# Opposition Brief — Madero Development & Construction Co. v. City of El Paso

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1992
- **Citation:** 502 U.S. 1073

## Text

ep, Supreme Court, U.S
91-901 FILLED
ig DEC 31 1990
No. 91-101
OFFICE OF tHE CLERK
In The

Supreme Court of the United States

October Term, 1991
r

MADERO DEVELOPMENT AND CONSTRUCTION
COMPANY, INC., a Texas Corporation,
and CHAPARRAL EQUITY CORPORATION,
a Texas Corporation,

Petitioners,
V.

CITY OF EL PASO, TEXAS,
a Municipal Corporation, and
CITY PLAN COMMISSION,

Respondents.

¢

Petition For Writ Of Certiorari To The
Court Of Appeals Of Texas,
Eighth District, El Paso, Texas

¢

RESPONDENTS’ BRIEF IN OPPOSITION
+

Ropert H. FReEILIcH

RICHARD G. CARLISLE

Terry D. MorGAN

FREILICH, LEITNER, CARLISLE
_& SHORTLIDGE

1000 Plaza West

4600 Madison

Kansas City, Missouri 64112

(816) 561-4414

Counsel for Respondents

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831

=

QUESTIONS PRESENTED

In Madero Development and Constr. Co. v. City of El
Paso, No. EP-86-CA-403, slip op. (W.D. Tex. Dec. 21, 1988),
the United States District Court for the Western District
of Texas granted the City of El Paso’s motion for sum-
mary judgment dismissing Petitioners’ claims as unripe
under Williamson County Regional Planning Comm'n v.
Hamilton Bank of Johnson City, 473 U.S. 172 (1985) (requir-
ing, first, a final decision from the city applying its ordi-
nance to petitioners’ land and, second, a denial of jusi
compensation to petitioners by the state court). Peti-
tioners ignored the holdings of the District Court and
refused to seek a “variance from the Zoning Board of
Adjustment, the City Plan Commission, or the City Coun-
cil.” Slip op. at p.7.

Petitioners failed to appeal the District Court’s ruling
that they should seek a variance determination under
Texas law and, instead, filed the instant damages action
in state court. The Texas appellate court held that a
variance was available to Petitioners under Texas law and
that, accordingly, under state law the court was without
jurisdiction until Petitioners sought a final decision from
the City of El Paso.

The Texas court’s decision that Madero was required
to seek a final decision from the City of El Paso raises no
novel issues of federal law; nor does the decision of the
Texas courts in any way conflict with any other state or
federal decision. There is not even a hint that the State of
Texas — nor, for that matter, the City of El Paso — has acted
sO as to raise an important question of federal law.

ii
LIST OF PARTIES

Respondent City of El Paso, Texas, is a municipal
corporation organized under the laws of the State of
Texas. Respondent City Plan Commission is a public body
formed under the laws of the State of Texas and the El
Paso City Code.

ili

TABLE OF CONTENTS

Page

OO 8 Bg i

| ene sc ccsesvevcscecscccresus: ii

(ig SO > ere iii

ee ee 1

Nt hk boi us sm a Visio oa dos sseee ses 1
CONSTITUTIONAL PROVISIONS, STATUTES AND

6 8 2 1

a BE ad rn 2

A. Respondents’ Statement of Facts............. 2

B. Misstatements of Fact in Petitioners’ Statement

O60 —— eR ese An A ,

ee oun Dic eo es ¥ os 8
Surmamemey Gir ARGUMENT.............-.ececcee: Yy
a e.g hg Ace vw viet ewes’ 10

I. PETITIONERS WAIVED ANY CHALLENGE
TO THE FACIAL VALIDITY OF THE REGU-
cect utvcen vane 10

II. BECAUSE A STATE CONSTITUTIONAL REM-

EDY IS AVAILABLE, PETITIONERS’ FED-

ERAL TAKING CLAIM HAS NOT MATURED.
EES gee OL Eh oon ec ena 12

II. A DEVELOPMENT APPLICATION AND
FINAL DECISION ARE REQUIRED. ........ 15

i

iv

TABLE OF CONTENTS —- Continued
Page

IV. EVEN IF THE COURT OF APPEALS
REACHED THE FEDERAL RIPENESS QUES-
TION, IT CORRECTLY RULED THAT RIPE-
NESS IN THE CONTEXT OF AN AS
APPLIED REGULATORY TAKING CLAIM IS
JURISDICTIONAL UNDER FEDERAL LAW.
NO TAKING CLAIM ACCRUES UNTIL RIPE-
NESS REQUIREMENTS ARE SATISFIED..... 17

A. Ripeness goes to Article III case or con-
Sy ee rT Peery 17

B. The decision in First English had no effect
on jurisdictional prerequisites of a taking
CU save che postin a eres eratad ertsnes 22

C. If an Article III case or controversy does
not exist, prudential considerations are
SING kino i otucs wide soe eee cnn ss 22

V. THERE IS NO CONFLICT BETWEEN FED-
ERAL RIPENESS RULINGS AND EXHAUS-
TION OF REMEDIES DOCTRINE. ........... 24

VI. THIS CASE PRESENTS NO OCCASION FOR
THE SUPREME COURT TO RECONSIDER
THE FUTILITY EXCEPTION TO THE RIPE-
NESS DOCTRINE ANNOUNCED IN MAC-

; UNIS or ve eed een isce ee rs 26
PIII ca eve ahve vueuaceeeererrinssene 27
| MII os ca oe sn oh ce dncans: aver rer revere l-a

TABLE OF AUTHORITIES
Page

Cases
Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) ...22, 23

Agins v. City of Tiburon, 447 U.S. 255 (1980)
+4 sgh 9 hee oe aaa ree ode aie ee eee 16, 17, 18, 20

Ashwander v. ‘iennessee Valley Auth., 297 U.S. 288

CPN 5 Ss-0.c-0 no cues Seu ene eecakes cae nd geen 23
Beure-Co. v. United States, 16 Cl. Ct. 42 (1988)....... 27
Biddison v. City of Chicago, 921 F.2d 724 (7th Cir.

ON a5 SLES COUN ee beeen cane eae 14, 21
Ciampetti v. United States, 18 Cl. Ct. 548 (1989)...... 27

. City of Abilene v. Downs, 367 S.W.2d 153 (Tex. 1963) .... 13
City of Austin v. Teague, 570 S.W.2d 389 (Tex. 1978) .... 13
City of El Paso v. Madero Development, 803 S.W.2d

Fee Cl EA. TU, Fe Reece sete xcttcsak. 44,747, 21
Corn v. City of Lauderdale Lakes, 816 F.2d 1514 (11th

Tabs ci eerees ees Cad ees oe Ea ew Coen hee ee 27
de St. Aubin v. Flacke, 68 N.Y.2d 66, 505 N.Y.S.2d

a Re | ee er 27
First English Evangelical Lutheran Church v. County

of Los Angeles, 482 U.S. 304 (1987) ............. is; Se
Formanek v. United States, 18 Cl. Ct. 785 (1989)...... 27
Hodel v. Virginia Surface Mining & Reclamation

FOG 0, CGE Ee. a a vc ged cin nnscds 18, 19
Hoehne v. County of San Benito, 870 F.2d 529 (9th

CO FRR have case eck ucuce velar se niaeyeneie ayers os 27

Howlett v. Rose, 110 S. Ct. 2430 (1990)............... 15

vi

TABLE OF AUTHORITIES - Continued

Page
International Longshoremen’s Ass'n v. Davis, 476
ee | ere ere tee ac ye 13
Keystone Bituminous Coal Ass’n v. DeBenedictis, 480
Oe ere ers eee 11, 2, 21
MacDonald, Sommer & Frates v. County of Yolo, 477
Re UE MOO one ycidneieacen 16, 18, 19, 20, 25, 26
Madero Development and Constr. Co. v. City of El
Paso, No. EP-86-CA-403, slip op. (W.D. Tex. “Dec.
Beg HUE oc0ac ks ecde vs ka ate KEG aCe oe aks 1, 12
Mayhew v. Town of Sunnyvale, 774 S.W.2d 284 (Tex,
Sn ey meme irinet, Senpeyr 26
Michigan v. Long, 463 U.S. 1032 (1983)............ 13, 35
Miller v. Campbell County, 945 F.2d 348 (10th Cir.
ah ET EE Te ETO oa tae 14

