ps. Mar. 5, 1997 Br. at 33-34 (addressing "fails to substantially advance" takings claim). This summary judgment standard is therefore properly applied.
Plaintiffs base this component of their takings claim on the assertion that "The Coppell Defendants have shown through discovery that they intend to try to justify their race-based downzoning . . . with ex post facto justifications and their own expert admitted that there was no justification for the City's actions in the record." Ps. Mar. 5, 1997 Br. at 34. Plaintiffs do not cite any record evidence in support of this contention. In their complaint, plaintiffs allege that they made substantial investments in their property in reliance on the City's approval of their development plans. See Compl. ¶ 34, 39, 40, 44, and 47. They posit that they paid over $800,000 in real estate taxes on their property based on assessments calculated according to property zoned for multifamily use. See id at ¶ 38. Plaintiffs maintain that the City arbitrarily denied their building permit application and denied them an opportunity to amend their application, appeal the decision, or seek a variance to the existing zoning ordinances. See id. at ¶ 56-60. Additionally, they make numerous claims that the City's rezoning decisions were racially motivated and designed to exclude African-Americans and other minorities from the City of Coppell. See id. at ¶ 66-91. Plaintiffs do not cite the court to factual evidence that supports any of these allegations. They have failed to adduce proof that would permit a reasonable jury to find that the City's decisions were arbitrary or that there were collateral purposes behind them.
Plaintiffs cite A.A. Profiles, Inc. v. City of Ft. Lauderdale, 850 F.2d 1483 (11th Cir. 1988), in support of their argument. See Ps. Mar. 5, 1997 Br. at 33 n. 31. In that case, the circuit court found that a taking had occurred where the City passed a resolution approving plaintiff's proposed development of its land as a wood-chipping business and then later ordered the plaintiff to cease operations due to local residents' complaints. A.A. Profiles, 850 F.2d at 1484-85. The panel held that the City's actions failed to substantially advance a legitimate state interest because they deprived the plaintiff a property interest granted by the original resolution. Id. at 1488. Even if A.A. Profiles were binding on this court, it is distinguishable because plaintiffs in the present case were not granted final approval to develop their property, only to have that approval revoked arbitrarily. See New Port Largo, Inc. v. Monroe County, 95 F.3d 1084, 1090 (11th Cir. 1996) (rule of A.A. Profiles not invoked where" [p]laintiff merely alleges that it paid a lot of money for property that the zoning plats indicated was suitable for residential development."). "Because there is no general constitutional right to be free from all changes in land-use laws, [plaintiffs] must do more than rely on the original zoning to establish an equitable estoppel." Id. (citation omitted). Therefore, A.A. Profiles does not alter the outcome of the court's decision.
Fed. R Civ. p. 56 obligates a party to designate the specific facts in the record that create genuine issues precluding summary judgment. "Rule 56 does not impose a duty on the district court to sift through the record in search of evidence to support a party's opposition to summary judgment." Doddy v. Oxy USA, Inc., 101 F.3d 448, 463 (5th Cir. 1996) (citing Jones v. Sheehan, Young Culp, P.C., 82 F.3d 1334, 1338 (5th Cir. 1996)); accord Stults v. Conoco, Inc., 76 F.3d 651, 657 (5th Cir. 1996). The court has no obligation to consider evidence that the nonmovants do not bring forth in opposition to the summary judgment motion. Doddy, 101 F.3d at 463 (citing Copsey v. Swearingen, 36 F.3d 1336, 1347 n. 9 (5th Cir. 1994)). To satisfy their burden, the nonmovants are required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports their claim. Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) (citing Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992)). When the parties fail to refer to items in the record, the evidence is not properly before the court in deciding whether to grant the motion. Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 (5th Cir. 1992); Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1307 (5th Cir. 1988) (on rehearing) (denying rehearing after plaintiff asserted that deposition was of record when district court granted partial summary judgment, and holding that because plaintiff failed to designate, or in any way refer to, deposition as source of factual support for response to motion, deposition was never made part of competent summary judgment record before district court). Accordingly, in deciding this motion, the court declines to consider evidence that plaintiffs have not adequately cited.
