concurring in part and dissenting in part:
I concur in all of Judge Jolly’s persuasive opinion except as it holds the City of Dallas liable under the Sherman Act and for First Amendment violations under section 1983 on account of the issuance by its building inspection department of notices that VIP was in violatiori of the accessory use provisions of the Dallas Development Code. In the context of this case, such action by the City’s building inspection department is not, in my view, an adequate basis on which to impose liability because it was without any legal significance and did not constitute the City’s legally final determination that a zoning violation had occurred.
The City did not cut off VIP’s utilities or take any kind of physical action against VIP; it did not institute suit or procure any type of restraining order; no permit or other requests by VIP were denied by the City. VIP has not explained how the notices in question constituted legally anything more than the formal expression of opinion of the building inspection department that VIP was in violation of the zoning ordinance.1 Under the ordinances of the City, and under Texas Local Government Code, § 211.010(c), VIP could have appealed to the City’s Board of Adjustment and challenged the building inspection department’s construction of the accessory use provisions of the ordinance; VIP could have also thus sought a variance from the Board of Adjustment.2 In the event of such appeal, all action by the building inspection department or other City officials would have been entirely stayed pending resolution of the appeal.3 Although the Board of Adjustment had previously indicated its agreement with the building inspection department’s construction of the ordinance in the Silver Screen case, nevertheless VIP was not a party to that proceeding, the issue was not actually presented there, and the Board of Adjustment did not have the benefit of conflicting arguments being made to it by the parties. It was not shown to be a foregone conclusion that the Board of Adjustment would adopt the same construction of the accessory use provisions of the ordinance in an appeal by VIP, or that it would deny VIP a variance. The Board of Adjustment, which is as much an agency of the City of Dallas as is the building inspection department, is the City’s final authority for interpreting its zoning ordinances and granting variances therefrom. That, coupled with the lack of any relevant legal effect of the building inspection department’s violation notices, renders it inappropriate to hold the City liable merely because such notices were issued. A final decision by the City, with actual concrete legal injury, was not shown to have ever occurred. Cf. Williamson County Re*1090gional Planning Commission v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 3120, 87 L.Ed.2d 126 (1985); City of St. Louis v. Praprotnik, — U.S. -, 108 S.Ct. 915, 924, 926, 99 L.Ed.2d 107 (1988).
. It is true that, under Texas Local Government Code, § 211.009(c), the building inspection department’s notices may have had the legal effect of requiring a four-to-one or five-to-zero vote in VIP's favor at the Board of Adjustment in order for VIP to prevail on an appeal. However, as VIP never took an appeal, this is irrelevant.
. Section 211.010(c) provides:
"(c) An appeal stays all proceedings in furtherance of the action that is appealed unless the official from whom the appeal is taken certifies in writing to the board facts supporting the official’s opinion that a stay would cause imminent peril to life or property. In that case, the proceedings may be stayed only by a restraining order granted by the board or a court of record on application, after notice to the official, if due cause is shown.”
It is obvious in this case that the exception "imminent peril to life or property" would not be applicable.
While the Dallas Development Code authorizes the building inspection department to have utilities disconnected in case of zoning violations, the City never did this. Although its violation notice threatened to take such action after fifteen days, the fifteen-day period was sufficient for appeal to the Board of Adjustment and such appeal by its stay provisions would have prevented any such action. I also observe that under the Dallas Development Code it is a defense to prosecution that the person prosecuted is in compliance with an order of the Board of Adjustment, even if the party’s action would otherwise constitute a violation.