101 F.3d 1095
TEXAS MANUFACTURED HOUSING ASSOCIATION, INC.;  A.J. Waller,Sr., Plaintiffs-Appellantsv.NEDERLAND, CITY OF;  Zoning Board of Appeals, City ofNederland, Defendants-Appellees.
No. 95-40803.
United States Court of Appeals,Fifth Circuit.
Dec. 26, 1996.

Douglas Brent Wells, James E. Cuellar, Jeffrey Lawton Henry, Wells & Henry, Houston, TX, William L. Ehrle, Sr., Ehrle & Associates P.C., Austin, TX, Warren Gambriel Clark, Jr., Provost & Umphrey, Port Arthur, TX, for plaintiffs-appellants.
Frank David Calvert, Debra A. Knight, Benckenstein & Oxford, Beaumont, TX, Glenn H. Steele, Jr., Richard Donald Hughes, Provost & Umphrey Law Firm, Port Arthur, TX, for defendants-appellees.
Karl J. Koch, Unglesby & Koch, Baton Rouge, LA, for Louisiana Mfd. Housing Ass'n and Mississippi Manufactured Housing Association, amicus curiae.
John J. Hightower, Olson & Olson, Houston, TX, for Texas Municipal League, Texas City Attorneys' Association, City of Houston, Texas, and City of La Porte, Texas, amicus curiae.
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:

1
Plaintiffs appeal a grant of summary judgment in favor of defendants on plaintiffs' multiple claims challenging a city ordinance that regulates the placement of manufactured housing1 within city limits.  Finding no genuine issues of material fact as to any of plaintiffs' claims, we affirm.

I. BACKGROUND

2
In 1970, the City of Nederland (the "City") adopted Ordinance 259, which prohibits the placement of "trailer coaches" on any lot within city limits 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."

3
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 mobile home except that a HUD-code manufactured home is built after June 15, 1976, and is constructed according to HUD standards.  See Tex.Rev.Civ.Stat.Ann. art. 5221f § 3 (Vernon Supp.1997).2  Waller intended to install the home on a permanent foundation system.  The home would have replaced an aging, dilapidated, site-built home that Waller was then occupying.

4
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.

5
The City and the Zoning Board have interpreted Ordinance 259 to include both HUD-code manufactured homes and mobile homes but not "industrialized" or "modular" homes.  An "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.  See Tex.Rev.Civ.Stat.Ann. art. 5221f-1 § 2 (Vernon 1987).  The distinction between manufactured housing and modular housing is at the heart of plaintiffs' constitutional claims.

6
Waller and the Texas Manufactured Housing Association ("TMHA") (collectively, "plaintiffs") filed suit against the City and Zoning Board on June 29, 1994, challenging the enforcement of Ordinance 259 as discriminatory 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 immunities, 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.

7
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.

8
On appeal, plaintiffs argue that the district court erred in granting summary judgment for defendants on plaintiffs' preemption, commerce clause, takings, substantive due process, equal protection, and § 1983 claims, and in granting defendants' motion to extend time for filing a motion for attorneys' fees.

II. STANDARD OF REVIEW

9
We review a grant of summary judgment de novo, applying the same criteria used by the district court in the first instance.  Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir.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);  see 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 nonmoving party to show with "significant probative evidence" that there exists a genuine issue of material fact.  See 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.  Anderson 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 for a reasonable jury to return a verdict for the nonmoving party.  Id.

III. DISCUSSION
A. Preemption
1. Federal preemption

10
The doctrine of federal preemption is rooted in the Supremacy Clause and activated by congressional intent.  See 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 implicitly preempt state law by regulating comprehensively so as to preclude state law from occupying any part of the regulated field.  Id.  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.  Id.;  see also Hetzel v. Bethlehem Steel Corp., 50 F.3d 360, 363 (5th Cir.1995).

11
Plaintiffs argue that Ordinance 259 is preempted by the National Manufactured Housing Construction and Safety Standards Act of 1974 (the "Act"), 42 U.S.C. §§ 5401-5426, which 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  Plaintiffs base their argument on isolated portions of testimony of City officials that purportedly establish that a HUD-code manufactured 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.

