* District Judge for the Southern District of Texas, sitting by designation.

1 In this opinion, the term "manufactured housing" refers collectively to "HUD-code

manufactured homes" and "mobile homes," as those terms are defined under Texas law. See infra

note 2.

1 United States Court of Appeals,

Fifth Circuit.

No. 95-40803.

TEXAS MANUFACTURED HOUSING ASSOCIATION, INC.; A.J. Waller, Sr., PlaintiffsAppellants

v.

NEDERLAND, CITY OF; Zoning Board of Appeals, City of Nederland, Defendants-Appellees.

Dec. 26, 1996.

Appeals from the United States District Court for the Eastern District of Texas.

Before KING and HIGGINBOTHAM, Circuit Judges, and KAZEN, * District Judge.

KING, Circuit Judge:

Plaint iffs appeal a grant of s ummary judgment in favor of defendants on plaintiffs' multiple

claims challenging a city ordinance that regulates the placement of manufactured housing 1 within city

limits. Finding no genuine issues of material fact as to any of plaintiffs' claims, we affirm.

I. BACKGROUND

In 1970, the City of N ederland (t he "City") adopted Ordinance 259, which prohibits the

placement of "trailer coaches" on any lot within city limit s except in a "duly authorized trailer park."

Ordinance 259 defines "trailer coach" as "a transportable, single family dwelling unit which is or may

be mounted on wheels suitable for year-round occupancy and containing the same water supply,

waste disposal and electrical conveniences as immobile housing."

In 1994, A.J. Waller, Sr. ("Waller") applied to the City for a permit to place a "HUD-code

manufactured home" on a lot that he had owned and occupied in Nederland since 1959. Under Texas

law, a "HUD-code manufactured home" has characteristics identical to those of a mo bile home except2 The Manufactured Housing Standards Act provides in relevant part:

Sec. 3. Whenever used in this Act, unless the context otherwise requires,

the following words and terms have the following meanings:

(1) "Mobile home" means a structure that was constructed before June 15,

1976, transportable in one or more sections, which, in the traveling mode, is eight

body feet or more in width or 40 body feet or more in length, or, when erected on

site, is 320 or more square feet, and which is built on a permanent chassis and

designed to be used as a dwelling with or without a permanent foundation when

connected to the required utilities, and includes the plumbing, heating,

air-conditioning, and electrical systems.

(17) "Manufactured housing" or "manufactured home" means a HUD-code

manufactured home or a mobile home and collectively means and refers to both.

(19) "HUD-code manufactured home" means a structure, constructed on

or after June 15, 1976, according to the rules of the United States Department of

Housing and Urban Development, transportable in one or more sections, which, in

the traveling mode, is eight body feet or more in width or 40 body feet or more in

length, or, when erected on site, is 320 or more square feet, and which is built on a

permanent chassis and designed to be used as a dwelling with or without a

permanent foundation when connected to the required utilities, and includes the

plumbing, heating, air-conditioning, and electrical systems. The term does not

include a recreational vehicle as that term is defined by 24 C.F.R. Section

3282.8(g).

Tex.Rev.Civ.Stat.Ann. art. 5221f § 3 (Vernon Supp.1997). These definitions of "mobile

home" and "HUD-code manufactured home" track the federal definition of "manufactured

home." See 42 U.S.C. § 5402(6).

2 that a HUD-code manufactured home is built after June 15, 1976, and is constructed according to

HUD standards. S ee Tex.Rev.Civ.Stat.Ann. art. 5221f § 3 (Vernon Supp.1997). 2 Waller intended

t o install the home on a permanent foundation system. The home would have replaced an aging,

dilapidated, site-built home that Waller was then occupying.

The City determined that a HUD-code manufactured home was a "trailer coach" and denied

Waller's application under Ordinance 259. Waller appealed to the Zoning Board of Appeals of the

City of Nederland ("Zoning Board"). After a public hearing, the Zoning Board affirmed the City's

denial of Waller's permit application.

The City and the Zoning Board have interpreted Ordinance 259 to include both HUD-code

manufactured homes and m o bile homes but not "industrialized" or "modular" homes. An3 "Industrialized housing" is defined under Texas law as:

a residential structure that is designed for the use and occupancy of one or more

families, that is constructed in one or more modules or constructed using one or

more modular components built at a location other than the permanent residential

site, and that is designed to be used as a permanent residential structure when the

modules or modular components are transported to the permanent residential site

and are erected or installed on a permanent foundation system.... The term shall

not mean nor apply to (i) housing constructed of sectional or panelized systems not

utilizing modular components; or (ii) any ready-built home which is constructed

so that the entire living area is contained in a single unit or section at a temporary

location for the purpose of selling it and moving it to another location.

