* Local Rule 47.5 provides: “The publication of opinions tha t have no precedential value and

merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession.” Pursuant to that Rule, the Court has

determined that this opinion should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-50204

(Summary Calendar)

FM PROPERTIES OPERATING CO.,

Plaintiff-Appellee,

versus

CITY OF AUSTIN,

Defendant, and

SAVE OUR SPRINGS LEGAL DEFENSE FUND, INC.,

Movant-Appellant.

Appeal from the United States District Court

for the Western District of Texas

(A94-CA-647-JN)

November 21, 1995

Before JOLLY, JONES, and STEWART, Circuit Judges.

PER CURIAM: *

Movant-Appellant Save Our Springs Legal Defense Fund, Inc., (SOS) challenges the district

court’s denial of its motion to intervene as of right in a pending lawsuit brought by FM Properties

Operating Company against the City of Austin under 42 U.S.C. § 1983. For the reasons set forth

below, we affirm.

FACTS AND PROCEEDINGS

A group of Austin-are a citizens formed the Save Our Springs Coalition for the purpose of

lo bbying the Austin City Council to pass an ordinance “to adopt stricter provisions for the protecti on2

of the water quality” (SOS Ordinance). The City Council init ially rejected the proposal, but the

coalition ultimately managed to place its i nitiative on an election ballot where it was approved by

voters on August 8, 1992. The SOS Coalition leaders formed the Save Our Springs Legal Defense

Fund, Inc., out of concern the City, which initially had opposed the ordinance, might not enforce it

adequately.

In September 1994, claiming that the SOS Ordinance constituted an unconstitutional taking,

FM Properties Operating Company (FM) sued the City. FM had begun a real estate development

project in the Austin extraterritorial planning jurisdict io n in April 1992. The Austin Land

Development Code required FM to file preliminary plans with Austin for the subdivisions it proposed

to develop. FM also had to file an application for final plat approval and an application for site

approval with the City. FM claimed that it had complied with almost all requirements for approval

of the project prior to August 9, 1992, the date the SOS Ordinance went into effect. It only lacked

t he Cit y’s final approval of the final plat for the subdivision. FM claimed that the City’s Land

Development Code existing at the time required the City to approve the site plan when it granted final

plat approval. The site plan was then to be released upon the final plat approval. The City, however,

did not approve the site plan for the stated reason that FM still needed prior subdivision approval.

When the City granted final plat appro val, about two weeks after refusing to issue the site plan

approval, FM requested approval of the site plan it already had submitted. The City responded that

the prior site plan application had expired, so FM refiled an identical application. The City again

refused to approve and release the site plan, t his t ime for failure to comply fully with the SOS

Ordinance now in effect.

FM argued that the SOS Ordinance was not applicable, citing Texas Government Code §

481.143(a) (Vernon 1990):

The approval, disapproval, or conditional approval of an application for a permit shall

be considered by each regulatory agency solely on the basis of any orders, regulations,

ordinances, or other duly a do pt ed requirements in effect at the time the original

application for the permit is filed. If a series of permits is required for a project, the

orders, regulations, ordinances, or other requirements in effect at the time the original

application for the first permit in that series is filed sha ll be t he sole basis for3

consideration of all subsequent permits required for completion of the project.

FM argued that the SOS Ordinance should have no bearing on its development plan because it had

submitted its application prior to the enactment of the SOS Ordinance. FM therefore alleged as a

substantive due process violation that the City had “arbitrarily, capriciously, and deliberately” denied

it its right to develop real estate under the land use regulations existing at the time of its init ial

application. FM also requested a declaration on the application of municipal ordinances under state

statute and an injunction requiring FM to comply only with the laws and regulations existing prior

to August 1992.

The City fil ed a mo t ion to dismiss asserting lack of subject matter jurisdiction, lack of

ripeness, and failure to exhaust state remedies. The dist rict court dismissed the taking claim for

failure to exhaust available state remedies, but denied the motion w ith respect to the due process

claim.

Prior to t rial, FM Properties and the City engaged in settlement negotiations. Shortly

thereafter, SOS filed its motion to intervene under Federal Rule of Civil Procedure 24(a)(2). SOS

asserted that as t he represent ative of the sponsor of the ballot initiative, it had a p er se right to

intervene. In denying SOS’s motion the district court held that SOS had no interest in the subject

m atter of the litigation because the ordinance’s validity was no longer at issue. Furthermore, SOS

did not convince the district court that the City would not represent its interests adequately. A review

of record and the briefs supports the court’s reasoning.