Minnesota v. National Tea Co., 309 U.S. 551 (1940)....15
Molins PLC v. Quigg, 837 F.2d 1064 (Fed. Cir. 1988),

cert. denied, 486 U.S. 1055 (1988).................. 23
Mondou v. New York, N.H.&.H. R.R. Co., 223 U.S. 1

SOE Cal ees Skee nates aves Fae he eee Tae Wee Oe 15
O’Shea v. Littleton, 414 U.S. 448 (1974)............... 18
Patsy v. Florida Board of Regents, 457 U.S. 496 (1982) .... 25
Payton v. New York, 445 U.S. 573 (1980) ............. 13
Pennell v. City of San Jose, 485 U.S. 1 (1988)......... 19
Poe v. Ullman, 367 U.S.. 497 (1961)...........0...0005. 23

Preseault v. Interstate Commerce Comm'n, 110 S. Ct.
Sr ae nee aT ee 18

vii
TABLE OF AUTHORITIES - Continued

Rescue Army v. Municipal Court, 331 U.S. 549 (1947) .... 23
Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984)..... 18
Samaad v. City of Dallas, 940 F.2d 925 (5th Cir. 1991) .13, 21

Schnuck v. City of Santa Monica, 935 F.2d 171 (9th
es BIRR INE Re an ee are ROCs Er ae 13

Socialist Labor Party v. Gilligan, 406 U.S. 583 (1972)... . 23

Southern Pac. Transp. Co. v. City of Los Angeles, 922
F.2d 498 (9th Cir. 1990), cert. denied, 112 S.Ct. 382

| UE RR POON Pan EN OM a REM ee oS eae 21
Suess Builders Co. v. City of Beaverton, 295 Or. 254,

ee Sy AUPE oe od Sein 604s Gen pete e es tees 14
Village of Euclid v. Ambler Realty Co, 272 U.S. 398

ALi ce hchnasinGhnSus iene vinesiTeCenre ne vse 11

Williamson County Regional Planning Comm'n v.
Hamilton Bank of Johnson City, 473 U.S. 172

itt Nara ss fare ue aur epaeen ones ees passim
Zacchini v. Scripps-Howard Broadcasting Co., 433
SA SONU ere ies arnsraseederes boner yes 15

PROCEDURAL RULES

OPINIONS BELOW

Petitioners’ Petition omits the relevant opinion of the
United States District Court for the Western District of
Texas in the case styled Madero Development and Construc-
tion Co. v. City of El Paso, No. EP-86-CA-403 (Dec. 21,
1988). That opinion, which is unreported, is included in
Respondents’ Appendix, at p.l-a. The other relevant
opinion, City of El Paso v. Madero Development, 803 S.W.2d
396 (Tex. Ct. App. 1991), is contained in Appendix A of
the Petition for Writ of Certiorari.

+

JURISDICTION

Petitioners have failed to allege a constitutional vio-
lation invoking the jurisdiction of this Court since the
mere enactment of the City’s zoning ordinance does not
violate the Just Compensation Clause of the Fifth Amend-
ment or any other section of the United States Constitu-
tion. Further, the Constitution of the State of Texas
provides a compensation remedy, which Petitioners have
not yet pursued.

¢

CONSTITUTIONAL PROVISIONS, STATUTES
AND ORDINANCES INVOLVED

The Fifth Amendment to the United States Constitu-
tion provides in pertinent part as follows:

No person shall. . . be deprived of life, liberty,
or property, without due process of law; nor
shall private property be taken for public use,
without just compensation.

The Fourteenth Amendment to the United States
Constitution provides in pertinent part as follows:

No State shall make or enforce any law which
shall abridge the privileges or immunities of
citizens of the United States; nor shall any State
deprive any person of life, liberty, or property,
without due process of law .. .

Article I, § 17 of the Texas Constitution provides in
pertinent part as follows:

No person’s property shall be taken, damaged
or destroyed for or applied to public use with-
out adequate compensation being made, unless
by the consent of such person; and, when taken,
except for the use of the State, such compensa-
tion shall be first made, or secured by a deposit
of money...

Pertinent provisions of the City of El Paso Ordi-
nances and Texas Local Government Code are attached as
Appendices “D” and “E” respectively, of the Petition for
Writ of Certiorari.

STATEMENT OF THE CASE
A. Respondents’ Statement of Facts

Petitioner’s Statement of the Case fails to specify the
stage in the proceedings, both in the District Court and in
subsequent proceedings, at which the Questions Pre-
sented for Review were raised or to otherwise comply
with the provisions of Supreme Court Rule 14.1(h). Fur-
ther, Petitioners’ Statement of the Case is argumentative,

fails to cite the record below, and presents a misleading
and inaccurate account of the facts regarding their litiga-
tion against the City of El Paso in the federal and state
courts.

Respondents do not accept Petitioners’ statement of
the facts of this case and would substitute the following
statement:

Petitioners in this case, Madero Development and
Construction Co. and Chaparral Equity Corp., allege that
the rezoning of their property by the City of El Paso to
Planned Mountain Development (PMD) constituted a
compensable taking.

Richard Miller purchased 100 acres on Crazy Cat
Mountain in the City of El Paso in the late 1960s, (SF
929).! Miller obtained rezoning for 67 acres of the prop-
erty from R-3 to Planned Unit Development (Def.Exh. 1;
SF 957-958, 930), and received approval for two single-
family residential units per acre in a development known
as “Sierra Crest,” (Def.Exh. 2; SF 965). The remaining 33.9
acres retained the R-3 zoning classification, (SF 283-285,
508). Subsequently, Miller built several single family resi-
dences in Sierra Crest and sold all remaining lots, (SF
971-972).

At the public hearing for Miller’s rezoning, the Kern
Place Association voiced opposition to the project based
on environmental and safety considerations, (SF 963-964).
Rolando Madero, who was employed as Miller’s urban

' For the purposes of this brief and in compliance with
Tex. R. App. P. 74(f) (1989), the trial court records will be
designated: SF — Statement of Facts; Def.Exh. - Defendant's
Exhibit; Pl.Exh. — Plaintiff's Exhibit; Tr. —- Transcript.

designer at the time, was aware of the neighbors’ opposi-
tion to development of the property, (SF 490-491, 967).
Madero purchased the remaining 33.9 acres from Miller
for $200,000 in 1979, (Def.Exh. 82; SF 295). This parcel
ultimately became known as Madero Hills and is the
subject of this law suit.

In February of 1982, Madero sold 1.417 acres of the
parcel to Jorge Angulo for development purposes,
(Def.Exh. 88; SF 292). In 1984, Madero sold approximately
one quarter of an acre of the property he owned in fee
simple, (Def.Exh. 141; SF 293, 1262, 810). After these sales,
Madero Hills currently consists of approximately 32
acres, (Def.Exh. 66; SF 1261-1265). Of that 32 acres, Miller
owns 20 acres due to partial foreclosure after Madero
defaulted on the purchase money mortgage loan,
(Def.Exh. 86; SF 936, 937, 946).

Madero sought to subdivide the property under the
R-3 zoning, resulting in preliminary approval by the City
Planning Commission (CPC) of the first phase of Madero
Hills in July, 1981, consisting of two single family and
four duplex units on 1.87 acres of land, (PI.Exh. 30; SF
340, 671). (Miller took no part in efforts to develop Mad-
ero Hills, (SF 671, 942, 967)). Preliminary approval of Unit
One was conditioned in part on submission and approval
of a drainage study, (P1.Exh. 30).

