Opposition Brief — Town of Sunnyvale v. Mayhew

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No. 90-941

In The

Supreme Court of the United States

October Term, 1990

. 4

THE TOWN OF SUNNYVALE, TEXAS,

Petitioner,

vs.

CHARLES MAYHEW, SR., et al.,

Respondents.

Petition For A Writ Of Certiorari To The

Supreme Court Of The State Of Texas

BRIEF IN OPPOSITION

+...

— 4

CHARLES L. SIEMON

Counsel of Record

GERALD P. CALLAGHAN

James N. Azim, III

SIEMON, LARSEN & PuRDy

Dearborn Station

47 West Polk Street

Chicago, Illinois 60605

(312) 939-7117

Counsel for Respondents

COCKLE LAW BRIEF PRINTING CO., (800)

OR CALL COLLECT (402) 342-2631

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES................00ee00e- ii

SOI noc o sc cscccvcconeccccvnsscisndsss 1

SUMMARY OF ARGUMENT........... Renner 2

REASONS FOR DENYING THE WRIT............. 3

I. This Court Should Deny The Petition For A Writ Of

Certiorari Because The Decision Of The Court Of

Appeals Of Texas Was Not A Final Judgment.... 3

II. This Court Should Deny The Petition For A Writ

Of Certiorari Because This Case Does Not Pre-

sent A Substantial Federal Question Meriting

The Attention Of The Court

A. The Mayhews’ Taking Claim Is Ripe....... 8

‘B. The State Court’s Taking Analysis Was Con-

sonant With Established Taking Jurispru-

GME no sc nsseccereewanrsntingariuwsesvarss 17

C. The Mayhews’ Vagueness Challenge Sur-

vives The State Court’s Decision That The

Town’s Denial Of Development Approval

Was A Legisiative Act......2.ccsccsccccees 24

D. The State Court’s Treatment Of The May-

hews’ Facial Challenges Was Consistent

With Settled Law

SURE hove sche tiys eves epenweewsewetenkeua 27

TABLE OF AUTHORITIES

CASES

Agins v. City of Tiburon, 157 Cal. Rptr. 372, 598 P.2d

oe SS , Peererererer rer ey rrr Try

Agins v. City of Tiburon, 447 U.S. 255 (1980)

(ctendest coun hea tiat etn ane 18, 19, 20,

City of Austin v. Teague, 555 S.W.2d 400 (Tex.App.-

Waco 1977), rev'd on other grounds, 570 S.W.2d

ee CO TAPED + oc sncenckauastcseeehesenlases

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975)

First English Evangelical Lutheran Church of Glendale

v. County of Los Angeles, 482 U.S. 304 (1987) ..

Grayned v. City of Rockford, 408 U.S. 104 (1972)..

Herrington v. County of Sonoma, 857 F.2d 567 (9th Cir.

1988), cert. denied, 489 U.S. 1090 (1989)....... 11,

Hoehne v. County of San Benito, 870 F.2d 529 (9th

Cae. Fe ks cues o5.e ies cee ee ee

Jackson Court Condominiums, Inc. v. City of New

Orleans, 665 F.Supp. 1235 (E.D. La. 1987), aff'd,

874 F.2d 1070 (5th Cir. 1989)..................

Kinzli v. City of Santa Cruz, 818 F.2d 1449, amended,

830 F.2d 968 (9th Cir. 1987), cert. denied, 484 U.S.

TED Css os «cob aunkdaedskkndseeeenes is

Landmark Land Co. of Oklahoma, Inc. v. Buchanan,

O74 FOG 717 CUO CAG. TRGB). 5 co scescvvcccccess

MacDonald, Sommer & Frates v. Yolo County, 477

Lh Ge CE Sv kaesedwadsaveneceacees sy ee

Market Street Ry. Co. v. Railroad Commission of Cali-

fOPR, FOG UD. DOS VIG) cis ccicccevsvcesinns

21, 22

See

ere

12, 13

gouvie &

im 15

14, 15

iii

TABLE OF AUTHORITIES - Continued

Page

Mayhew v. Town of Sunnyvale, 774 S.W.2d 284

(Tex.App.-Dallas 1989, writ denied)......... S, 11,15

Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456

eae a aE Sie p soe bet eee obec kesdeeces 27

Minnick v. California Department of Corrections, 452

eer aeavctetekdandandnconssé 6, 7

Nixon v. Mr. Property Management Co., Inc., 690

i Ces serch arccrecccsnetenseeres 16

New York State Club Ass’n, Inc. v. City of New York,

RE ee ee 26, 27

Nollan v. California Coastal Commission, 483 U.S.

DLN Gh 566 6S veneesetncs cones 18, 21, 24

Penn. Central Transp. Co. v. City of New York, 438

ee a eases Feds nnd ee eEe 8 5 a8 O04 006 21

San Diego Gas & Electric Company v. City of San

Eee, Soe US. CEI (I9G1) .. 2... ncevcncccvees 4,5, 21

United States v. Carolene Products Co., 304 U.S. 144

ee tN e ree rein dsterereya bs o'eeeeseses 21

United States v. National Dairy Products Corp., 372

8 EN ee ee ey er ee eee 26

Williamson County Regional Planning Comm'n v.

Hamilton Bank, 473 U.S. 172 (1985)...............- 12

StatuToRY AUTHORITY

ee ee LZ2ZB46 7

No. 90-941

,’

—

In The

Supreme Court of the United States

October Term, 1990

—_

THE TOWN OF SUNNYVALE, TEXAS,

Petitioner,

vs.

