     Case: 15-50452      Document: 00513634224         Page: 1    Date Filed: 08/11/2016




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

                                                                                 FILED
                                      No. 15-50452
                                                                             August 11, 2016
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNINCORPORATED NON-PROFIT ASSOCIATION OF CONCERNED
EASTSIDE CITIZENS AND PROPERTY OWNERS,

               Plaintiff - Appellant

v.

CITY OF SAN ANTONIO,

               Defendant - Appellee

CROSSPOINT, INCORPORATED,

               Intervenor - Appellee


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:09-CV-905


Before KING, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
       This appeal concerns a zoning dispute. In 2009, the City of San Antonio
rezoned a parcel of land for use as a halfway house for parolees. The plaintiff
filed suit alleging the City’s rezoning ordinance constituted impermissible spot
zoning. In 2011, the City passed a new ordinance relaxing citywide zoning


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-50452
requirements for halfway houses. The district court held that the change
mooted the plaintiff’s claim. The plaintiff appeals that holding as well as the
district court’s order granting Crosspoint’s motion to intervene. We AFFIRM.


                        FACTS AND PROCEDURAL HISTORY
        At the center of this case is a parcel of land located at 301 Yucca Street,
San Antonio, Texas (the “Property”). Since the 1920s, the Property was used
as a church and convent by the Sisters/Servants of the Holy Ghost and Mary
Immaculate. Sometime before 2009, the Sisters began negotiations to convey
the Property to Ridgemont Investment Group, LLC and Intervenor Crosspoint,
Inc.     “Crosspoint operates correctional and rehabilitative facilities, and
intended to use the . . . Property as short-term housing for parolees as they
transition from prison to release.” These facilities are otherwise known as
“transitional homes.”
        Crosspoint’s plan presented a zoning dilemma. The Property “had a base
zoning designation of ‘MF-33,’ a multi-family residential zoning designation.”
Yet at that time, the City Code provided two zoning requirements for a
transitional home: (1) a base zoning designation of at least C-3, a commercial
zoning designation; and (2) a Specific Use Authorization.          Presumably to
facilitate the planned conveyance, the Sisters filed an application and request
for rezoning of the Property, seeking both a C-3 zoning designation and a
Specific Use Authorization.
        City zoning staff recommended denying the application, explaining the
C-3 zoning designation was too “intense” for the neighborhood surrounding the
Property. The Property “was surrounded mostly by residences and located
within 1000 feet of a public park or school.” Despite concerns by the zoning
staff, the Zoning Commission recommended approval.


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       After a public hearing, the City Council enacted Ordinance 2009-09-17-
0758 (the “2009 Ordinance”), the subject of this dispute. It states:
       Chapter 35, Unified Development Code, Section 35-304, Official
       Zoning Map, of the City Code of San Antonio, Texas is amended by
       changing the zoning district boundary of 4.914 acres of Block 16,
       NCB 1546 and Block 20, NCB 1551 from “MF-33” Multi-Family
       District to “C-3 NAS” General Commercial District with a Specific
       Use Authorization for a Correctional Facility (Transitional Home).
(emphasis added).
       Once the transitional home began operating, property values in the
surrounding neighborhood decreased between 25% and 35%.                              Affected
homeowners formed Plaintiff Unincorporated Non-Profit Association of
Concerned       Eastside     Citizens     and      Property     Owners      (the    “Citizens
Association”). On October 12, 2009, the Citizens Association sued the City in
Bexar County District Court, challenging the 2009 Ordinance. The case was
removed to the United States District Court for the Western District of Texas.
On January 15, 2010, the Citizens Association filed an amended complaint,
alleging the 2009 Ordinance constituted impermissible spot zoning. 1
       Both parties moved for summary judgment. While these motions were
pending, the City Council amended its City Code with what we will call the
“2011 Ordinance.”          The new ordinance altered the City’s base zoning
requirements for transitional homes.               It “allow[ed] transitional homes to
operate on property with a base zoning designation of MF-33 — the same
designation that the . . . Property had prior to the 2009 Ordinance — so long


