# Opposition Brief — Rischon Development Development Development Corp. v. City of Keller, Texas (No. 08-291)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2008

## Text

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IN THE FFICE OF TH

Supreme Court of the United States

RISCHON DEVELOPMENT CORPORATION,
Petitioner,
v,
CITY OF KELLER, TEXAS,
Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE
Court oF APPEALS FOR THE SECOND District oF TEXAS
AT Fort Worth, TEXAS

BRIEF IN OPPOSITION

L. STANTON Lowry S.G. JOHNDROE III,
Douc tas H. Connor, III Counsel of Record
MICHAEL K. KALLas Scott A. FREDRICKS
Boye & Lowry, L.L.P Mary H. BARKLEY
4201 Wingren CaNnTEY HanceR LLP
Suite 108 600 West 6“ Street
Irving, Texas 75062 Suite 300
(972) 650-7100 Fort Worth, Texas 76102
(817) 877-2800

Attorneys for Respondent

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TABLE OF CONTENTS
Page
TABLE OF CITED AUTHORITIES ......... ii

STATEMENT OF JURISDICTION .......... 1
STATEMENT OF THE CASE ............... 2
REASONS FOR DENYING THE PETITION

A. Rischon failed to present or preserve the
federal questions raised by its petition for
I er EE hha sek che ese teen cdan 5

B. There is no “safe-harbor” in conflict with
this Court’s decisions in Nollan and
Dolan created by the Fort Worth Court
ME PE GR, oon k's cass vacwccccss 7

C. The Fort Worth Court of Appeals did not
modify or reverse the trial court’s
conclusions of law but simply and
permissibly construed the findings and
conclusions to be in harmony with the
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TABLE OF CITED AUTHORITIES

Page

Cases:
Adams v. Robertson,

520 U.S. 8B (1997) 2... cence Poor ere 5
Bd. of Dirs. of Rotary Intl

v. Rotary Club of Duarte,

481 Uh Ge re eee baw dads ivess 5
BMC Software Belgium, N.V. v. Marchand,

83S. W.SG THD CHM: MD cece sce venccceces 13
Brown v. Frontier Theatres, Inc.,

SB9 S. WZ ZO CHOR. BOO) occa ceccccencsess 12
Dolan v. City of Tigard,

SiS Ue: FIG Gee ea Saba ceavisees 4, 7,9, 14
In re Humphreys,

88 S.W.2d 402 (Tex. 1994), cert. denied,

SiS Uo a ee he oi ee es ccesis. 13
Lone Star Cement Corp. v. Fair,

467 S. WB GE Cees BOTE) bai wise cecsccasss 12

Loretto v. Teleprompter Manhattan CATV Corp.,
456 U.S. GED Gomer aw eae kh Cha eck incense. 9, 10

Mayhew v. Town of Sunnyvale,
964 S.W.2d 922 (Tex. 1998), cert. denied,
52GB U.S. LEGG Cie awk whe Sk w a cece cacess 13

ii

Cited Authorities

Page

Nollan v. California Coastal Comm'n,

DE Sr eer eee re 7,9,14
Rischon Dev. Corp. v. City of Keller,

242 S.W.3d 161 (Tex. App. — Fort Worth 2007,

EE te Css vi wwaNenakows ens 1, 3, 6, 7, 9,12
Suburu of Am., Inc.

v. David McDavid Nissan, Inc.,

BG TS, Weed Bim CLO, DOU) on ccc cc sccccsccses 13
Webb v. Webb,

Se ED 2s 6 o's.0 esos uencasnekmewas 5
Statutes:
ee irc coy ue nk i anee sauna eben l
Constitutional Provisions:
Re, SI Ee ig wk uk seaeec exekees 2,8

United States Constitution:
en i eck cckanek 1, 2, 3, 10
Fourteenth Amendment ........ 1, 3, 10, 11, 18, 14

]
STATEMENT OF JURISDICTION

The United States Supreme Court lacks jurisdiction
over this proceeding under 28 U.S.C. § 1257(a) because
Rischon failed to raise or preserve any rights under the
United States Constitution. As noted by the Fort Worth
Court of Appeals:

Although Rischon contends in its first and
second issue statements that it established a
taking “under federal law,” nowhere in its brief
does it cite or even mention the federal
constitution; nor did it allege a taking under
the federal constitution in its trial court
pleadings. And in a trial court brief, Rischon
specifically stated, “(W]e are in fact litigating
based upon the Texas Constitution ... .”
Therefore, we construe Rischon’s claims to
allege a taking under the Texas constitution
only.