CHARLES MAYHEW, SR., et al.,

Respondents.

Petition For A Writ Of Certiorari To The

Supreme Court Of The State Of Texas

BRIEF IN OPPOSITION

—.

Respondents respectfully pray that this Court deny

the Petition for a Writ of Certiorari to the Supreme Court

of the State of Texas.

—

JURISDICTION

The Petitioner’s jurisdictional statement invokes the

jurisdiction of this Court pursuant to 28 U.S.C. § 1257(a).

However, as the Respondents show in Section I of their

Reasons for Denying the Writ, jurisdiction does not prop-

erly lie with this Court because the decision from which

the Town appeals is not a “final judgment” within the

meaning of § 1257(a).

SUMMARY OF ARGUMENT

The writ should be denied because this Court is

without jurisdiction under 28 U.S.C. § 1257(a) to review

this case, and the Petitioner, the Town of Sunnyvale,

Texas (“the Town”), has failed to show that this case

presents a substantial federal question meriting the atten-

tion of this Court.

Jurisdiction does not properly lie with this Court

because the decision below of the Court of Appeals of

Texas is not a “final judgment” within the meaning of 28

U.S.C. § 1257(a). The Court of Appeals of Texas merely

affirmed in part the trial court’s granting of the Town’s

defensive motion for summary judgment, reversed in

part the trial court’s judgment and remanded the case for

a trial on the merits. The Supreme Court of Texas

declined to review this decision. Given this procedural

history and posture, it is clear that there has been no

“final judgment,” and this Court is without jurisdiction to

review this case.

In the event that this Court finds there was a final

judgment in the state court, it should nevertheless deny

the writ because the case does not present a substantial

federal question meriting the attention of the Court. Each

of the Town’s four arguments for granting the writ fails

for lack of a sufficient basis in law and fact. Contrary to

the Town’s assertions: (1) the Court of Appeals of Texas

correctly found that the Respondents’ (“the Mayhews”)

taking claim is ripe as a matter of law; (2) the Court of

Appeals of Texas correctly applied federal taking law; (3)

the Mayhews’ vagueness challenge is not precluded by a

determination that the Town’s denial of development

approval was a legislative act; and (4) underlying facts

and factual issues are relevant to a court’s consideration

of the Mayhews’ facial constitutional challenges. There-

fore, this case does not present a substantial federal ques-

tion meriting the attention of this Court, and the Court

should deny the writ.

REASONS FOR DENYING THE WRIT

This Court Should Deny The Petition For A Writ Of

Certiorari Because The Decision Of The Court Of

Appeals Of Texas Was Not A Final Judgment

The Town’s jurisdictional statement invokes the juris-

diction of this Court pursuant to 28 U.S.C. § 1257(a).

However, jurisdiction does not properly lie with this

Court because the decision from which the Town appeals

was not a “final judgment” within the meaning of

§ 1257(a).! Therefore, this Court should deny the Town’s

Petition for a Writ of Certiorari.

The Court's jurisdiction to review state court judg-

ments is limited to the review of “[flinal judgments or

1 It should be noted that the Town appears to have asked

this Court to direct a writ of certiorari to the incorrect court. If

a writ were to issue, it should be directed to the Court of

Appeals of Texas, the highest state court which has reviewed

this case.

Que

decrees rendered by the highest court of a State in which

a decision could be had... .” 28 U.S.C. § 1257(a). In order

to satisfy this finality requirement, the state court judg-

ment must be final in two respects. Market Street Ry. Co. v.

Railroad Commission of California, 324 U.S. 548, 551 (1945).

First, the judgment must not be subject to further review

or correction in any other state tribunal. Id. Second, the

judgment must be final, as an effective determination of

the litigation, not merely an interlocutory or intermediate

step. Id. “It must be the final word of a final court.” Id.

The present case clearly does not satisfy these criteria.

Here the judgment from which the Town appeals is

subject to further review and is not an effective deter-

mination of the litigation. In the proceedings below, a

Texas trial court granted the Town’s defensive motion for

summary judgment without opinion. Upon appeal, the

Court of Appeals of Texas affirmed the trial court’s judg-

ment in part, reversed the trial court’s judgment in part

and remanded the case to the trial court for a trial on the

merits. The Supreme Court of Texas declined to review

this decision and the case now resides in the Texas trial

court where it is scheduled for trial on June 3, 1991.

Given this procedural history and the present posture of

the case, it is evident that the final judgment requirement

has not been met and that the Town is merely attempting

to circumvent an effective determination of the litigation.

Therefore, this Court.should not accept this case for

review.

This Court’s opinion in San Diego Gas & Electric Com-

pany v. City of San Diego, 450 U.S. 621 (1981) is instructive

on this point. Similar to the present case, San Diego Gas &

Electric involved a claim by a landowner that the City of

San Diego had “taken” its property without payment of

just compensation by rezoning the landowner’s property

and adopting an open space plan. 450 U.S. at 624-626. The

landowner won damages in a California state court

action, but his claims for mandamus and declaratory —

relief were dismissed prior to trial. Id. at 626-627. Follow-

ing an affirmance by the California Court of Appeals, the

Supreme Court of California transferred the case back to

the appellate court for reconsideration in light of its

intervening decision eliminating such damage actions in

lieu of mandamus or declaratory relief. Id. at 627-628. The

appellate court then reversed the damage award and

commented that there were disputed fact issues unre-

solved by the trial court. Id. at 630. These issues, the

appellate court suggested, could be addressed if the land-

owner elected to retry the case. Id. The Supreme Court of

California denied further review and the landowner

appealed to this Court. Id.