DISCUSSION

Standard of Review

We review the district court's rule 24(a)(2) determinations under a de novo standard. Doe

v. Duncanville Indep. School Dist. , 994 F.2d 160, 167 (5th Cir. 1993). In so doing, we recognize

that the inquiry under Rule 24(a)(2) is flexible, focusing on the particular facts and circumstances

surrounding each application and that “intervention of right must be measured by a practical rather

than technical yardstick." U nited States v. Texas E. Transmission Corp. , 923 F.2d 410, 413 (5th4

Cir.1991).

Rule 24 Intervention

A movant must prove four factors to intervene under Rule 24(a)(2): (1) the application must

be t imely; (2) the applicant must have an interest in the property or transaction that is the subject of

the action; (3) disposition of the matter must impair or impede the applicant's ability to protect that

interest; and (4) the applicant's interest must not be adequately represented by the parties to the suit.

Kneeland v. National Collegiate Athletic Ass’n

, 806 F.2d 1285, 1287 (5th Cir.), cert. denied sub.

nom. Southern Methodist Univ. v. Kneeland , 484 U.S. 817 (1987).

The district court denied SOS’s motion to intervene after already having dismissed all claims

t hat t he SOS Ordinance itself was unconstitutional. All that remained were FM’s claims that the

City’s conduct denied its substantive due process rights. These allegat io ns arose from the City’s

alleged refusal to approve FM’s final plat application. During this period of “delay, “ t he Cit y

adopted the SOS Ordinance. FM claimed that state law mandated that the City consider all

applications for permits for its project only on the basis of the ordinances in effect at the time of its

application for preliminary subdivision plan approval, before the enactment of the SOS Ordinance.

It argued further that by refusing to approve its application, the City meant to force FM to comply

with the latter regulation.

SOS’s Interest

The district court decided that these argume nt s did not involve the constitutionality of the

SOS Ordinance itself; and, so, they were ripe for consideration. The court later reinstated a

temporary takings claim and, in so doing, clarified its dismissal order: it identified the City’s alleged

“failure to comply with state law and i t s own ordinances relating to the processing of zoning

applications” to be the remaining claim. The temporary takings claim urged the court to find that the

effect of the City’s failure to comply with its own ordinances and state law in denying the site plan

application “has at least temporarily denied [FM] all rights to use and develop its property from that

date [the denial of approval] to the date this Court requires [the City] to make such approvals.” This5

was a prayer for damages for the temporary deprivation of its right to use and develop its land. It

was a direct attack on the City’s conduct, not the SOS Ordinance. The Ordinance was relevant only

because FM did not feel that it was the applicable regulation. Therefore, its validity was not at issue.

A party seeking to intervene as of right must have a direct, substantial, and legally protectable

interest in the subject matter of the action. S ierra Club v. Espy

, 18 F.3d 1202 (5th Cir. 1994). There

is no doubt that SOS is interested in whether FM will have to conform its development plan to the

SOS Ordinance or some pre-existing regulation. However that interest does not compel legal

protecti on. SOS tries to frame the issue as a conflict between its ordinance and state and federal

statutory and constitutional provisions. Actually, the conflict is whether the City enforced the proper

ordinance. In other words, the issue is the application of the Ordinance, no t its substance. The

district court correctly read FM’s claim at the time SOS tried to intervene as an argument that state

law mandated FM’s compliance with an already existing regulati o n. Its decision to deny SOS’s

motion to intervene was justified.

Adequacy of Representation

SOS also argues that the City’s init ial opposition makes it a poor advocate for the Ordinance.

However, SOS has not supported this position with any evidence. In United States v. Franklin Parish

Sch. Bd.

, 47 F.3d 755, an association (coincidentally named SOS for Save Our Schools) of parents

sought to intervene in the federal government’s school desegregation lawsuit against a parish school

board. There we asserted that “[w]hen the party seeking to intervene has the same ultimate objective

as a party to the suit, the existing party is presumed to ade quately represent the party seeki ng to

intervene unless that party demonstrates adversity of interest, collusion, or nonfeasance.” There is

no evidence that following enactment of the SOS Ordinance the City of Austin has tried to undermine

its enforcement. Indeed, the gist of FM’s complaint is that the City’s enforcement is overreaching.

The fact that the City and FM engaged in settlement negotiations, without more, shows us no illicit

collusion compelling SOS’s participation. Since the enactment of the Ordinance, there has been no

evidence that the City’s motivation or interest has been any different from that of SOS. Any prior6

opposition does not appear to be at all relevant or indicative of the City’s post-election conduct.

AFFIRMED.