Rischon Dev. Corp. v. City of Keller, 242 S.W.3d 161,
167 n.2 (Tex. App.—Fort Worth 2007, pet. denied). Quite
simply, Rischon never pursued claims under the United
States Constitution and none of the state courts
rendered any judgment or opinion on any question of
federal law. The Fifth and Fourteenth Amendments of
the United States Constitution are conspicuously absent
from the trial and appellate pleadings filed by Rischon
prior to its petition for writ of certiorari to this Court.

BS

2
STATEMENT OF THE CASE

This inverse condemnation case was decided under
the Texas Constitution’s provision that “[nJo person’s
property shall be taken . . . unless by the consent of
such person.” Tex. Const. art. I, § 17. Rischon attempts
for the first time at this stage to make this a “federal
case.” Rischon, who desired to develop a 19 acre tract
within the City of Keller, Texas, brought this suit
challenging the application of the City’s development
regulations under Texas law. The trial court and Court
of Appeals determined that Rischon consented to the
regulations and therefore was not entitled to
compensation. Rischon’s statement of the case misstates
and omits key portions of the factual and procedural
record of this case.

First, Rischon states that its Fifth Amendment
arguments were “discussed extensively at the trial court
level” (Petition at 15) and in its appellate briefs (Petition
at 15-18). This is a misstatement of the record. Rischon’s
live pleadings in the trial court simply challenged the
City of Keller’s development regulations as being “in
violation of the laws of Texas and the Texas
Constitution.” (CR 39; Rischon’s First Amended Original
Petition, p. 11.) Rejecting Rischon’s attempt to inject a
federal question for the first time at the appellate level,
the Court of Appeals stated:

{[N]jowhere in its brief does it cite or even
mention the federal constitution; nor did it
allege a taking under the federal constitution
in its trial court pleadings. And in a trial
court brief, Rischon specifically stated,

3

“(We are in fact litigating based upon the Texas
Constitution. . . .”

Rischon Dev. Corp. v. City of Keller, 242 S.W3d 161, 167
n.2 (Tex. App.—Fort Worth 2007, pet. denied). Accordingly,
neither the trial court nor the Court of Appeals considered
the Fifth or Fourteenth Amendment issues presented to
this Court. Rather, the judgment of the trial court and
opinion of the Court of Appeals rest entirely on the
interpretation and application of the takings clause of the
Texas Constitution.

Second, Rischon omits mentioning in its petition that
the trial court made extensive factual findings that Rischon
“proposed,” “consented to,” “did not object to,” and
“agreed” to each of the complained of requirements.
(Pet. App. 1; Supp. CR 4; Trial Court’s Findings of Fact
Nos. 8, 9, 10, 11, 14, 17, 26; Concls. of Law Nos. 5, 6.) See
Rischon Dev. Corp., 242 S.W.3d at 163-166. Rischon chose
not to challenge a single one of these factual findings of
consent and agreement made by the trial court. Rischon
Dew. Corp., 242 S.W.3d at 166 and 169. Accordingly, the
Court of Appeals concluded that “by proposing, adopting
without objection, or agreeing in the Developer’s
Agreement without objection to all of the Rolling Wood
‘requirements,’ Rischon consented to those requirements.”
Id. at 169.

Rischon also omits the fact that it did not even
purchase the property until after six of the eight so-called
“requirements/exactions” had already been imposed on
the property at its request or agreement. The Court of
Appeals recognized that this defect could deprive Rischon
of standing to challenge these particular requirements.
Rischon Dev. Corp., 242 S.W.3d at 166.n.1.

4

Finally, Rischon ignores the evidence presented to
the trial court establishing that each requirement
satisfied both the “essential nexus” and “rough
proportionality” requirements of the very federal cases
it invokes. In fact, Rischon did not even appeal the trial
court’s conclusion that each of the requirements
substantially advanced legitimate government interests.
As for the rough proportionality test of Dolan v. City of
Tigard, 512 U.S. 374, 391 (1994), the trial court heard
testimony from numerous witnesses of the impact the
proposed development would have on city parks, city
roads, city utility lines, and public safety thereby
necessitating each of the requirements essential for
Rischon’s development. The trial court concluded that
the City cleared the constitutional hurdle set forth in
this Court’s decisions as adopted into the takings '
jurisprudence of the Texas Constitution.