Apart from plaintiffs' failure to carry their burden, the City has adduced evidence that its decisions in fact substantially advanced legitimate state interests. The City has introduced proof that (1) its Planning Department Director and the City Council decided in 1992 to evaluate vacant property in the City, see Ds. Jan. 10, 1997 App., Ex. ¶ at 2; (2) plaintiffs' property was included in that evaluation because it was vacant and no multifamily development had occurred, id.; (3) growth within the City had moved toward single-family, not multifamily, residences, id., Ex. 1 at 5; and (4) plaintiffs changed nearby property to single-family development, id. The City relies principally on the affidavit of Gary Sieb ("Sieb"), its Planning Department Director, and the expert opinion of J. Dennis Wilson ("Wilson"). Sieb's affidavit does not provide extensive empirical reasoning for the rezoning decisions. It states instead that "[t]he rezoning recommendations were made to facilitate the highest and best use of each piece of land and to promote the general welfare of the citizens of Coppell." Id., Ex. 6 at 2. Wilson opines in his affidavit that the City decided to rezone the property to conform better to the area's infrastructure. See id., Ex. 1 at 3-5. Wilson points to changes that plaintiffs initiated when they rezoned substantial portions of their land to single-family as precipitous factors in altering the character of growth in the area and leading to plaintiffs' entire parcel being rezoned as single-family. See id., Ex 1 at 5. He opines that plaintiffs' original master plan did not correspond well to the City's zoning districts and that rezoning parts of plaintiffs' property in 1993 exacerbated the problem by "altering the site organization and the basic relationships of land uses." Id. Wilson testified that
[t]he property owner, at his own initiative, platted the multi-family area contrary to zoning lines[,] and created a major change in the original master plan, by rezoning and then replatting 44.5 acres of land for single family development. Those actions reflect a desire to take advantage of current market conditions in developing the land rather than the methodical realization of a master plan.Id., Ex. 1 at 6.
A reasonable trier of fact could only find from the record evidence that the City's decision substantially advanced a legitimate state interest. Although the City has not provided detailed quantitative expert analysis, evidence that the City engaged in residential zoning for the public welfare is sufficient. See Nollan, 483 U.S. at 834-35 (citing Village of Euclid, 272 U.S. 365, and holding that residential zoning substantially advances legitimate state interest). The City's zoning decisions need not, as plaintiffs appear to argue, comport with changing real estate market conditions, and also provide for orderly growth and development, to be deemed constitutionally adequate. Such a requirement would compromise the municipal body's valid basis for zoning. Because the City's decision serves the public welfare, the court defers to the legitimacy of its decision. Any other outcome would "inject federal courts into matters historically the business of states and subject to their police power." Shelton v. City of College Station, 780 F.2d 475, 481 (5th Cir. 1986) (en banc). Accordingly, the court grants the City's motion for summary judgment dismissing count III and denies plaintiffs' motion to reconsider.
E
The court's analysis of the question whether the City is entitled to summary judgment dismissing plaintiffs' takings claim does not implicitly address plaintiffs' separate FHA claim. See Sowell III, 61 F. Supp.2d at 546 (holding that court's ruling in Sowell I that rezoning decision substantially advanced state interests did not apply equally to whether, under FHA, reasons were legitimate and nondiscriminatory, and thus did not excuse City from adducing evidence of legitimate, nondiscriminatory reasons for zoning and land use decisions in question). Nor does the court's decision in Sowell III denying summary judgment with respect to plaintiffs' FHA cause of action call into question the court's reasoning today.
As this court has previously explained, when two summary judgment rulings in the same case seem incongruent, this simply
demonstrates the immutable truth that summary judgment reflects the evidence and arguments before the court at the time of decision; that because the court's substantive rulings are necessarily the product of the issues and arguments presented, the holdings of prior opinions — regardless of their breadth — must be understood in their proper context; and that the court's discretion to consider successive motions for summary judgment, based on additional evidence, can produce different results on further consideration of new arguments, evidence, and briefing.Bank One, Tex., NA. v. FDIC, 16 F. Supp.2d 698, 715 (N.D. Tex. 1998) (Fitzwater, J.) (footnotes, quotation marks, and brackets omitted) (addressing analogous context of subsequent summary judgment ruling that alters outcome forecast by earlier ruling in same case), The court decided Sowell I before it addressed plaintiffs' FHA claim in Sowell III. Plaintiffs' subsequent, unrelated briefing filed with respect to the motion decided in Sowell III was sufficient to create a genuine fact issue concerning whether the City acted with discriminatory intent in effecting its land use decisions. That evidence, however, was not before the court at the time it decided Sowell I.