This Court dismissed the landowner’s appeal

because of the absence of a “final judgment” under 28

U.S.C. § 1257. Id. This Court found that the state appellate

court’s decision contemplated further proceedings in the

trial court and that its decision was, therefore, not final.

Accordingly, this Court held that it was without jurisdic-

tion to review the decision. Id. at 632-633.

Likewise, this Court is without jurisdiction to review

the present case. Just as the state appellate court in San

Diego Gas & Electric contemplated further proceedings in

the trial court in order to resolve disputed issues of fact,

here the Texas appellate court found that there are mate-

rial issues of fact and remanded the case for trial to

resolve those issues. Therefore, under San Diegc Gas &

Electric, there has not been a “final judgment” in the

Texas state courts, and this Court is without jurisdiction

to review the case.

This Court’s decision in Cox Broadcasting Corp. v.

Cohn, 420 U.S. 469 (1975) does not alter this conclusion. In

Cox this Court identified four categories of cases in which

state court decisions have been treated as final judgments

even though further proceedings in a state trial court

were anticipated.? 420 U.S. at 477. A plain reading of the

last three categories, in light of the procedural posture

and history of the present case, clearly shows that the

decision appealed from is not a “final judgment” under

any cf those exceptions. In addition, this Court made

clear in Minnick v. California Department of Corrections, 452

U.S. 105 (1981), that the first category also may not be

read so broadly as to include the present case.

2 The four categories of cases identified by this Court are:

1. “{C]ases in which there are further proceedings .. . yet

to occur in the state courts but where for one reason or another

the federal issue is preclusive or the outcome of further pro-

ceedings preordained.” 420 U.S. at 479.

2. Cases “in which the federal issue, finally decided by

the highest court of the State, will survive and require decision

regardless of the outcome of future state-court proceedings.”

Id. at 480.

3. Cases “where the federal claim has been finally

decided, with further proceedings on the merits in the state

courts to come, but in which later review of the federal issue

cannot be had, whatever the ultimate outcome of the case.” Id.

at 481.

4. Cases where “refusal immediately to review the state court

decision might seriously erode federal policy... .” Id. at 483.

In Minnick, this Court rejected an argument that a

state court decision qualified as a “final judgment” under

the first category, and it dismissed the writ of certiorari.

452 U.S. at 127. This Court emphasized that the first Cox

category is delimited by a comment in the Cox opinion

that, in first (and second) category cases,

“the federal issue would not be mooted or oth-

erwise affected by the proceedings yet to be had

because those proceedings have little substance,

their outcome is certain, or they are wholly

unrelated to the federal question.”

Id. at 122 (quoting Cox, 420 U.S. at 478). Because this

Court was not persuaded that the outcome of further

state court proceedings was certain or that those proceed-

ings would not have a significant effect on the constitu-

tional issues presented, id. at 120, this Court found that it

should not address the constitutional issues until the

conclusion of proceedings in the state trial court and any

further state court appeals. Id. at 127.

Likewise, this Court should not review the present

case until the conclusion of a trial on the merits and any

further state court appeals. The outcome of the proceed-

ings before the Texas trial court are far from certain. Nor

can one reasonably argue that a trial on the merits of the

Mayhews’ federal constitutional claims would not have a

significant effect on the constitutional issues presented by

this case. Therefore, the decision of the Court of Appeals

of Texas does not qualify as a final judgment under Cox,

and this Court is without jurisdiction to review that deci-

sion.

II.

This Court Should Deny The Town’s Petition For A Writ

Of Certiorari Because This Case Does Not Present A

Substantial Federal Question Meriting The Attention

Of The Court

In the event that this Court finds there was a final

decision in the Court of Appeals of Texas, this Court

should nevertheless deny the writ because the Town’s

arguments are meritless and fail to show that this case

presents a substantial federal question meriting the atten-

tion of the Court.

The Mayhews’ Taking Claim Is Ripe

The Town’s contentions that the Court of Appeals of

Texas (“the state court”) disregarded federal ripeness law

and that the Mayhews’ taking claim is not ripe for review

are erroneous. A plain reading of the state court’s opinion

shows that the court found the Mayhews’ taking claim

ripe as a matter of law. Moreover, the court’s ripeness

determination is firmly supported by the facts of record.

The crux of the Town’s ripeness argument is that the

state court erroneously characterized the ripeness and

futility issues as questions of fact to be resolved by a jury.

Petition for a Writ of Certiorari (“Pet.”), pp. 6-7. This

assertion, however, misconstrues the state court’s opin-

ion. Nowhere in its opinion did the state court declare or

even imply that the determination of ripeness (or, if

applicable, the futility exception to the ripeness doctrine)

is a question of fact to be left to a jury. To the contrary, the

state court simply and clearly held that there is a genuine

issue of material fact regarding the Town’s intention to

prevent development of the Mayhews’ property, and that

the existence of this issue precluded entry of summary

judgment for the Town. Consequently, the Town’s ripe-

ness argument is without merit.

As the Town itself noted, the state court denied the

Town’s motion for summary judgment because there was

a genuine issue of material fact as to whether

the Town, by rejecting [the Mayhews’] applica-

tion, intended to prevent [the Mayhews’] devel-

opment of [their] property in order to impose a

servitude upon the property to preserve the nat-

ural and traditional character of the land for the

benefit of the public.