Following a request by the CPC, Madero submitted
an application for preliminary approval of a Master Plan
for all of Madero Hills in November, 1981, (P1.Exh. 32,
126; SF 344). The Master Plan proposed development of
77 lots in four phases over 33.9 acres, (PI.Exh. 32;

Def.Exh. 126; SF 614-618, 674-675). The CPC approved the
development concept in the Master Plan and granted
preliminary approval to phases two through four of the
plat in July, 1982, (Pl.Exh. 39, 42; SF 346, 677-679). All
approvals were subject to conditions, which were stan-
dard. Id.

In December, 1982, the CPC gave final conditional
approval to Unit One of Madero Hills, subject to subse-
quent approval of a geological study for the site, a street
drainage plan and a grading plan, (Def.Exh. 29; SF
346-347, 682-683). Thereafter, Madero sought approval for
a revised final plat, with reconfigured “panhandle” lots,
(Def.Exh. 30, 152; SF 701-703, 707, 712). The CPC eventu-
ally approved a revised plat (December, 1983), subject to
similar conditions as imposed on the original plat,
(Def.Exh. 34, 37, 38; Pl.Exh. 55; SF 713, 714, 1391-1392).

The City Council conditionally approved Madero’s
Mountain Development Area (MDA) grading permit
application for Unit One, following appeal from CPC
approval by the Kern Place Association, in July, 1984,
(P1.Exh. 65, 77). Madero did not meet the conditions
attached to the grading permit, (P].Exh. 84; SF 809,
1035-1036, 1316-1318). All engineering work on the pro-
ject by Madero ceased following the City’s conditional
approval of the grading permit, (SF 808, 1316-1317).

Madero did not take further steps required by City
ordinance to obtain final plat approval for Units Two,
Three and Four of Madero Hills. Madero did not meet the
conditions attached to the final plat for Unit One and did
not record the plat with the El Paso County Clerk, as
required by City subdivision regulations and state law,
(SF 1391-1392, 1423-1424, 1475). On August 13, 1985, the

City notified Madero that his subdivision file for Unit
One was closed officially due to inactivity for more than
one year and that, pursuant to the subdivision ordinance,
approval had lapsed, (P1.Exh. 83; Def.Exh. 106, VI D.1; SF
1403-1404). Thus Petitioners by their own inaction did not
even complete processing of the development application
under the former ordinance no less the new ordinance
under attack.

The City Council passed the PMD Ordinance on
December 4, 1984,? (P].Exh. 1, Ord. No. 8226.3). The pur-
poses of the PMD district are:

(1) to protect significant natural features of the
Mountain Development Area and preserve
the City’s unique visual setting as part of
the comprehensive plan;

(2) to provide an alternative approach to con-
ventional flatland development by allowing
transfer of residential densities through
clustering of dwellings in order to preserve
larger areas of open space;

(3) to minimize scarring and disturbances of
the natural character of the Mountain
Development Area through control of gra-
ding and cut/fill operations as defined in
the Grading Ordinance;

(4) to control water runoff and soil erosion;

(5) to provide a safe means of ingress and
egress for vehicular and pedestrian traffic
to and within the Mountain Development
Area; and

2 This ordinance is reprinted as Appendix D of the Petition
for Writ of Certiorari.

(6) to encourage sound engineering practices
related to mountain development.

On January 14, 1986, the City Council rezoned all
property within the MDA to PMD, except for those prop-
erties that fell within an exemption, (P].Exh. 2, Ord. No.
8561). The majority of Madero Hills was zoned PMD;
however, a portion of Unit One remains R-3, (SF 800-802,
811-813, 1262-1263). Madero Hills was one of several
hundred properties rezoned to PMD on January 14, (SF
1351, 1255).

Under the PMD Ordinance, the density of develop-
ment is related, in part, to slope of the land, (Appendix D,
PMD Ord. §§ 25-24.8, -24.9, -24.10). Madero Hills has an
average slope of forty-eight (48%) percent, (P1.Exh. 90; SF
457). Under the PMD and R-3 zoning, Madero can
develop up to 26 single family residential units on the
property without obtaining variances, (SF 1243,
1260-1265). In addition, the PMD Ordinance authorizes,
as uses permitted by right, multiple-family and duplex
residential development and recreational facilities,
(Appendix D, PMD Ord. § 25-24.4; SF 1185). The ordi-
nance further authorizes by special permit other uses,
such as resort lodging, retail shopping facilities and thea-
ters, (Appendix D, PMD Ord. § 25-24.7; SF 1185). Madero
did not make application for any use under the PMD
regulations, nor did Madero make application for a vari-
ance or special permit to the Zoning Board of Adjust-
ment, (SF 830-831; City’s Bill of Exceptions, Exh. B, City
Code §§ 2.16.010 et seq., Vol. IV, Tr. 1381-1383 (Addendum
B); Exh. E, Vol. IV, Tr. 1583-1588).

Instead, Madero directly filed suit in the United
States District Court for the Western District of Texas,
alleging that the rezoning of Madero Hills constituted a
taking of their property without just compensation. In
late December, 1988, the federal District Court dismissed
Madero’s suit as unripe. Specifically, the court ruled that
Madero had failed to utilize either the variance pro-
cedures authorized by state and local laws or the state
court procedures for just compensation.

Less than a month later, Madero filed essentially the
same action in state court, without returning to the City
to process the application under the PMD Ordinance or to
seek a variance from the PMD Ordinance. Madero was
successful at trial, but the judgment was reversed by the
Texas Court of Appeals on grounds of ripeness.

B. Misstatements of Fact in Petitioners’ Statement
of the Case

In addition to omitting pertinent facts, Petitioners’
Statement of the Case contains factual inaccuracies and
argumentative conclusions which require a response.

1. On pages 4 and 5 of the Petition, Petitioners
allege that Unit One of Madero Hills was subjected to
unusual and impossible conditions. In fact, the approval
of Unit One was subject only to standard development
conditions, imposed by Respondents for health and safety
reasons. (PI.Exh. 30; Def.Exh. 29; SF 346-347, 682-683). Peti-
tioners adduced no evidence at trial to prove that these
conditions were either out of the ordinary or impossible to
meet.

2. On page 5, Petitioners argue that the approval of
Unit One was wrongfully terminated. Respondents res-
cinded their approval of Unit One due to Petitioners’
inaction on the project for over a year and their failure to
meet the conditions imposed upon that approval. More-
over, Petitioners failed to record a final plat with the E]
Paso County Clerk, as required by state and local law.
(PILExh. 84, SF 809, 1035-1036, 1316-1318, 1391-1392,
1423-1424, 1475).

3. The statement on page 6 that “[i]t was not eco-
nomically feasible to subdivide Madero Hills into only
eleven lots” is merely Petitioners’ legal opinion. Given
that Petitioners never attempted to develop their prop-
erty under the PMD Ordinance, this conclusion has no
basis in fact or law. (SF 830-831; City’s Bill of Exceptions,
Exh. B, City Code §§ 2.16.010 et seq., Vol. IV. Tr. 1381-1383
(Addendum B); Exh. E, Vol. IV. Tr. 1583-1588).

4. Contrary to the misstatement on page 6, Peti-
tioners failed to present any competent evidence of futil-
ity. The testimony of certain city council members was
ruled to be incompetent evidence by the Texas Court of
Appeals. Moreover, Petitioners’ claim that the Zoning
Board of Adjustment is powerless to grant Petitioners a
variance is a legal conclusion rejected by the Texas Court
of Appeals.

SUMMARY OF ARGUMENT

There are no grounds on which to accept review of
the state court decision, based on the following points:

10

1. The Texas Court of Appeals’ disposition of this
case on grounds of ripeness was premised upon Article I,
Section 17, of the Texas Constitution. No federal or state
taking claim is mature because an adequate state compen-
sation remedy exists under the Texas Constitution and
Petitioners were free to pursue such remedy and totally
failed to do so.