The opinion of the Court of Appeals sets forth in
more detail the factual and procedural background and
is hereby incorporated by reference.

5
REASONS FOR DENYING THE PETITION

A. Rischon failed to present or preserve the federal
questions raised by its petition for writ of
certiorari.

The jurisdiction of this Court to re-examine the final
judgment of a state court can arise only if the record as
a whole shows either expressly or by clear implication
that the federal claim was adequately presented in the
state system. Webb v. Webb, 451 U.S. 493, 496 (1981). At
a minimum, there should be no doubt from the record
that a claim under a federal statute or the Federal
Constitution was presented in the state courts and that
those courts were apprised of the nature or substance
of the federal claim at the time and in the manner
required by the state law. Jd. at 501. The mere citation
to federal case law in a state court petition or brief is
insufficient to inform a state court that it has been
presented with a claim subject to this Court’s appellate
jurisdiction. Bd. of Dirs. of Rotary Int'l v. Rotary Club
of Duarte, 481 U.S. 537, 550 n.9 (1987). Moreover, when
the highest state court is silent on the federal question
brought to this Court, this Court assumes that the issue
was not properly presented, and the aggrieved party
bears the burden of defeating this assumption by
demonstrating that the state court had a fair opportunity
to address the federal question that is sought to be
presented here. Adams v. Robertson, 520 U.S. 83, 86-
87 (1997).

Rischon’s petition to the trial court sought
determination of only the validity of the City’s
requirements under the Texas Constitution. (CR 39;

» li tk Oe ee eee ee

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Rischon’s First Amended Original Petition.) It is telling
that the only trial court document Rischon can point to
that even obliquely refers to federal constitutional
precedents is the trial brief submitted to the trial court
on the eve of trial. Notably, that document discusses
these federal precedents in the context of attempting
to convince the trial court to apply the federal analysis
to the Texas Constitution. Rischon’s trial brief admits
as much:

In this case, because we are in fact litigating
based upon the Texas Constitution it would
seem only logical that the standard to be
imposed is that of a strict correlation between
the requirements rather than a rough
proportionality since the lesser guarantees of
the Federal Constitution were what triggered
the protections of Dolan and were acted upon
in the Flower Mound case.

(Pet. App. 3, p. 7) (emphasis added); see also Rischon
Dev. Corp., 242 $.W.3d at 167 n.2. Moreover, the actual
live pleading upon which the case was tried to the bench
only alleged a “taking of value in property in violation
of the requirements of the laws of Texas and the Texas
Constitution.” (CR 49; Rischon’s First Amended Original
Petition, p. 11)

Further evidence that the trial court was never
presented with or considered a federal constitutional
claim ca ©e gleaned from that court’s conclusions of
law fron. “<iich any mention of the federal constitution
is missing. On the other hand, the trial court issued a

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clear and unequivocal holding concerning the Texas
Constitution:

10. The City’s zoning regulations and
ordinances at issue and in effect at all times
material to this lawsuit and the City’s actions
do not constitute a taking under Texas
Constitution, Article I, § 17.

(Pet. App. 1; Supp. CR 12; Concl. of Law No. 10.)

Even on appeal, though it crafted two issue
statements referring to “federal law”, it never cited or
mentioned any provisions of the Federal Constitution,
leaving the Court of Appeals to conclude that Rischon
claimed a taking under the Texas Constitution only.
Rischon Dev. Corp., 242 S.W.3d at 167 n.2.

Accordingly, because Rischon failed to present the
federal constitutional issue to the trial court for
determination in the first instance, that question.is not
properly before this Court.

B. There is no “safe-harbor” in conflict with this
? Court’s decisions in Nollan and Dolan created by
the Fort Worth Court of Appeals’ decision.

Rischon argues that the Court of Appeals’ opinion
below creates an “unfettered safe-harbor” within which
local governments may “require consent” from
developers to otherwise unconstitutional exactions. A
clear reading of the trial court judgment and opinion of
the Court of Appeals does not compel such a conclusion.