       1 The magistrate judge in this case explained that “[t]he term, ‘spot zoning,’ is used in
Texas and most states to connote an unacceptable amendatory ordinance that singles out a
small tract for treatment that differs from that accorded similar surrounding land without
proof of changes in conditions.”
       The Citizens Association also alleged the 2009 Ordinance “deprived the organization’s
members of procedural and substantive due process, violated [] the equal protection clause,
and amounted to unconstitutional takings,” and also sought a declaratory judgment. These
other claims were all resolved in the defendants’ favor and are not part of this appeal.
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as the City grants the property a Specific Use Authorization.” The parties did
not supplement their cross-motions to address the new ordinance.
        Six months after the 2011 Ordinance went into effect, a magistrate judge
recommended awarding summary judgment to the Citizens Association on its
spot-zoning claim. On July 11, 2011, before the district court had ruled on the
existing parties’ cross-motions, Crosspoint filed a motion to intervene.
Crosspoint’s motion was granted, and the district court re-opened discovery.
Nearly one year later, Crosspoint filed an “Advisory to the Court” presenting
its own arguments in support of the City’s motion for summary judgment,
including arguing for the first time that the spot-zoning claim had been
rendered moot by the 2011 Ordinance. On April 21, 2015, the district court
granted the City’s motion for summary judgment. In relevant part, the district
court held the Citizens Association’s spot-zoning claim was rendered moot by
the 2011 Ordinance. The Citizens Association timely appealed.


                                  DISCUSSION
        The Citizens Association raises two issues on appeal: (1) The spot-zoning
claim should not have been found moot, and (2) Crosspoint’s motion to
intervene should have been denied.