12
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.  Id. at 1522-23.   The Eleventh Circuit held that 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.

13
We agree with the district court that this case is significantly 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 Eleventh Circuit, the City of Lynn Haven was "attempting to exclude the Scurlock's mobile home from its R-AA section based solely on its safety code."  Id. (emphasis added).  Accordingly, much of the evidence at trial concerned the differences between HUD requirements and those contained in the specified codes.  Id. at 1523.   Ordinance 259, in contrast, regulates 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.

14
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 cited 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 thinly veiled attempt to impose local safety and construction standards on HUD-code 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 building 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

15
Plaintiffs also argue that Ordinance 259 is preempted by the Texas Manufactured Housing Standards 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 the city."  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 "mobile 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.

16
Plaintiffs 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] mobile home is not a HUD-code manufactured home and HUD-code manufactured home is not a mobile 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 mobile homes or HUD-code manufactured homes, and the district court properly granted summary judgment on the state preemption claim.

B. Commerce Clause

17
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."  Hughes v. Oklahoma, 441 U.S. 322, 336, 99 S.Ct. 1727, 1736, 60 L.Ed.2d 250 (1979);  see also Maine v. Taylor, 477 U.S. 131, 138, 106 S.Ct. 2440, 2447, 91 L.Ed.2d 110 (1986).  The Supreme Court has 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 latter."  Oregon Waste Systems, 511 U.S. at ----, 114 S.Ct. at 1350.   As the Court has alternatively formulated this initial step, "[t]he crucial inquiry ... must be directed to determining whether [the statute] is basically a protectionist measure, or whether it can fairly be viewed as a law directed to legitimate local concerns, with effects upon interstate commerce that are only incidental."  City of Philadelphia v. New Jersey, 437 U.S. 617, 624, 98 S.Ct. 2531, 2535, 57 L.Ed.2d 475 (1978).

18
A statute that burdens interstate commerce only incidentally is subject to the flexible balancing approach of Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970), which provides that such a statute "will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits."  Id. at 142, 90 S.Ct. at 847.   The Pike Court went on to state that "[i]f a legitimate local purpose 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 promoted as well with a lesser impact on interstate activities."  Id.

19
Statutes that affirmatively discriminate against interstate 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.

20
Plaintiffs argue that the district court erred in applying the balancing test set forth in Pike 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 consumers 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 "practicalities 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 on these facts, plaintiffs contend that Ordinance 259 discriminates against interstate 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.

21
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 Clover 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 plastic 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 not 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 Pike 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  Id. at 472-73, 101 S.Ct. at 728-29.

22
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 establish that the statute is discriminatory.  Clover Leaf supports defendants' position that Ordinance 259 does not affirmatively discriminate because it treats HUD-code manufactured homes built in state identically to those built out of state.

23
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 discriminated against interstate commerce, reasoning that the in-state independent dealers were still subject to competition from out-of-state petroleum marketers that owned and operated 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 interstate 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.

24
In contrast to the facts of Clover Leaf and Exxon, in which the benefited industry did not exist solely within the regulating state, plaintiffs contend that modular housing that could potentially serve the Nederland market originates solely within Texas.  Plaintiffs' evidence on this point is limited to the Ehrle affidavit, noted above.  Defendants apparently offered no evidence in response.  The City'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 authorize 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.  This 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

25
Section 2(a) of article 5221f-1, moreover, requires that modular housing meet the requirements of the National Electrical Code and the requirements of whichever of two specified uniform building codes (the Uniform Building Code and the 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 codes, or if the housing is created or installed outside a municipality, 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 local industry" in part because it must conform to a local building code;  in this context, the local code must itself conform to certain standards used throughout the nation.

26
Plaintiffs' 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 not place any restrictions on out-of-state modular housing, and plaintiffs' evidence, even accepted as true as it must be here, does not show that modular 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.

27
Second, plaintiffs' own evidence demonstrates that the markets for modular homes and for HUD-code manufactured homes, though overlapping, are basically distinct.  Ehrle stated in his affidavit that HUD-code manufactured homes are generally less expensive than modular homes and 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 will 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 maintaining property values is irrational and ineffective.

