     Case: 12-50293       Document: 00512126757         Page: 1     Date Filed: 01/28/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         January 28, 2013

                                     No. 12-50293                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



RABBI MARK ABDELHAK,

                                                  Plaintiff - Appellant
v.

CITY OF SAN ANTONIO,

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:09-CV-804


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Rabbi Mark Abdelhak appeals the dismissal of his claims against the City
of San Antonio (“the City”) arising from the denial of new permits for mobile
homes on his property that did not meet City-regulated public-safety standards.
We AFFIRM.
       Abdelhak owns property in San Antonio, Texas, that he operates as a
mobile home trailer park. Part of the property is located within the Federal


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Emergency Management Administration (“FEMA”) 100-year floodplain, which
imposes restrictions on development in flood-risk areas. In 1999, the property
was flooded after a significant rainfall and the City ordered Abdelhak to shut
down the park pending compliance with specific public safety requirements.1
Abdelhak then filed suit in Texas state court to enjoin the City’s action. The
parties eventually reached a settlement agreement, subject to final approval by
the San Antonio City Council. The 2003 settlement provided that Abdelhak
could obtain any mobile home permits on the property to which he was legally
entitled.2   The City Council ultimately approved the settlement in 2005.3
Afterwards, Abdelhak continued to operate the mobile home park, and new
tenants and homes were brought into the park.
       In 2007, another major rain event flooded Abdelhak’s property,
necessitating that emergency crews rescue tenants from the flood waters. The
City temporarily cut off electrical service to the park, then stopped issuing new
permits for electrical hookups to future tenants. The City maintains that
Abdelhak must comply with health and safety ordinances relating to the
floodplain before allowing new tenants onto the property, which would require
raising building levels at the property by as much as eleven feet. The City has




       1
         The City administers the floodplain in the San Antonio region on behalf of FEMA. In
order to participate in the National Flood Insurance Program, the City must enforce floodplain
regulations, and has enacted ordinances to do so. See City of San Antonio Unified Dev. Code
(“UDC”), App. F. The ordinances restrict development in the 100-year floodplain to include
the placement of new structures on such property without prior obtaining a floodplain
development permit. Id.
       2
        The settlement agreement provided that the City would “restore to [Abdelhak] all of
the permits for mobile home spaces that [he] may lawfully place upon his property and still
be in compliance with all applicable code requirements applicable to all mobile home parks.”
       3
        The City Ordinance approved stated in relevant part that “[the City] will restore all
permits for mobile home spaces that [Abdelhak] may lawfully have on his property.”

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not permitted new mobile home units on Abdelhak’s property since the second
flood.
         Abdelhak filed this action in district court as a result of the damage to his
business operations. He alleged violations of the Takings, Equal Protection and
Due Process Clauses under the U.S. and Texas Constitutions. He also asserted
breach of contract, tortious interference with contracts, illegal seizure, and
§ 1983 deprivation claims. The district court assigned the case for pretrial
matters to a magistrate judge. The magistrate issued a report recommending
that the City’s motion be granted such that Abdelhak’s constitutional claims be
dismissed without prejudice as unripe. The magistrate recommended that
summary judgment be granted on the claims for breach of contract, tortious
interference with contract, illegal seizure, and § 1983 deprivation. The district
court adopted the recommendation and entered judgment in favor of the City.
Abdelhak timely appealed.
         We review a district court’s dismissal for lack of subject-matter jurisdiction
de novo, using the same standards as those employed by the lower court. See
Rodriguez v. Tex. Comm’n on the Arts, 199 F.3d 279, 280 (5th Cir. 2000).
Ripeness is a component of subject-matter jurisdiction. Sample v. Morrison, 406
F.3d 310, 312 (5th Cir. 2005). We must take as true all of the complaint’s
uncontroverted factual allegations, see Saraw P’ship v. United States, 67 F.3d
567, 569 (5th Cir. 1995), and will affirm the dismissal if “the court lacks the
statutory or constitutional power to adjudicate the case.” Home Builders Ass’n
of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (internal
citation quotation marks omitted). Appellants have the burden of demonstrating
subject-matter jurisdiction. See Stockman v. FEC, 138 F.3d 144, 151 (5th Cir.
1998).
         A grant of summary judgment is reviewed de novo. Boudreaux v. Swift
Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005). We apply the same legal

