Petition for Writ of Certiorari — Smith v. City of Brenham

[—— |

Supreme Court, is | |

SR. 3 FILE

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No.

— ebb OSELbinE, SPANIOL, JR.

CLERK

IN THE eras

Supreme Court of the United States

OCTOBER TERM, 1988

ALBERT J. SMITH, JR.

and

JULIA C. SMITH,

Petitioners,

Via

CITY OF BRENHAM, TEXAS

PETITION FOR A WRIT OF CERTIOARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

CRAIG C. CANTEY, JR.

Counsel of Record

CONNER & CANTEY

110 South Park Street

Brenham, Texas 77833

May 26, 1989 (409) 830-1279

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTION PRESENTED

Are property owners Constitutionally entitled to com-

pensation for extraordinary or protracted delay (now

four and a half years) by public officials making or fail-

ing to make a bureaucratic decision which results in

damage to the market value of their property?

(i)

ii

PARTIES TO THE PROCEEDING

Petitioners are Albert J. Smith, Jr. and Julia C. Smith,

of Brenham, Texas. Respondent is the City of Brenham,

Texas. Intervenors below were A.P. Jozwiak, Pauline

Jozwiak, R.H. Guire, Peggy Joyce Guire, Shirley M.

Kmiec, Patricia Ann Jozwiak, Florian J. Zientek, Emily

Z. Zientek, Mark Bilski, Linda Bilski, Larry J. Cegelski,

Sandra K. Cegelski, Stanley J. Zientek, Victoria Bolcerek,

Frank F. Mikeska, Elizabeth Mikeska, Julian Laskowski,

Gilbert Laskowski and Frances Laskowski. These inter-

venors join petitioners in this Court.

TABLE OF CONTENTS

Page

QUESTION PRESENTED .u..000....2--.2:cc-sccosssssssssssessnseee

PARTIES TO THE PROCEEDING... ii

TABLE OF AUTHORITIES ................ i iv

ES 1

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CONSTITUTIONAL PROVISIONS INVOLVED........ 2

Nee en cccecanscccnseeen 2

REASONS FOR GRANTING THE PETITION ......... 3

CONCIAISION ....................... a 8

ccc sne ceca see esc. la

(iil)

iv

TABLE OF AUTHORITIES

Cases: Page

Abbott Laboratories v. Gardner, 387 U.S. 136

Bi sf penne ttle an eee ys Fn er it A a 2,4

Agins V. Tiburon, 447 U.S. 255 (1985) 5

Baker v. Carr, 369 U.S. 186 (1962)... 4

First English Evangelical Church v. County of

Los Angeles, 482 U.S. 304 (1987) 5

Gardner Vv. Toilet Goods Ass’n, 387 U.S. 167

ff Sippee enol enerte ae tren SOS AOI EES, bananas 4

Laird V. Tetum, 408 US. 1 (1972)... 4

Poe v. Ullman, 367 U.S. 497 (1961) ........................ 4

Other Authorities:

ree. BO. 2 12 e Feats Airs CREF 2.3

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

ALBERT J. SMITH, JR.

and

JULIA C. SMITH,

é Petitioners,

CITY OF BRENHAM, TEXAS

PETITION FOR A WRIT OF CERTIOARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Albert J. Smith, Jr., et uxor, Julia C. Smith hereby

petition this Court for a writ of certiorari to the United

States Court of Appeals for the Fifth Circuit.

OPINIONS BELOW

The opinion of the court of appeals (App. la) is re-

ported at 865 F.2d 662. The opinion of the district court

(App. 5a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

February 15, 1989. See App. la. Petitioners’ request

for rehearing was denied on March 15, 1989. App. 4a.

This petition is accordingly filed within the time allowed

by law. The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

2

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution Amendment V provides in

pertinent part:

* *

nor shall private property be taken for public

use, without just compensation.

United States Constitution Amendment XIV provides,

in pertinent part:

* * *

nor shall any State deprive any person of life,

liberty, or property, without due process of law * * *

STATEMENT

This is an unprecedented case brought by the Smiths

who own a small ranch on the outskirts of the City of

Brenham. Late in 1984 the City authorized the purchase

of a tract of land across from the Smith’s home for the

purpose of operating a city dump. The land was pur-

chased by the City and the proposed dump was publicly

announced nearly five years ago, but a permit has been.

neither granted nor denied to operate the dump, and

there has never been any public hearing for such a per-

mit scheduled. Nevertheless, there was a real and pre-

cipitous loss of market value to the Smith’s property as

a result of the announcement by the City that a dump

would be installed in near proximity to their home. The

complaint that was dismissed below clearly alleged this

injury.