28
Because Ordinance 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 on interstate 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 that preserving property values is a legitimate governmental interest, that the ordinance does not actually achieve the stated objective,9 and that rather than impose an outright ban on all HUD-code manufactured homes not placed in trailer parks, the City could have adopted the less restrictive alternative of requiring that such homes comply with certain aesthetic requirements.

29
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 local benefits.  It is not evident that plaintiffs have demonstrated a burden on interstate commerce at all.  The ostensible 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 counterpart firms will suffer proportional losses.  As the Supreme Court stated in Exxon, "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 whatever 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

30
The authority of state and local governments to enact land use restrictions has long withstood constitutional scrutiny.  See Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926).  "Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law."  Pennsylvania 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 limits.  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 denies an owner economically viable use of his land."  Agins 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, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994).11

31
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 beneficial 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.

32
Plaintiffs 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 wrong 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.  Plaintiffs contend that under Nollan, the ordinance cannot stand because it impermissibly attempts 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."

33
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;  see 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 classifying 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.  Accordingly, even assuming that Nollan establishes a distinct standard in cases of constitutionally suspect conditions, this is not such a case.

34
We therefore turn to the first question posed under Agins--whether Ordinance 259 substantially advances a legitimate state interest.  Agins, 447 U.S. at 260, 100 S.Ct. at 2141.   Ordinance 259 restricts the placement of manufactured housing inside the City's limits 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.  See Berman v. Parker, 348 U.S. 26, 33, 75 S.Ct. 98, 102, 99 L.Ed. 27 (1954);  Corn v. City of Lauderdale Lakes, 997 F.2d 1369, 1375 (11th Cir.1993), cert. denied, 511 U.S. 1018, 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 affect property values if scattered throughout a municipality.  Restricting manufactured housing to trailer parks directly responds to this legitimate concern.

35
We must now determine whether enforcement of the ordinance interferes with Waller's reasonable 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 completely denies all beneficial use of some portion of the property.  Penn 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 tolerated in the interest of promoting the health, safety, welfare, or morals of a community.  Id.  In this case, plaintiffs 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.

D. Substantive Due Process

36
The relevant inquiry for plaintiffs' 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 decisions 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 relation to the public health, safety, morals, or general welfare."  Euclid, 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 mobile homes effectively maintains property values, the district court properly granted summary judgment on this claim.  See Clover Leaf, 449 U.S. at 464, 101 S.Ct. at 723;  Shelton, 780 F.2d at 483.

E. Equal Protection

37
Plaintiffs argue that the district court erred in applying the rational basis test to their equal protection claim.  Relying on City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 459-60, 105 S.Ct. 3249, 3264-65, 87 L.Ed.2d 313 (1985) (Marshall, J., concurring in part and dissenting in part), plaintiffs propose that a higher standard of review is appropriate whenever noneconomic or noncommercial legislation affects rights of weighty societal importance.  Short of suggesting that housing is a fundamental right, plaintiffs contend that heightened scrutiny is appropriate in this case because property rights are at stake.

38
We decline to expand the established parameters of heightened scrutiny.  Because this case does not involve a suspect or quasi-suspect classification such as race or sex to which heightened scrutiny properly applies, the Equal Protection Clause requires only rationality review.

39
Rationality review in this context requires merely that the classification drawn by the statute be rationally related to a legitimate state interest.  Schweiker 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 and other 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

40
Section 1983 affords a private cause of action to any party deprived of a constitutional right under color of state law.  See 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 concluded that 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

41
Finally, plaintiffs 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 plaintiffs were not prejudiced by the late filing because plaintiffs did receive notice of the claim in time to appeal.

42
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 timely file was the result of excusable neglect.  The record in this case discloses no evidence of abuse of discretion.

IV. CONCLUSION

43
For the foregoing reasons, the judgment of the district court is AFFIRMED.

*
 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

2
 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).

3
 "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).