8

First, as shown above, the trial court judgment and
Court of Appeals’ opinion both are founded solely upon
an analysis of the consent clause of article I, section 17
of the Texas Constitution: “No person’s property shall
be taken, damaged or destroyed for, or applied to public
use without adequate compensation being made, unless
by the consent of such person.” (emphasis added). At
no point before any other court has Rischon challenged
the federal constitutionality of this provision of the
Texas Constitution, but Rischon implies such a challenge
for the first time here.

Second, Rishcon’s argument rests on a factual
premise of coercion that was rejected by the trial court
and Court of Appeals. The trial court made numerous
explicit findings that “Rischon proposed” or “Rischon
consented to” or “Rischon did not object” or “Rischon
agreed” to each of the now-complained-of development
obligations. (Pet. App. 1; Supp. CR 4; Findings of Fact
Nos. 8, 9, 10, 11, 14, 17, 26; Concls. of Law Nos. 5, 6.)
The trial court concluded that “{aJll of the provisions of
PD-938 or the Rolling Wood development were proposed
or adopted by Rischon without objection.” (Pet. App. 1;
Supp. CR 11; Concl. of Law No. 5.) Notably, Rischon did
not challenge any of these factual findings on appeal
and the Court of Appeals reached the same conclusion:

We hold that by proposing, adopting without
objection, or agreeing in the Developer’s
Agreement without objection to all of the
Rolling Wood “requirements,” Rischon
consented to those requirements. Therefore,

9

the trial court did not err by rendering a take
nothing judgment on Rischon’s claims.

Rischon Dev. Corp., 242 S.W.3d at 169. Rischon omits
what the trial court and Court of Appeals recognized —
Rischon only complained after Rischon had consented
to the planned development zoning ordinance and freely
entered into a developer’s agreement with the City.
Id. at 168. The real question posed by Rischon’s conduct
and claim is not whether a city may coerce consent from
a developer, but whether a city is open to after-the-fact
takings challenges to zoning and development
agreements it makes with developers. Here, the state
courts considered the matter and determined that the
City had not coerced Rischon and had acted within the
bounds of the Texas Constitution. Where the property
owners in Nollan and Dolan challenged the local
government’s development requirements from the
moment they were imposed, Rischon proposed and
agreed to all of the requirements until it later found
them economically disadvantageous. Compare Nollan
v. California Coastal Comm’n, 483 U.S. 825, 828-29
(1987) and Dolan, 512 U.S. at 380-82 with Rischon Dev.
Corp., 242 S.W.3d at 168.

The opinion of the Texas appellate court does not
create a “safe-harbor” or other exception to this Court’s
holdings in Nollan and Dolan - first because it is founded
on a clause of the Texas Constitution, and second because
its opinion is based upon a radically different set of facts.

Rischon cites only one case in support of its
argument that the City’s actions required Rischon to
consent to the City’s regulations: Loretto v.
Teleprompter Manhattan CATV Corp., 458 U.S. 419
(1982). However, that case did not address any “consent”

10

issue. The only issue in Loretto was “whether a minor
but permanent physica] occupation of an owner’s
property authorized by government constitutes a
‘taking’ of property for which just compensation is due
under the Fifth and Fourteenth Amendments of the
Constitution.” Jd. at 421. New York law provided that
landlords could not interfere with installation of cable
television facilities upon the landlord’s property. Jd. at
423. This Court held that a “permanent physical
occupation authorized by government is a taking. .. .”
Id. at 426. Accordingly, this Court held that there was a
compensable taking, but emphasized that the holding
applies only to physical takings:

Our holding today is very narrow. We affirm the
traditional rule that a permanent physical
occupation of property is a taking. In such a case,
the property owner entertains a historically
rooted expectation of compensation, and the
character of the invasion is qualitatively more
intrusive than perhaps any other category of
property regulation. We do not, however,
question the equally substantial authority
upholding a State’s broad power to impose
appropriate restrictions upon an owner’s use
of his property.

Id. at 441. The Loretto holding is not applicable in the
present case where a physical taking was not alleged
and all of the requirements were agreed to or proposed
by Rischon.

