                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                December 8, 2004

                                                          Charles R. Fulbruge III
                             No. 04-50085                         Clerk


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




     *
       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this opinion should not be published and is not precedent except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.
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.


      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
                                    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

     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).

                                         3
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

     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.

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


       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).


                                      5
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




      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.

                                         6
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.




     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).

                                    7