4
 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

6
 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

7
 The present statute uses the term "industrialized" for what we refer to as "modular" housing

8
 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

9
 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 HUD-code 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

10
 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 power.  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)

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


752 So.2d 575 (2000)
Clarence H. HALL, Jr., Petitioner,
v.
STATE of Florida and Michael W. Moore, Respondents.
No. SC91122.
Supreme Court of Florida.
January 20, 2000.
*577 Bruce Rogow and Beverly A. Pohl of Bruce S. Rogow, P.A., Fort Lauderdale, Florida, for Petitioner.
Robert A. Butterworth, Attorney General, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, Florida, for Respondents.
PER CURIAM.
We have for review Hall v. State, 698 So.2d 576 (Fla. 5th DCA 1997), based on express and direct conflict with Mercade v. State, 698 So.2d 1313 (Fla. 2d DCA 1997), concerning a court's proper role in the implementation of sections 944.28(2) and 944.279, Florida Statutes (1999), relating to the imposition of sanctions on prisoners who file frivolous pleadings.[1] We have jurisdiction. See Art. V, § 3(b)(3), Fla. Const.
In the Fifth District Court of Appeal's decision in Hall, the court utilized section 944.28(2)(a), Florida Statutes (Supp.1996), to sanction Hall for filing a frivolous appeal of the denial of his postconviction motion. Section 944.28(2)(a) provides, in pertinent part:
All or any part of the gain-time earned by a prisoner according to the provisions of law is subject to forfeiture if such prisoner ... is found by a court to have brought a frivolous suit, action, claim, proceeding, or appeal in any court....
§ 944.28(2)(a), Fla. Stat. (Supp.1996). After finding Hall's appeal to be frivolous, the Fifth District directed the Department of Corrections to forfeit Hall's gain time. See Hall, 698 So.2d at 577.
The Second District Court of Appeal in Mercade also utilized section 944.28(2)(a) to sanction an inmate for filing a frivolous appeal of the denial of his postconviction motion. The court noted, however, that the Department of Corrections was vested with the sole discretion to declare a forfeiture under section 944.28(2)(a), and stated
[W]e do not have the authority to simply direct the Department of Corrections to forfeit a prisoner's gain time after finding that the prisoner's appeal is frivolous. In our view, to do so would be in direct conflict with the legislative scheme ... which ... establishes a host of mandatory procedural requirements which must first be met before the Department of Corrections, "in its discretion," may declare a forfeiture of a prisoner's gain time. Accordingly, we decline to follow the "direct" approach of Hall II. ...
... [We] recommend to the Department of Corrections that sanctions be imposed against the appellant in the form of a forfeiture of his gain time.
Mercade, 698 So.2d at 1316 (emphasis added). It is clear that the Fifth District's "directing" the Department of Corrections to sanction an inmate expressly and directly conflicts with the Second District's "recommending" such a sanction.
However, upon review we note that there is a preliminary question raised by Hall which has not been addressed by either court, but which we conclude controls the final decision in this case.[2] That question is whether an appeal of a postconviction motion is a "collateral criminal proceeding," and if so, whether a court may utilize section 944.28(2)(a), which contains no collateral criminal prohibition, independently of section 944.279, which contains *578 language prohibiting its application to collateral criminal proceedings.
Both section 944.279 and the pertinent provisions of section 944.28(2)(a), Florida Statutes (1999), were enacted as part of an act that created or amended several statutory provisions for the purpose of reducing unnecessary or frivolous prisoner filings. See ch. 96-106, Laws of Fla.[3] Not only did the act provide statutory authority permitting the courts, upon a determination that the pleading was frivolous, to send that finding to the prisoner's institution for disciplinary action, see § 944.279, Fla. Stat. (1999); ch. 96-106, § 5, Laws of Fla., the act also amended the Department's gain time forfeiture statute to add that the filing of an action found frivolous by a court may also subject a prisoner to gain time forfeiture. See § 944.28(2)(a), Fla. Stat. (1999); ch. 96-106, § 6, Laws of Fla. In addition, the same act amended the statute that regulates pleadings filed by indigents to exclude prisoners, and created a new indigency statute for prisoner filings. See §§ 57.081, 57.085, Fla. Stat. (1999); ch. 96-106, § 1, 2, at 93-95. Quite importantly, these amendments, except the disciplinary forfeiture provision of section 944.28(2)(a), provide that the restrictions do not apply to a "criminal proceeding or a collateral criminal proceeding." See §§ 944.279(2), 57.085(10), Fla. Stat. (1999).