Tex.Rev.Civ.Stat.Ann. art. 5221f-1 § 1(1) (Vernon 1987).

3 "industrialized" or "modular" home is built off-site in modular components that are then transported

to a residential site and erected on a permanent foundation. 3 Unlike manufactured housing, modular

housing is not built on a permanent chassis and must be constructed according to local building code

standards. S ee Tex.Rev.Stat.Ann. ar t . 5221f-1 § 2 (Vernon 1987). The distinction between

manufactured housing and modular housing is at the heart of plaintiffs' constitutional claims.

Waller and the Texas Manufactured Housing Association ("TM HA") (collectively,

"plaintiffs") filed suit against the Cit y and Zo ning Board on June 29, 1994, challenging the

enforcement of Ordinance 259 as di scriminatory and unconstitutional. Plaintiffs claimed that

defendants' actions amounted to a constitutional tort as well as a denial, under the United States

Constitution, of substantive due process, equal protection, just compensation, privileges and

immunit ies, and privacy. Plaintiffs also claimed that enforcement of Ordinance 259 impermissibly

burdened interstate commerce and that both federal and state law preempted the subject matter of

the ordinance. Plaintiffs sought relief for alleged constitutional violations both directly and under 42

U.S.C. § 1983.

On September 7, 1995, the district court granted summary judgment in favor of defendants

on all claims. The district court denied plaintiffs' motion for reconsideration.

On appeal, plaint iffs argue that the district court erred in granting summar y judgment for

defendants on plaint iffs' preemption, commerce clause, takings, substantive due process, equal4

protecti on, and § 1983 claims, and in granting defendants' motion to extend time for filing a motion

for attorneys' fees.

II. STANDARD OF REVIEW

W e review a grant of summary judgment de novo, applying the same criteria used by the

district court in the first instance. N orman v. Apache Corp., 19 F.3d 1017, 1021 (5th Ci r.1994);

Conkling v. Turner, 18 F.3d 1285, 1295 (5th Cir.1994). Summary judgment is proper "if the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits,

if any, show 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); s ee also Celotex Corp. v. Catrett, 477 U.S.

317, 327, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). After the movant has presented a properly

supported motion for summary judgment, the burden shifts to the nonmovin g party to show wi th

"significant probative evidence" that there exists a genuine issue of material fact. S ee Conkling, 18

F.3d at 1295. A fact is "material" if its resolution in favor of one party might affect the outcome of

the lawsuit under governing law. A n derson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct.

2505, 2510, 91 L.Ed.2d 202 (1986). An issue is "genuine" if the evidence is sufficient fo r a

reasonable jury to return a verdict for the nonmoving party. Id.

III. DISCUSSION

A. Preemption

1. Federal preemption

The doctrine of federal preemption is roo t ed in t he Supremacy Clause and activated by

congressional intent. S ee Fidelity Federal Sav. & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 152-53,

102 S.Ct. 3014, 3022, 73 L.Ed.2d 664 (1982). Congress may either expressly define the extent to

which state law is to be preempted by a federal statute, or implicit ly preempt state law by regulating

comprehensively so as to preclude state law from occupying any part of the regulated field. I d. Even

where Congress has not entirely regulated a specific area, state law will be nullified to the extent it

directly conflicts with federal law or hinders achievement of congressional objectives. I d.; see also4 This section provides:

Whenever a Federal manufactured home construction and safety standard

established under this chapter is in effect, no State or political subdivision of a

State shall have any authority either to establish, or to continue in effect, with

respect to any manufactured home covered, any standard regarding construction or

safety applicable to the same aspect of performance of such manufactured home

which is not identical to the Federal manufactured home construction and safety

standard.

42 U.S.C. § 5403(d).

5 "Local building code" is the term that plaintiffs use in their brief. The depositions relied on by

plaintiffs include various references to "local building code," "Standard Building Code," and

"Southern Building Code." Plaintiffs do not define these terms. However, because plaintiffs

frame their argument using the term "local building code," we use this term in our discussion. We

suggest no view as to the distinctions that may or may not exist among the various terms.

