United States Court of Appeals
Fifth Circuit
F I L E D
REVISED JUNE 9, 2006
June 6, 2006
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
__________________________
No. 04-41147
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WAYNE MIKESKA; JANICE MIKESKA; MOSE SMITH;
CAROL SMITH,
Plaintiffs - Appellants,
versus
CITY OF GALVESTON; et al.,
Defendants,
CITY OF GALVESTON
Defendant - Appellee.
___________________________________________________
Appeal from the United States District Court
For the Southern District of Texas, Galveston
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Before HIGGINBOTHAM, BARKSDALE, and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
The petition for panel rehearing is DENIED. The prior opinion, Mikeska v. City of
Galveston, 419 F.3d 431 (5th Cir. 2005), is WITHDRAWN, and the following opinion is substituted:
This appeal arises from the dismissal, on summary judgment, of the appellants’ suit against
the City of Galveston for its refusal to grant permits for reconnection of the appellants’ homes to
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utility services after Tropical Storm Frances. We vacate the lower court’s ruling and remand for
further proceedings.
I.
The Texas Open Beaches Act (“OBA”) was passed in order to protect the public’s right for
“free and unrestricted” access to state-owned beaches. TEX. NAT. RES. CODE ANN. § 61.011(a). The
OBA safeguards the public’s common law easement for access to the “public beach”—defined by the
OBA as consisting of the area between the line of vegetation and the mean low tide line. § 61.001(8).
Due to shifts of the vegetation line and the erosion of the shoreline, the natural demarcation lines are
not static. To prevent destruction of the public beach from a landward shift of the mean low tide line,
the legal boundaries of the public easement change with their physical counterparts. Feinman v.
State, 717 S.W.2d 106, 110–11 (Tex. App. Ct. 1986).
The OBA makes it “an offense against the public policy of this state for any person to create,
erect, or construct any obstruction, barrier, or restraint that will interfere . . . [with the right of the
public] to enter or to leave any public beach.” § 61.013(a). Texas empowers the Texas General Land
Office (“GLO”) to both “strictly and vigorously enforce the prohibition against encroachments on and
interferences with the public beach easement,” and to “promulgate rules” to enforce the OBA’s public
beach protections. § 61.011(c), (d). The OBA also requires local municipalities to design plans to
protect access to public beaches that are within their respective jurisdictions. § 61.015(a).
Wayne and Janice Mikeska and Mose and Carol Smith (collectively “appellants”) own
separate beachfront rental properties in the Bermuda Beach subdivision of Galveston, Texas. Until
1998, when Tropical Storm Frances hit the coast of Texas causing erosion of the vegetation line,
these homes were landward of the public beach. After Frances, the appellants’ homes were entirely
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seaward of the vegetation line—i.e., the homes were completely situated on the public beach as
defined by Texas law. Along with 105 other houses that were also fully positioned on the public
beach, the appellants’ properties were placed on the GLO’s 100% List.1 The 100% List was
submitted to the Texas Attorney General to decide whether the listed homes should be removed.
The City of Galveston (“City”) then condemned the appellants’ homes, disabling a number
of important utilities including electricity, sewer, and water services. Although the Attorney General
concluded that the appellants’ homes did not require removal, his office notified the appellants by
letter that it was deferring any questions as to the reconnection of utilities services to the City. The
appellants submitted a number of requests for the reconnection of their electricity, water, and sewer
lines. As to the sewer lines, the appellants requested connection to the City’s newly constructed line
built through the Bermuda Beach subdivision. The appellants’ requests, along with those from five
others whose homes also are located in Bermuda Beach,2 were rejected.
The appellants subsequently filed suit in federal court seeking both a preliminary injunction
to force the City to allow the restoration of utility services and compensatory damages. The district
court granted the preliminary injunction request, and the appellants pursued their suit for money
1
The 100% List consisted of 107 homes on the Texas coast that, after Frances, were 100%
seaward of the natural vegetation line and therefore considered encroachments on the public beach.
2
The other five homeowners filed a separate suit, which was ultimately dismissed by Judge
Kent, who was also the presiding judge for this action. See Korndorffer v. City of Galveston, No.
G-02-144 (S.D.Tex. July 9, 2002) (unpublished).
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damages, averring that the City violated their substantive due process and equal protection rights
under the color of state law in violation of 42 U.S.C. § 1983.3
On the City’s motion for summary judgment, the district court dismissed the complaint.