The City contends that petitioners, and all similarly-

situated persons,’ would suffer no judicially-cognizable

harm until such time as the dump begins operation. In

making this claim, the City sought dismissal of the action

under Rule 12(b) (6), F.R.C.P., on ripeness and related

justiciability grounds. The District Court dismissed the

action on ripeness grounds, relying on the Court’s de-

cision in Abbott Laboratories v. Gardner, 387 U.S. 136

(1967). The Court of Appeals affirmed, noting, among

1A number of adjoining property owners were allowed to inter-

vene in the action below.

3

other things, that because the landfill operation is still

in the inchoate and planning stage, “no taking in the

constitutional sense has occurred.” App. 2a.

REASONS FOR GRANTING THE PETITION

This case presents a question of increasing and sub-

stantial public importance—namely, whether property

owners are constitutionally entitled to compensation for

protracted delays in bureaucratic decision-making which

results in damage to the market value of their property.

In answering this question in the negative, the courts

below ignored settled principles applicable to considera-

tion of motions under Rule 12, F.R.C.P., as well as this

Court’s justiciability jurisprudence. But, more impor-

tantly, the lower courts failed to recognize the significant

harm to persons that results from delay in governmental

decision-making and the fact that this is a phenomenon

of modern government that the courts can and must

address.

More specifically, the Court of Appeals found the

absence of a taking “in the constitutional sense’ and

dismissed petitioners’ assertion of harm on the ground

that “[nlone of the parade of horribles that arguably

will accompany the operation of the landfill has come to

pass; at this moment, the city has only announced its in-

tention to operate a landfill on the site, and is currently

in the process of obtaining approval from the Texas De-

partment of Health.” App. 2a. The petitioners, how-

ever, have asserted in their complaint that during the

extended irresolution of the matter (which the Court of

Appeals itself recognizes has persisted “now for four

years”), they have been harmed: “The SMITHS’ prop-

erty has been reduced and their property taken by the

act of the City in filing for the permit to operate the

landfill described.” App. 16a; emphasis added.

It is, of course, axiomatic that in reviewing a motion

to dismiss on the pleadings the allegations of the com-

4

plaint must be accepted as true. Gardner v. Toilet Goods

Ass’n, 387 U.S. 167, 172 (1967). Accordingly, the action

cannot be dismissed on the ground that no harm has yet

occurred. That such harm has in fact already taken

place has been well-pleaded, and all such allegations must

be accepted as true for purposes of the City’s motion to

dismiss.

Both courts below recognized that petitioners would be

able to state a claim for relief through an inverse con-

demnation suit once the dump became operational. App.

2a; 6a. Petitioners, however, are currently suffering a

“specific present objective harm” and on that basis they

currently state a justiciable claim for relief. Laird v.

.atum, 408 U.S. 1, 14 (1972). Since petitioners unde-

niably have ‘“‘a personal stake in the outcome of the con-

troversy” created by the City’s action (Baker v. Carr,

369 U.S. 186, 204 (1962)), and their injury is palpable

and present, the requisite concreteness necessary to es-

tablish a case or controversy appropriate for judicial

resolution has been shown. Cf. Poe v. Ullman, 367 U.S.

497 (1961). In short, the action is ripe for review and

the courts below erred in failing to so rule. Abbott Lab-

oratories V. Gardner, 387 U.S. 136 (1967).

It must be stressed that more is at stake here simply

than the failure of the courts below to apply settled prin-

“In any event, it can hardly be doubted that a public announce-

ment that the City plans to locate a public dump directly across a

narrow forty foot county road from petitioners’ property would

have an immediate and deleterious impact on the value of the prop-

erty. This is especially so when the City has acknowledged in its

application for the permit that “blowing refuse such as paper is a

common nuisance associated with landfill operations,” that “vultures

and other birds of prey [are expected] to congregate and flock in the

area,” and that “putrescible waste” (waste capable of being decom-

posed by anaerobic organisms with sufficient rapidity as to cause

nuisances from odors or gases and capable of providing food, or

attracting birds, animals, insects, snakes, or rodents capable of

mechanically or biologically transferring a pathogen from one

organism to another) would be deposited at the dump. App. 14a.

~

o

ciples to the facts presented. Rather, the case is impor-

tant because it squarely raises for the first time in this

Court the issue of whether governmental inaction that

palpably and predictably takes the property of persons by

diminishing its value is redressable under the Constitu-

tion in the same way that an avowed taking is.

To be sure, fluctuations in market value pending the

completion of public improvements frequently occur and

it would impede legitimate government processes if the

courts were to entertain reverse condemnatien suits for

every such fluctuation in property value so occasioned.

