     Case: 14-20688      Document: 00513161768         Page: 1    Date Filed: 08/19/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-20688                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
TEXCOM GULF DISPOSAL, L.L.C.,                                             August 19, 2015
                                                                           Lyle W. Cayce
              Plaintiff - Appellant                                             Clerk

v.

MONTGOMERY COUNTY; COUNTY JUDGE ALAN B. SADLER; COUNTY
COMMISSIONER MIKE LLOYD MEADER; COUNTY COMMISSIONER
JAMES CRAIG DOYAL; COUNTY COMMISSIONER JAMES LEE NOACK;
COUNTY COMMISSIONER ERNEST EDWIN CHANCE; COUNTY
COMMISSIONER EDWIN EARL RINEHART,

              Defendants - Appellees



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:13-CV-2789


Before REAVLEY, PRADO, and COSTA, Circuit Judges.
PER CURIAM:*
       We review de novo the district court’s dismissal of plaintiff TexCom Gulf
Disposal, L.L.C.’s (“TexCom”) action alleging constitutional violations against
Montgomery County and several county officials.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                    No. 14-20688
                                           I.
      TexCom desires to construct and operate a wastewater injection facility
within Montgomery County and, more than a decade ago, applied for the
necessary environmental permits. 1 In 2011, despite the County’s vigorous
formal opposition, the Texas Commission on Environmental Quality (“TCEQ”)
approved TexCom’s application and issued the associated permits.                    The
permits were contingent on TexCom’s acquisition of Texas Department of
Transportation (“TxDOT”) permits providing for access to TexCom’s property
via a certain road, FM 3083.
       TexCom’s initial driveway access permit application was denied based
on “spacing guidelines”—i.e., the proposed driveway would be too near an
already existing neighboring driveway. This is a “common occurrence,” merely
requiring TexCom to seek a routinely granted variance. TexCom applied for
the variance and expected to receive it in due course.
      County opposition continued. In addition to appealing TCEQ’s decision,
various officials sought alternative methods of preventing TexCom’s
operations and realized barring TexCom’s FM 3083 access would do the trick.
TxDOT rule 11.56 permits cities and counties to, upon request, “assume
[permitting] responsibility,” see Tex. Admin. Code § 11.56, and county officials
sought to commandeer the permitting authority. Officials described rule 11.56
delegation as a “tremendous opportunity” that “should not be missed.” Upon
concluding they could return the power to TxDOT after denying TexCom’s
application and that they could also eliminate any right to appeal TexCom
might otherwise have, officials resolved to seize the permitting power.




      1 As this case was decided following a Rule 12(b)(6) motion to dismiss, “facts” are
drawn from the complaint and viewed in the light most favorable to TexCom. See Harris
Cnty. Texas v. MERSCORP Inc., 791 F.3d 545, 551 (5th Cir. 2015).
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                                     No. 14-20688
      The County secured the permitting power in January of 2012. Even
before then, officials began gloating they had found a way to prevent TexCom’s
operations.    Per County Commissioner Mike Meador, delegation “gives us
control of our destiny.” County Attorney David Walker was even more explicit:
“This will allow us to permanently deny access to TexCom along FM 3083 . . .
We’re on our way.” Once the County obtained delegation, however, the County
did not deny TexCom’s pending variance request. Rather, “recognizing the
inevitable outcome,” TexCom withdrew its own application.
       In an effort to avoid the permitting process altogether, TexCom decided
to acquire adjacent property that already accessed FM 3083. A 3.5-acre tract
of land owned by one Bryan Poage bordered both FM 3083 and TexCom’s
property (the “Poage Tract”). Moreover, it boasted a 45-foot-wide commercial
driveway that had been very recently approved and constructed. TexCom
seems to have overlooked a significant, facially evident limitation on the
permit’s transferability, however. The face of the Poage Tract permit read:
“The State reserves the right to require a new access driveway permit in the
event of a material change in land use or change in driveway traffic volume or
vehicle types.” Further, the application completed in connection with the
Poage Tract permit indicated the “primary use for the property” was to be
“Undeveloped Land,” and the form noted immediately thereafter, in all-capital
letters, “NOTE: ANY FUTURE DEVELOPMENT TO THIS SITE MUST BE
REVIEWED AND APPROVED BY TxDOT, OR THIS PERMIT WILL
BECOME NULL AND VOID.” 2