   I.      Spot Zoning/Mootness
        Assuming without deciding that the 2009 Ordinance constituted
impermissible spot zoning, the district court held the claim was rendered moot
by the 2011 Ordinance. The 2009 Ordinance consisted of two components: (1)
it rezoned the Property from MF-33 to C-3; and (2) it granted the requisite
Specific Use Authorization.      The district court held the two components
severable. As a result, “even if the [district] [c]ourt were to void the rezoning
portion of the 2009 Ordinance, the . . . Property would revert to a zoning
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                                  No. 15-50452
designation of MF-33 but keep the Specific Use Authorization to operate a
transitional home.” Under the 2011 Ordinance, an MF-33 zoning designation
is sufficient, when paired with a Specific Use Authorization, to operate a
transitional home. Thus, the district court held an order striking the rezoning
portion of the 2009 Ordinance would still allow Crosspoint to operate, and the
Citizens Association’s claim was moot.
      On appeal, the Citizens Association contends the district court
erroneously held the 2009 Ordinance severable and consequently the spot-
zoning claim moot. The Citizens Association claims the two portions of the
2009 Ordinance are intertwined. We review de novo “[j]urisdictional issues
such as mootness . . . .” Lopez v. City of Houston, 617 F.3d 336, 339 (5th Cir.
2010). Similarly, “we review de novo the district court’s interpretation of state
law.” Texaco Inc. v. Duhe, 274 F.3d 911, 915 (5th Cir. 2001).
      In federal court, “a case or controversy must exist at all stages of the
litigation, not just at the time the suit was filed.” Lopez, 617 F.3d at 340.
“Generally, any set of circumstances that eliminates actual controversy after
the commencement of a lawsuit renders that action moot.”              Fontenot v.
McCraw, 777 F.3d 741, 747 (5th Cir. 2015).
      In this mootness inquiry, the district court identified correctly the
dispositive issue as whether the 2009 Ordinance is severable. If it is severable,
the claim is moot. If it is not, there remains a live controversy.
      The severability of provisions of a state statute or a city ordinance, when
a part is held to be unconstitutional, is a question of state law. National Fed’n
of the Blind of Tex., Inc. v. Abbott, 647 F.3d 202, 210 (5th Cir. 2011) (statutes);
Villas at Parkside Partners v. City of Farmers Branch, 726 F.3d 524, 537 (5th
Cir. 2013) (en banc) (city ordinances). Under Texas law, as a general matter,
“[w]hen a part of a statutory scheme is unconstitutional, a court should —
where possible — sever out the unconstitutional aspects and save the balance
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of the scheme.” Geeslin v. State Farm Lloyds, 255 S.W.3d 786, 797 (Tex. App.—
Austin 2008, no pet.). The Texas Government Code states:
       (a) If any statute contains a provision for severability, that
           provision prevails in interpreting that statute.
       (b) If any statute contains a provision for nonseverability, that
           provision prevails in interpreting that statute.
       (c) In a statute that does not contain a provision for severability or
           nonseverability, if any provision of the statute or its application
           to any person or circumstance is held invalid, the invalidity
           does not affect other provisions or applications of the statute
           that can be given effect without the invalid provision or
           application, and to this end the provisions of the statute are
           severable.
TEX. GOV’T CODE ANN. § 311.032. 2
       Because “severability is an inquiry into legislative intent,” we may be
“guided by the legislature’s explicit inclusion of [a] severability provision.”
Geeslin, 255 S.W.3d at 798.          The San Antonio City Code has an explicit
severability provision:
       The sections, paragraphs, sentences, clauses and phrases of this
       Code are severable, and if any phrase, clause, sentence, paragraph
       or section of this Code shall be declared unconstitutional by the
       valid judgment or decree of any court of competent jurisdiction,
       such unconstitutionality shall not affect any of the remaining
       phrases, clauses, sentences, paragraphs and sections of this Code.
SAN ANTONIO, TEX., CODE OF ORDINANCES ch. 1, § 1-17 (2016). 3 The district
court held “[t]his directive is a clear statement of the City Council’s legislative
intent, and as such it guides this Court’s inquiry.”