But, as has been noted in this Court, “* * * mere fluctu-

ations in value during the process of governmental de-

cision making, absent extraordinary delay, are incidents

of ownership.” Agins v. Tiburon, 447 U.S. 255, 263 n.9

(1980); emphasis added. Even more directly, as Jus-

tice Stevens has recognized, “‘the Due Process clause * * *

protects the property owner from * * * unnecessarily

protracted governmental decision making.” First English

Evangelical Church v. County of Los Angeles, 482 U.S.

304, 339 (1987) (Stevens, J., dissenting); emphasis

added.

The point is that the irresolution of this matter over

an extended period of time—now more than four years—

has significantly diminished in value petitioners’ property,

property which has had recent improvements made by

petitioner that have cost approximately $1.2 million.

App. 18a. Especially with respect to older persons, re-

quiring that the governmental decision be completed be-

fore suit can be filed may be tantamount to denying any

judicial recourse, since the mortality of the affected in-

dividual will at some point overtake the government’s de-

cision-making process.*

3In this general connection, we note that the Illinois legislature

is currently considering a remedy for older plaintiffs seeking judi-

cial relief by mandating a preferential hearing date for such

persons. In this case, the petitioners cannot even file their lawsuit,

let alone push it to trial on an expedited basis.

6

Property owners who are delayed for years in seeking

redress are economically pillaged. A large portion of a

person’s life expectancy can be consumed bv bureaucratic

delay, without even the modest right to seek damages

through inverse condemnation for that period. Where

there are delays such as have occurred here, the affected

property owners bear a terrible cost which should be

borne by the public at large, as the plain language of the

Fourteenth Amendment intends.

To argue that the petitioner’s claim is theoretical or

vacuous or an imagined injury is pettifoggery of the

worst kind. Who would buy the Smith’s property in or-

der to lay around their swimming pool overlooking the

dump? Or play tennis on their court while the stifling

odors of putrefying organic waste wafts over the prop-

erty? How many buyers are there for places with ameni-

ties such as separate guest quarters and employee quar-

ters, stables and cabana and pool which fronts and over-

looks a pit where city waste is buried? If the loss of the

right to sell property is not property right, then what is?

If the loss of market value is not a loss of property right,

then what is? Finally, does the law seriously expect a

couple which has spent over a million dollars to build

their retirement home to live out their years overlooking

a dump?

There is no doubt that where a governmental unit has

announced the locus of a dump and followed up by pur-

chasing the tract for cash and filing an application for

a permit with the appropriate State authority, the ad-

jacent property owner will suffer a severe injury. There

is no doubt that this is the kind of a situation which

does give rise to inverse condemnation claims. Never

has a Texas home owner in similar proximity to a dump

been denied compensation. |

Where the property owner is virtually assured of some

award and then—through protracted delay in a permit-

ting process where he is not even an applicant and has

7

no standing even to call for a hearing—he is denied

access to the procedure to get that award by no fault

of his own, a gross injustice results. What causes the

delay is of consequence. The delay itself is what matters

—whatever the cause, whatever the bureaucratic excuse

or motive.

The command of the Fourteenth Amendment is to ac-

cord due process to all deprivations of property. The

government here has announced its plan and purchased

the land to implement the plan. That it has delayed for

more than four years the ultimate effectuation does not

in any way diminish the havoc that has been wreaked

upon petitioners. Their loss of property is real and im-

mediate. Recourse to the courts to redress that injury

must be made available to them at this juncture, lest

through the unremediable and inelectuable progress of

time they are left without any remedy at all.

Finally, it is no solace to contend that bureaucratic

delay is a price we must pay for the benefits of modern

government. The framework for our government was

cast by the Founding Fathers in our Constitution and

the Amendments that followed. This charter has guided

our Nation to success and has anchored our society pre-

cisely because its application has been adjusted to the

changes that have inevitably occurred in our govern-

mental processes. The Fourteenth Amendment has been

at the forefront of this process and the breadth of its

protective reach has been consistently recognized by this

Court. Its application to the issue raised here must also

be recognized.

8

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari to the United States Court of Appeals for the

Fifth Circuit should be granted.

Respectfully submitted,

CRAIG C. CANTEY, JR.

Counsel of Record

CONNER & CANTEY

110 South Park Street

Brenham, Texas 77833

May 26, 1989 (409) 830-1279

APPENDIX

la

APPENDIX

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 88-1526

Summary Calendar

ALBERT J. SMITH, JR., et ux., JULIA C. SMITH,

Plaintiffs-A ppellants,

7.

CITY OF BRENHAM, TEXAS,

Defendant-A ppellee,

V.

A.P. JOZWIAK, et ux., PAULINE JOZWIAK, et al.,

Intervenors-A ppellants.