We conclude that a postconviction motion is a collateral criminal proceeding for purposes of the frivolous filing statutes. The Legislature did not define the term "collateral criminal proceeding" in the statute, nor have we found a definition of a "criminal collateral proceeding" or "collateral criminal proceeding" in Black's Law Dictionary. However, we agree with that portion of the Fifth District's recent decision in Ferenc v. State, 697 So.2d 1262 (Fla. 5th DCA 1997), where it found that the new prisoner statute (which was part of the same act) does not apply to 3.850 motions because they are collateral criminal proceedings, and are specifically excluded from the new prisoner indigency statute.[4]Id.; see also § 57.085(10), Fla. Stat. (1999). Further, it seems only logical that all the statutes either created or amended by the act should be interpreted in the same manner. That is, we conclude that a postconviction motion, such as a 3.850 motion, should be considered a collateral criminal proceeding for purposes of considering sanctions under the frivolous filing statutes as well.[5] Similarly, if a prisoner *579 appeals the denial of his or her postconviction motion, that appellate proceeding would retain the collateral criminal nature of the original motion, and thus the appeal should also be considered a collateral criminal proceeding.
Therefore, having decided that both a postconviction motion and an appeal from the denial of that motion are collateral criminal proceedings, we now proceed to examine the second part of the question above: may gain time be forfeited pursuant to section 944.28(2)(a), independently of section 944.279, for a frivolous appeal of a postconviction motion? For purposes of deciding that question, we have examined the 1997 amendment to section 944.279 which removed the specific reference to a gain time forfeiture for frivolous filings, as well as the reference to section 944.28(2)(a), and replaced it with a reference to "disciplinary procedures pursuant to the rules of the Department." See § 944.279, Fla. Stat. (1999); ch. 97-78, § 14, at 447-48, Laws of Fla.
While section 944.28(2)(a) does not specifically prohibit its application to collateral criminal proceedings, that section is plainly tied to section 944.279 and, we conclude, cannot be utilized independently of that section. Of course that section clearly prohibits its application to such proceedings. Section 944.279 provides the courts with statutory authority to find that a frivolous filing warrants a referral to the Department of Corrections for discipline including possible gain time forfeiture under its administrative rules. Section 944.28(2)(a) is merely an ancillary statute which gives the Department of Corrections the statutory authority to forfeit gain time after a court has utilized 944.279 to find that the frivolous filing warrants a referral to the Department for discipline.
In Saucer v. State, 736 So.2d 10 (Fla. 1st DCA 1998), the First District recently concluded that since the Legislature had "amended section 944.279 by deleting all reference to loss of gain-time and section 944.28(2) and added provisions for disciplinary procedures pursuant to rules of the department provided in section 944.09," the Legislature had sought to clarify that the two sections were separate and independent, as each provided altogether different sanctionsone through Department discipline and the other through gain time forfeiture. Saucer, 736 So.2d at 12 (emphasis added).[6] In reality, however, and as Judge Webster points out in his dissent in Saucer, the amendment made no change in the gain time sanction potential of either statute, and the actual effect of the amendment was to add additional sanctions, such as more restrictive confinement, for the filing of frivolous lawsuits, not to make section 944.28(2)(a) independent of section 944.279. While the amended version of section 944.279 provides that the finding of frivolousness is to be forwarded "to the appropriate institution or facility for disciplinary procedures pursuant to the rules of the department as provided in s. 944.09," that section does not set forth any rules. Section 944.09 is merely the general statutory authority for the Department to promulgate rules. The Department's rules have long provided for gain time forfeiture and the Department has long looked to section 944.28 for its gain time forfeiture authority. See Fla. Admin. Code R. 33-601.104 (previously 33-11.011).
It is clear from the actual words of the statute that discipline, including but not limited to gain time forfeiture, is now possible when a court finds that a pleading is frivolous. Even assuming that there is an ambiguity, however, the same conclusion is reached by examining the legislative history. According to the Legislature's bill *580 analysis, the first purpose of the amendment was to provide for an amendment "allowing the Department of Corrections to impose other disciplinary actions, in addition to gain time forfeiture, against prisoners who file lawsuits deemed by the court to be frivolous."[7] There is nothing in the analysis indicating that the Legislature intended to separate 944.28(2)(a) from 944.279 or in any way to allow 944.28(2)(a) to be used to sanction frivolous collateral criminal proceedings, such as postconviction proceedings, independently of 944.279, which has always provided, and still provides, that such sanctions may not be utilized in collateral criminal proceedings.