       2  It is unclear from the text whether this statute applies when interpreting a city
ordinance. The Supreme Court of Texas recently clarified the issue, though, by applying
Section 311.032 when it assessed the severability of a Houston ordinance. See City of Houston
v. Bates, 406 S.W.3d 539, 549 (Tex. 2013).
       3   The San Antonio City Code is available at https://www.municode.com/
library/tx/san_antonio/codes/code_of_ordinances.
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      Now, for the first time on appeal, the Citizens Association argues the
City’s severability provision is inapplicable to zoning ordinances. It relies on
a different provision in the City Code: “Nothing in this Code or the ordinance
adopting this Code shall affect any ordinance . . . [d]ealing with zoning.” SAN
ANTONIO, TEX., CODE OF ORDINANCES ch. 1, § 1-3(a)(11).         The meaning of
Section 1-3 is unclear. Regardless, this argument is waived. Crosspoint raised
the Section 1-17 severability provision before the district court. The Citizens
Association failed to address Section 1-3. “[A]rguments not raised before the
district court are waived and cannot be raised for the first time on appeal.”
LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 387 (5th Cir. 2007). We
thus do not discuss the possible impact of Section 1-3 on severability.
      We now consider the severability of the 2009 Ordinance in the context of
a code containing an express severability provision. See SAN ANTONIO, TEX.,
CODE OF ORDINANCES ch. 1, § 1-17. Texas law compels “that provision prevails
in interpreting [the] statute.” TEX. GOV’T CODE ANN. § 311.032(a).
      The Texas Supreme Court recently applied an identical severability
provision found in Houston’s city code. See City of Houston v. Bates, 406
S.W.3d 539, 549 (Tex. 2013). In Bates, three firefighters brought suit seeking
reimbursement for unpaid “termination pay.” Id. at 542–43. They each held
unused sick and vacation leave at the time they left the Houston Fire
Department.    Id.   The firefighters argued that a city ordinance limiting
termination pay was preempted by state statute. Id. at 546–49. The City
responded that, if the Texas Supreme Court agreed with the firefighters’
argument, the court would also have to invalidate a separate city ordinance
that was “connected in subject matter and [could not] be fairly severed and
enforced separately from” the challenged ordinance. Id. at 549. The court
referenced the Houston code’s severability clause, and explained “[w]hen an
ordinance contains an express severability clause, the severability clause
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                                       No. 15-50452
prevails when interpreting the ordinance.” Id. Without discussing whether
the challenged ordinance was “connected in subject matter” with other city
ordinances, the court held the challenged ordinance severable. Id.
       San Antonio has an express severability clause identical to the clause
discussed in Bates. We conclude that, as in Bates, it is unnecessary to analyze
whether the zoning classification and the Specific Use Authorization were
intertwined. The two portions are severable according to Section 1-17.
       A different chapter of the City Code provides further support for our
conclusion. Chapter 35 of the San Antonio City Code is labeled the “Unified
Development Code” and appears to contain all city zoning ordinances,
including the 2009 Ordinance.             Chapter 35 includes its own severability
provision that also seems to apply to the 2009 Ordinance:
       If for any reason any one (1) or more section, sentences, clauses or
       parts of this chapter are held invalid, such judgment shall not
       affect, impair or invalidate the remaining provisions of this
       chapter but shall be confined in its operation to the specific
       sections, sentences, clauses or parts of this chapter held invalid.
       The invalidity of any section, sentence, clause or part of this
       chapter in any one or more instances shall not affect or prejudice
       in any way the validity of this chapter in any other instance.
SAN ANTONIO, TEX., CODE OF ORDINANCES ch. 35, § 35-110. No party addressed
the significance of Chapter 35.           Even when a “City ordinance was never
introduced into the record, we [may] take judicial notice of it.” See In re Waller
Creek, Ltd., 867 F.2d 228, 238 n.14 (5th Cir. 1989). 4



       4 We have already held the Citizens Association’s Section 1-3 argument is waived.
Even if we considered the meaning of Section 1-3, though, the very existence of Chapter 35
cuts sharply against the Citizens Association’s proposed interpretation. Section 1-3 states:
“Nothing in this Code or the ordinance adopting this Code shall affect any
ordinance . . . [d]ealing with zoning.” SAN ANTONIO, TEX., CODE OF ORDINANCES ch. 1, § 1-
3(a)(11). According to the Citizens Association, Section 1-3 compels a holding that the “San
Antonio City Code . . . unambiguously does not apply to zoning ordinances.” The proposed
interpretation is at odds with the fact that the City Code includes an entire chapter of zoning
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         Even assuming the 2009 Ordinance’s rezoning portion must be stricken,
the Property would still hold the requisite Specific Use Authorization.
Further, with the 2011 Ordinance, Crosspoint would still be able to operate its
transitional home even if the Property reverted back to an MF-33 base zoning
designation. The Citizens Association’s spot-zoning claim is moot.


   II.     Crosspoint’s Motion to Intervene
         The Citizens Association also challenges the district court’s order
granting Crosspoint’s motion to intervene. At oral argument, in response to a
question from the panel, the Citizens Association acknowledged that “if the
court rules against us on the severability issue . . . all of our claims are
gone, . . . our claims are moot and all of the issues at that point would be gone.”
We agree with the attorney’s analysis and find the concession appropriate.
Accordingly, having decided the 2009 Ordinance is severable and the spot-
zoning claim is moot, we need not consider whether the district court
erroneously granted Crosspoint’s motion to intervene.
         AFFIRMED.




ordinances — Chapter 35. We do not resolve this apparent tension between the Citizens
Association’s interpretation of Section 1-3 and the existence of Chapter 35.
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