Feb. 15, 1989

Appeals from the United States District Court

for the Western District of Texas

Craig C. Cantey, Jr., Brenham, Tex., for A.J. Smith and

J.C. Smith

Carl E. Clover, Jr., Connor, Odom & Clover, Sealy,

Tex., for A.P. Jozwiak, et al. :

James R. Raup, McGinnis, Lochridge & Kilgore, Austin,

Tex., for City of Brenham, Tex.

Za

Before POLITZ, KING, and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Appellants, property owners whose lands are located

near the site of a proposed landfill to be operated by the

City of Brenham, appeal the dismissal under rule 12(b)

(6) of their action against the city alleging that they

are the victims of an uncompensated taking, and seeking

(1) damages for the diminished value of their land, (2)

damages for their mental pain and suffering, and (3)

an injunction against any further proceedings by the city

designed to bring the landfill into operation. We affirm.

“Mere fluctuations in value during the process of gov-

ernmental decisionmaking, absent extraordinary delay,

are ‘incidents of ownership. They cannot be considered

a taking in a constitutional sense.’” Agins v. City of

Tiburon, 447 U.S. 255, 263 n. 9, 100 S.Ct. 2138, 2143

n. 9, 65 L.Ed.2d 106 (1980) (quoting Danforth v. United

States, 308 U.S. 271, 285, 60 S.Ct. 231, 236, 84 L.Ed.

240 (1939)). In Agins, the plaintiffs challenged a zoning

ordinance that encompassed their very land. The Court,

nevertheless, held that no taking had occurred. Here, the

“governmental decisionmaking” involves only nearby prop-

erty; hence, the constitutional argument is even weaker

than in Agins. See also Frazier v. Lowndes County,

Mississippi, Bd. of Educ., 710 F.2d 1097, 1100-01 (5th

Cir. 1983).

Thus, on the undisputed facts before us, no taking in

the constitutional sense has occurred. None of the parade

of horribles that arguably will accompany the operation

of the landfill has come to pass; at this moment, the city

has only announced its intention to operate a landfill on

the site, and is currently in the process of obtaining ap-

proval from the Texas Department of Health. Although

this process has been underway now for four years, we

do not find the mere lapse of time in this case to consti-

tute an “extraordinary delay.” Nor does the complaint

contain any allegations that the city has been acting in

bad faith by purposefully retarding the process.

3a

Under these circumstances, Agins compels the conclu-

sion that no constitutional taking has occurred in this

ease. Appellants’ reliance upon First English Evangelical

Church v. County of Los Angeles, 482 U.S. 304, 107

S.Ct. 2378, 96 L.Ed.2d 250 (1987), is misplaced. Con-

trary to appellants’ claims, First English did not set out

a new test for determining when a taking has occurred;

rather it assumed, for the purposes of the case, that

a taking had occurred in holding that the Constitution

requires compensation as a remedy for temporary regu-

latory takings. See id. 107 S.Ct. at 2384-85. First

English thus in no way alters the holding of Agins, and,

as Agins controls this case, dismissal of the appellants’

takings claim was appropriate.

For similar reasons, appellants’ claim under the due

process clause of the fourteenth amendment is without

merit. No deprivation of property in the constitutional

sense has yet occurred; moreover, it may never occur,

and certainly will not occur at least until the permit

process, in which the appellants will have the right to a

hearing before the Texas Department of Health, has run

its course. Any due process claim is thus premature.

See Williamson County Regional Planning Comm’n v.

Hamilton Bank, 473 U.S. 172, 199-200, 105 S.Ct. 3108,

3123-3124, 87 L.Ed.2d 126 (1985).

Finally, we affirm the dismissal of the appellants’ state

law claims. Their assertion that a taking has occurred

under the Texas Constitution, Art. I $17, is without

merit, for much the same reasons as under federal law.

See Hubler v. City of Corpus Christi, 564 S.W.2d 816,

820-22 (Tex.Civ. App.—Corpus Christi 1978, writ ref’d

n.r.e.).

AFFIRMED.

4a

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 88-1526

ALBERT J. SMITH, JR., et ux,

and JULIA C. SMITH,

Plaintiffs-A ppellants,

versus

CITY OF BRENHAM, TEXAS,

A Municipal Corporation in Washington County, Texas,

Defendant-A ppellee,

versus

A. P. JOZWIAK, et ua,

PAULINE ZOZWIAK, et al.,

Intervenors-A ppellants.

Appeals from the United States District Court for the

Western District of Texas :

ON PETITION FOR REHEARING

(March 15, 1989)

Before POLITZ, KING and SMITH, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed

in the above entitled and numbered cause be and the

same is hereby DENIED.

ENTERED FOR THE COURT:

‘s/ J. Smith

United States Circuit Judge

5a

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

Civil No. A-87-CA-881

ALBERT J. SMITH, JR., et al.

