Horton, et al v. City of Smithville, et al

* District Judge, Western District of Louisiana, sitting by
designation.
** Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
December 8, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-50085
PAUL HORTON; SARAH HORTON,
Plaintiffs - Appellants
versus
CITY OF SMITHVILLE, BASTROP COUNTY; JACK PAGE; TODD HELMCAMP; ELISE
J. HELMCAMP,
Defendants - Appellees
Appeal from the United States District Court
for the Western District of Texas
(No. A-02-CV-669-LY)
Before WIENER and PRADO, Circuit Judges, and LITTLE,* District
Judge.
PER CURIAM:**
Plaintiffs-Appellants Paul and Sarah Horton (the “Hortons”)
appeal the district court’s summary judgment dismissal of their 42
U.S.C. § 1983 and Texas state law claims against Defendants-
Appellees, the City of Smithville, its Public Works Director, Jack

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1 The Hortons brought only state law claims against the
Helmcamps, which the district court dismissed without prejudice.
That suit is now proceeding in state court.
2
Page, and the Hortons’ neighbors, Todd and Elise Helmcamp.1 We
affirm.
I. FACTS AND PROCEEDINGS
The Hortons complain that the Helmcamps’ use of their property
to stage the “WayStation Opry,” a live music event, violates
Smithville zoning ordinances, and that the City and Page actively
participated in and encouraged this violation. The Hortons contend
that the noise created by the amplified music and the crowds
attending the Opry infringed their constitutional rights by (1)
depriving them of a property interest, viz., the peaceful enjoyment
of their home, without due process or equal protection of the law
and (2) diminishing the value of their home without just
compensation.
Defendants responded that the Helmcamps’ use of their property
is legal and appropriate, as the Helmcamps and the Hortons both
live in a commercially-zoned district. The Hortons’ disagreement
with the City as to the interpretation of a local zoning ordinance
does not, defendants argue, give rise to a constitutional claim.
The district court granted summary judgment in favor of the
defendants, dismissing the Hortons’ constitutional claims with
prejudice and their state claims without prejudice. The Hortons
timely filed their notice of appeal.

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2 Bryan v. City of Madison, 213 F.3d 267, 272 (5th Cir.
2000).
3 Sandy Creek Investors, Ltd. v. City of Jonestown, 325 F.3d
623, 626 (5th Cir. 2003). See also Samaad v. City of Dallas, 940
F.2d 925, 934 (5th Cir. 1991).
4 John Corp. v. City of Houston, 214 F.3d 573, 581 (5th Cir.
2000).
5 Williamson County Reg’l Planning Comm’n v. Hamilton Bank,
473 U.S. 172, 186, 194 (1985). See also John Corp, 214 F.3d at
581; Hidden Oaks v. City of Austin, 138 F.3d 1036, 1041 (5th Cir.
1998).
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II. ANALYSIS
A. Standard of Review
The district court’s dismissal of all the Hortons’ § 1983
claims was grounded in the conclusion that they had not stated any
constitutional violations. We review de novo the court’s summary
judgment dismissal of the Hortons’ takings, due process, and equal
protection claims.2
B. Takings
Neither party briefed the issue of ripeness; but, as this
implicates jurisdiction, we must raise the issue sua sponte.3 A
takings claim is not ripe until a plaintiff has been denied just
compensation.4 Before a plaintiff may bring a § 1983 takings claim
in federal court for losses resulting from the application of local
zoning regulations, he must obtain a final decision from state
officials responsible for administering the zoning ordinances.5
Although Page has responsibility for initial zoning
determinations, the decision on whether a particular use of