2. Even if the Texas Court of Appeals reached the
federal ripeness issue concerning the availability of local
remedies, the court correctly applied the federal ripeness
doctrine.

3. Ripeness of an as applied regulatory taking claim
goes to the subject matter jurisdiction of the court, both
under state law and federal law. No taking claim accrues
until such ripeness requirements are satisfied.

4. This case presents no occasion for the Supreme
Court to reconsider the futility exception to the ripeness
doctrine.

ARGUMENT

I. PETITIONERS WAIVED ANY CHALLENGE TO
THE FACIAL VALIDITY OF THE REGULATIONS

Petitioners pleaded and tried this case solely as an as
applied regulatory taking claim. Petitioners expressly
waived any challenge to the facial validity of the Planned
Mountain Development regulations as expressly
acknowledged by their appellate brief:

(1) Appellees filed this inverse condemnation
action alleging, among other things, that

11

the PMD Zoning Ordinance, as applied to
Madero Hills, constituted a taking without
compensation in violation of the Texas Con-
stitution, Article 1, Section 17, and the Fifth
and Fourteenth Amendments of the United
States Constitution. (Petitioners’ Brief to
Texas Court of Appeals, June 15, 1990, page
XI);

(2) The trial court expressly found that the
application of the PMD to Appellees prop-
erty constituted a compensable “taking.”
The jury in this case also found that a “tak-
ing” had occurred. Appellants’ arguments
under this point of error concerning a facial
attack of the PMD Zoning Ordinance are not
before this Court. (emphasis supplied). Peti-
tioners’ Brief to Texas Court of Appeals,
June 15, 1990, page 29).

The Texas Court of Appeals disposed of Petitioners’ claim
for want of subject matter jurisdiction under Article I,
Section 17, of the Texas Constitution (the taking clause).

Unlike Village of Euclid v. Ambler Realty Co., 272 US.
398 (1926), this case does not involve issues concerning
the facial or general validity of the PMD regulations or
heir relationship to public health and safety, as in Key-
stone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470
(1987). Such matters were conceded during trial. Conse-
quently, the Texas Court of Appeals reviewed only an “as
applied” regulatory taking claim in reaching its decision.

12

II. BECAUSE A STATE CONSTITUTIONAL REMEDY
IS AVAILABLE, PETITIONERS’ FEDERAL TAK-
ING CLAIM HAS NOT MATURED.

In Madero Development and Constr. Co., Inc. v. City of El
Paso, No. EP-86-CA-403, slip op. (W.D.Tex. Dec. 21, 1988)
(Appendix at p.1-a), the United States District Court for
the Western District of Texas granted the City of El Paso’s
motion for summary judgment dismissing Petitioners’
claims as unripe. The court held that Madero had failed
to obtain a final decision from the City applying its
Planned Mountain Development Ordinance to Madero’s
land. The court further held that Madero had adequate
state remedies available. Accordingly, both prongs of Wil-
liamson County Regional Planning Comm'n v. Hamilton Bank
of Johnson City, 473 U.S. 172 (1985) were applied to Mad-
ero. Instead of filing an appeal of the District Court’s
holding or seeking a variance from the City, Madero
instead filed a damages action in state court. In the litiga-
tion that followed, the Texas Court of Appeals held,
under Texas law, that a variance was available to Peti-
tioners and, again under Texas law, that Madero’s claims
were unripe under Article I, Section 17, of the Texas
Constitution. As with Madero’s federal action, its state
claim was dismissed without prejudice.

Madero failed to file an appeal of the District Court’s
decision which, as a matter of federal law, was due within
30 days after the decision. F.R.App.P. 4(a)(1). As dis-
cussed above, the Texas Court of Appeals determined, as
a matter of state law, that Madero’s claim for just compen-
sation was premature. The state court determination as to
Madero’s claims under the Texas Constitution is purely a

13

matter of state constitutional law, unreviewable by this
Court. International Longshoremen’s Ass'n v. Davis, 476 U.S.
380, 387 (1986) (“[W]e have no authority to review state
determinations of purely state law.”); Michigan v. Long,
463 U.S. 1032, 1041 (1983) (“It is fundamental that state
courts be left free and unfettered by us in interpreting
their state constitutions.”); Payton v. New York, 445 U.S.
573, 600 (1980) (“[B]y invoking a state constitutional pro-
vision, a state court immunizes its decision from review
by this Court.”).

Moreover, this state court determination of its own
jurisdiction does not alter the fact that Texas law provides
an adequate monetary remedy in the event that state land
use regulations constitute a taking. See Samaad v. City of
Dallas, 940 F.2d 925, 935-36 (5th Cir. 1991); City of Austin v.
Teague, 570 S.W.2d 389 (Tex. 1978); City of Abilene v.
Downs, 367 S.W.2d 153, 159 (Tex. 1963). Following this
Court’s ruling in First English Evangelical Lutheran Church
v. County of Los Angeles, 482 U.S. 304 (1987), all state
courts must obviously provide monetary relief for tempo-
rary takings. See Schnuck v. City of Santa Monica, 935 F.2d
171, 173 (9th Cir. 1991).

Because the State of Texas provides an adequate pro-
cess for obtaining just compensation, there can be no
taking under the Fifth Amendment unless and until the
landowner has appropriately utilized the state’s pro-
cedures for obtaining just compensation. Williamson
County, 473 U.S. at 194-97. In Williamson County, this
Court explained that the Fifth Amendment does not
require that “just compensation be paid in advance of, or
contemporaneously with, the taking; all that is required is
that a ‘reasonable, certain and adequate provision for

14

obtaining compensation’ exist at the time of taking.” 473
U.S. at 194. Thus, as a matter of law, “no constitutional
violation occurs until just compensation has been denied
[by the state].” 473 U.S. at 194 n.13. See also Biddison v.
City of Chicago, 921 F.2d 724, 729 (7th Cir. 1991) (“His
federal claim will ripen . . . if and when Biddison is
denied just compensation by the state courts.”); Miller v.
Campbell County, 945 F.2d 348, 352 (10th Cir. 1991)(“In the
instant case, the plaintiffs have pending under Wyoming
law an inverse condemnation action to recover compen-
sation for the loss of their homes. . . . Because the plain-
tiffs have not yet been turned away empty-handed, it is
not clear whether their property has been taken without
just compensation.”); see also Suess Builders Co. v. City of
Beaverton, 295 Or. 254, 656 P.2d 306 (1982). As the District
Court resolved herein, as a matter of federal law, Mad-
ero’s takings claim is not ripe at this time.

The Texas Court of Appeals dismissed Madero’s
claims because, as a matter of state law, the trial court
lacked subject matter jurisdiction. Specifically, the court
held that because Madero failed to apply for a variance
from the PMD Ordinance, its inverse condemnation
claims are not ripe, and under Texas law ripeness goes to
a court’s subject matter jurisdiction. City of El Paso v
Madere- Development, 803 S.W.2d 396, 399-400 (Tex. Ct.
App. 1991).

While the court relied on certain opinions of this
Court regarding the ripeness issue in inverse condemna-
tion cases, in determining the ultimate issue of subject

matter jurisdiction the court relied exclusively on Texas
state opinions. Thus, in citing federal opinions, the court
relied on them not as binding precedents on the state law

15

issue, but as guidance in the same way the court might
rely on the opinion of another state court. Nothing in the
opinion suggests that the Texas court dismissed Madero’s
cause because it “felt compelled by what it understood to
be federal constitutional considerations to construe . . . its
own law in the manner it did.” Michigan v. Long, 463 U.S.
at 1044 (quoting Zacchini v. Scripps-Howard Broadcasting
Co., 433 U.S. 562, 568 (1977)). See also Minnesota v. National
Tea Co., 309 U.S. 551, 556 (1940)(“It is possible that the
state court employed the decisions under the federal
constitution merely as persuasive authorities for its inde-
pendent interpretation of the state constitution. If that

were true, we would have no jurisdiction to review.”)