VS.

CITY OF BRENHAM,

a Municipal Corporation in Washington County, Texas

ORDER

{Filed June 22, 1988]

Before the Court are Defendant’s January 14, 1988

Motion to Dismiss, Plaintiffs’ February 22, 1988 response,

and Defendant’s March 2, 1988 reply, as well as Defend-

ant’s May 20, 1988 Amended Motion to Dismiss and June

7, 1988 supplemental brief. The Court has considered

the Motion, as well as the rest of the filings, and is of

the opinicn that the Motion is meritorious and should be

Granted.

Plaintiffs filed their complaint on December 23, 1987

requesting injunctive relief and attorney’s fees pursuant

to 42 U.S.C. § 1983. Plaintiff’s claim that the Defend-

ant’s proposed operation of a landfill facility in Wash-

ington County, Texas, near Plaintiffs’ residential prop-

erty will result in the diminution of the value of Plain-

tiffs’ property and a violation of Plaintiffs’ civil rights

under the United States Constitution. Plaintiffs also

made a request for monetary damages under Section 1,

Article 17 of the Texas Constitution; this cause falls

6a

within the Court’s pendent jurisdiction. On April 29,

1988, several other individuals owning land near the

vicinity of the proposed landfill filed a motion to inter-

vene in this lawsuit. The Court granted Intervenors’ mo-

tion on May 16, 1988.

It is undisputed that Defendant has not yet begun

operating the landfill in question. Plaintiffs state in their

February 22, 1988 brief that “this projected landfill oper-

ation is on the cusp of being operational,” while Inter-

venors state in their April 29, 1988 motion that “the

movants’ land will suffer additional adverse effects when

the City of Brenham actually begins operation of the

landfill.” The principle issue raised by the Defendant’s

Motion to Dismiss is whether Plaintiffs’ and Intervenors’

claims for relief are ripe for adjudication when the De-

fendant has yet to receive a permit from the State of

Texas to operate the landfill in controversy.

Specifically, Defendant argues that the Court should

dismiss this case because Plaintiffs filed the lawsuit pre-

maturely. Defendant claims that before a permit can be

granted, the Texas Department of Health must provide

an opportunity for a public hearing to the applicant (in

this case, the Defendant) and to all persons affected, i.e.,

Plaintiffs and Intervenors. See Tex. Rev. Civ. Stat.

Ann. art. 4477-7, §4(e) (4) (Vernon Supp. 1988); 19

Tex. Admin. Code §§ 325.93 and 325.94. If a permit is

granted, Plaintiffs and Intervenors may appeal to the

Travis County District Court. Tex. Rev. Civ. Stat. Ann.

art. 6252-138a (Vernon Supp. 1988). Defendant urges

this Court to refuse to intervene in this controversy and

interrupt the state administrative process which may af-

ford the Plaintiffs their requested relief.

In addition, Defendant argues that Plaintiffs’ suit for

damages under a taking theory is also premature under

the dictates of Williamson County Regional Planning

Commission v. Hamilton Bank, 105 S. Ct. 3108 (1985).

eo

7a

Defendant relies principally upon the following language

from the Williamson County decision:

A second reason the taking claim is not yet ripe

is that respondent did not seek compensation through

the procedures the State has provided for doing so.

... [I]f a State provides an adequate procedure for

seeking just compensation, the property owner can-

not claim a violation of the Just Compensation

Clause until it has used the procedure and been ‘de-

nied just compensation.

Id, at 3121. See also First English Evangelical Lutheran

Church v. County of Los Angeles, 107 S. Ct. 2378, 2384

n.6 (1987).

The doctrine of ripeness as enunciated by the Supreme

Court in Abbott Laboratories v. Gardner, 387 U.S. 136

(1967), requires the Court to evaluate both “the fitness

of the issues for judicial decision and the hardship to

the parties of withholding court consideration.” Jd. at

149. This Court must consider four factors:

1, Whether the issues presented are purely legal;

2. Whether the challenged action constitutes a final

agency action;

3. Whether there has been a direct and immediate

impact on the Plaintiff so as to require judicial

review; and

4. Whether immediate intervention by the Court

will delay or impede enforcement by the agency.

Id, at 148-52.

The Court concludes that Plaintiff’s claims are not

ripe for adjudication under both Williamson County and

Abbott Laboratories. Plaintiff has not sought compensa-

tion for the diminution in land values through available

state procedures. Plaintiff is not challenging a final

agency action.

-_- 7 _-- -—— = TS ee ~- =

8a

ACCORDINGLY, IT IS ORDERED that Defendant’s

Motion to Dismiss and Amended Motion to Dismiss are

GRANTED.