The State asserts that the "broader intent" of the Legislature's 1997 amendment was to "decriminalize" section 944.279 and thus allow the courts and the State to further deter frivolous filings of all kinds, including frivolous criminal actions. The State contends that "the preamble to Chapter 96-106, Laws of Florida, §§ 5-6 at 96-97 clearly indicates that the intent of the Legislature in passing the original statutes was to limit frivolous inmate lawsuits which congest court dockets." The Preamble actually provides:
WHEREAS, frivolous inmate lawsuits congest civil court dockets and delay the administration of justice for all litigants, and
WHEREAS, each year self-represented indigent inmates in Florida's jails and prisons file an ever-increasing number of frivolous lawsuits at public expense against public officers and employees, and
WHEREAS, state and local governments spend millions of dollars each year processing, serving, and defending frivolous lawsuits filed by self-represented indigent inmates, and
WHEREAS, the overwhelming majority of civil lawsuits filed by self-represented indigent inmates are frivolous and malicious actions intended to embarrass or harass public officers and employees, and
WHEREAS, under current law frivolous inmate lawsuits are dismissible by the courts only after considerable expenditure of precious taxpayer and judicial resources, NOW THEREFORE, [the subject act is hereby] Enacted by the Legislature of the State of Florida.
Ch. 96-106, preamble, at 92-93, Laws of Fla. (emphasis added). If the original intent of the act was evidenced by the preamble which clearly refers only to civil actions, any "broader intent" to include criminal actions is simply not there.
The State also asserts that if the Legislature had intended to exclude gain time forfeiture for criminal or collateral criminal proceedings under section 944.28(2)(a), it would have expressly done so, and in the absence of such a provision, under the doctrine of expressio unius est exclusio alterius, we must conclude that the Legislature intended to allow for the sanctioning of frivolous criminal actions as well as frivolous civil actions. Again, the act as a whole only discussed the attempt to deter frivolous civil actions. The only statutory mechanism for the courts to find a proceeding frivolous and refer the matter to the Department for possible gain time forfeiture or other discipline contains language prohibiting its application to collateral criminal proceedings. See § 944.279(2), Fla. Stat. (1999). Repeating that language again in section 944.28(2)(a) would have been redundant because it was assumed that the original frivolous finding by the court would be made under section 944.279.
Therefore, since the Fifth District could not properly employ section 944.28(2)(a) to sanction Hall, resolution of the conflict question of whether the court should have recommended sanctioning *581 Hall instead of "directing" that the Department to do so is not necessary for the final disposition of this case. However, since this conflict is capable of repetition, we will resolve it in this case. See generally Holly v. Auld, 450 So.2d 217 (Fla.1984).
Assuming a court has properly employed section 944.279 to sanction an inmate for filing an improper action that is subject to sanctions under that section, we conclude that a court has no authority to "direct" the Department of Corrections to sanction a prisoner by gain time forfeiture or other discipline because only the Department has the authority to sanction an inmate pursuant to section 944.28(2)(a). This section gives the Department the statutory authority to forfeit gain time under prescribed procedures once a court has found a filing to be frivolous.
The exact procedures are set forth in the Department's rules. See Fla. Admin. Code R. 33-601.104(1)(b) (previously 33-11.011(1)(b)); 33-601.314(9-32)(previously 33-22.012(9-32)). Under these rules, the inmate is entitled to a due process hearing before a decision is made that his or her gain time is to be forfeited. See Fla. Admin. Code R. 33-601.104(1)(b)(previously 33-11.011(1)(b)); 33-601.301-308 (previously 33-22.001-008). Furthermore, even after a decision has been made, the inmate is entitled to appeal the decision to the head of the Department. See Fla. Admin. Code R. 33-601.309 (previously 33-22.009). All of this involves the functioning of an executive branch agency. To order or direct the Department to discipline an inmate would be to force the Department to bypass its procedures and would constitute a violation of the doctrine of separation of powers. See Art. II, § 3, Fla. Const.