      2  While the motion to dismiss was pending, the district court ordered the parties to
provide various documents relating to this litigation, including the Poage Tract permit and
underlying application. TexCom did not object and provided the requested documents. The
ordinary rule is that a motion to dismiss is converted to a motion for summary judgment
where “matters outside the pleadings are presented to and not excluded by the court.” Fed.
R. Civ. P. 12(d). However, in the Fifth Circuit, trial courts may also consider “documents
                                            3
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                                        No. 14-20688
       After realizing the Poage Tract permit could conceivably be assumed by
TexCom, Walker wrote a letter incorrectly asserting that the Poage Tract
permit was not approved for commercial use. Subsequently, he publicly stated
the County would seek to prevent TexCom from using the permit and “would
not put up with any shenanigans.” Despite these signals, TexCom acquired
the Poage Tract as planned.              Though the Poage Tract permit expressly
authorizes a “commercial access driveway,” Walker’s successor, County
Attorney, J.D. Lambright, continued to assert that commercial use of the
driveway was unauthorized.
       Thereafter, TexCom applied to the Montgomery County Engineer for the
permit necessary to build a surface facility. Ultimately, the permit was denied
because the TCEQ permits authorizing TexCom’s planned facility was
contingent on approved access to FM 3083. At that time, the County also
asserted the changed use of the Poage Tract and its driveway required TexCom
to seek a new driveway access permit.
       TexCom sued. Once the district court became familiar with the facts of
this case, particularly the fact that the County never actually denied TexCom
any driveway permit application, it ordered TexCom to re-apply for the
driveway and building permits.             The County made clear that no building
permit would be issued absent approved FM 3083 access and also informed
TexCom that its driveway access application would be routed through TxDOT,
the “usual practice” the County had settled upon since taking the permitting



attached to the motion to dismiss . . . that are referred to in the plaintiff's complaint and are
central to the plaintiff’s claim.” Scanlan v. Tex. A&M Univ., 343 F.3d 533, 536 (5th Cir.
2003). We first “approv[ed] of that practice” where, as here, “the plaintiffs did not object to,
or appeal, the district court’s consideration of those documents.” See id. The parties have
provided no briefing on this issue, and we assume (without deciding) that the “one limited
exception” recognized in Collins v. Morgan Stanley Dean Witter, 224 F.3d 496 (5th Cir. 2000),
applies here.
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                                  No. 14-20688
power. TexCom submitted the required applications in early 2014, but as
alleged, “TexCom’s driveway permit application replicated Bryan Poage’s
application in all substantive aspects.” “TexCom submitted the same technical
data, drawings, and representations which the County previously approved in
issuing the Driveway Permit.”
      On February 25th, the County denied TexCom’s driveway permit
application on the recommendation of TxDOT and for reasons provided by
TxDOT. According to TxDOT, TexCom’s application was denied because it was
a regurgitation of the Poage Tract application and was not a new application
that accurately reflected the site to be accessed—a 30.5-acre tract, not a 3.5-
acre tract. Based on this denial, the County also denied TexCom’s building
permit application.
      TexCom filed an amended complaint adding allegations regarding the
newly denied permit applications. Thereafter, Defendants filed a motion to
dismiss, which was granted.         TexCom’s rejected equal protection and
substantive due process claims are the subject of this appeal.
                                       II.
      A class-of-one equal protection claim requires allegations that (1) the
plaintiff “was treated differently from others similarly situated and (2) there
was no rational basis for the disparate treatment.” See Stotter v. Univ. of Tex.
at San Antonio, 508 F.3d 812, 824 (5th Cir. 2007). Successful class-of-one equal
protection cases are typically marked by “the existence of a clear standard
against which departures, even for a single plaintiff, [can] be readily assessed.”
Engquist v. Or. Dep’t of Agr., 553 U.S. 591, 602, 128 S.Ct. 2146, 2153 (2008).
It is usually upon this basis that courts identify “differential treatment” for
which the state must provide a rational basis. See id. at 603, 128 S.Ct. at 2154.