SIGNED and ENTERED this 21st day of June, 1988.

/s/ James R. Nowlin

JAMES R. NOWLIN

United States District Judge

9a

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

Civil No. A-87-CA-881

ALBERT J. SMITH, JR., et al.

vs.

CITY OF BRENHAM, et al.

ORDER

[Filed Sept. 14, 1988]

Before the Court are Intervenors’ July 5, 1988 Motion

for New Trial or Aiternatively, Motion to Alter or

Amend Judgment; Plaintiffs’ July 6, 1988 Motion for

Reconsideration of Order of Dismissal; as well as var-

ious responses and replies to these Motions. The Court

has considered these Motions and is of the opinion that

they are meritorious insofar as they seek an amendment

of the Court’s Order of Dismissal to reflect that the dis-

missal is without prejudice.

The Court finds Plaintiffs’ and Intervenors’ other

arguments without merit. Plaintiffs contend that their

claims for mental anguish and suffering are both ripe

and cognizable under McCullough v. Glasgow, 620 F.2d

47, 51 (5th Cir. 1980); and should have survived dis-

missal of the taking claim. In McCullough, the plaintiff

was entitled to recover damages for a heart attack suf-

fered as a consequence of the taking of property without

due process of law. Given that Plaintiffs’ claims for an

unconstitutional taking are premature, so are Plaintiffs’

claims for damages for mental anguish and suffering

that are premised upon the unconstitutional taking.

10a

Also before the Court are Intervenors’ July 5, 1988

Motion for Leave to File Amended Complaint, and Plain-

tiffs’ July 6, 1988 Motion for Reconsideration of Order

of Dismissal insofar as it seeks leave to amend Plain-

tiffs’ Complaint. The Court is of the opinion that these

motions have been filed belatedly and should be Denied.

ACCORDINGLY, IT IS ORDERED that Intervenors’

Motion for Leave to File Amended Complaint is

DENIED.

IT IS FURTHER ORDERED that intervenors’ Mo-

tion for New Trial is DENIED.

IT IS FURTHER ORDERED that Intervenor’s Mo-

tion to Alter or Amend Judgment is GRANTED; and

that an amended judgment is entered this day reflecting

that the dismissal is without prejudice.

IT IS FURTHER ORDERED that Plaintiffs’ Motion

for Reconsideration of Order of Dismissal is GRANTED

IN PART; and that an amended judgment is entered

this day reflecting that the dismissal is without prejudice.

The Motion for Reconsideration is DENIED insofar as

it seeks rescission of the Order of Dismissal.

SIGNED and ENTERED this 14th day of September,

1988.

/s/ James R. Nowlin

JAMES R. NOWLIN

United States District Judge

lla

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

Civil No. A-87-CA-881

ALBERT J. SMITH, et al.

VS.

CITY OF BRENHAM, e¢ al.

AMENDED JUDGMENT

IT IS HEREBY ORDERED, ADJUDGED AND DE-

CREED that Defendants’ Motion to Dismiss and

Amended Motion to Dismiss are GRANTED; and that

the above-numbered and styled cause of action is DIS-

MISSED WITHOUT PREJUDICE.

SIGNED and ENTERED this 14th day of September,

1988.

- /s/ James R. Nowlin

JAMES R. NOWLIN

United States District Judge

12a

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

No. A 87 CA 881

——_—_——_—_- —_—_—-

ALBERT J. SMITH JR.,

et uxor, JULIA SMITH,

Complainants

vs.

CITY OF BRENHAM,

A MUNICIPAL CORPORATION IN

WASHINGTON COUNTY, TEXAS

[Filed Dec. 23, 1987]

PARTIES

The Complaining parties are Albert J. Smith Jr. and

wife, Julia C. Smith (SMITHS), who reside in Harris

County, Texas and own property in Washington County,

Texas which is the subject of the dispute giving rise to

this litigation. They reside at 5555 Del Monte, Residence

2106, Houston, Texas 77056.

The Defendant, City of Brenham (BRENHAM) is a

Municipal Corporation formed under the Constitution

and laws of the State of Texas and maintains its princi-

pal offices at City Hall in Brenham, Texas where service

may be had by serving the Mayor of the City of Bren-

ham, Dorothy Flisowski-Morgan, or the City Manager,

Leonard Addickes at 210 N. Park, Brenham, Texas

77833.

13a

JURISDICTION

This suit for an injunction and attorney’s fees is

brought pursuant to 28 U.S.C. 1831; 28 U.S.C. 1343; 42

U.S. 1983; the Fifth Amendment to the United States

Constitution; and, the Fourteenth Amendment to the

United States Constitution. Federal questions are pre-

sented and the amount in controversy exceeds $10,000.00.