11

C. The Fort Worth Court of Appeals did not modify
or reverse the trial court’s conclusions of law but
simply and permissibly construed the findings
and conclusions to be in harmony with the
judgment.

Rischon never cited or claimed the Fourteenth
Amendment of the United States Constitution as a
ground for relief in the state courts below. Specifically,
Rischon’s petition for review to the Texas Supreme
Court does not cite the Fourteenth Amendment or even
include the phrase “equal protection.” As shown above,
Rischon has not preserved this issue for consideration
by this Court.

Nevertheless, Rischon charges the Court of Appeals
with violating Texas appellate procedure by modifying
or reversing the trial court’s conclusions of law as they
pertain to whether or not the City of Keller met its
burden in establishing consent under the Texas
Constitution. Of course, one will search in vain for any
such modification or reversal in the opinion of the Court
of Appeals. Rather, the Court of Appeals undertook the
unsurprising task of construing the trial court’s findings
of fact and conclusions of law to determine whether they
supported the judgment of the trial court that a violation
of the Texas Constitution’s takings provision had not
occurred:

While the only conclusion [of law] containing
the word “consent” is the one dealing with the
roadway impact fees and the park fees, the
trial court also concluded that Rischon
proposed or adopted without objection all of

12

the Rolling Wood requirements. In this case,
in light of the trial court’s unchallenged
findings of fact, “proposed or adopted without
objection” is indistinguishable from
“consented.”

Rischon Dev. Corp., 242 S.W.3d at 169. As one might
expect, such construction or interpretation of a trial
court’s findings and conclusions is well within the
authority of a Texas intermediate appellate court. In
Texas the same rules of interpretation apply in
construing the meaning of a court order or judgment
as in ascertaining the meaning of other written
instruments. Lone Star Cement Corp. v. Fair, 467S.W.2d
402, 404-405 (Tex. 1971). Accordingly, the entire contents
of the instrument and record are to be considered and
read as a whole. Jd. at 405. More specifically, findings of
fact and conclusions of law are to be construed together
and if the findings of fact are susceptible of different
construction, they will be construed, if possible, to be in
harmony with the judgment and to support it. Brown v.
Frontier Theatres, Inc., 369 S.W.2d 299, 301 (Tex. 1963).
It is not surprising then that the Court of Appeals in
the instant case reviewed the findings and conclusions
together and determined that it was possible to construe
them in support of the trial court judgment that an
uncompensated taking under the Texas Constitution
had not occurred.

13

When a trial court’s conclusions of law are
challenged, the proper standard of review is de novo.
See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928
(Tex. 1998), cert. denied, 526 U.S. 1144 (1999); In re
Humphreys, 88 S.W.2d 402, 404 (Tex. 1994), cert. denied,
513 U.S. 964 (1994). In such a review, the reviewing court
exercises its own judgment, redetermines each legal
issue, and will uphold the conclusions on appeal if the
judgment can be sustained on any legal theory
supported by the evidence. Suburu of Am., Inc. v. David
McDavid Nissan, Inc., 84 S.W.3d 212, 222 (Tex. 2002).
Incorrect conclusions of law will not require reversal if
the controlling findings of fact support a correct legal
theory. BMC Software Belgium, N.V. v. Marchand, 83
S.W.3d 789, 794 (Tex. 2002). In following these standards,
the Court of Appeals did not violate the Fourteenth
Amendment of the United States Constitution.

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CONCLUSION

A federal constitutional taking claim was not
presented below. Nor does the decision below create an
exception to this Court’s holdings in Nollan and Dolan
or violate the Equal Protection Clause of the Fourteenth
Amendment in its application of Texas appellate
procedure. Accordingly, the Court should deny the
Petition for Writ of Certiorari.

Respectfully submitted,

S.G. JOHNDROE III,
Counsel of Record
Scott A. FREDRICKS
Mary H. BARKLEY
CANTEY HANGER LLP
600 West 6" Street
Suite 300

Fort Worth, Texas 76102
(817) 877-2800

L. STANTON LOwry

Douc Las H. Connor, III
MICHAEL K. KALLas
Boye & Lowry, L.L.P
4201 Wingren

Suite 108

Irving, Texas 75062
(972) 650-7100

Attorneys for Respondent

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1842%3A2. Public record. Not legal advice.