# Petition for Writ of Certiorari — Smith v. City of Brenham > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1416%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1989 - **Citation:** 493 U.S. 813 ## Text [—— | Supreme Court, is | | SR. 3 FILE °-19] 3X Tl wwe 26 en 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 cae csccsssnsacnseccneeeneeeen 1 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1416%3A1. Public record. Not legal advice.