Under principles of federalism and comity, it has
long been understood that states are free to control and
define the jurisdiction of their courts without interference
from federal law. Even in cases where federal claims are
present, federal law does not “enlarge or regulate the
jurisdiction of state courts, or . . . control or affect their
modes of procedure.” Howlett v. Rose, 110 S. Ct. 2430, 2441
(1990) (quoting Mondou v. New York, N.H.&.H. R.R. Co.,
223 U.S. 1, 56 (1912)).

Ill. A DEVELOPMENT APPLICATION AND FINAI
DECISION ARE REQUIRED.

The decision of the Texas Court of Appeals is entirely
consistent with the decisions of this Court relating to

ripeness. The court correctly declined to analyze the eco

nomic effect of the City’s zoning legislation on the basis

16

of hypothetical plans which were never presented to the
City.

As appears from the record, Petitioners had no pend-
ing development application on file with the City when
the Planned Mountain Development Ordinance was
enacted. Petitioners never submitted any development
application, much less a request for a variance or change
in zoning classification, following the adoption of the
PMD Ordinance. In fact, the only development applica-
tion which was ever finalized on the property was for the
first phase of a subdivision for approximately three per-
cent of the development site. Even this approval lapsed
for the Petitioners’ failure to satisfy reasonable conditions
prior to the rezoning.

The court did not rely upon this ground, however, in
disposing of Petitioners’ claim. Rather, the court held that
a variance procedure was available under Texas law and
under local ordinance by which Petitioners could obtain
relief from the PMD regulations. This holding, which is
based entirely on state law, must be given great respect
by this Court. MacDonald, Sommer & Frates v. County of
Yolo, 477 U.S. 340, 352 n.8 (1986); Agins v. City of Tiburon,
447 U.S. 255, 259 n.6, 262 (1980). In the complete absence
of a variance request and any development application,
the court refused to entertain Petitioners’ arguments that
the El Paso Zoning Board of Adjustment could not grant a
variance in harmony with the PMD Ordinance, stating:

There is then, a question of degree in determin-
ing whether a particular variance would violate
the spirit of the zoning laws. Some number of
density of lots over eleven may or may not [be
authorized], and that must be determined by the

17

zoning board of adjustment acting within its
guidelines. After this degree is attained, the
degree of taking can be arrived at. These
degrees not only affect whether there is a taking
but are relevant to the market value of the prop-
erty for the purposes of establishing damages, if
there is a taking.

City of El Paso, 803 S.W.2d at 401.

As recognized by the Texas Court of Appeals, this
fact pattern is precisely the reason why federal courts
fashioned ripeness requirements for regulatory taking
claims. The facts in this case present familiar ground,
which this Court and the lower courts have considered
and mandated that a development application and
attempts to obtain administrative relief from otherwise
harsh impacts are necessary prerequisites to review of
claims based upon the Just Compensation Clause of the
Fifth Amendment.

IV. EVEN IF THE COURT OF APPEALS REACHED
THE FEDERAL RIPENESS QUESTION, IT COR-
RECTLY RULED THAT RIPENESS IN THE CON-
TEXT OF AN AS APPLIED REGULATORY
TAKING CLAIM IS JURISDICTIONAL UNDER
FEDERAL LAW. NO TAKING CLAIM ACCRUES
UNTIL RIPENESS REQUIREMENTS ARE SATIS-
FIED.

A. Ripeness goes to Article III case or controversy.

This Court has unequivocally held that a develop-
ment application and a request for a variance or other

18

form of administrative relief normally are essential pre-
requisites to judicial review of an as applied regulatory
taking claim premised on the Fifth Amendment of the
United States Constitution. MacDonald, 477 U.S. at 351;
Williamson County, 473 U.S. at 194; Hodel v. Virginia Sur-
face Mining & Reclamation Ass‘n, Inc., 452 U.S. 264 (1981);
Agins, 447 U.S. at 261. The Court also has determined that
there can be no as applied regulatory taking claim as long
as there is a “reasonable, certain and adequate provision
for obtaining compensation at the time of the taking.”
Williamson County, 473 U.S. at 194.

It is undeniable that Article II] requires a plaintiff to
present a ripe controversy. O’Shea v. Littleton, 414 U.S. 488
(1974). In Agins, plaintiff’s failure to submit a develop-
ment application under the zoning ordinance in question
left plaintiff’s as applied takings challenge premature for
lack of a “concrete controversy.” 447 U.S. at 260. In Wil-
liamson County, plaintiff’s failure to seek a variance left it
“impossible for the jury to find, on this record, whether
respondent ‘will be unable to derive economic benefit’
from the land.” 473 U.S. at 172. Moreover, the Court
determined that until a landowner seeks compensation
through state procedures, it cannot be said that the state
has violated the Just Compensation Clause of the Fifth
Amendment: “Thus, the State’s action is not ‘complete’ in
the sense of causing a constitutional injury ‘unless or
until the State fails to provide an adequate postdepriva-
tion remedy for the property loss.’ ” 473 U.S. at 172. See
also Preseault v. Interstate Commerce Comm’‘n, 110 S. Ct. 914
(1990); Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984)
(taking claim against the Federal Government premature
until landowner has sought compensation under the
Tucker Act).

19

In MacDonald, the Court explained:

It follows from the nature of a regulatory tak-
ings claim that an essential prerequisite to its
assertion is a final and authoritative determina-
tion of the type and intensity of development
legally permitted on the subject property. A
court cannot determine whether a regulation
has gone “too far” unless it knows how far the
regulation goes.

477 US. at 348.

Likewise, in Hodel, the Court found plaintiff's takings
challenge unripe because it had failed to utilize the
administrative remedies available to obtain relief from
the operation of the statute in question and because
plaintiffs had failed to identify “any property in which
appellees have an interest that has allegedly been taken
by operation of the Act.” 452 U.S. at 294. Given these
facts, the Court concluded that the case “presented no
concrete controversy concerning either application of the
Act to particular surface mining operations or its effect
on specific parcels of land.” 452 U.S. at 295. See also
Pennell v. City of San Jose, 485 U.S. 1 (1988).

A synthesis of these opinions plainly shows that the
Court rejected the takings claim in these cases because
the plaintiffs were unable to demonstrate that they had
been injured in fact by the local government. In other
words, absent a final decision from the local government
and an unsuccessful attempt to gain administrative relief
therefrom, it is impossible to say that there has been a
taking, 1.e., an injury redressable under the Fifth Amend-
ment. And, until a landowner has unsuccessfully sought
compensation through state courts, the property owner

20

cannot as a matter of law claim a violation of the Fifth
Amendment; no such violation has occurred at that point.
In sum, until the requirements of Agins, MacDonald and
Williamson County are satisfied, as a matter of law a
landowner cannot demonstrate that his Fifth Amendment
rights have been violated.

Petitioners would have the Court hold that the mere
legislative enactment of a zoning ordinance renders the
controversy concrete as to the regulation’s economic
impact on the landowner’s use of the property. This
proposition was fully explored and rejected in Williamson
County, MacDonald and Keystone Bituminous, and does not
require reexamination in this case.

Such a view is totally inconsistent with the nature of
the development process. Zoning constitutes only the
initial step in development of property and, hence, realiz-
ation of economic return. The nature of the use and the
intensity of development on the property cannot be deter-
mined until an application for a development permit of
some kind has been acted upon. Hence, the Court's
requirement that a development application be submitted
pursuant to the allegedly offending zoning regulations
goes to the concreteness of the controversy, not to pru-
dential considerations. Further, under all state zoning
enabling acts, a variance procedure has been incorpo-
rated in the very fabric of the authorization for zoning. A
variance is not an extraordinary remedy, but is part and
parcel of the process of deciding the permissible use and
intensity of use of land.