5 Hetzel v. Bethlehem Steel Corp., 50 F.3d 360, 363 (5th Cir.1995).

Plaint iffs argue that Ordinance 259 is preempte d by the National Manufactured Housing

Construction and Safety Standards Act of 197 4 (the "Act"), 42 U.S.C. §§ 5401-5426, whi ch

expressly prohibits state and local governments from establishing standards for the safety and

construction of manufactured homes that differ from federal standards. See 42 U.S.C. § 5403(d). 4

Plaint iffs base their argument on isolated port io ns of testimony of City officials that purportedly

establish that a HUD-code m anufact ured home would not be an acceptable structure on a private

residential lot outside a trailer park because such a home would not comply with the "local building

code." 5 Plaintiffs contend that this testimony raises a fact issue concerning whether Ordinance 259

imposes local safety and construction standards on HUD-code manufactured homes in contravention

of the express will of Congress.

Plaintiffs rely on Scurlock v. City of Lynn Haven, 858 F.2d 1521 (11th Cir.1988), in which

a permit to place a HUD-code manufactured home in one of the city's residential districts was denied

because a local ordinance prohibited the placement in such a district of any home that did not comply

with specified local codes. I d. at 1522-23. The Eleventh Circuit held t hat the ordinance was

preempted because it attempted to impose greater safety requirements for manufactured homes than

those mandated by the federal statute. Id. at 1525.6

We agree with the district court that this case is significant ly unlike Scurlock. The ordinance

at issue in Scurlock excluded from certain residentially-zoned property any home that either did not

meet the Southern Standard Building Code, the National Electrical Code, and the Electrical Code of

the City of Lynn Haven, or did not bear the seal of the Florida Department of Community Affairs.

As recognized by the Ele v enth Circuit, the City of Lynn Haven was "attempting to exclude the

Scurlock's mo bile home from its R-AA section based solely on its safety code." I d. (emphasis added).

Accordingly, much of the evidence at trial concerned the differences between HUD requirements and

those contained in the specified codes. I d. at 1523. Ordinance 259, in contrast, regulat es the

placement and permitting of trailer coaches for the purpose of protecting property values and does

not expressly link its provisions in any way to local safety and construction standards.

In Scurlock, the evidence showed that a HUD-code home would be permitted in the areas in

question as long as it complied with local safety and construction codes (which imposed requirements

different from and more stringent than HUD requirements), irrespective of any other applicable local

regulations. The evidence in this case does not establish this specific, key fact. Plaintiffs have not

cit ed evidence that identifies the actual requirements of the "local building code" that HUD-code

manufactured homes fail to satisfy under the ordinance. This omission is fatal to plaintiffs' claim that

the ordinance is a t hinly veiled attempt to impose local safety and construction standards on HUDcode manufactured homes. The relevant deposition testimony, taken as a whole, does not distinguish

between local safety and construction standards and all other aspects of local build ing regulation

(including the ordinance at issue in this case). Therefore it does not create a genuine issue of material

fact as to whether enforcement of Ordinance 259 conflicts with federal law. The district court

properly granted summary judgment on plaintiffs' federal preemption claim.

2. State preemption

Plaintiffs also argue that Ordinance 259 is preempted by the Texas Manufactured Housing

Standa rds Act, Tex.Rev.Civ.Stat.Ann. art. 5221f. This statute specifically allows cities to restrict

installation of HUD-code manufactured homes to "areas determined appropriate by t he city."7

Tex.Rev.Civ.Stat.Ann. art. 5221f § 4A(b) (Vernon Supp.1997). Plaintiffs contend, however, that

Ordinance 259 is preempted by section 3A of article 5221f because Ordinance 259 treats the terms

"HUD-code manufactured home" and "mo bile home" "as functional equivalents under the outdated

(1970) rubric of "trailer coach,' " whereas section 3A provides that the terms are mutually exclusive

and binding on every political subdivision in Texas.

Plaint iffs are correct that section 3A makes the definitions of manufactured housing contained

in article 5221f binding on all local political subdivisions of the state. Section 3A also states that "[a]

mo bile home is not a HUD-code m anufactured home and HUD-code manufactured home is not a

mo bile home for any purpose under the laws of this state." Tex.Rev.Civ.Stat.Ann. art. 5221f § 3A

(Vernon Supp.1997). Nothing in article 5221f, however, precludes a municipality from regulating

both types of manufactured housing using a single term such as "trailer coach." Ordinance 259 does

not impermissibly regulate either mo bile homes or HUD-code manufactured homes, and the district

court properly granted summary judgment on the state preemption claim.

B. Commerce Clause

The dormant commerce clause confines the states' power to burden interstate commerce.