Mayhew v. Town of Sunnyvale, 774 S.W.2d 284, 292

(Tex.App.-Dallas 1989, writ denied), Appendix to Petition

for a Writ of Certiorari (“App. to Pet.”), p. 19 (emphasis

added). It is evident on the face of this holding that it is

directed to the issue of whether the Town effected a

taking of the Mayhews’ property, and not to the issue of

whether the Mayhews’ taking claim is ripe.* Neverthe-

less, the Town seeks to alchemize the state court’s hold-

ing into a conclusion that there is an issue as to the

ripeness of the Mayhews’ taking claim which must be

resolved by a jury.

3 In finding that there is a factual issue regarding the

Town’s intention to prevent the development of the Mayhews’

property, the state court was following established Texas tak-

ing law, Mayhew, 774 S.W.2d at 289-290, App. to Pet. 12-13

(discussing City of Austin v. Teague, 556 S.W.2d 400 (Tex.App.-

Waco 1977), rev'd on other grounds, 570 S.W.2d 389 (Tex. 1978)).

On the basis of the state court’s statements regarding

the issue of the Town’s intent to prevent the development

of the Mayhews’ property, the Town concludes:

The court apparently determined that if the Town

would not allow the Mayhews to reapply for a less

intensive yet economically viable use of their prop-

erty because of the Town’s “intent” to take their

property without just compensation, then the case

was ripe for adjudication since further applications

by the Mayhews would be futile.

Pet. 6 (emphasis added). However, the state court’s dis-

cussion of the Town’s intent to foreclose development of

the Mayhews’ property is a very thin reed upon which to

rest a claim that the state court threw the ripeness issue

to the jury. Indeed, a plain reading of the state court’s

opinion shows that the court examined the summary

judgment proofs on the ripeness issue and found as a

matter of latvy that the Mayhews’ taking claim is ripe.

The state court was well briefed on and had ample

opportunity to review the summary judgment evidence

regarding the ripeness issue. On the basis of this evidence

and argument, and notwithstanding the Town’s insis-

tence that the Town council was amenable to alternative

development proposals at various densities, the state

court concluded as a matter of law that the Town had

made a “final decision” with respect to the application of

its land use regulations to the Mayhews’ property:

[W]hen the time came for the town council to

vote on the [Mayhews’] application, the town

council balked, and considered and then

rejected an entire range of development pro-

posals with densities between 1.0 and 2.93

dwelling units per acre. Indeed, the record

shows that the town council considered and

rejected countless other alternatives and

permutations of the development proposals pre-

sented by Mayhew. Thus, in the face of “politi-

cal” opposition from residents of the town, the

town council denied the application for devel-

opment approval... .

Mayhew, 774 S.W.2d at 291; App. to Pet. 15. In light of this

finding of ripeness, the Town’s claim that the state court

characterized the ripeness and futility issues as fact ques-

tions to be decided by a jury is without merit.*

4 Although there is limited authority for the Town’s assertion

that the question of ripeness is a matter of law to be determined by

the court, see Herrington v. County of Sonoma, 857 F.2d 567 (9th Cir.

1988), cert. denied, 489 U.S. 1090 (1989), the Town overlooks the

obvious consideration that the ultimate legal determination of

ripeness cannot reasonably be made in the absence of a factual

predicate to support it. See, e.g., Hoehne v. County of San Benito, 870

F.2d 529, 533 (9th Cir. 1989) (resolution of the ripeness issue turns

on the record facts and only the facts tell the court whether a final

decision has been reached). The Town effectively argues that

because the ultimate legal determination of ripeness is a question

of law, a court should not examine any evidence when deciding

whether a claim is ripe, even if there are issues of fact relevant to

the question of ripeness. However, this would be tantamount to

asserting that because the construction of a contract is a question of

law, a court should construe the contract without reviewing the

document itself. Therefore, even though the state court correctly

found the Mayhews’ taking claim ripe as a matter of law, it would

not have been improper for the court to reserve a decision on

ripeness pending resolution of any factual disputes underlying the

ripeness determination.

The Court should also note that the second of the two cases

cited by the Town for the proposition that ripeness presents a

question of law, Kinzli v. City of Santa Cruz, 818 F.2d 1449, amended,

830 F.2d 968 (9th Cir. 1987), cert. denied, 484 U.S. 1043 (1988), is

entirely devoid of any statement supporting the Town’s claim.

Additionally, neither Kinzli nor Herrington support the Town’s

assertion that a determination as to the futility exception also

presents a question of law.

The state court’s finding that the Mayhews’ taking

claim is ripe as a matter of law is also strongly supported

by the record. This Court has made clear that a constitu-

tional challenge to a land use regulation is considered

ripe for judicial review when the regulatory authority has

reached a “final decision” regarding the application of its

land use regulations to the property at issue. See, e.g.,

Williamson County Regional Planning Comm'n v. Hamilton

Bank, 473 U.S. 172, 185 (1985); MacDonald, Sommer &

Fraies v. Yolo County, 477 U.S. 340, 348 (1986). Although

this Court has left open the question of what constitutes a

“final decision,” Ninth Circuit authority cited by the

Town provides guidance on this issue. Under the Ninth

Circuit's test, there are two requirements for a final deci-

sion: (1) a rejected development plan, and (2) a denial of a

variance. Herrington, 857 F.2d at 569 (quoting Kinzli, 818

F.2d at 1454). There is indisputable evidence in the record

showing that each of these two criteria is satisfied. Conse-

quently, it is clear that the Town reached a final decision

regarding the application of its land use regulations to

the Mayhews’ property, and that the Mayhews’ taking

claim is ripe as a matter of law.