Nor is it properly before the court today. When the court granted in part plaintiffs' motion to reconsider, it held that it would decide, "based on the summary judgment evidence and briefing on file before its rulings in Sowell I and Sowell II and on the contents of plaintiffs' March 16, 2000 motion to reconsider summary judgment rulings and the City's April 4, 2000 response, the question whether the City is entitled to summary judgment dismissing plaintiffs' takings claim asserted in counts III, IV, and VIII of their first amended complaint." Apr. 27, 2000 Mem. Op. at 5 (footnote omitted). The proof that plaintiffs adduced concerning the motion at issue in Sowell III is not before the court. Moreover, in their motion to reconsider, plaintiffs did not ask the court to reexamine their takings claims based on the outcome of Sowell III. See id. at 1. Rather, they requested that the court reconsider those claims based only on " subsequent changes in case law materially affecting [ Sowell I and Sowell II]." Ps. Mar. 16, 2000 Recon. Br. at 1 (emphasis added). Plaintiffs have not adequately raised, and the court does not reach, the question whether summary judgment on plaintiffs' takings claims would be warranted had they adduced evidence of discriminatory intent in the City's land use decisions. Therefore, while plaintiffs' FHA claim remains, their takings claims do not,
III
Plaintiffs assert in count IV a cause of action for just compensation under the Fifth and Fourteenth Amendments. They bring this claim in the alternative, if the court determines that they are not entitled to just compensation under their state takings claim. Compl. ¶ 178. Plaintiffs contend that if just compensation is not available under state law, then they have been deprived of all economically viable, beneficial, and productive use of their land. Id at ¶ 182.
In Sowell I the court granted summary judgment as to this claim, concluding that the zoning change did not deny plaintiffs economically viable use of their land. Sowell I, slip op. at 7. In their motion to reconsider, plaintiffs acknowledge that "[t]he Court correctly ruled that all economically viable use of Sowell's property had not been deprived because some value remained." Ps. Mar. 16, 2000 Recon. Br. at 2. They have not otherwise established valid grounds for the court to reinstate count IV.
It is possible that plaintiffs did not in fact seek reconsideration of count IV because, in their motion to reconsider, they explicitly referred only to "whether the City's rezoning substantially advanced a legitimate government interest." Id. at 1. Because the motion did not refer to specific counts, but did cite plaintiffs § 1983 claims, see id. at 3, the court assumed that they sought relief concerning count IV as well.
IV
In count VIII of their complaint, plaintiffs assert that the City violated their rights under Tex. Const. Ann. art. I, § 17 (West 1997), by taking their property (downzoning the Northern Multifamily Parcel and denying their application for a building permit) without just compensation. Compl. ¶ 214. In Sowell II the court applied its ruling in Sowell I to dismiss the state takings cause of action alleged in count VIII. Sowell II, 82 F. Supp.2d at 619. Because the court adheres to its decisions dismissing counts III and IV, it likewise reaffirms its ruling dismissing count VIII.V
Plaintiffs allege in count VI of their complaint that the City's decisions violated their statutory vested rights under Tex. Gov't Code Ann. § 481.141 et seq. (repealed). They posit that application of newly-adopted 1994 zoning ordinances to their building permit — which arose from a preliminary plat approved in 1985 — violated § 481.143. See Compl. ¶ 193-99. Plaintiffs assert a claim for statutory relief in the form of a declaratory judgment, money damages, and attorney's fees and costs. See id. at ¶ 193.
Plaintiffs generically allege a violation of § 481.141 et seq. See Compl. ¶ 193 and 199. The court's review of the statute shows the claim is properly brought under § 481.143.
A
Plaintiffs move for summary judgment, arguing that § 481.143 creates a statutory "vested right" in their investment-backed expectations related to development of the property for multifamily residential use. See Ps. May 6, 1998 Rep. Br. at 5-7; Compl. p. 42 (seeking "damages equal to the profit the Sowell Plaintiffs would have made if the Coppell Defendants had not violated Tex. Gov't Code Ann § 481.141 et seq."). In its response to plaintiffs' motion to reconsider, the City does not dispute that § 481.143 required that it apply 1985 zoning ordinances to plaintiffs' 1994 building permit application. See D. Apr. 4, 2000 Br. at 7-8. Instead, the City asserts that § 481.143 does not provide redress by way of money damages and that plaintiffs' remaining claims for declaratory and injunctive relief are moot considering the full development of plaintiffs' property as a single-family housing development. See id. at 8-9.