We disagree with the State's assertion that there is really no difference between a court "directing" that the Department impose a gain time sanction and a court "recommending" that the Department impose such a sanction. We do not believe it is merely "a matter of semantics." Courts should be wary of utilizing words which appear mandatory in such cases. Even if a court does not use the word "order," it should avoid words that may create the impression that one branch is telling another branch of the government what the required result of its administrative proceeding should be, as such language immediately conjures up questions of separation of powers. To the extent that a court has properly utilized sections 944.279 and 944.28(2)(a), to sanction a prisoner for filing an action which is sanctionable under those statutes, we find that a court may only "recommend" that the Department sanction an inmate. Therefore, while we conclude that Mercade improperly applied section 944.28(2)(a) to the appeal of the denial of a postconviction motion, we agree with that court's referring a disciplinary matter to the Department.
Accordingly, we quash the Fifth District's decision in this case and remand it to that court for further proceedings consistent with our decision in this case. We also disapprove Mercade and Saucer to the extent that they are inconsistent with this decision.[8]
It is so ordered.
HARDING, C.J., and SHAW, ANSTEAD, PARIENTE, LEWIS and QUINCE, JJ., concur.
WELLS, J., concurs with an opinion, in which QUINCE, J., concurs.
WELLS, J., concurring.
I concur with the result in this case because I believe there is a statutory ambiguity. I write because I find that both the majority and dissenting opinions make *582 valid points in Saucer v. State, 736 So.2d 10 (Fla. 1st DCA 1998). I also recognize that there are abuses of frivolous filings in respect to postconviction motions and petitions in criminal cases which the Legislature may have intended to address. I believe it would be helpful for the Legislature to clarify this issue with an express statutory statement.
QUINCE, J., concurs.
NOTES
[1]  While we previously treated this case as both a petition for review and a petition for writ of habeas corpus or mandamus, since all the issues necessary for a final determination in this case can be considered in the petition for discretionary review, we have now treated this case only as a petition for review.
[2]  Once we have conflict jurisdiction, we have jurisdiction to decide all issues necessary to a full and final resolution. See Jacobson v. State, 476 So.2d 1282, 1284 (Fla.1985); Savoie v. State, 422 So.2d 308, 310 (Fla.1982).
[3]  Both sections 944.279 and 944.28(2)(a) provide for sanctions or discipline when a court makes any of a number of findings including (1) that the prisoner brought a frivolous or malicious action or appeal; (2) knowingly or recklessly brought false information or evidence before the court, or (3) violated a law or prison regulation. Since this case concerns the bringing of a frivolous action, we refer to the filing of a frivolous action throughout this opinion, even though the statutes also cover the other misconduct referred to above.
[4]  We note, however, that while the Fifth District found in Ferenc that a postconviction motion was a "collateral criminal proceeding" for purposes of the prisoner indigency statute, it, nonetheless, threatened the petitioner there with possible gain time forfeiture under section 944.28(2)(a), Florida Statutes (Supp.1996), for the filing of his frivolous appeal. Accordingly, it appears that the Fifth District concluded that while a postconviction motion is a "collateral criminal proceeding" when it is filed in the trial court, it becomes a collateral civil proceeding when it is appealed. Therefore, to the extent that Ferenc can be read to say that a postconviction proceeding does not retain its "collateral criminal" nature when on appeal, or that the use of 944.28(2) may be utilized independently of the "collateral criminal" prohibitions existent in section 944.279, we disapprove it.
[5]  Furthermore, we find that the plain meaning of the phrase "collateral criminal proceeding" used in section 944.279 refers to a type of criminal proceeding that is "collateral to" or somewhat separated from the "main" criminal proceeding. That is, for the very limited purposes of interpreting the statutes created or amended by chapter 96-106, a prisoner's felony conviction would be the result of the main criminal proceeding, while the prisoner's motion to correct his or her sentence (or any postconviction motions such a 3.800 or a 3.850 motion) would be "collateral" to his or her "main" criminal conviction, so such a proceeding would be a "collateral criminal proceeding."
[6]  The First District had previously concluded that the use of section 944.28(2)(a) was dependent upon a finding by the court under section 944.279. See Saucer v. State, 23 Fla. L. Weekly D1972 (Fla. 1st DCA Aug.17, 1998), withdrawn and superseded by Saucer v. State, 736 So.2d 10 (Fla. 1st DCA 1998).
[7]  See Fla. H.R. Comm. on Correct., HB 37 (1996) Staff Analysis, 1 (April 18, 1997)(on file with Comm.)
[8]  Having decided that section 944.28(2)(a) cannot be invoked independently of section 944.279, and having determined that section 944.279 cannot be utilized for sanctions in this case, we need not address whether either of those sections may be applied to petitioner retroactively. Therefore, we decline to address petitioner's ex post facto claim argument.