It is undisputed that, following extensive discussions

and negotiations between the Mayhews and the Town,

and more than six months after the Mayhews filed their

application for planned development approval, the Town

rejected the Mayhews’ development plan, thus satisfying

the first element of the Ninth Circuit’s final decision test.

Additionally, the Town has admitted in its Petition that

the Town’s zoning ordinance did not contain a variance

procedure for the Mayhews to follow after the denial of

their application. Pet. 13. In the absence of such a legally

viable option, the second element of the Ninth Circuit's

final decision test need not be satisfied. Herrington, 857

F.2d at 569-570. Therefore, following the Ninth Circuit

authority which is urged on this Court by the Town, the

Mayhews have satisfied this Court’s final decision

requirement, and the state court’s finding of ripeness as a

matter of law is correct.

The state court’s finding that the Mayhews’ taking

claim is ripe as a matter of law also satisfies a futility

analysis because even if the Town did not reach a “final

decision,” the record shows that it would have been futile

for the Mayhews to pursue further development pro-

posals. MacDonald, 477 U.S. at 350 n. 7 (“[a] property

owner is of course not required to resort to piecemeal

litigation or otherwise unfair procedures” to determine

what use, if any, may be made of his property).

Although this Court has not established a “test” for

determining futility, it suggested in MacDonald that at

least one “meaningful application” for development

approval must be submitted before the futility exception

applies. Id. at 352 n. 8. See also Kinzli, 818 F.2d at

1454-1455. The record shows unambiguously that not

only did the Mayhews submit a meaningful application

for development approval, but also that the Town consid-

ered and rejected numerous other proposals. Thus, it

would have been futile as a matter of law for the May-

hews to submit yet another additional application for

development approval.°

5 According to the Town, “it was incumbent upon [the May-

hews] to pursue ‘a proposal for less intense development’ ”

(Continued on following page)

The facts supporting this conclusion were aptly noted

by the state court:

Mayhews’ application was considered for a

period of more than six months. Mayhew had

initiated discussions with the town in regard to

the proposed development more than a year

prior to the town’s decision, meeting with town

officials on more than twenty occasions prior to

submitting the application. Mayhew worked

closely with representatives of the town, includ-

ing the town planner, in coming up with an

acceptable design proposal, spending over one-

half of one million dollars in providing informa-

tion and studies to provide information showing

that the proposed development satisfied the

requirernents of the town’s planned develop-

ment ordinance and would be an asset to the

town. In November of 1986, about half way

(Continued from previous page)

following the denial of their application for development

approval in order to satisfy the futility exception. Pet. 13

(quoting Landmark Land Co. of Oklahoma, Inc. v. Buchanan, 874

F.2d 717, 722 (10th Cir. 1989). Although a determination of

futility arguably requires at least one meaningful application

for development approval, MacDonald, 477 U.S. at 352 n. 8, the

futility exception would be emasculated by an absolute

requirement that the developer pursue a proposal for less

intense development following the denial of an application for

development approval. Indeed, given such a requirement, a

regulatory body could force a developer to make successive

proposals for less intense development and thereby forestall

any legal challenge by the developer indefinitely. Therefore, it

would be absurd to conclude that the Mayhews are required at

this stage to advance a proposal for less intense development

before their claims may be considered ripe. See discussion

below regarding the history of the Mayhews’ attempts to gain

development approval.

through this process, the town decided to revise

its comprehensive plan by substantially decreas-

ing the amount of density that would be permit-

ted in the town, all while Mayhew’s application

was pending. Subsequently, Mayhew’s represen-

tatives met with town officials, including the

town attorney, the town manager, [and two

town council members], to discuss the proposed

development. At that meeting, Mayhew agreed

to scale down the application substantially from

the 5,025 units originally sought to 3,600 dwell-

ing units and to abandon the apartments

because of the town’s “concerns” over the inclu-

sion of apartments and other forms of low and

moderate cost housing in the proposed develop-

ment. In the end, Mayhew acceded to the

demands of town officials. But when the time

came to vote on the application, the town coun-

cil balked, and considered and then rejected an

entire range of development proposals with

densities between 1.0 and 2.93 dwelling units

per acre. Indeed, the record shows that the town

council considered and rejected countless other

alternatives and permutations of the develop-

ment proposals presented by Mayhew.

Mayhew, 774 S.W.2d at 290-291, App. to Pet. 14-15

(emphasis in original). As this passage illustrates, it

would have been futile, both as a practical matter and as

a matter of law, for the Mayhews to file another formal

application for development approval. Therefore, even if

the Town’s rejection of the Mayhews’ application was not

a “final decision,” the state court nevertheless correctly

found that the Mayhews’ taking claim is ripe. MacDonald,

477 U.S. at 352 n. 8.

The Town denies in its Petition that it would have

been futile for the Mayhews to pursue another develop-

ment proposal and claims that the Mayhews’ taking

challenge is not ripe as a matter of law. Pet. 7-9. The sole

basis for the Town’s claim is its insistence that “an appro-

priate density figure for review has yet to be deter-

mined.” Pet. 8. This argument, however, is not only

refuted by the undisputed evidence discussed above

showing that the Town denied a meaningful application

for development approval and rejected attempts at com-

promise, it is also grounded on a tortured hypothetical

reading of the record which violates established summary

judgment rules of review.