An alternative pendant jurisdictional claim for dam-

ages is also made under Article 1, Section 17 of the Con-

stitution of the State of Texas.

STATEMENT OF FACTS SUPPORTING CLAIMS

1. The Complainants (SMITHS) own about 176 acres,

more or less, in Washington County, Texas. This tract

has substantial improvements on it. The improvements

include a main house designed for residential purposes

as well as for business entertainment and leisure activi-

ties. There are also other buildings and accommodations

for carrying on farm and ranch activities and there are

separate living quarters for employees. The improve-

ments are recent and cost about $1,200,000.00 to con-

struct. The nature of the improvements as well as

SMITHS’ use of the premises is well known to the De-

fendant, City of Brenham.

2. The City of Brenham has acquired approximately

195 acres to own and operate a landfill facility directly

across a narrow forty foot county gravel road from

SMITHS’ property. This site will be used by BREN-

HAM to dispose of municipal household garbage; infec-

tious and pathological putrescible waste from the local

veterinarians, research facilities, and hospitals; certain

hazardous wastes, discarded tires, tree trimmings and re-

lated items; dead animals and slaughterhouse waste;

water supply treatment plant sludges; stable water treat-

ment sludges; asbestos waste; empty containers which

have been used for pesticides, herbicides, rodenticides

14a

and fungicides; and municipal hazardous waste for small

quantity waste generators. “Putrescible waste” as used

in this complaint means waste capable of being decom-

posed by anaerobic organisms with sufficient rapidity as

to cause nuisances from odors or gases and capable of

providing food, or attracting birds, animals or disease

vectors. “Vectors” as used herein means insects, snakes,

rodents or animals capable of mechanically or biologically

transferring a pathogen from one organism to another.

3. The City of Brenham has acknowledged in its ap-

plication for a landfill permit with the Texas Department

of Health and filed with the State of Texas, that “Blow-

ing refuse such as paper is a common nuisance associated

with landfill operations, particularly during periods of

high winds.” Because of the proximity of SMITHS’ prop-

erty, it is inevitable that the operation will cause the

littering of SMITHS’ property. The City of Brenham

likewise acknowledges in its application that roadside

litter and litter of the landfill itself will be controlled

only by policing the areas on Wednesdays which would

allow litter to collect six days per week and be free to

blow upon and litter SMITHS’ property the balance of

the time. The Texas Litter Abatement Act, Art. 4477-

9, V.T.C.S. establishes 1000 feet as the distance landfills

must be located from Interstate Highways and primary

highways lest they generate litter. By this standard ap-

proximately 35 acres of the SMITHS’ property is sub-

ject to the hazard of litter. The zone extends to the land

immediately surrounding the SMITHS’ improvements.

4. The operation of the dump will cause vultures and

other birds to congregate and flock in the area. This

phenomenon is such a nuisance that the City of Bren-

ham points out in its application that there are no pub-

lice access airports within seven miles and no private

airstrips within one mile of the site since this is a fact

which they must show in order to gain a permit due to

other governmental regulations which relate to airports.

15a

The same flocking birds will affect and interfere with

SMITHS’ lawful use of their property. The area af-

fected by flocking birds is defined in FAA Agency Order

5200.5 “Guidance Concerning Sanitary Landfills on or

Near Airports” is a ten mile radius around the landfill.

All of the SMITH property is within less than one mile

from the landfill and the entire frontage of the property

is within 90 feet of the landfill burial pits.

5. Access to the site will be over Brenham County

Road 89 which borders the full width of SMITHS’ prop-

erty, 1548 feet. All of Complainants’ property will be

equally affected along the entire road frontage and

SMITHS have no other alternative for access to their

property except by using said roads. The landfill site is

on the side of a hill and the entire scope of the excava-

tion and burial activities will be highly visible from the

SMITH property. The view of unburied and buried gar-

bage, the conduct of the routine landfill operation is so

aesthetically disturbing to persons of ordinary sensitiv-

ity as to be so offensive as to constitute a nuisance which

has resulted in substantial damage to SMITHS’ property

and will continue to do so.

6. The City of Brenham has stated in their operating

plan to allow free access to the public and the truck traf-

fic will include not only the trucks of the City of Bren-

ham, but private commercial haulers and individual citi-

zens at large—in short the public in general. The addi-

tional and extraordinary traffic of garbage trucks with

their own attendant odors, noise, dust and vibration con-

stitute a nuisance and will cause SMITHS’ property to

be less valuable.