                                        5
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                                      No. 14-20688
       Here, three permitting decisions are at issue. 3 First, the County refused
to recognize TexCom’s assumed Poage Tract permit because it concluded the
permit was rendered null and void upon the change in land use. TexCom has
not alleged the existence of a single entity or individual that was allowed to
retain the privileges of an “assumed” driveway access permit, let alone after a
change in ownership accompanied by a radical change in land use. Second, the
County denied TexCom’s driveway access permit application because the
submitted application did not contain necessary information about the 30.5-
acre tract and instead included maps reflecting a 3.5-acre tract. TexCom has
not alleged that the County has approved similarly deficient applications. 4
Third, the County denied TexCom’s building permit because of TexCom’s
failure to secure the driveway access permit, a rationale allegedly dictated by
regulations precluding issuance of building permits where the applicant has
not satisfied all other requirements.            While TexCom alleges that other
applicants were not subjected to this intensive review and that the regulations
cited to support denial of the building permits were “not applicable or even in
effect,” it does not identify these alleged other applicants or allege that the
same regulations have been overlooked in other specific cases. That is to say,
we are not directed to a single building-permit applicant who received a
building permit where other “unmet requirements” barred development.



       3 TexCom also asserts that the County’s Rule 11.56 delegation constitutes an equal
protection violation. Specifically, TexCom argues that “[T]he County’s seizure of driveway-
permitting authority just to obstruct TexCom’s operation epitomizes the type of
discriminatory treatment that violates the Equal Protection Clause.” While the Rule 11.56
delegation might be evidence of an equal protection violation, it does not itself constitute
differential treatment of TexCom and cannot be the basis of an equal protection claim.
       4 Moreover, the complaint indicates that TexCom’s application was treated precisely
like all other applicants—it was forwarded to TxDOT for review in accordance with the
alleged “usual practice.” The documents reflecting the County’s denial of the permit
application indicate TxDOT, rather than the County, determined denial was proper.
                                             6
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                                      No. 14-20688
       TexCom complains about each of these permitting decisions but provides
no basis upon which to infer the decisions represent a departure from the norm.
See Engquist, 553 U.S. at 602, 128 S.Ct. at 2153. TexCom has not alleged a
plausible class-of-one equal protection claim.
                                            III.
       To state a substantive due process claim, the plaintiff “must allege a
deprivation of a constitutionally protected right” via a governmental action
that was not rationally related to any legitimate governmental interest.
Mikeska v. City of Galveston, 451 F.3d 376, 379 (5th Cir. 2006). We again
review the three challenged permitting decisions. 5 Assuming TexCom was
deprived of a constitutionally protected right, we have no trouble identifying a
rational basis for the County’s actions.
       The first permitting decision complained of, the County’s refusal to
recognize the “assumed” Poage tract permit, rationally follows from the
associated change in land use. 6 The County had approved driveway access to
a 3.5-acre plot of land used to store mobile homes on “Undeveloped Land” and
had a rational basis to require a new application when the driveway would
instead access a 30.5-acre plot of land hosting a wastewater injection facility.
       The second permitting decision complained of, actual denial of TexCom’s
driveway access permit application, is also supported by a straightforward
rational basis—the application’s facial deficiency. Instead of filing a complete