According to the Town, the Town Council “was

receptive to a plan with a proposed density of substan-

tially more than one unit per acre but less than the 3.2

units per acre demanded by the Mayhews.”® Pet. 7. In

order to support this statement, however, the Town has

turned the standard for reviewing a motion for summary

judgment on its head.” The Town, the movant on summary

judgment below, has effectively asked this Court to

resolve all inferences in its favor and to indulge in spec-

ulation as to a development density level which would

have been supported by the Town Council:

6 As it has repeatedly done throughout the course of this

litigation, the Town again misrepresents the density of devel-

opment under the Mayhews’ plan as 3.2 dwelling units per

acre rather than the 2.93 dwelling units per acre which the plan

actually called for.

7 It is well established that in-deciding whether there is a

disputed material fact issue precluding summary judgment,

evidence favorable to the non-movant is to be taken as true and

every reasonable infeicnce must be indulged in favor of the

non-movant and any doubts resolved in its favor. Nixon v. Mr.

Property Management Co., Inc., 690 S.W.2d 546, 548-549 (Tex.

1985).

The discussions of the Town Council con-

clusively establish that rigid adherence to one

acre zoning unequivocally was not a condition

for the Mayhews’ planned development

approval, as density levels of 2.0, 2.3, 2.6, and

3.3 units per acre were deemed acceptable by

the individual councilmembers. Assuming the

most restrictive scenario, a plan asking for 2 units

per acre would have passed by a 4-to-1 vote.

Pet. 7, footnote (emphasis added). This mere conjecture

violates summary judgment rules and is insufficient to

prove that an appropriate density figure for review has

yet to be determined.

In summary, the Town’s ripeness argument fails to

present a substantial federal question meriting the atten-

tion of this Court. The state court correctly found that the

Mayhews’ taking claim is ripe as a matter of law, and that

finding is firmly supported by the summary judgment

evidence. Therefore, this Court should reject the Town’s

Petition for a Writ of Certiorari.

The State Court’s Taking Analysis Was Consonant With

Established Taking Jurisprudence

The Town’s second argument for granting its Petition

for a Writ of Certiorari is that the state court erred in its

consideration of the Mayhews’ taking claim because the

court “improperly focused its analysis upon the Town’s

decision to deny the Mayhews’ application without con-

sidering the remaining uses available to the Mayhews by

the Town’s Zoning Ordinance” and thereby failed to

address the second prong of the taking test set forth in

Agins v. City of Tiburon, 447 U.S. 255 (1980).® Pet. 14-15.

The Town’s argument is misdirected for at least two

reasons.

First, the Town incorrectly assumes that the application

of the Town’s zoning ordinance to the Mayhews’ property

substantially advances a legitimate state interest and there-

fore does not, as a matter of law, effect a taking under the

first element of the Agins analysis.? Second, even if the state

court did not expressly address the second element of the

Agins taking test, the record shows that, at the very least,

there is a genuine issue of material fact with regard to the

economic viability of any remaining uses. In either case,

there is no substantial federal question which merits the

attention of this court. Rather, there are only questions of fact

which must be resolved at the trial which the Town now so

strenuously seeks to avoid.

With respect to the first element of the taking anal-

ysis, the Town again seeks to stand the summary judg-

ment standard of review on its head. Obviously

indulging every reasonable inference in its favor, the

Town baldly asserts that “there can be no doubt that the

conservation and preservation of open space, and the

8 In Agins this Court held that:

[t]he application of a general zoning law to particu-

lar property effects a taking if the ordinance does not

substantially advance legitimate state interests . . . or

denies an owner economically viable use of his

land. ...

447 U.S. at 260 (citations omitted).

° A regulation that fails either prong of the Agins test

constitutes a taking. Agins, 447 U.S. at 260; Nollan v. California

Coastal Commission; 483 U.S. 825, 835-836 (1987).

desire of the Town to protect its residents from the ‘ill

effects of urlsanization’ are legitimate state interests that

are substantially advanced by the Town’s one-acre zoning

provisions.” Pet. 15. The Town’s claim, however, has no

basis in law or fact.

While the Mayhews do not doubt that the preserva-

tion of open space and the protection of residents from

the ill effects of urbanization are legitimate state interests,

it is far from settled that the Town’s regulations and their

application to the Mayhews’ property will promote those

purposes. At a minimum, there is a genuine issue of

material fact with respect to this inquiry. Therefore, the

state court was correct in reversing the granting of sum-

mary judgment to the Town.

As support for its argument, the Town misrepresents

the holding of Agins v. City of Tiburon, 447 U.S. 255 (1980),

by suggesting that Agins stands for the proposition that

“one acre zoning” furthers legitimate state interests. In

fact, the Agins Court never considered whether it was

reasonable to believe that the ordinance as applied

advanced the proffered purposes. Instead the Court sim-

ply accepted the findings of the California Legislature for

the purposes of the facial challenge with which it was

presented:

The State of California has determined that the

development of local open-space plans will dis-

courage the “premature and unnecessary con-

version of open-space land to urban uses.”

Agins, 447 U.S. at 261.

Additionally, the ordinance sustained in Agins was

markedly different from the Town’s zoning ordinance

because the Agins ordinance specifically provided for

maximizing open space. Agins, 447 U.S. at 257, 262. See

also Agins v. City of Tiburon, 157 Cal. Rptr. 372, 598 P.2d 25,

27 (Cal. 1979). Unlike the Agins ordinance, however, the

Town’s zoning ordinance requires “cookie cutter” devel-

opment of one acre lots with single family homes uni-

formly positioned and centered, one to a lot. In addition,

notwithstanding the Town’s alleged interest in preserving

open space, its zoning ordinance includes requirements

for curbs, gutters and alleys. Furthermore, the Town’s

ordinance does not provide for clustering to maximize

open space nor does it consider whether the development

would be compatible with adjoining open space or would

preserve the surrounding environment. Therefore, the

Town's reliance on Agins as proof that one-acre zoning

furthers legitimate state interests as a matter of law is

misplaced.