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standards that the district court would use. Am. Home Assurance Co. v. United
Space Alliance, LLC, 378 F.3d 482, 486 (5th Cir. 2004). “A summary judgment
motion is properly granted only when, viewing the evidence in the light most
favorable to the nonmoving party, the record indicates that there is no genuine
issue as to any material fact, and that the moving party is entitled to judgment
as a matter of law.” Id. Facts are material only if they could affect the lawsuit’s
outcome. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party
moving for summary judgment must “demonstrate the absence of a genuine
issue of material fact, but need not negate the elements of the nonmovant’s
case.” Boudreaux, 402 F.3d at 540 (internal citation and quotation marks
omitted).
       On appeal, Abdelhak raises two issues.4 First, he contends that his
takings claims are ripe. Second, Abdelhak argues that a genuine issue of
material fact exists concerning the terms of the settlement agreement, rendering
summary judgment inappropriate on his breach of contract claim. Both issues
address the effect of the settlement agreement.
       Abdelhak has the burden of proving the ripeness component of subject
matter jurisdiction. See Stockman, 138 F.3d at 151. To do so, Abdelhak must
raise a genuine issue of material fact that he was not required to seek permits
and variances under the City’s ordinances, or else demonstrate that he obtained
a “final decision” from the City as to how regulations will be applied to his land
use. See Williamson Cnty. Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S.
172, 186 (1985).




       4
           Abdelhak did not raise on appeal the other claims he made in the district court:
tortious interference with business contracts, illegal seizure, § 1983 deprivation, due process
violations, and equal protection violations. Therefore, we conclude he has abandoned these
claims. See Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993).

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                                       No. 12-50293

       Abdelhak does not cite any statute, rule, or regulation that exempts him
from compliance with any provision of the City’s floodplain ordinances. Nor does
he contend that he is in compliance with the applicable floodplain laws. Rather,
he argues that the terms of the earlier settlement agreement effectively
exempted his property from the City’s floodplain regulations. As such, he would
not be required to apply for permits or variances for the property. Because the
City breached that agreement, he argues, there has been a final decision and the
claim is ripe for adjudication.
       The district court determined that the settlement agreement was not
ambiguous. Under Texas law, whether a contract is ambiguous is a question of
law. Addicks Serv., Inc. v. GGP-Bridgeland, LP, 596 F.3d 286, 294 (5th Cir.
2010). “Courts interpreting unambiguous contracts are confined to the four
corners of the document, and cannot look to extrinsic evidence to create an
ambiguity.” Id. The court found that the plain language of the agreement did
not evidence the property’s intended exemption from the City’s floodplain
regulations, and thus did not credit Abdelhak’s interpretation of the contract.
       We agree. The language of the settlement agreement requires that the
City must provide permits on the property for any of the sixty-four mobile home
spaces that are “lawful,” that is, that are “in compliance with all applicable code
requirements applicable to all mobile home parks.” The agreement does not
suggest that the property is in any way exempt from complying with the City’s
floodplain regulations.5 Since the City’s floodplain regulations apply to mobile

       5
        Abdelhak appears to argue that the slight difference in language between the parties’
settlement agreement and the City ordinance approving the settlement indicates the latent
ambiguity in the contract. He claims the ordinance then constitutes the “controlling
language,” because the settlement was not final until fully approved by the City Council. This
argument is unavailing—there is no evidence that the ordinance supercedes the negotiated
agreement. However, even if it did, the slightly different language still does not support
Abdelhak’s arguments and does not render the contract ambiguous. Although the additional
phrase “and still be in compliance with all applicable code requirements applicable to all
mobile home parks” is not present in the Council language, the ordinance nevertheless only