According to the district court, the City’s actions were rationally related to the protection of open
access to the public beach (substantive due process) and to the City’s obligation to follow state law
to “protect the public beaches from interference” (equal protection). The appellants filed this timely
appeal.
II.
The appellants challenge two related rulings of the district court. They argue that neither the
City’s persistent denial of the appellants’ requests for utility connections nor its differential treatment
of appellants’ homes vis-a-vis similarly situated houses was rationally related to any legitimate
governmental interest. “Whether a particular zoning action has the requisite rational relationship to
a legitimate government interest is a question of law,” FM Props. Operating Co. v. City of Austin,
93 F.3d 167, 172 n.6 (5th Cir. 1996), the district court’s determination of which is reviewed de novo.
Simi Inv. Co. v. Harris County, 236 F.3d 240, 249 (5th Cir. 2000). Each claim is discussed in turn.
A.
To succeed on a substantive due process claim, a plaintiff must cross two hurdles. First, he
must allege a deprivation of a constitutionally protected right. Simi, 236 F.3d at 249. The district
court held that the appellants have a constitutionally protected right in their homes and in access to
public utility services, a decision that the City does not seek to disturb on appeal. Thus, the precise
3
The appellants also brought a takings claim, which the district court dismissed. That
decision is not appealed.
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issue here, and the second and last prong of the substantive due process test, is whether the
governmental action was “rationally related to a legitimate governmental interest.” Id. (quoting FM
Props., 93 F.3d at 174) (internal quotations omitted).
The City and appellants dispute the scope of the City’s duties under state law. The City
contends that it has a legitimate governmental interest in following its obligations under state law.
Its actions were related to this interest, the City argues, in that the OBA is designed to protect access
to the public beach, the GLO has promulgated rules for the enforcement of the OBA, and the City
and the GLO generally cooperate on matters related to the protection of the public beach. TEX. NAT.
RES. CODE ANN. § 61.013; 31 TEX. ADMIN. CODE § 15.3; see also Application for City of Galveston
Beachfront Construction/Dune Protection Permit. The appellants challenge this assertion, contending
that nothing in the OBA explicitly requires the denial of service permits in situations such as this.
State law does provide the City with an important role in the protection of the public beach.
However, the City’s obligations, under the relevant provisions of the Texas Administrative Code and
the OBA, did not mandate that the City refuse to reconnect utilities to existing homes. Rather, the
City’s obligations under state law were limited to prohibiting “construction.” The Texas
Administrative Code prohibits local governments from
issu[ing] any beachfront construction certificate authorizing construction landward
of the public beach that functionally supports or depends on, or is otherwise related
to, proposed or existing structures that encroach on the public beach, regardless of
whether the encroaching structure is on land that was previously landward of the
public beach.
31 TEX. ADMIN. CODE § 15.5(c)(2). The City emphasizes that this code section applies to any
construction, even related to preexisting structures, to support its argument that it simply did not have
the authorityto reconnect the appellants’s utilities. However, no “construction,” defined as “[c]ausing
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or carrying out any building, bulkheading, filling, clearing, excavation, or substantial improvement
to land or the size of any structure,” was necessary to reconnect utilities to a preexisting home. 31
TEX. ADMIN. CODE § 15.2(18). Indeed, the City’s zoning code states that no beachfront construction
certificate is needed for “routine repairs, maintenance and upkeep of existing structures.” City of
Galveston Zoning Ordinance § 29-90(a)(3). The City reconnected utility and sewer service to thirty
homes that were similarly identified as encroachments on the public beach without running afoul of
any explicit state law provisions. Therefore, the City had at least some authority under state law for
deciding the disposition of permit requests.
Perhaps the City also had some authority to deny utility permits pursuant to its state law
obligations to protect public beaches. However, in exercising that discretionary authority, the City
must still conform to its constitutional obligations. Cf. Mickens-Thomas v. Vaughn, 321 F.3d 374,
386 (3d Cir. 2003) (noting, in a different context, that “[t]he possession of a discretionary
component” fails to remove governmental action from “constitutional scrutiny”). Thus, the City
actions must be rationally related to some other independent and legitimate interest.
The rational basis test requires not only a legitimate state interest, but also that the
government action is rationally related to furthering that interest. There is indeed a legitimate state
interest at stake—the protection of public access to the public beach—but, at this stage, the
government fails to provide any rational reason why refusing to reconnect utilities to houses found
on a public beach furthers the end of protecting public access to public beaches.