This Court’s rulings on finality precisely apprehend
the nature of the development process under local zoning

21

laws. As this Court long has recognized, regulatory tak-
ings are fundamentally different from physical takings, in
that the police power actions of local governments consti-
tute only a restraint on the use of the property consistent
with the notion of “reciprocity of advantage.” Keystone,
480 U.S. at 488-93. This Court has ruled that a property
owner must at least proceed through the normal develop-
ment process before the effect of the actions of local
government officials can be ascertained. Such a standard
goes directly to the case or controversy requirement
under Article III.

The Texas Court of Appeals followed this reasoning,
stating:

It follows from the nature of a regulatory tak-
ings claim that an essential prerequisite to its
assertion is a final and authoritative determina-
tion of the type and intensity of development
legally permitted on the subject property. A
court cannot determine whether a regulation
has gone “too far” unless it knows how far the
regulation goes.

City of El Paso, 803 S.W.2d at 400.

Nor is there any reason to examine the application by
lower federal courts of this Court’s ripeness guidelines.
The circuits consistently and correctly hold that ripeness
goes to subject matter jurisdiction. See, e.g., Biddison v.
City of Chicago, 921 F.2d 724, 726 (7th Cir. 1991); Samaad v.
City of Dallas, 940 F.2d 925, 934 (5th Cir. 1991); Southern
Pac. Transp. Co. v. City of Los Angeles, 922 F.2d 498, 502
(9th Cir. 1990).

B. The decision in First English had no effec. on
jurisdictional prerequisites of a taking claim.

Petitioners assert that the Court’s decision in First
English Evangelical Lutheran Church »,.County of Los
Angeles, 482 U.S. 304 (1987), impliedly overruled this
Court’s decisions on ripeness issues. Petitioners argue
that the Court’s ruling on the availability of compensa-
tion for temporary regulatory taking claims affected its
previous rulings on ripeness, necessitating further clari-
fication by this Court.

The First English decision addressed only the ques-
tion of the availability of compensation in the event that a
regulatory taking under the Fifth Amendment is actually
found. The decision presumed that a taking already had
occurred, due to the unique posture of the case, and did
not question whether the controversy was ripe for review.
482 U.S. at 311-13. First English neither abrogates nor in
any way alters the Court’s previous decisions on ripeness
and has no bearing on this case.

C. If an Article III case or controversy does not
exist, prudential considerations are irrelevant.

Petitioners argue that the Texas Court of Appeals,
together with many other lower federal and state courts,
have misapprehended the federal ripeness doctrine. In

particular, Petitioners assert that the controlling case is
Abbott Laboratories v. Gardner, 387 U.S. 136 (1967), in
which the Court held that the ripeness doctrine is

23

founded both on Article III case or controversy require-
ments and on certain prudential considerations. Peti-
tioners falsely reason that reviewing courts are required
to examine prudential factors, such as the relative hard-
ship to the parties, in every ripeness claim.

It is ironic that Petitioners claim that the ripeness of
their claim should be evaluated under the prudential
considerations of Abbott Laboratories instead of the case or
controversy requirement of Article III, because these pru-
dential considerations enlarge the grounds for dismissing
cases. See Socialist Labor Party v. Gilligan, 406 U.S. 583, 588
(1972) (“This Court has recognized in the past that even
when jurisdiction exists it should not be exercised unless
the case ‘tenders the underlying constitutional issues in
clean-cut and concrete form.’ Rescue Army v. Municipal
Court, 331 U.S. 549, 584 (1947).”); Poe v. Ullman, 367 U.S.
497, 502 (1961) (“The restriction of our jurisdiction to
cases and controversies within the meaning of Article III
of the Constitution .. . is not the sole limitation on the
exercise of our appellate powers, especially in cases rai-
sing constitutional questions.”); Ashwander v. Tennessee
Valley Auth., 297 U.S. 288, 341 (1935) (Brandeis, J., concur-
ring) (“The Court [has] developed, for its own gover-
nance in the cases confessedly within its jurisdiction, a
series of rules under which it has avoided passing upon a
large part of all the constitutional questions pressed upon
it for decision.”); Molins PLC v. Quigg, 837 F.2d 1064, 1068
(Fed. Cir. 1988) (“A case or controversy may be constitu-
tionally ripe for review but that does not automatically
invoke review. Prudential considerations must also be
satisfied.”).

24

No amount of prudential considerations can ever
expand the subject matter jurisdiction of federal courts to
render advisory opinions where Article III case or contro-
versy requirements are not met. The Texas Court of
Appeals unequivocally ruled that in the context of an as
applied regulatory taking claim ripeness goes to the sub-
ject matter jurisdiction of the case. Consequently, pruden-
tial considerations have no bearing on whether the court
has jurisdiction.

V. THERE IS NO CONFLICT BETWEEN FEDERAL
RIPENESS RULINGS AND EXHAUSTION OF
REMEDIES DOCTRINE.

Petitioners assert that the Court must clarify the rela-
tionship between exhaustion of administrative remedies
and ripeness in the context of taking claims, due to confu-
sion by lower courts in applying those doctrines. In Wil-
liamson County, the Court instructed that satisfaction of
ripeness principles was a necessary prerequisite to con-
sideration of as applied regulatory taking claims, but that
exhaustion of administrative remedies was not. The
Court clearly established that the requirements of a
development application and petition for variance fell
within the ripeness doctrine, not under the exhaustion of
administrative remedies doctrine.* 473 U.S. at 192-94.

3 It is immaterial, of course, whether state courts classify
such requirements as components of ripeness or exhaustion of
administrative remedies; it is not the label, but the availability
of alternative sources of relief, which determines whether a
court should exercise jurisdiction over the controversy.

25

The difference between these doctrines, as ex-
haustively explored in Williamson County, grows out of
the Court’s rulings that exhaustion of administrative
remedies is not a prerequisite to bringing a Section 1983
claim. In the context of civil rights claims, the exhaustion
of remedies doctrine generally applies to agency pro-
cedures which challenge the validity of a final decision
by the agency after the unconstitutional deprivation has
already occurred. See Patsy v. Florida Board of Regents, 457
U.S. 496 (1982). As stated in Williamson County, “the
exhaustion requirement generally refers to administrative
and judicial procedures by which an injured party may
seek review of an adverse decision and obtain a remedy if
a decision is found to be unlawful or otherwise inap-
propriate.” 473 US. at 193.

The variance procedure, classified as an element of
the ripeness doctrine in Williamson County, is not a pro-
cedure to evaluate the validity of zoning regulations or to
appeal zoning decisions. To the contrary, the variance
procedure is part and parcel of the normal statutory
scheme for determining the type and intensity of use
permitted on property in the face of alleged hardship to
the applicant. Thus variance, special use and rezoning
applications are necessary to determine the ultimate eco-
nomic impact and the character of the regulation — two of
the “essentially ad hoc, factual inquiries” that make up
takings analysis. MacDonald, 473 U.S. at 349.

The guidelines established in Williamson County for
differentiating between procedures which fall under the
ripeness doctrine and those which fall under the exhaus-
tion of remedies doctrine are clear. Lower courts have no

26

problems applying such procedures. This case presents
no occasion for reconsidering the guidelines.

VI. THIS CASE PRESENTS NO OCCASION FOR THE
SUPREME COURT TO RECONSIDER THE
FUTILITY EXCEPTION TO THE RIPENESS DOC-
TRINE ANNOUNCED IN MACDONALD.

Petitioners assert that this Court should reexamine
and clarify its futility “exception” to ripeness require-
ments. In McDonald, this Court decided that, under
extraordinary circumstances, the property owner could
be excused from complying with ripeness requirements
by demonstrating that it would be futile to proceed with
a development application or variance request; bare alle-
gations of futility would not, however, suffice to establish
futility.

The Court of Appeals correctly disposed of Peti-
tioners’ contentions that development applications and
variance requests were futile due to statements of partic-
ular legislators about the enactment of the PMD regula-
tions. Under both state and federal law, the subjective
intent of individual legislators is incompetent evidence
by which to establish the intent of the City in the enact-
ment of land use regulations. Regan v. Wald, 468 U.S. 222
(1984); Mayhew v. Town of Sunnyvale, 774 S.W.2d 284 (Tex.
Ct. App. 1989).