Oregon Waste Sys., Inc. v. Oregon Dep't Envtl. Quality, 511 U.S. 93, 114 S.Ct. 1345, 128 L.Ed.2d

13 (1994). The first step in analyzing the constitutionality of legislation under the dormant commerce

clause is to determine "whether the challenged statute regulates evenhandedly with only "incidental'

effects on interstate commerce, or discriminates against interstate commerce either on its face or in

practical effect." H

ughes v. Oklahoma, 441 U.S. 322, 336, 99 S.Ct. 1727, 1736, 60 L.Ed.2d 250

(1979); s ee also Maine v. Taylor, 477 U.S. 131, 138, 106 S.Ct. 2440, 2447, 91 L.Ed.2d 110 (1986).

The Supreme Court ha s defined "discrimination" in this context to mean "differential treatment of

in-state and out-of-state economic interests that benefits the former and burdens the l atter." O regon

Waste Systems, 511 U.S. at ----, 114 S.Ct. at 1350. As the Court has alternatively formulated this

init ial step, "[t]he crucial inquiry

... must be directed to determining whether [the statute] is basically

a protectionist measure, or whet her it can fairly be viewed as a law directed to legitimate local8

concerns, with effects upon interstate commerce that are only incidental." C ity of Philadelphia v.

New Jersey, 437 U.S. 617, 624, 98 S.Ct. 2531, 2535, 57 L.Ed.2d 475 (1978).

A statute that burdens interstate commerce o nly incidentally is subject to the flexible

balancing approa ch of Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174

(1970), which provides t hat such a st atute "will be upheld unless the burden imposed on such

commerce is clearly excessive in relation to the putative local benefits." 397 U.S. at 142, 90 S.Ct.

at 847. The P ike Court went on to state that "[i]f a legitimate local p urpose is found, then the

question becomes one of degree. And the extent of the burden that will be tolerated will of course

depend on the nature of the local interest involved, and on whether it could be prom oted as well with

a lesser impact on interstate activities." Id.

Statutes that affirmat ively discriminate against inter st at e commerce are subject to stricter

scrutiny. The party challenging the statute bears the initial burden of showing discrimination.

Hughes, 441 U.S. at 336, 99 S.Ct. at 1736. Once discrimination has been demonstrated, the burden

shifts to the state to demonstrate both that the statute serves a legitimate local purpose and that this

purpose could not be served as well by available nondiscriminatory means. Id.

Plaint iffs argue that the district court erred in applying the balancing test set forth in P ike

because Ordinance 259 discriminates against interstate commerce in its practical effect and therefore

should have triggered strict scrutiny under Hughes. Plaintiffs contend that HUD-code manufactured

housing is an out-of-state economic interest because many such homes are fabricated outside of Texas

and imported into the state, while modular housing is an in-state economic interest because the

modular homes that are sold to Texas consume rs are constructed in Texas. Plaintiffs offered the

affidavit of their expert, Will Ehrle, President and General Counsel of TMHA, who stated that

because modular housing must meet the state building code and because of "practic alities of the

market," the construction and sale of modular housing is , at least in Texas, a "distinctly local

industry." Ehrle further stated that he was not aware of any manufacturer outside of Texas that sells

and ships modular homes to Texas. Based o n these facts, Plaintiffs contend that Ordinance 2596 The Court so held despite state district court findings, based on extensive evidentiary

hearings, that the statute would not be able to achieve its stated policy objectives and that the

actual basis for the statute was to promote local economic interests in the dairy and pulpwood

industries. The Court examined the record and drew contrary conclusions from the evidence.

9 discriminates agains t int erstate commerce because it prohibits the placement of HUD-code

manufactured homes on individual, privately-owned lots in the City while permitting modular homes,

which compete in an overlapping market, to be placed on such lots. Plaintiffs argue that an in-state

economic interest is thereby benefited while an out-of-state economic interest is burdened.

The facts of this case most closely resemble those of Minnesota v. Clover Leaf Creamery Co.,

449 U.S. 456, 101 S.Ct. 715, 66 L.Ed.2d 659 (1981), cited by defendants. In C lover Leaf, the

Supreme Court upheld a Minnesota statute banning retail sale of milk in plastic nonreturnable,

nonrefillable containers, but permitting sale in other nonreturnable, nonrefillable containers, such as

paperboard cartons. The purpose of the statute was to promote conservation and ease solid waste

management problems. Plaintiff dairy companies argued that the statute impermissibly burdened

interstate commerce because the plasti c resin used to make the plastic containers was produced

entirely by out-of-state firms, while pulpwood, used to make the paperboard milk cartons that would

replace the banned plastic containers, was a major in-state product. The statute effectively burdened

the non-Minnesota plastic resin manufacturers while providing a boon to the Minnesota pulpwood

industry. The Court held, first, that the statute did n ot discriminate against interstate commerce but

regulated evenhandedly because it prohibited all milk retailers from selling their products in plastic,

nonreturnable containers, without regard to whether the milk, the containers, or the sellers were from

outside the state. The Court therefore applied the P ike balancing test and held, second, that the

burden imposed on interstate commerce was relatively minor and not clearly excessive in light of the

"substantial" state interest in promoting conservation and easing solid waste disposal problems. 6 449

U.S. at 472-73, 101 S.Ct. at 728-29.