The City incorporates this argument from its April 21, 1998 cross-motion for summary judgment.
B
The court looks to § 481.143 to ascertain what remedies it provides. In construing a Texas statute, the court is obligated to interpret the law as would a Texas court. United States v. Cobb, 975 F.2d 152, 156 (5th Cir. 1992). The primary duty of Texas courts in interpreting statutes is to determine the intent of the Legislature. Elin v. Neal, 720 S.W.2d 224, 226 (Tex.App. 1986, writ ref'd n.r.e.). When that intent is unambiguous and clearly expressed in the words of a statute, the court need not resort to extrinsic aids beyond the plain meaning of the statute. See id.; Lastor v. City of Hearne, 810 S.W.2d 742, 743 (Tex.App. 1991, writ denied) ("ordinarily, an unambiguous statute should be construed and enforced as written").Section 481.143 does not create a cause of action for money damages or attorney's fees and costs. It expressly provides that it "shall be enforceable solely through declaratory, mandamus, or injunctive relief." Tex. Gov't Code Ann. § 481.143(b) (repealed) (emphasis added). This language clearly and unambiguously shows that the statute does not create a right to recover money damages or attorney's fees and costs.
Plaintiffs urge the court to recognize an implied right of action for damages under § 481.143. The court declines to do so given § 481.143's express language to the contrary. Section 481.143(b) unambiguously states that declaratory, mandamus, or injunctive relief is the sole means for enforcing the statute. Moreover, plaintiffs' damages action is no more than an attempt to assert an investment-backed expectations takings claim under the guise of § 481.143. Plaintiffs assert that "[a] "vested right' to use private property is an expectancy that has vested as a right that is immune to the governmental exercise of its police power." See Ps. May 6, 1998 Rep. Br. at 5 (emphasis deleted). They seek "damages equal to the profit the Sowell Plaintiffs would have made if the Coppell Defendants had not violated Tex. Gov't Code Ann § 481.141 et seq." Compl. p. 42. Plaintiffs argue that "if this Court had addressed the state law vested rights claims contemporaneously with the federal takings and substantive due process claims . . . this Court's previous summary judgment on those claims would likely not have been in favor of the Defendants." Ps. May 6, 1998 Rep. Br. at 16. The court has dismissed plaintiffs' takings claims and will not now allow them to circumvent those rulings through an implied right of action under § 481.143.
Therefore, the court denies on the merits plaintiffs' statutory vested rights claim for money damages and attorney's fees and costs.
C
The court next addresses plaintiffs' declaratory judgment claim that the City's actions violated Texas law. The City maintains that this cause of action is moot because plaintiffs have fully developed their property as single-family residences since filing suit. Plaintiffs do not deny that they have fully developed the property; they argue that their claim is not moot because "[t]he controversy between the Plaintiffs and the City is definite and concrete and touches the adverse legal relations of the parties since the Defendants will ultimately have to pay compensation for the taking of the Plaintiffs['] property interest." Ps. May 6, 1998 Rep. Br. at 24 (emphasis deleted).
"[C]ourts will not grant a futile or useless declaratory judgment." Webb v. Investacorp, Inc., 89 F.3d 252, 260 (5th Cir. 1996) (per curiam) (quoting Armentrout v. Texas Dep't of Water Resources, 675 S.W.2d 243, 245 (Tex.App. 1984, no writ)). Plaintiffs' declaratory judgment action has been rendered futile by the development of their property as single-family residences. A declaratory judgment that the City violated § 481.143 by denying plaintiffs' building permit will not redress plaintiffs' injuries. As discussed above, plaintiffs have no claim for damages under § 481.143 and they have not moved for injunctive relief. Nor is plaintiffs' action saved by their simultaneous takings claims. The court has dismissed those claims on the merits because the City's actions did not rise to the level of a compensable taking. A declaratory judgment in plaintiffs' favor will not alter that outcome. Therefore, the court dismisses the declaratory judgment component of plaintiffs' statutory vested rights claim.
* * *
The court grants summary judgment dismissing counts III, IV, VI, and VIII of plaintiffs' complaint.
SO ORDERED.