The state court conclusively determined that the vari-
ance remedy was available in order to obtain relief from
the allegedly harsh effects of local zoning regulations.
The decision of the Texas Court of Appeals as to the
availability of the local remedy is one purely of state law
not subject to review by this Court.

27

Contrary to Petitioners’ assertions, lower courts have
followed the Court’s outline of the futility exception in
formulating reasonable rules for determining whether a
property owner should be excused from finality require-
ments. It is true, as Petitioners assert, that some courts
have found that futility simply may not be established in
the absence of at least one development application. This
logic is premised upon the same reasoning that underlies
the ripeness doctrine: avoidance of premature speculation
on the type and extent of development that would be
allowed under local regulations.

Lower courts have established futility exceptions on
a number of grounds, including (1) unavailability of vari-
ance procedure (Beure-Co. v. United States, 16 Cl. Ct. 42
(1988); Formanek v. United States, 18 Cl. Ct. 785 (1989)); (2)
ground for denial of application was not compatible with
subsequent development application (Ciampetti v. United
States, 18 Cl. Ct. 548 (1989)); (3) submission of multiple
applications unnecessary (de St. Aubin v. Flacke, 68 N.Y.2d
66, 505 N.Y.S.2d 859, 496 N.E.2d 879 (1986)); (4) legislative
action such as enactment of a moratorium precluded the
proposed use of the property (Corn v. City of Lauderdale
Lakes, 816 F.2d 1514 (11th Cir. 1987)); and (5) rezoning of
property precluded use for which development applica-
tion was filed (Hoehne v. County of San Benito, 870 F.2d 529
(9th Cir. 1989)). None of these situations is even remotely
present in this case.

CONCLUSION

The Texas Court of Appeals disposed of Petitioners’
taking claim on state constitutional grounds. Because a

28

state constitutional remedy exists, a federal clain: has not
matured. Petitioners are free to pursue the compensation
remedy under the Texas Constitution by taking the two
steps necessary under state law to perfect their as applied
taking claim: (1) submitting a development application
under the challenged regulations; and (2) seeking a vari-
ance.

Even if the Court of Appeals reached the federal
ripeness issue, the court correctly applied federal law.
This case presents no extraordinary facts which would
form the basis for a different direction in federal jurispru-
dence on the taking question. Nor have Petitioners
pointed out any conflict among federal circuits in apply-
ing the ripeness doctrine outlined by this Court over the
last decade. In fact, Petitioners concede that both federal
and state lower courts uniformly apply ripeness princi-
ples to dispose of premature as applied taking claims,
although the result is not to the Petitioners’ liking. Peti-
tioners have presented no grounds for review of the
decision of the Texas Court of Appeals. ae

For these reasons, Petitioners’ Petition for Writ of
Certiorari should be denied.

Respectfully submitted,

Rosert H. FReILicu

(Counsel of Record)

RicHARD G. CARLISLE

TerrRY D. Morcan

FREILICH, LEITNER, CARLISLE
& SHORTLIDGE

1000 Plaza West

4600 Madison

Kansas City, Missouri 64112
(816) 561-4414

Counsel for Respondents

l-a

APPENDIX

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF TEXAS

MADERO DEVELOPMENT AND
CONSTRUCTION COMPANY,
INC., a Texas Corporation, and
CHAPARRAL EQUITY
CORPORATION, a Texas
Corporation,

Plaintiffs,

No. EP-86-CA-403

Vv.

CITY OF EL PASO, TEXAS,
a Municipal Corporation, and
CITY PLAN COMMISSION,

Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)

ORDER REGARDING MOTIONS
FOR SUMMARY JUDGMENT

This is an action for damages and other relief under
42 U.S.C. §§ 1983 and 1985 and the Fourteenth Amend-
ment to the Constitution of the United States. The Plain-
tiffs also ask the Court to accept pendent jurisdiction over
a claim pursuant to Article 1, § 17, of the Texas Constitu-
tion. Both parties have filed motions for summary judg-
ment. The Defendants have also filed a motion for leave
to file an amended answer, which the Plaintiffs oppose.

The facts are relatively undisputed. In 1979, Chapar-
ral Equity Corporation, one of the Plaintiffs herein, sold a
thirty-acre tract of land to one Rogelio Madero. Madero
later conveyed the land to the other Plaintiff, Madero

2-a

Development and Construction Company, Inc. In Septem-
ber, 1980, Madero Development filed an application with
the City for preliminary approval of a 1.8 acre subdivi-
sion to be built on the same tract of land, now known as
“Madero Hills”. Madero Development also requested a
change of zoning from the City Plan Commission. The
Commission deferred decision on the subdivision appli-
cation and requested that Madero submit a master plan
for the ‘entire Madero Hills development. The Commis-
sion also denied the request of Madero Development for
a zoning change from R-3/R-4 (high density residential)
to SD (a special zoning category), recommending instead
that Madero Hills be rezoned RMD (residential mountain
district), a zoning classification that severely limited
development. In December, 1984, the El Paso City Council
passed an ordinance amending the RMD ordinance and
changing its name to PMD (planned mountain district), a
zoning classification with similarly strict limitations on
development. In January, 1986, the City Council rezoned
the Madero Hills property from R-3/R-4 to PMD. Under
PMD zoning, the allowable density of development on a
tract of land is tied to its percentage of slope. According
to the City’s method of calculation, the Madero Hills
property had a slope of forty-eight percent. Therefore,
under this zoning classification only twelve units could
be built on the property, compared with 179 units under
the previous R-3/R-4 zoning classification. The Plaintiffs
have not sought a variance or special exception from the
City Plan Commission or the Zoning Board of Adijust-
ment to enable the property to be developed as previ-
ously planned, nor has either Plaintiff formally requested
that the City Plan Commission or the City Council rezone

3-a

the property. Instead, they brought this action claiming
thai the Defendants have taken their property without
just compensation and have denied them due process of
law and equal protection of the law. They have filed a
motion for summary judgment with respect to these
claims. The Defendants have filed a motion for leave to
file an amended answer, which the Plaintiffs oppose. The
Defendants also seek summary judgment in their favor,
contending that (1) Plaintiffs’ claims are not ripe for
review in federal court; (2) that the Plaintiffs lack stand-
ing to protest the City’s zoning of the property, and (3)
that even if the question were ripe and the Plaintiffs did
have standing, they have not shown that the City’s action
constitutes a deprivation of their constitutional rights.

The Defendants’ answer was filed on December 22,
1986. Paragraph 4 of that original answer read in its
entirety as follows:

Defendants [sic] admit the first sentence of para-
graph Four of County I of Plaintiffs’ Original
Petition.! Defendants admit the remaining alle-
gations of paragraph Four of Count I! of Plain-
tiffs’ Original Petition.

The Defendants claim that the second “admit” in this
paragraph was a clerical error; it should have read
“denied”. They move to amend the answer to clear this
up. The Court finds that leave to amend should be
granted. It is well settled that leave to amend pleadings
should be “freely given when justice so requires”. Rule

! The Plaintiffs labeled their pleading a “Petition” instead
of a complaint as prescribed by Rule 3, Federal Rules of Civil
Procedure.

4-a

15(a), Federal Rules of Civil Procedure. It is obvious from
the history of this case that the “admission” was a clerical
error which did not reflect the position of the Defendants.
Furthermore, it must have been obvious to the Plaintiffs
from the beginning that the Defendants’ “admission” was
unintentional. The parties pursued extensive discovery
for over a year, and no one could have doubted that the
merits of this case were being hotly contested, nor have
believed that the Defendants intended to concede that
their zoning action was “an arbitrary, unreasonable,
exclusionary, and illegal act by the municipality” (Plain-
tiffs’ Original Petition, paragraph Four, page 3). Further-
more, the parties have filed a joint pretrial order which
was approved by the Court. The pretrial order clearly sets
forth the Defendants’ denial that the City’s zoning
actions on the Madero Hills property violated any of
Plaintiffs, constitutional rights. A properly approved pre-
trial order supersedes all previous pleadings in the case.
Defendants’ motion for leave to amend should be
granted, therefore, because it would bring the pleadings
in line with the parties’ common understanding of the
contested issues in the case.