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6 See Samaad, 940 F.2d at 938 (holding that noisy and
disruptive grand prix automobile races taking place in public
park close to plaintiffs’ property did not amount to a “taking.”
The relatively insignificant duration of the conduct, which took
place over three or four days in two separate years, and the fact
that the conduct would support a nuisance action rather than
interfering with one of the more important “sticks in the bundle”
of property owners’ rights did not sufficiently interfere with
plaintiffs’ property rights to “take” value in the constitutional
sense.).
4
property complies with zoning regulations can be made only by the
city council. The Hortons did not assert, either in their briefs
or at oral argument, that they ever requested such a hearing before
the city council. Judging from the contentions of the parties and
the record on appeal, no final decision was ever reached on the
interpretation of Smithville’s zoning ordinances vis-à-vis the
Helmcamps’ use of their property. We hold that the Hortons’
takings claim is not ripe, leaving us without jurisdiction to hear
this claim.
We further note that, even if the Hortons’ takings claim were
ripe, it appears to have no merit. The nature of the interference
with the Hortons’ property, although palpable when the Opry is in
session, does not rise to the level of a taking.6 According to
Smithville’s ordinance, the City cannot grant noise permits to the
same business more than twice in a month; and, if a permit is
granted, the noise must cease no later than 10:00 p.m. Neither
have the Hortons alleged any physical invasion resulting from the
Opry. Based on the Hortons’ allegations, the Helmcamps’ Opry
appears to be more a nuisance to the Hortons than a taking of their

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7 Bryan, 213 F.3d at 274.
8 See Baldwin v. Daniels, 250 F.3d 943, 946 (5th Cir. 2001)
(finding that Mississippi law expressly committed approval of
bail bonds to the discretion of the responsible officer, which
left appellant soliciting bond agent with no property interest in
having her bonds accepted by Pontotoc County)(citing Neuwirth v.
La. State Bd. of Dentistry, 845 F.2d 553, 557-58 (5th Cir. 1988).
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property.
C. Due Process
The Hortons’ contention that the City’s zoning determination
violates their due process rights in addition to the takings clause
seems to advance that the City acted arbitrarily and capriciously
when it misinterpreted or selectively disregarded its own zoning
ordinances, resulting in diminution of value of the Hortons’
property. Before charging a violation of his substantive due
process rights, a party must show that he was deprived of a
constitutionally-protected property right.7 The Hortons allege
that the City’s decision implicated their property interests in the
investment value and the peaceful use and enjoyment of their home.
The true interest asserted by the Hortons, however, is the right to
have Smithville enforce its zoning ordinances in the way that the
Hortons believe they should be enforced.
We have recognized that discretionary statutes do not give
rise to constitutionally-protected property interests.8 The
provisions of the Texas Local Government Code cited by the Hortons
address a municipality’s power to adopt zoning ordinances but do

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9 See TEX. LOC. GOV’T CODE §§ 211.004, 211.006.
10 FM Props. Operating Co. v. City of Austin, 93 F.3d 167,
174 (5th Cir. 1996)(quoting Gosnell v. City of Troy, 59 F.3d 654,
658 (7th Cir. 1995). We held in FM Properties that a city
council’s allegedly incorrect interpretation of state law did not
violate the Fourteenth Amendment and emphasized the impropriety
of bootstrapping alleged violations of state law on to federal
due process claims. Id.
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not require mandatory enforcement.9 The Hortons have directed us
to no Smithville law, and we have found none on our own, requiring
the City to enforce its land-use regulations. Furthermore,
alleging that a city official reached the wrong conclusion on a
zoning decision does not implicate the Constitution: “[T]he due
process clause does not require a state to implement its own law
correctly [, nor does] the Constitution . . . insist that a local
government be right.”10 As the Hortons have no property interest
at stake here, they have stated no due process claim. We therefore
affirm the district court’s dismissal of this claim.
D. Equal Protection
A plaintiff may prove an equal protection violation either by
showing that others situated similarly to him were treated
differently or that he was singled out for selective enforcement of
a rule. The Hortons’ claim sounds in selective enforcement. To
prove a selective enforcement claim, a “plaintiff must prove that
the government official’s acts were motivated by improper
considerations, such as race, religion, or the desire to prevent

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11 Bryan, 213 F.3d at 277.
12 The Hortons’ conspiracy claim comprises two-thirds of one
page of their brief and cites no case law authority or evidence
in the record. We therefore hold this claim to be abandoned.
See L & A Contracting Co. v. S. Concrete Servs., 17 F.3d 106, 113
(5th Cir. 1994)(holding appeal to be abandoned because appellant
cited no authority in a one-page argument).
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the exercise of a constitutional right.”11 As they have presented
no proof that improper considerations motivated Page or the City,
the Hortons’ equal protection claim fails.12
III. CONCLUSION
For the foregoing reasons, the judgment of the district court
dismissing all claims advanced by the Hortons is
AFFIRMED.

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