The Town’s contention that one-acre zcning pre-

serves open space and protects its residents from the ill

effects of urbanization is also without foundation in fact.

For example, the Town’s own professional land use plan-

ner testified in his deposition that development of the

vacant land in the Town with one-acre lots would elimi-

nate the Town’s open space and destroy the rural, rustic

and countryside character of the Town. Nonetheless,

solely on the basis of its sweeping mischaracterization of

the holding in Agins, the Town now claims “there can be

no doubt” that its one-acre zoning advances its claimed

state interests. It is evident, however, that the only way

the Town’s one-acre zoning will preserve open space is if,

as the Mayhews allege, the Town’s regulations prevent all

development of the Mayhews’ property. Therefore, the

application of the Town’s zoning ordinance to the May-

hews’ land has effected a taking of that land as a matter

of law.1°

Finally, even if a taking is not established as a matter

of law, ata minimum there is a material factual issue as to

whether the Town’s zoning ordinance, as applied to the

Mayhews’ property, substantially advances legitimate

state interests, and the Mayhews have a well-established

right to present evidence on this issue at a trial. See

United States v. Carolene Products Co., 304 U.S. 144, 153

(1938) (“Where the existence of a rational basis for legis-

lation whose constitutionality is attacked depends on

facts beyond the sphere of judicial notice, such facts may

properly be made the subject of judicial inquiry . .. and the

constitutionality of a statute predicated upon the exis-

tence of a particular state of facts may be challenged by

showing to the court that those facts have ceased to

exist.”) (citations omitted) (emphasis added).

Assuming arguendo that the Town’s one-acre zoning

advances legitimate state interests, the Town’s regula-

tions nevertheless effect a taking of the Mayhews’ land

because they prohibit any economically viable use of that

land. See Agins, 477 U.S. at 260. At a minimum, there is a

material factual issue with respect to this second

10 See, e.g., Penn. Central Transp. Co. v. City of New York, 438

U.S. 104, 127 (1978); Agins v. City of Tiburon, 447 U.S. 255, 260

(1980); San Diego Gas & Electric Co. v. City of San Diego, 450 U.S.

621 (1981); First English Evangelical Lutheran Church of Glendale

v. County of Los Angeles, 482 U.S. 304, 311-312 (1987); and Nollan

v. California Coastal Comm’n., 483 U.S. 825, 834-836 (1987).

element of the Agins taking test, and this issue is suffi-

cient to sustain the state court’s determination that the

Town is not entitled to summary judgment on the May-

hews’ constitutional claims.

The record established in the state courts shows that

the Town’s zoning ordinance and its decision to deny

development approval deprive the Mayhews of all eco-

nomically viable use of their land. For example, the sum-

mary judgment evidence shows that there is no real

market for one acre lots in the Town and that the only

one-acre zoned subdivision developed to the Town’s

standards was an economic disaster. In addition, the sum-

mary judgment proofs establish that the Mayhews could

expect to market no more than 11 one-acre lots per year, a

factor which would require more than 100 years to mar-

ket the Mayhews’ property, that it is economically impos-

sible to develop the Mayhews’ property according to the

Town’s requirements, and that agricultural use of the

property is not economically viable (i.e. income or land

rents from agriculture were insufficient to cover owner-

ship and maintenance costs).

In response to this evidence, the Town merely points

to two appraisals prepared for the Mayhews which show

a substantial value for the Mayhews’ property prior to

the Town’s denial of the application and a significant

diminution in value following the Town’s denial. Pet. 17.

The first appraisal, however, has virtually no probative

value because it was based on comparable land sales,

most of which involved property located outside of the

Town, and it assumed that the development of the prop-

erty would be permitted in accordance with the develop-

ment trends in the general area, an unwarranted

assumption given the Town’s decision regarding the

Mayhews’ application. In addition, the conclusions of the

second appraisal are controverted by the Mayhews’ sum-

mary judgment proofs. Therefore, even if the Town has

not taken the Mayhews’ property as a matter of law, the

most that can be said is that the record presents a genuine

issue Of material fact as to whether an economically via-

ble use of the Mayhews’ property remains.

Similarly unfounded is the Town’s claim that it never

“took” anything from the Mayhews because the Mayhews

possessed no reasonable investment-backed expectations

(i.e., property rights). See Pet. 17-19. One of the Mayhews

has owned over 70% of the subject property for more

than 40 years, long before the Town instituted its one-acre

zoning. In light of this long period of ownership, it is

absurd to suggest that the Mayhews’ could have no rea-

sonable investment-backed expectations in their land.

Moreover, the Town’s argument that prior knowledge

of zoning restrictions precludes a reasonable investment-

backed expectation based on less restrictive zoning

demeans the constitutional stature of property rights. See

Pet. 18-19. To suggest that an otherwise overly restrictive

regulation is constitutional so long as it was put in place

prior to the current ownership is simply wrong. Indeed,

this Court recently rejected this very argument:

Nor are the Nollans’ rights altered because they

acquired the land well after the Commission

had begun to implement its policy. So long as

the Commission could not have deprived the

prior owners of the easement without compen-

sating them, the prior owners must be under-

stood to have transferred their full property

rights in conveying the lot.