Clover Leaf thus stands for the proposition that the mere fact that a statute has the effect of

benefitting a local industry while burdening a separate interstate industry does not in itself establish7 The present statute uses the term "industrialized" for what we refer to as "modular" housing.

10 that the statute is discriminatory. C lover Leaf supports defendants' position that Ordinance 259 does

not affi rmat ively discriminate because it treats HUD-code manufactured homes built in state

identically to those built out of state.

In another relevant case, Exxon Corp. v. Governor of Md., 437 U.S. 117, 98 S.Ct. 2207, 57

L. Ed.2d 91 (1978), the Court upheld a Maryland statute providing that producers or refiners of

petroleum products may not operate any retail service station within the state. The purpose of the

statute was to correct inequities in the distribution and pricing of gasoline. Because no producers or

refiners operated within the state, the burden of the regulation fell entirely on interstate companies.

The Court rejected the argument that this fact established that the statute di scriminat ed against

interstate commerce, reasoning that the in-state independent dealers were still subject to competition

from out-of-state petroleum marketers that owned and op e rated retail gas stations but did not

produce or refine petroleum and therefore were not bound by the statute. Because the statute did

not erect barriers against int erstate independent dealers and did not prohibit the flow of interstate

goods, place added costs on them, or distinguish between in-state and out-of-companies in the retail

sector, the Court held that it had no discriminatory effect. Id. at 126, 98 S.Ct. at 2214.

In contrast to the facts of Clover Leaf and Exxon, in which the benefitted industry did not

exist solely within the regulating state, plaint iffs contend that modular housing that could potentially

serve the Nederland market originates solely within Texas. Plaintiffs' evidence on this point is limited

to the Ehrl e affidavit, noted above. Defendants apparently offered no evidence in response. The

C it y's amici, however, note in their brief that the Texas statute regulating modular housing

, 7

Tex.Rev.Civ.Stat.Ann. art. 5221f-1 (Vernon Supp.1997), specifically contemplates the interstate sale

and installation of modular homes. Section 4(c) of article 5221f-1 expressly permits the state

commissioner of licensing and regulation to au t ho rize building inspections of modular housing

constructed in another state to be performed by an inspector counterpart in the other state and also

to authorize inspections of modular housing that is constructed in Texas for use in another state. This8 We note that the City of Nederland is within close proximity to the Louisiana border and a

major interstate highway. Presuming that transportation is a relevant "practicality of the market,"

it is not at all implausible that modular housing constructed in Louisiana could be transported to

Nederland at least as conveniently as modular housing constructed elsewhere in Texas.

11 provision is not inconsistent with Ehrle's affidavit testimony, which does not foreclose the possibility

that modular housing could be constructed out of state and installed in state. 8

Section 2(a) of article 52 21f-1, moreover, requires that modular housing meet the

requirements of the National Electrical Code and the requirements of whichever of two speci fi

ed

uniform building codes (the Uniform Building C o de and t he Standard Building Code) has been

adopted by the municipality in which the housing is erected or installed. Section 2(b) provides that

if the municipality has not adopted either of the specified co des, or if the housing is created or

installed outside a municipalit y, the housing must be constructed in accordance with whichever of the

two codes the manufacturer chooses. These provisions tend to erode plaintiffs' argument that

modular housing is a "distinctly loc al industry" in part because it must conform to a local building

code; in this context, the local code must itself co nfo rm to certain standards used throughout the

nation.

Plaint iffs' attempt to demonstrate that Ordinance 259 has a discriminatory, rather than

incidental, effect on interstate commerce is flawed in two respects. First, Ordinance 259 does n ot

place any restrictions on out-of-state modular housing, and plaint iffs' evidence, even accepted as true

as it must be here, does no t sho w t hat mo dular housing is inherently such that it cannot be sold

interstate. To the contrary, interstate sale of modular homes was expressly contemplated by the state

legislature, and the potential for significant variations among local building codes throughout the state

is minimal. Because Ordinance 259 creates no barriers to the free flow of modular homes to and from

Texas, the facts of this case mirror those of Clover Leaf and Exxon.