The Defendants have moved for summary judgment
in their favor with respect to the Plaintiffs’ claims under
Section 1983, contending that the case is not ripe for
review because the Plaintiffs have failed to obtain a final
decision on the zoning in question. Of course, the exhaus-
tion of administrative remedies is not a prerequisite to a
suit under Section 1983. Patsy v. Florida Board of Regents,
457 U.S. 496 (1982). Nevertheless, an administrative
action must be final before it is judicially reviewable.

-5-a

Williamson County Regional Planning Commission v. Ham-
ilton Bank of Johnson City, 473 U.S. 172, 193 (1985). An
action is not “final” unless the decisionmaker has arrived
at a definitive position on the issue that inflicts an actual,
concrete injury. Williamson County Regional Planning Com-
mission v. Hamilton Bank of Johnson City, supra at 193-94.
Furthermore, when a party alleges that his property has
been taken without just compensation in violation of the
Fifth and Fourteenth Amendments, he must show that he
has pursued the recovery of just compensation in the
state courts and that recovery has been denied. Wil-
liamson County Regional Planning Commission v. Hamilton
Bank of Johnson City, supra, at 195-96. The Constitution
does not require that taking and compensation be simul-
taneous; it only requires a reasonable, certain and ade-
quate provision for obtaining compensation. Williamson
County Regional Planning Commission v. Hamilton Bank of
Johnson City, supra at 195; Regional Rail Reorganization Act
cases, 419 U.S. 102, 124-25 (1974); Cherokee Nation v. South-
ern Kansas Railroad Co., 135 U.S. 641, 659 (1890). Like the
instant case, Williamson County involved claims under
both the Due Process Clause and the Just Compensation
Clause, and the Supreme Court held that both were pre-
mature.

Plaintiffs argue that the instant case is distinguish-
able from Williamson County, because that holding was
dependent upon the existence of procedures under state
and local law for seeking an exemption from the zoning
ordinance. They contend that the Defendants in this case
have failed to show the availability of variances or special
exemptions which would provide relief from the density
restrictions of the PMD zoning. With respect to the claim

6-a

under the Just Compensation Clause, the Plaintiffs deny
the existence of an “inverse condemnation” action in
Texas comparable to the one in Tennessee upon which the
Supreme Court relied.

With respect to the finality question, it is unclear
under Texas law as to whether the Madero Hills zoning
decision is “final”. Under the El Paso City Code, the
Zoning Board of Adjustment has authority to hear
appeals and applications for variances and special excep-
tions. El Paso City Code, § 20.04.050. Furthermore, the City
Code provides that “the board shall have the powers
granted by, and be controlled by, Article 1101g, Rev. Civ.
Stat. of Texas, as amended.” The statute to which the City
Code refers has been codified in the Texas Local Govern-
ment Code. It provides in pertinent part:

The governing body [the City Council] may
authorize the Board of Adjustment, in appropri-
ate cases and subject to appropriate conditions
and safeguards, to make special exceptions to
the terms of the zoning ordinance that are con-
sistent with the general purpose and intent of
the ordinance and in accordance with any appli-
cable rules contained in the ordinance.

Texas Local Government Code, § 211.008(a) (Vernon
1988). Boards of adjustment are also empowered to grant
variances from the terms of zoning ordinances:

[I]f the ordinance is not contrary to the public
interest, and due to a special condition, a literal
enforcement of the ordinance would result in
unnecessary hardship, and so that the spirit of
the ordinance is observed and substantial justice
is done.

7-a

Texas Local Government Code, § 211.009(3) (Vernon
1988). Furthermore, the Code provides that a decision of
the Zoning Board of Adjustment may be reviewed by a
state district court. In the instant case, there is no indica-
tion that the Plaintiffs have sought a variance from the
Zoning Board of Adjustment, the City Plan Commission,
or the City Council. Although the Plaintiffs suggest that
such a request would have been futile, they have cited no
case law in support of a “futility” exception to the ripe-
ness and finality requirement imposed by the Supreme
Court.

Even if the availability of relief from the Zoning
Board of Adjustment is uncertain, the Plaintiffs clearly
had the right to seek relief in state court. Texas law
recognizes a judicial remedy for a property owner
aggrieved by an arbitrary and unreasonable zoning
action by a city. Hunt v. City of San Antonio, 462 S.W.2d
536, 539 (Tex. 1971); City of Austin v. Nelson, 45 S.W.2d 692
(Tex. Civ. App. - Austin 1931, no writ). Property owners
also have recourse to the Texas courts if a zoning board of
adjustment arbitrarily grants or de ies variances that
restrict the use of or affect their prop ty. Board of Adjust-
ment v. Willie, 511 S.W.2d 591 (Tex.Civ.App. - San Antonio
1974, writ ref’d n.r.e.); Swain v. Board of Adjustment of the
City of University Park, 433 S.W.2d 727 (Tex.Civ.App. -
Dallas 1968, writ dsm’d w.o.j.), cert denied, 396 U.S. 277
(1970).

The Plaintiffs challenge the continuing viability of
the Williamson County ripeness requirement in light of the
Supreme Court decision in First English Evangelical
Lutheran Church of Glendale v. County of Los Angeles,

8-a

___ US. __, 107 S.Ct. 2378 (1987). The Court finds that
holding not inconsistent with Williamson County. In First
English Evangelical Lutheran Church, the plaintiff had
alleged a taking without just compensation and had filed
suit in California state court. The matter had been liti-
gated all the way to the Supreme Court of California, and
came to the United States Supreme Court by means of
direct appeal. Surely the ripeness requirement was satis-
fied in that case, whereas in the instant case it has not
been satisfied. The Plaintiffs must take their grievance to
state court and seek just compensation for the alleged
“taking” before bringing suit in this Court under Section
1983.

Finally, the Plaintiffs have failed to state a claim for
relief under 42 U.S.C. § 1985(3). The statute now codified
as 42 U.S.C. § 1985(3) was originally enacted by Congress
as part of the Ku Klux Klan Act of 1871. Its purpose was
to protect emancipated blacks and their supporters from
conspiracies to deprive them of their civil rights. United
Brotherhood of Carpenters and Joiners v. Scott, 463 U.S. 825,
835-37 (1983). In order to state a claim under Section
1985(3), the plaintiff's complaint must allege a conspiracy
motivated by race-based invidiously discriminatory
animus. United Brotherhood of Carpenters and Joiners v.
Scott, supra; Griffin v. Breckenridge, 403 U.S. 88 (1971). No
such allegations are made in the instant case, and no
claim under Section 1985(3) has been stated.

In light of the foregoing discussion, the following
orders should be entered.

It is ORDERED that the Defendants’ motion for leave
to file and amended answer in the above-styled and

9-a

numbered cause be, and it is hereby, GRANTED. The
District Clerk is directed to file the first amended answer.

It is further ORDERED that the Defendants’ motion
for summary judgment be, and it is hereby, GRANTED.

It is further ORDERED that the Plaintiffs’ claim for
relief under 42 U.S.C. § 1983 be, and it is hereby, DIS-
MISSED without prejudice.

It is further ORDERED that the Plaintiffs’ claim
under 42 U.S.C. § 1985(3) be, and it is hereby, DISMISSED
with prejudice.

SIGNED AND ENTERED this 21st day of December,
1988.

/s/ Harry Lee Hudspeth
HARRY LEE HUDSPETH
UNITED STATES DISTRICT
JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2127%3A2. Public record. Not legal advice.