7. The City of Brenham has declared that it will

maintain a minimum of fifty feet set back line from the

adjacent property line. Added to the right of way, this

places the Complainants’ property only 90 feet from

where the City of Brenham has applied to dig pits and

bury the materials described above. The operation will

16a

be fenced with barb wire which is not calculated to be

an effective control for blowing litter, nor will it control

‘he disease vectors drawn by the operation from invading

SMITHS’ property. The health hazards imposed by this

facility being adjacent to SMITHS’ property constitute a

nuisance and result in damage to the SMITHS’ prop-

erty.

8. Should the City of Brenham commence operations

pursuant to the plan submitted to the Texas Department

of Health, the operation will constitute a public nuisance

and a taking without just compensation. As the mate-

rial putrefies, the foul odors will drift over SMITHS’

property. Litter will blow over their property. Flocking

birds will interfere with SMITHS use and enjoyment of

their property and improvements. The rumble of gar-

bage trucks of the City and the general public will de-

stroy the peace and tranquility of SMITHS’ property

with their vibrations, dust and noise. While SMITHS

do not challenge the right of the sovereign to operate a

dump, SMITHS do contend that their property will be

used as a buffer for the property of others for this nui-

sanee when it has not been condemned nor purchased;

that the entire value of SMITHS’ improvements will ef-

fectively have been destroyed and irreparable harm will

continue to flow from the acts of the City of Brenham.

The SMITHS’ property has been reduced and their prop-

erty taken by the act of the City in filing for the permit

to operate the landfill described. Additional damage will

result from the actual operation. Property of the

SMITHS has been taken and damages have resulted to

the SMITHS by the policy of the BRENHAM to own

and operate a landfill across the road from the SMITHS.

They are entitled to compensation as provided by the

Fifth Amendment to the Constitution and the Fourteenth

Amendment to the Constitution of the United States of

America.

17a

9. The official policy of the City of Brenham is to op-

erate a landfill as stated herein. Such operation and ap-

plication for such operation without either acquiring

easements for the use of SMITHS’ property or without

condemning and acquiring SMITHS’ property is a viola-

tion of the rights of SMITHS secured by Title 42, Sec-

tion 1983 of the United States Code, (Civil Rights Act of

1871) and the Fourteenth and Fifth Amendments to the

Constitution of the United States of America.

10. Claim is further made that the SMITHS have been

denied due process of law under the Fourteenth Amend-

ment in that the Texas Department of Health Regula-

tions required that public hearings be held prior to the

acquisition of any site for a municipal landfill. No such

hearings were held, instead the city of Brenham sought

to keep the site selection process from public knowledge

until the property was acquired. This failure to follow

the Texas Department of Health Regulations denied

Complainants the right to be heard and is further cause

for injunctive relief and damages pursuant to 42 U.S.C.

1983.

11. Claim is further made by the SMITHS under Art.

1, Section 17 of the Constitution of the State of Texas,

which mandates that property damaged by the operation

of a public facility shall be compensated, and this Court

has jurisdiction to adjudicate damages due to the

SMITHS under the doctrine of pendant jurisdiction.

12. Pursuant to the provisions of the Civil Rights At-

torney’s Fees Awards Act of 1976, 42 U.S.C. 1988, the

SMITHS are entitled to recover attorney’s fees as the

prevailing party. In that connection they would show

that they did employ Craig C. Cantey Jr., a lawyer, to

represent them and have agreed to pay his professional

fees at the rate of $250.00 per hour and expenses in con-

nection with the prosecution of this matter in their

behalf.

18a

RELIEF DEMANDED

A. SMITHS pray that upon a final hearing that the

City of Brenham be enjoined from proceeding with the

operation of the dump on the site which they acquired

across the road from SMITHS’ property because they

have neither condemned SMITHS’ property by the power

of eminent domain nor have paid SMITHS such sum as

this Court may determine to be adequate to compensate

SMITHS for the damages due them. To allow BREN-

HAM to proceed with their announced policy would vio-

late the SMITHS’ Civil Rights and an injunction prop-

erly lies to protect the Civil Rights of the SMITHS un-

der the provisions of the United States Constitution and

Statute cited above.

B. SMITHS pray that upon a final hearing that this

Court determine and award such damages as_ the

SMITHS may show themselves entitled to because of the

proposed operation of the sanitary landfill or dump in

such close proximity to the SMITHS’ property under

Section 1, Article 17 of the Texas Constitution.

C. SMITHS pray that they have and recover attor-

ney’s fees and costs expended as provided by 42 U.S.C.

1988, Civil Rights Attorney’s Fees Awards Act of 1976.

D. SMITHS pray for general and special relief, and

their costs in this behalf expended.

Respectfully submitted,

/s/ Craig C. Cantey

CRAIG C. CANTEY, JR.

State Bar No. 03763000

Courthouse Square 116 S. Park

Brenham, Texas 77833-3645

(409) 836-3645

Attorney for Complainants