Second, plaint iffs' own evidence demonstrates that the markets for modular homes and for

HUD-code manufactured homes, though ove rlapping, are basically distinct. Ehrle stated in his

affidavit that HUD-code manufactured homes are generally less expensive than modular homes and9 Plaintiffs rely on Ehrle's affidavit testimony that mobile homes have dramatically improved in

quality and appearance and that "numerous studies" of the impact of manufactured housing on

land values have concluded that property values are not diminished by adjacent HUD-code

manufactured housing. It appears, however, that plaintiffs offered no such actual studies.

Plaintiffs did produce the report of one appraiser who concluded that the placement of a HUDcode manufactured home on Waller's lot would not adversely affect surrounding property values.

The City countered with the affidavit of another appraiser, who stated that the presence of a

mobile home or HUD-code manufactured home in a residential neighborhood of conventional

site-built homes does have a negative impact on property values. The City's appraiser also stated

that Fannie Mae guidelines require that when appraising a conventional site-built home, an

appraiser mention in the report the presence of any mobile homes or HUD-code manufactured

homes in the neighborhood.

12 represent the only viable option for home ownership for those who cannot afford a modular home.

As persuasive as Ehrle's political argument may be to sympathetic policymakers , it precludes a

conclusion by this court that, because it wi ll result in a higher proportion of in-state goods than

out-of-state goods in the market, it has a discriminatory effect. There are two markets at work, and

plaintiffs have not presented evidence demonstrating that a restriction on HUD-code manufactured

homes will result in a corresponding increase in sales of modular homes. In other words, plaintiffs

have not presented evidence that the two types of housing are substitutes, despite their argument that

distinguishing between them for purposes of maint aining property values is irrational and ineffective.

Because Ord inance 259 has only an incidental effect on interstate commerce, the district

court was correct to apply the balancing test outlined in Pike. Plaintiffs contend that the ordinance

fails this test because the burden o n int erstate commerce is clearly excessive to the local interest

served. In support, plaintiffs cite lost sales of HUD-code manufactured homes in the City during the

1991-94 period of over $900,000. Plaintiffs also contend that the City has not demonstrated t hat

preserving property values is a legitimate governmental interest, that the ordinance does not actually

achieve the stated objective, 9 and that rather than impo se an outright ban on al l HUD-code

manufactured homes not p laced in t railer parks, the City could have adopted the less restrictive

alternative of requiring that such homes comply with certain aesthetic requirements.

We conclude that plaintiffs have not produced evidence sufficient to create a genuine issue

of material fact with respect to whether the burden on interstate commerce clearly exceeds the local10 There can be no dispute that the governmental interest at stake is legitimate. Maintenance of

property values has long been recognized as a legitimate objective of local land use regulation,

and the Texas Supreme Court has expressly held that a local ordinance regulating the location of

mobile homes is a land use ordinance properly within the local police powers. See City of

Brookside Village v. Comeau, 633 S.W.2d 790 (Tex.), cert. denied, 459 U.S. 1087, 103 S.Ct.

570, 74 L.Ed.2d 932 (1982).

13 benefits. It is not evident that plaintiffs have demonstrated a burden on interstate commerce at all.

The oste nsible burden consists of lost sales of HUD-code manufactured homes manufactured by

out-of-state firms for placement on individual, privately-owned lots in the City of Nederland. In-state

co unt erpart firms will suffer proportional losses. As the Supreme Court stated in E xxon, "the

[Commerce] Clause protects the interstate market, not particular interstate firms, from prohibitive

or burdensome regulations." 437 U.S. at 127-28, 98 S.Ct. at 2214-15 (emphasis added). Plaintiffs

have not demonstrated that what ever mode of housing is built in lieu of HUD-code manufactured

homes, it will be provided by in-state suppliers. Because plaintiffs have not raised a genuine issue as

to whether any burden the ordinance may impose on interstate commerce is clearly excessive to the

local benefits, 10 the district court did not err in granting summary judgment on this claim.