       5TexCom also argues “the County’s decision to seize permitting authority” constitutes
a substantive due process violation. Delegation did not deprive TexCom of a protected right
and is not plausibly the basis of a substantive due process claim.
       6 TexCom alleged it “proposed” no “change in land use.” (Emphasis omitted.) It now
argues that any contrary determination represents “an improper resolution of a factual
dispute.” We “draw on . . . common sense” when considering a motion to dismiss. See
Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 1950 (2009). Transformation of a 3.5-
acre tract dedicated to storage of mobile homes on “Undeveloped Land” into a 30.5-acre tract
hosting a wastewater injection facility constitutes a material change.
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                                 No. 14-20688
application relating to the 30.5-acre tract, TexCom instead submitted a
“driveway permit application [that] replicated Bryan Poage’s application in all
substantive aspects.” Even the accompanying maps reflected a 3.5-acre tract
of land rather than a 30.5 tract of land. It is hard to fathom why TexCom
thought substantial replication was appropriate and easy to see why the
application was denied.
      The third permitting decision complained of, the County’s denial of
TexCom’s building permit application, also had a clear rational basis. TCEQ
conditioned its approval to operate the facility on driveway access to FM 3083.
Accordingly, it is rational to impose the same condition on construction of that
same facility.   Otherwise, the County would be granting permission to
construct a facility with no authorization to operate.
      We have identified unproven but conceivable (and rather apparent)
rational bases for the County’s challenged actions. See Shelton v. City of Coll.
Station, 780 F.2d 475, 479 (5th Cir. 1986) (en banc). It is true, as TexCom
points out, that we “focus on what actually motivated the conduct” when
adjudicative, rather than legislative, decisions are at issue. Mahone v. Addicks
Util. Dist. of Harris Cnty., 836 F.2d 921, 934 (5th Cir. 1988). Even assuming
the challenged permitting decisions were adjudicative, however, the
complaint’s allegations do not nudge TexCom’s substantive due process claim
“across the line from conceivable to plausible.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007).
      TexCom has adequately alleged the existence of animus by certain
County officials toward TexCom’s development project and even a plan, by
those officials, to use the permitting power to thwart TexCom’s operations
within the County.     TexCom has not plausibly alleged that the discrete
decisions actually complained of were compelled by improper official animus
rather than by TexCom’s questionable maneuvering.
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                                 No. 14-20688
      On its face, the Poage permit provides that “[t]he State reserves the right
to require a new access driveway permit in the event of a material change in
land use or change in driveway traffic volume or vehicle types.” Indeed, the
application completed in connection with the Poage Tract permit indicated the
“primary use for the property” was to be “Undeveloped Land,” and the form
noted immediately thereafter, in all-capital letters, “NOTE: ANY FUTURE
DEVELOPMENT TO THIS SITE MUST BE REVIEWED AND APPROVED
BY TxDOT, OR THIS PERMIT WILL BECOME NULL AND VOID.”
(Emphasis added.) TexCom’s plan to “assume” the Poage Tract permit was ill
conceived, and we cannot reasonably infer that animus actually motivated the
County’s refusal to recognize the “assumed” Poage Tract permit. See Ashcroft
v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009).
      The same is true for the County’s denial of TexCom’s court-ordered
driveway access permit application. We have already observed the deficiency
of TexCom’s submission.      Further, according the complaint, the County
“forwarded TexCom’s application to TxDOT for review.” This was the “usual
practice” for all driveway access permit applications after rule 11.56 delegation
went into effect, and the County took “no substantive role in the review” of
applications so forwarded. Consistent with the system of review described by
the complaint itself, documents representing the actual denial of TexCom’s
application indicate TxDOT made the substantive decision that the application
should be denied. We cannot reasonably infer that the County’s denial of
TexCom’s permit application was actually motivated by animus.
      According to TexCom, “[t]he County further violated TexCom’s due
process rights by rejecting TexCom’s building permit when one of the County’s
purported ‘requirements’—[authorized] driveway access—depended upon an
action that the County refused to take.” We have found implausible allegations


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                               No. 14-20688
that the County improperly thwarted TexCom’s attempts to procure a
driveway access permit. This contingent theory is equally implausible.
                                    IV.
     TexCom failed to state a constitutional claim upon which relief could be
granted. The judgment of the district court is AFFIRMED.




                                     10