After further development of the record, facts may come to light that indeed serve to indicate
that there was a rational basis for the government’s action. For example, we might learn that
reconnecting the utilities involved hanging obtrusive wires or placing unsightly water meters that
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would discourage public use of the beach. However, there is no indication of such facts in the record
at this summary judgment stage, and we decline to invent them. Thus, we find that the government’s
argument fails because there is nothing in the record before us to suggest that the connection of either
the appellants’ sewer system or their electricity and water lines to the City’s service grid would hinder
the public’s access to the beach or otherwise serve as an impermissible encroachment under the OBA.
As the City argues, the “local government does not have to be right” in implementing the
requirements of state law, nor may a plaintiff bootstrap violations of state law into the Constitution.
The appellants’ allegations implicate neither of these concerns, however. The City must conform its
discretionary actions to its constitutional obligations; because the City has not demonstrated the
requisite rational relationship to sustain a motion for summary judgment at this stage of litigation, we
vacate the district court’s determination as to the substantive due process claim.
B.
The appellants’ equal protection claim is based on their contention that there are a number
of other similarly situated homes that were allowed reconnection of their utility services. In contrast
to a due process action, which looks solely to the government’s exercise of its power vis-a-vis the
appellants, an equal protection claim asks whether a justification exists for the differential exercise
of that power. To bring such an equal protection claim for the denial of zoning permits,4 the appellant
must show that the difference in treatment with others similarly situated was irrational. Vill. of
4
Contrary to the City’s contention, the appellants’ equal protection cause of action does not
sound in two other types of “class of one” claims: “selective enforcement,” Allred’s Produce v.
United States Dep’t of Agric., 178 F.3d 743, 748 (5th Cir. 1999), and “personal vindictiveness.” See
Esmail v. Macrane, 53 F.3d 176, 179 (7th Cir. 1995); Bryan v. City of Madison, 213 F.3d 267, 277
(5th Cir. 2000) (citing Esmail, 53 F.3d). We thus reject the City’s contention that we must apply the
higher evidentiary burden that would normally be required by either claim.
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Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (“Our cases have recognized successful equal
protection claims ... where the plaintiff alleges that she has been intentionally treated differently from
others similarly situated and that there is no rational basis for the difference in treatment.”).
The City failed to offer any reason for the differential treatment of the appellants’ homes in
its brief. Although the City proffered two reasons at oral argument for its denial of the appellants’
permit application, as a general matter we do not address newly minted arguments at oral argument.
See, e.g., Whitehead v. Food Max of Miss., Inc., 163 F.3d 265, 270 (5th Cir. 1998). Furthermore,
the fact that these reasons were raised for the first time at oral argument bolsters our view that they
are merely ex post facto justifications for the City’s irrational treatment.
The lack of identifiable reasons for the City’s actions highlights the more general problem of
the insufficiency of evidentiary support. The City’s only proffered evidence consists of (a) Judge
Kent’s decision dismissing the similar complaint of other plaintiffs against the City, Korndorffer v.
City of Galveston, No. G-02-144 (S.D.Tex. July 9, 2002) (unpublished), and (b) the City’s motion
in response to the appellants’ injunction request. Neither of these constitutes a cognizable evidentiary
source. Indeed, at oral argument the City conceded that it had failed to support its arguments with
record evidence. This lack of evidentiary support is particularly acute with regard to the refusal to
reconnect electricity and water services—the City posits no reason, let alone one supported by
evidence, for how reconnection of those particular services interfered with access to the public beach.
C.
Although we are to resist becoming “super zoning boards,” S. Gwinnett Venture v. Pruitt, 482
F.2d 389, 390 (5th Cir. 1973), “[w]e have plainly and consistently held that zoning decisions are to
be reviewed by federal courts by the same constitutional standards that we employ to review statutes
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enacted by the state legislatures.” Shelton v. City of Coll. Station, 780 F.2d 475, 479 (5th Cir. 1986).
Without supporting evidence for the City’s rationales, we hold that summary judgment at this stage
was improper.
III.
The decision of the district court is VACATED and REMANDED for further proceedings.
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Patrick E. Higginbotham, Circuit Judge, concurring in part and dissenting in part.
I concur in all respects, except that I would affirm the district court’s grant of summary
judgment dismissing the substantive due process claim. To my eyes, the challenged state purpose is
rational as a matter of law. I agree that the case must go forward on the challenge to the means of
achieving the purpose of mandatory open beaches, the equal protection claim.
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