Nollan, 483 U.S. at 833 n.2. Consequently, it is clear that

the Mayhews possess legitimate investment-backed

expectations and that, at a minimum, there is a genuine

issue of material fact as to whether the Town’s denial of

their application denied them all economically viable use

of their land.

In summary, the Town’s argument that the state court

erred by allegedly failing to consider alternative uses of

the subject property is plainly erroneous. The Town incor-

rectly assumes that its zoning ordinance advances legiti-

mate state interests, and it fails to show, as a matter of

law, that there are economically viable uses of the May-

hews’ property under the Town’s one-acre zoning. The

state court was correct in finding that the Town was not

entitled to summary judgment. Therefore, this Court

should reject the Town’s Petition.

Cc.

The Mayhews’ Vagueness Challenge Survives The State

Court’s Decision That The Town’s Denial Of Develop-

ment Approval Was A Legislative Act

The Town’s third argument arises from the state

court’s determination that the Town’s consideration of

the application for planned development approval was a

legislative act for the purposes of Civil Rights Act immu-

nity. The Town claims that the state court’s finding in

regard to immunity means that the Mayhews’ due pro-

cess claims should be dismissed. Pet. 19-22. While it is

undoubtedly true that procedural due process rights to

notice and hearing do not attach to legislative acts, the

Town’s argument cuts too far and is without merit.

The Town erroneously assumes that when a vagueness

claim bears the caption “procedural due process,” the chal-

lenged law does not have to comply with the constitutional

requirements for minimal certainty, simply because the law

is legislation. This assumption is unfounded.

The vagueness doctrine requires that legislation be

sufficiently definite to give affected persons fair warning

of what is permitted and prohibited:

Vague laws offend several important values.

First, because we assume that man is free to

steer between lawful and unlawful conduct, we

insist that laws give the person of ordinary

intelligence the opportunity to know what is

prohibited, so that he may act accordingly.

Vague laws may trap the innocent by not pro-

viding fair warning. Second, if arbitrary and

discriminatory enforcement is to be prevented,

laws must provide explicit standards for those who

apply them. A vague law impermissibly delegates

basic policy matters to policemen, judges and juries

for resolution on an ad hoc and subjective basis, with

the attendant dangers of arbitrary and discrimina-

tory application.

Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972)

(emphasis added) (footnotes omitted). This requirement,

however, is fundamentally different than the procedural

due process guarantees of notice and hearing.'! Although

11 The court in Jackson Court Condominiums, Inc. v. City of New

Orleans, 665 F.Supp. 1235 (E.D. La. 1987), aff'd, 874 F.2d 1070 (Sth

Cir. 1989), recognized a distinction between the procedural due

process claims (notice and hearing) and the vagueness claims

raised. Significantly, the fact that the action challenged there was

determined to be legislative did not have any effect on the vague-

ness challenges, although the procedural due process challenges

were dismissed.

the Constitution may not command that all persons are to

have notice of and an opportunity to be heard on pending

legislation, it does require that legislation satisfy minimal

standards of certainty. Therefore, the mere fact that the

Mayhews’ vagueness claims are denominated “pro-

cedural due process” does not defeat those claims nor

does it shield the Town’s ordinances from scrutiny under

a vagueness analysis.

The State Court’s Treatment Of The Mayhews’ Facial

Challenges Was Consistent With Settled Law

The Town claims in its final argument that the state

court incorrectly found that the Mayhews’ facial constitu-

tional challenges’? are predicated upon disputed factual

issues. Pet. at 22. This argument fails because, as a plain

reading of the state court’s opinion shows, the court did

not specifically address the Mayhews’ facial claims.

Moreover, this Court has made clear that, contrary to the

Town’s assertion, the underlying facts and factual issues

are relevant to a court’s consideration of each of the

Mayhews’ facial challenges.

For example, in United States v. National Dairy Prod-

ucts Corp., 372 U.S. 29, 31-32 (1963) this Court stated that

it does not evaluate in the abstract the validity of a

statute which is attacked as vague on its face. Addi-

tionally, in New York State Club Ass‘n, Inc. v. City of New

12 The Mayhews have asserted three facial challenges in

their petition for relief claiming violations of their rights to

substantive due process and equal protection, and of the

vagueness doctrine. They have also asserted “as applied” chal-

lenges under each of these doctrines.

York, 487 U.S. 1, 17-18 (1988) this Court found that a facial

equal protection challenge of an amendment to a local

human rights law failed because there was no evidentiary

showing that legislatively-created classes were identical

in critical respects. Finally, given that the rational basis

test employed in a non-suspect classification equal pro-

tection challenge (such as that involved in New York State

Club Ass‘n, 487 U.S. at 16) is essentially the same as the

test employed in a substantive due process challenge, see

Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 470 n.

12 (1981), it follows that facts and factual issues are also

relevant to consideration of a facial substantive due pro-

cess claim. In light of the above cases, it is clear that facts

and factual issues are relevant to the Mayhews’ facial

claims, and the Mayhews should have an opportunity to

present facts and attempt to resolve any factual issues in

their favor at a trial on the merits of those claims.

CONCLUSION

This Court is without jurisdiction to review this case

because the state court’s decision is not a “final judg-

ment” within the meaning of 28 U.S.C. § 1257(a). Addi-

tionally, even if there was a final decision in the state

court, this Court should deny the writ because the Town

has failed to establish that the state court committed any

error or that this case presents a substantial federal ques-

tion meriting the attention of this Court.

Therefore, the Mayhews respectfully pray that this

Court deny the Petition for a Writ of Certiorari to the

Supreme Court of the State of Texas.

Respectfully submitted,