Samaad v. City of Dallas

• Citation: 733 F. Supp. 239
• Decision Date: 11 January 1990
• Docket Number: No. CA 3-88-0935-T.,CA 3-88-0935-T.
• Parties: Abdul Muhammad SAMAAD, et al., Plaintiffs, v. CITY OF DALLAS, et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

733 F. Supp. 239

Abdul Muhammad SAMAAD, et al., Plaintiffs, v. CITY OF DALLAS, et al., Defendants.

No. CA 3-88-0935-T.

United States District Court, N.D. Texas, Dallas Division.

January 11, 1990.

Neil Cogan, Dallas, Tex., for plaintiffs.

Thomas P. Brandt and Paul Pearce, Jr., Asst. City Attys., Law Offices of Arlen D. Bynum, Arlen Bynum, Russell Smith and Marston Alexander, John Albach and George A. Otstott and Martin Randa Merritt, Otstott & Guerrero, Dallas, Tex., for defendants.

ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

MALONEY, District Judge.

This action arises out of an automobile race held at Fair Park in Dallas, Texas from July 5-8, 1984. Plaintiffs are persons who reside in neighborhoods adjacent to Fair Park.¹ They brought this action against the City of Dallas and other parties who acted in conjunction with it in allowing the automobile race to be held. Plaintiffs allege that the race in Fair Park caused extraordinary noise thereby depriving them of their ability to make normal use and enjoyment of their homes and their lives. Plaintiffs claim that the failure of Defendants City of Dallas and State Fair of Texas to notify Plaintiffs about the use of Fair Park for automobile racing violated the Privilege and Immunities and Due Process Clauses of the Fourteenth Amendment. Additionally, Plaintiffs claim that the holding of the race constituted a taking of property and because it was for a private use and without just compensation, it violated the Fifth Amendment, as incorporated by the Fourteenth Amendment. Plaintiffs bring their constitutional claims pursuant to 42 U.S.C. § 1983. Additionally, Plaintiffs allege various pendent state law claims.

On May 8, 1989, Defendants State Fair of Texas and Larry Waldrop filed their Motion to Dismiss and in the Alternative Motion for Summary Judgment. On May 10, 1989, Defendant City of Dallas filed its Motion for Summary Judgment. As its response, Plaintiffs' adopt their response which they filed in Pierce, et al. v. City of Dallas, No. CA3-88-1800-T² on June 16, 1989, as their response in this case. Defendant City of Dallas filed its reply on July 26, 1989.

Summary judgment should only be entered where the record establishes 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. Fed.R. Civ.P. 56(c). The movant bears the burden of establishing the propriety of summary judgment. Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir.1986).

Once a properly supported motion for summary judgment is made, the adverse party must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The substantive law will identify what facts are material. Id. at 248, 106 S.Ct. at 2510. A dispute as to a material fact is "genuine" only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 248, 106 S.Ct. at 2510.

Plaintiffs contend that they have alleged the following three claims under 42 U.S.C. § 1983: (1) a claim for a taking of Plaintiffs' property without just compensation; (2) a claim that Plaintiffs' property was taken without procedural due process; and, (3) a claim for a taking of Plaintiffs' property for a private use.

In order to sustain a cause of action under section 1983, Plaintiffs must show that the conduct complained of was committed under color of state law and that this conduct deprived Plaintiffs of a constitutional right. Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). Because the Court finds that Plaintiffs have failed to allege a deprivation of a constitutional right with respect all of their claims, the Court must grant summary judgment against Plaintiffs as a matter of law.

Before the Court addresses Plaintiffs' claims for a taking of their property, the Court will address Plaintiffs' argument that summary judgment should be denied because they have not had an opportunity to present all the facts. Plaintiffs assert that they have served a set of interrogatories upon Defendant City of Dallas, which interrogatories seek information about unequal enforcement of the law by the City of Dallas. The Court notes, however, that in the present case Plaintiffs have not alleged any facts which would state an equal protection claim,³ and Plaintiffs so admit in their response. Therefore, the discovery sought by Plaintiffs would be irrelevant to the claims Plaintiffs contend they have alleged in the present case. Accordingly, summary judgment will not be denied on the basis that Plaintiffs have not obtained discovery on the issue of unequal enforcement of the law.