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                                       No. 12-50293

home parks, the language, fairly read, appears to explicitly contemplate that
new permits would be contingent upon compliance with these, and other,
regulations. Because the agreement is not ambiguous, “the agreement must be
enforced as it is written,” id., and “parol evidence of intent cannot be admitted
for the purpose of creating an ambiguity,” see Friendswood Dev. Co. v. McDade
& Co., 926 S.W.2d 280, 283 (Tex. 1996).6
       Because the agreement does not entitle Abdelhak to the contractual relief
he claims, he needs to otherwise demonstrate a “final decision” in order to bring
a taking claim. See Williamson Cnty., 473 U.S. at 187–88. The district court
found that because Abdelhak did not apply for a variance after the City
Department of Public Works denied permits for the mobile homes, there had not
been a “final decision” giving rise to a taking. A final decision “requires both a
rejected development plan and the denial of a variance from the controlling
regulations.” Id. Procedures for requesting a variance from the floodplain
regulations are specifically set out in § 35-F135 of the UDC. While “[f]utile
variance requests or re-applications are not required” to reach a final decision,
see Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1012 n.3 (1992), Abdelhak did
not demonstrate that a variance request was futile. The summary judgment


commits the City to restore permits for mobile home spaces that may “lawfully” be on
Abdelhak’s property. This language does not support an argument that the City waived the
right to enforce its floodplain regulations on Abdelhak’s property.
       6
         Abdelhak contends the agreement is ambiguous so as to introduce extrinsic evidence
about the intent and conduct of the parties after the settlement. He argues the City’s
restoration of mobile home permits demonstrates its intent to not enforce the floodplain
regulations on his property ever again. Because the agreement is not ambiguous, the evidence
is not admissible. Nonetheless, even if it were, it does not tend to demonstrate that the City
intended to “contract away” its power to enforce public safety regulations on the property from
that point on, especially in light of the intervening circumstances of the second flood event.
The ability to protect the health and safety of residents within the floodplain, as well as the
general residents of San Antonio, is of extreme importance. Ordinances aimed at protecting
the health and safety of citizens are squarely within the City’s police powers. See Vulcan
Materials Co. v. City of Tehuacana, 369 F.3d 882, 887 (5th Cir. 2004). The settlement cannot
be read as rescinding that authority

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                                      No. 12-50293

evidence indicates that City Department of Public Works staff stated they would
not support a variance from the floodplain regulations for Abdelhak’s property.
However, variances are reviewed and granted by the Planning Commission, a
separate unit of the City organization. The Public Works Department did not
render a final decision regarding the application of the floodplain ordinances to
the property by denying permits for new mobile homes. Nor was Abdelhak able
to provide legal support for his argument that his subjective belief that such an
application for variance was futile demonstrated futility as a matter of law.
       Accordingly, Abdelhak failed to show either that he is exempt from the
City’s floodplain regulations, or that he was not required to seek a variance in
order to have a “final decision” rendered on his property. As a result, the district
court properly concluded that the takings claims are unripe.7 Because this claim
is dismissed without prejudice, Abdelhak may choose to bring the claim again
once a final decision has been rendered on the property.
       Abdelhak’s second issue on appeal concerns the City’s alleged breach of
the settlement agreement and is addressed by our discussion above. The parties’
settlement agreement was not ambiguous as a matter of law, and its language
cannot be interpreted as a waiver of any City code or provision. Abdelhak thus
failed to raise a genuine issue of material fact regarding the City’s alleged
breach. The district court therefore did not err in granting summary judgment
and dismissing Abdelhak’s breach of contract claim with prejudice.
       AFFIRMED.




       7
         Because we affirm the district court’s determination that the takings claim was not
ripe for consideration, we do not consider the City’s alternative grounds for affirmance.

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