### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 12-50293 Summary Calendar

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” ) a rising from the denial of new permits for mobile homes on his property that did not meet City-regulated public-safety standards. We AFFIRM. Abd elhak owns property in San Antonio, Texas, that he operates as a mobile home trailer park. Pa r t o f t he property is located within the Federal U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Janu ary28 , 20 13 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 12-50293 Document: 00512126757 Page: 1 Date Filed: 01/28/2013No. 12-50293

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 complianc e w ith specific public safety requirements. 1 Abdelhak then filed suit in Texas state court t o 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. The City Council ultimately approved the settlement in 2005.

2 3 Afterwards, Ab d e l h a k continued to operate the mobile home park, and new tenants and homes were brought into the park. In 2007, another major rain event flooded Ab d e l h a k’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 futur e tenants. The City maintains that Abdelhak must comply with he a l t h 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

The City adm inis ter s the flo odp lain in the San Antoni o regio n on behalf of FEMA. In 1 ord er to par tic ipat e in the Nat ional Flood Insur ance Progra m, the City mus t enf orc e flo odp lain regula tio ns, and has enac ted ord inanc es to do so . See City of San Antoni o Unif ied De v. Code (“ UD C”) , App

. F. The ord inanc es res tri ct deve lop me nt in the 100- year flo odp lain to i n clud e the plac em ent of new st ruc tur es on suc h pr ope rty wi t h o u t p r i o r obta ining a flo odp lain deve lop me nt per mi t. Id.
The se ttl em ent agree me nt pr ovide d that the City wo uld “res tor e to [Abdelha k] all of 2 the per mi ts for mo bile hom e sp aces that [he ] may law full y plac e upon his pr ope rty and st ill be in com pli ance wi th all app licable cod e requ irem ents app licable to all mo bile home par ks .” The City Ord inanc e app rovedstat ed in rele vant par t that “[ the City] wi ll res tor e all 3 per mi ts f

or mo bile hom e s pac es t hat [Abd elhak ] may law full y have on his p rop ert y.” 2 Case: 12-50293 Document: 00512126757 Page: 2 Date Filed: 01/28/2013No. 12-50293

not permitted new mobile home units on Abdelhak’s pr operty 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 in t e rference with contracts, illegal seizure, and § 1983 deprivation clai m s. The district court assigned the case for pretrial matters to a magistrate judge. The magistrate issued a r e p o r t recommending that the City’s motion be granted such that Abdelhak’s constitutional claims be dismissed without prejudice as unripe. The magistrate recommended that

summa r y j u d g m e nt 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 jud g m e nt in favor of the City. Abdelhak timely appealed. We r evi ew a district court’s dismissal for lack of subjec t

- m att e r j uri s dic ti o n de novo, using the same stand a r d s a s t h ose employed by the lower court. See Rodriguez v. Tex. Comm’n on the A r t s , 1 99 F.3d 279, 280 (5th Cir. 2000). Ripeness is a component of subject-matter jurisdiction. Sample v. Morrison , 406 F.3d 310, 312 ( 5 t h C i r. 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 cou r t l a c k s t h e 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) (i n t e r n a l citation quotation m ark s o m itt e d)

. Ap p e ll a nt s h ave the burden of demonstrating subject-matter jurisdiction. See Stockman v. FEC, 1 3 8 F.3d 144, 151 (5th Cir. 1998). A grant of summary judgment is reviewed de n o v o . B oudreaux v. Swift Transp. Co. , 4 0 2 F

. 3 d 536, 540 (5th Cir. 2005). We apply the same legal

3 Case: 12-50293 Document: 00512126757 Page: 3 Date Filed: 01/28/2013No. 12-50293

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, viewin g t h e e v i dence 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, I nc. , 477 U.S. 242, 248 (1986). The p arty moving for summary judgment must “demonstrate the absence of a genuine issue of material fact, but ne e d n o t n e gate the elements of the nonmovant’s case.” B o u dreaux , 402 F.3d at 540 (internal citation and quotation marks omitted). On appeal, Abdelhak raises two issues. First, he contends th a t h is 4 takin g s c l aims are ripe. Second, Abdelhak argues that a genuine issue of material f

a c t e xi s t s c o nc erning 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 h a s the burden of proving the ripeness component of subject matt e r j u risdiction. 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).