C. Takings

The authority of state and local governments to enact land use restrictions has long withstood

constitutional scrutiny. S ee Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71

L.Ed. 303 (1926). "Government hardly co uld go on if to some extent values incident to property

could not be diminished without paying fo r every such change in the general law." P ennsylvania

Coal Co. v. Mahon, 260 U.S. 393, 413, 43 S.Ct. 158, 159, 67 L.Ed. 322 (1922). Such authority is

not, however, without limit s. Pursuant to the Takings Clause of the Fifth Amendment , made

applicable to the states through the Fourteenth Amendment, a land use regulation constitutes a taking

if the ordinance "does not substantially advance legitimate state interests

... or d enies an owner

economically viable use of his land." A gins v. City of Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138,

2141, 65 L.Ed.2d 106 (1980) (citations omitted); see also Dolan v. City of Tigard, 512 U.S. 374,11 The exception to this formulation is the category of per se takings, such as a permanent

physical occupation of the property, Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S.

419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982), or deprivation of all economically beneficial use,

Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798

(1992). Plaintiffs do not contend that Ordinance 259 constitutes a per se taking.

14 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994). 11

In holding that Ordinance 259 does not constitute a compensable taking, the district court

reasoned that even if the ordinance precluded the economically optimal use of Waller's land, it neither

deprived him of any fundamental attributes of property ownership nor prevented him from making

be neficial use of the property. We agree that plaintiffs have not made an evidentiary showing

sufficient to create a genuine issue as to the existence of a taking.

Plaint iffs contend that the district court erred in its takings analysis because (1) it improperly

"found" that Waller had not been deprived of all economically viable use of his property and (2) it

applied the wro ng legal standard. Plaintiffs argue that the district court should have applied

"heightened scrutiny" under Nollan v. California Coastal Comm'n, 483 U.S. 825, 107 S.Ct. 3141,

97 L.Ed.2d 677 (1987), because the City disproportionately singled out Waller. Plaint iffs contend

that under Nollan, the ordinance cannot stand because it impermissibly attem pts to "extract benefits"

from the regulation of Waller's land and because it lacks the requisite "closeness of fit" between

means and ends. Plaintiffs make no argument and cite no evidence concerning the harm to Waller,

other than to state that such harm is "obvious."

The evidence before the court in no way indicates that Waller has been singled out as was the

landowner in Nollan. Ordinance 259 is a general zoning regulation that applies evenhandedly to

entire areas of the City, unlike the challenged requirement in Nollan that conditioned a building permit

upon the applicant's granting of an uncompensated, permanent, public access easement to the city.

Id. at 828, 107 S.Ct. at 3143; s ee also Dolan, 512 U.S. at

- ---, 114 S.Ct. at 2316 (distinguishing

Nollan and Dolan from land use cases in which the regulations involve "essentially legislative

determinations class ifying entire areas of the city"). The Nederland ordinance does not "extract

benefits" from Waller in the Nollan sense of requiring some dedication of property to the city.15

Accordingly, even assuming that Nollan est ablishes a distinct standard in cases of constitutionally

suspect conditions, this is not such a case.

We therefore turn to the first question posed under A gins —whether Ordinance 259

s ubstantially advances a legitimate state interest. A gins, 447 U.S. at 260, 100 S.Ct. at 2141.

Ordinance 259 restricts the placement of manufactured housing inside the City's limit s to trailer parks

in an effort to prevent haphazard placement of such housing throughout the City and thereby prevent

a concomitant decline in property values. Conservation of property values is a legitimate

governmental interest well within the broad scope of the police power. S ee Berman v. Parker, 348

U.S. 26, 33, 75 S.Ct. 98, 102, 99 L.Ed. 27 (1954); C orn v. City of Lauderdale Lakes, 997 F.2d

1369, 1375 (11th Cir.1993), c ert. denied,

--- U.S.

----, 114 S.Ct. 1400, 128 L.Ed.2d 73 (1994).

Ordinance 259, moreover, substantially advances this interest. Here, the City determined that

manufactured housing would detrimentally affe ct property values if scattered throughout a

municipalit y. Restricting manufactured housing to trailer parks directly responds to this legitimate

concern.

We must now determi ne whether enforcement of the ordinance interferes with Waller's

re aso nable use of his property to such a degree as to constitute a taking. This is necessarily a

fact-intensive, case-by-case inquiry that takes account of such relevant factors as the extent to which

the regulation frustrates distinct investment-backed expectations and whether it c o mpletely denies

all beneficial use of some porti on of the property

. P enn Central Transp. Co. v. City of New York, 438

U.S. 104, 124-28, 98 S.Ct. 2646, 2659-61, 57 L.Ed.2d 631 (1978). In many contexts, some adverse

effect on economic value will be tol erated in the interest of promoting the health, safety, welfare, or

morals of a community. I d. In this case, plaint iffs have made no showing of harm sufficient to

declare enforcement of Ordinance 259 a taking. Plaintiffs have alleged neither physical invasion nor

interference with distinct investment-backed expectations, and the evidence fails to show not only a

deprivation of all beneficial use of any part of Waller's property, but also any diminution in the

property's value. Summary judgment was therefore appropriate on this claim.16

D. Substantive Due Process

The relevant inquiry for plaint iffs' substantive due process challenge is whether there existed

a rational basis for the City's enactment and enforcement of Ordinance 259. Shelton v. City of