To state a claim for a taking pursuant to the Fourteenth Amendment, Plaintiffs must show (1) a taking of a property interest (2) under color of state law (3) without due process or just compensation. Kohlasch v. New York State Thruway Authority, 460 F.Supp. 956, 960 (S.D.N.Y. 1978). Accordingly, in order to be entitled to due process or just compensation, Plaintiffs must first have alleged that they had a property interest taken from them.

Plaintiffs have failed to allege facts which rise to the level of a taking of a property interest. In their complaint, Plaintiffs allege that "because of the extraordinary noise caused by the racing, Plaintiffs ... were unable to make normal use, and were deprived of the enjoyment, of their lives and homes." Plaintiffs have not alleged any decrease in value of their homes; Plaintiffs allege that they were deprived of the use and enjoyment of their homes. Plaintiffs contend that they have alleged a temporary, partial taking of their property. Citing First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987) and Nollan v. California Coastal Commission, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987). Plaintiffs contend that the Supreme Court has construed the Takings Clause to require that the government pay just compensation when it takes property temporarily, as well as permanently, and when it takes property partially and non-destructively, as well as totally and destructively. The Court concludes that these cases are distinguishable and do not require the result urged by Plaintiffs, as those cases involved land-use regulations which were so extensive that the Supreme Court held that the regulations amounted to a taking.

The Court does note that a temporary taking requires compensation, just as does a permanent taking. See First English Evangelical, 482 U.S. at 318, 107 S.Ct. at 2387; Kimball Laundry Co. v. United States, 338 U.S. 1, 69 S.Ct. 1434, 93 L.Ed. 1765 (1949); United States v. Petty Motor Co., 327 U.S. 372, 66 S.Ct. 596, 90 L.Ed. 729 (1946). However, these cases involve situations where the landowner is denied all use of his property. In the present case, summary judgment evidence shows that Plaintiffs were not denied all use of their property during the race.

Additionally, Courts have held that invasion of sound and shock waves interfering with the enjoyment of property does not constitute a taking, even when there is a substantial diminution in the value of the property affected. Avery v. United States, 165 Ct.Cl. 357, 330 F.2d 640, 645 (1964); Batten v. United States, 306 F.2d 580 (10th Cir.1962). Plaintiffs argue that the Supreme Court has recognized that certain levels of noise constitute a taking, citing United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946). The Court disagrees; in Causby, an unconstitutional taking of property occurred because there was a physical invasion of the airspace superadjacent to the landowner's property. However, other cases have found a taking without actual physical invasion of the surface of the land. See, e.g., Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922) (a taking of the subjacent property). Without some physical invasion, this Court finds no authority holding that the government is liable for noise. Branning v. United States, 228 Ct.Cl. 240, 654 F.2d 88, 99 (Ct. Cl.1981). No physical invasion of Plaintiffs' property occurred in the instant case.

The Ninth Circuit has held that noise generated from a city-owned automobile racetrack did not rise to the level of an unconstitutional taking. Citizen's Ass'n of Portland v. Int'l Raceways, Inc., 833 F.2d 760 (9th Cir.1987). In that case, the plaintiffs were also persons who resided in neighborhoods near the racetrack. The Court reasoned that because the case did not involve land-use regulations so extensive as to deprive the plaintiffs of the use of their property, and because racing at the racetrack was periodic, no taking had occurred. Id. at 762. The court noted that "almost no racing occurs for six months out of each year." Id.

In the case at bar, the race was held over a three day period; no other racing occurred in this area until four years later.⁴ Any loss of the quiet use and enjoyment of Plaintiffs' homes was so temporary that it could not amount to a taking for which Plaintiffs are entitled to compensation. Plaintiffs were not deprived of all economically viable use of their property. Citizen's, 833 F.2d at 762; Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981).

Plaintiffs attempt to distinguish Citizen's because it arose on a motion to dismiss and not a motion for summary judgment. Plaintiffs contend that they have submitted summary judgment proof of their allegations. However, the Court notes that if what Plaintiffs have alleged does not amount to a taking, it does not matter whether they can prove it or not. If Plaintiffs' allegations do not rise to the level of a taking, then they cannot establish an element of each of their three claims, and summary judgment must be granted against them as a matter of law.

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