Abdel hak did not rais e on app eal the othe r clai ms he mad e in the dis tri ct cour t: 4 tor tio us inte rf

ere nce wi th bus ines s cont rac ts , illegal se izure , § 1983 dep rivat ion, due pr oce ss violat ions , and equal p r o t e cti on violat ions

. There for e, we conc lude he has aband oned thes e clai ms . See Yohe

y v . Coll ins , 985 F.2d222 , 224–25 (5t h Cir

. 1993)

. 4 Case: 12-50293 Document: 00512126757 Page: 4 Date Filed: 01/28/2013No. 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 ea r l i er 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 l a w. Addicks Serv., Inc. v. GGP-Bridgeland, LP, 596 F.3d 286, 294 (5t h C i r . 2010). “ C o u r ts interpreting unambiguous contracts are confined to the four

corners of the document, and cannot look to extri n s i c evidence to create an ambiguity.” Id. The court found that the plain language of the agreement did not evidence the proper t y ’ s intended exemption from the City’s floodplain regulations, and thus did not credit Abdelhak’s interpretation of the contract. We agree. T h e l a n guage 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 park s . ” The agreement does not suggest that the property is in any way exempt from complying with the City’s floodplain regulations. Since the City’s floodplain regulations apply to mobile 5

Abdel hak app ears to argue that the sli ght dif fer ence in language betw een the par tie s’ 5
se ttl em ent agree me nt and the City ord inanc e app roving the se ttl em ent indi cat es the late nt a m b i gu i t y in the cont rac t. He clai ms the ord inanc e then cons tit utes the “co ntr olli n g language, ” beca use the se ttl em ent wa s not fina l until full y app roved by the City Counci l. This argum ent i s unavaili ng—t here is no evide nce that the ord inanc e sup erc ede s the negot iate d ag r e e m e n t

. Ho we ver, even if it did , the sli ghtly dif fer ent language st ill doe s not sup por t Abdel hak ’s argum ents and doe s not rend er the cont rac t amb iguous

. Altho ugh the add itio nal phr ase “and st ill be in c o m p lianc e wi th all app licable cod e requ irem ents app licable to all mo bile hom e par ks ” is not pr es ent in the Counci l l anguage, the ord inanc e nevert heles s only 5 Case: 12-50293 Document: 00512126757 Page: 5 Date Filed: 01/28/2013No. 12-50293

home parks, the l a nguage, fairly read, appears to explicitly contemplate that

new permits would be contingent upon compliance w i t h t h e se, 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. 199 6). 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 distric t c o u rt found that because Ab d e lhak 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 f rom the controlling regulations.” Id

. Procedures for requesting a v a r i a n c e from the floodplain regulations are specifically set out in § 35-F135 of the UDC. Wh i l e “ [ f ] u tile 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 va r i a n c e r e quest was futile. The summary judgment

co m m i t s t h e City to res tor e per mi ts for mo bile hom e sp aces that may “law full y” be on Abdel hak ’s prop ert y. This language do es not sup por t an argum ent tha t the City w aivedt he rightt o e nfo rce it s flo odp lain regula tio ns on Abdel hak ’s p rop ert y. Abdel hak cont ends the agree me nt is amb iguous so as to intr oduc e extr ins ic evide nce 6 about the inte nt and cond uct of the par ties aft er the se ttl em ent. He argues the City’s res tor atio n of mo bile hom e per mi ts dem ons tra tes its inte nt to not enf o r c e t he flo odp lain regula tio ns on his pr ope rty ever again. Becaus e the agree me nt is not amb iguous , the evide nce is not adm iss ible. None thel es s, even if it we re, it doe s not tend to demo nst rat e that the City inte nded to “co ntr act aw ay” its pow er to enf orc e publ ic saf

ety regula tio ns on the pr ope rty fr om that poi nt on, es pec ially in light of the i nter vening cir cum st ance s of the se cond flo od event

. The abilit y t o p rot ectt he healt h an d saf ety of res ide nts w ithi n t he flo odp lain, as w ell as the genera l res ide nts of San Antoni o, is of extrem e im por tanc e. Or dina nces aimedat pr ote cti ng t h e healt h and saf

ety of cit izens are squ arel y wi thin the City’s pol ice pow ers . See Vul ca n Ma teri als Co. v. City of Tehu ac ana , 369 F.3d 882, 887 (5t h Cir. 2004)

. The se ttl em ent canno t be readas r es cind ing t hat autho rit y 6 Case: 12-50293 Document: 00512126757 Page: 6 Date Filed: 01/28/2013No. 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 an d 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. Acco r d i ngly, Abdelhak failed to show either that he is exempt from the City’s floodplain regulatio ns, 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. Because this claim 7 i s 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 alleg e d b r e a ch 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 m a t e r i a l 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.

Bec aus e w e aff

irm the dis tri ct co urt ’s dete rm inati on thatthe tak ings clai m wa s not 7 rip e f or cons ide rat ion, w e d o n ot cons ide r the City’s al ter native gro unds f or aff irm ance . 7 Case: 12-50293 Document: 00512126757 Page: 7 Date Filed: 01/28/2013