College Station, 780 F.2d 475, 482 (5th Cir.) (en banc) ("We hold that the outside limit upon a state's

exercise of its police power and zoning decisi o ns is that they must have a rational basis."), cert.

denied, 477 U.S. 905, 106 S.Ct. 3276, 91 L.Ed.2d 566, and cert. denied, 479 U.S. 822, 107 S.Ct.

89, 93 L.Ed.2d 41 (1986). An attack against a zoning decision can succeed only with a showing "

"that the legislative facts on which the classification is apparently based could not reasonably be

conceived to be true by the governmental decisionmaker.' " Id. at 479 (quoting Vance v. Bradley,

440 U.S. 93, 110 -11, 99 S.Ct. 939, 949-50, 59 L.Ed.2d 171 (1979)). Plaintiffs concede that the

exercise of the police power does not offend due process unless the challenged legislation is "clearly

arbitrary and unreasonable, having no substantial rel at io n to the public health, safety, morals, or

general welfare." E uclid, 272 U.S. at 395, 47 S.Ct. at 121. Plaintiffs nevertheless contend that the

purported rational basis for enacting Ordinance 259 is merely a pretext to mask arbitrary and

capricious action that renders the Ordinance unconstitutional. Because it is "at least debatable"

whether restricting the placement of mo bile homes effectively maintains property values, the district

court properly granted summary judgment on this claim. S ee Shelton, 780 F.2d at 483; C lover Leaf,

449 U.S. at 464, 101 S.Ct. at 723.

E. Equal Protection

Plaintiffs argue that the district court erred in applying the rational basis test to their equal

protecti on claim. Relying on C ity of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 459-460, 105

S.Ct. 3249, 3264-65, 87 L.Ed.2d 313 (1985) (Marshall, J., concurring in part and dissenting in part),

plaint iffs propose that a higher standard of r eview is appropriate whenever noneconomic or

noncommercial legislation affects rights of weighty societal importance. Short of suggesting t hat

housing is a fundamental right, plaint iffs contend that heightened scrutiny is appropriate in this case

because property rights are at stake.17

We decline to expand the established parameters of heightened scrutiny. Because this case

does not involve a suspect or quasi-suspect classi ficat io n such as race or sex to which heightened

scrutiny properly applies, the Equal Protection Clause requires only rationality review.

Rationality review in this context requires merely that the classification drawn by the statute

be rationally related to a legitimate state interest. S chweiker v. Wilson, 450 U.S. 221, 230, 101 S.Ct.

1074, 1080, 67 L.Ed.2d 186 (1981). The distinction made by Ordinance 259 between trailer coaches

a nd o t her forms of housing meets this test. The district court did not err in granting summary

judgment to defendants on this claim.

F. 42 U.S.C. § 1983

Section 1983 affords a private cause of action to any party deprived of a constitutional right

under color of state law. S ee 42 U.S.C. § 1983. Plaintiffs contend that the district court erred in

dismissing their claims under § 1983 pursuant to its grant of summary judgment on all other claims.

Having concl

uded t hat the district court did not err in granting summary judgment on plaintiffs'

constitutional claims, we hold that its dismissal of claims under § 1983 was proper.

G. Motion to Extend Time

Finally, plaint iffs argue that because defendants did not file their motion to extend the time

for filing a motion for attorneys' fees until after the period of time for filing such a motion had already

expired, the district court's grant of defendants' motion was improper. Defendants contend that the

granting of a motion to extend time for filing a claim for attorneys' fees is within the discretion of the

district court and that plaint iffs were no t prejudiced by the late filing because plaintiffs did receive

notice of the claim in time to appeal.

Rule 54(d)(2)(B) of the Federal Rules of Civil Procedure provides that "[u]nless otherwise

provided by statute or order of the court, the motion [for attorneys' fees] must be filed and served no

later than 14 days after entry of judgment." Rule 6 provides that the district court for cause shown

may, in its discretion, grant an extension after the expiration of a specified time period if the failure

to ti mely file was the result of excusable neglect. The record in this case discloses no evidence of18

abuse of discretion.

IV. CONCLUSION

For the foregoing reasons, the judgment of the district court is AFFIRMED.

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