708 F.2d 730
Upthegrovev.Schweiker
81-5480
UNITED STATES COURT OF APPEALS Sixth Circuit
11/8/82

1
E.D.Ky.

AFFIRMED


186 Pa. Superior Ct. 650 (1958)
Higginson
v.
Fireman's Fund Insurance Co., Appellant.
Superior Court of Pennsylvania.
Argued March 25, 1958.
June 11, 1958.
Before RHODES, P.J., GUNTHER, WRIGHT, WOODSIDE, ERVIN, and WATKINS, JJ. (HIRT, J., absent).
Albert L. Bricklin, with him Bennett & Bricklin, for appellant.
Mervin J. Hartman, with him Busser & Bendiner, for appellees.
*651 OPINION BY WATKINS, J., June 11, 1958:
This is an action in assumpsit, based on the provisions of an extended coverage endorsement of a fire insurance policy, insuring the appellees from damage suffered by windstorm.
The appellee, Lois Higginson, testified that on the morning of October 11, 1954 the brick chimney attached to her dwelling was erect and in good condition. When she returned from work that evening she found a gaping hole in the kitchen roof and debris from the chimney strewn throughout the kitchen. The contractor who repaired the damage testified that "the chimney had fallen or had been blown" through the kitchen roof causing the damage. He also testified that "it wasn't brand new and it wasn't probably old, but it was of average age." The appellees offered into evidence a certified copy of the weather report for the date of the accident indicating that the wind velocity for that date was 18 miles per hour with gusts of 22 miles per hour.
The appellant insurance company offered testimony that the chimney collapsed from corrosion of the bricks as a result of old age and depreciation.
The jury returned a verdict for appellees for $597 and after motions by the appellant for a new trial and judgment non obstante veredicto were dismissed by the court below, this appeal followed.
The appellant complains generally of the court's action in submitting the case to the jury and specifically of the instruction to the jury that "Any wind, strong and sustained enough to damage the insured property, is a `windstorm' within the meaning of the term as used in the policy and within the contemplation of the parties."
The extended coverage provision reads as follows: "The coverage of this policy is extended to include direct *652 loss by windstorm". We agree with the court below that this case is governed by Adams Apple Products Corp. v. National Union Fire Insurance Company, 170 Pa. Superior Ct. 269, 85 A. 2d 702 (1952), where it was held that actions by the insured to recover for damage to property alleged to have been caused by windstorm, in which it appears that there has been no eyewitness to the actual fall of the structure involved and where defendant insurer produced testimony to show that there had been no wind capable of damaging property during the time involved, and that the damage to the plaintiff's property was the result of structural defects, the court properly submitted the case to the jury.
The court below was guided in its charge to the jury by this language contained in Adams Apple Products Corp. v. National Union Fire Insurance Company, supra, at page 275. "It seems to us that any wind, strong and sustained enough to damage the insured property, is a `windstorm' within the meaning of the term as used in the policies and within the contemplation of the parties. In a well reasoned case, Gerhard v. Travelers Fire Insurance Co., 246 Wis. 625, 18 N.W. 2d 336, the Wisconsin court had this to say: `In the absence of definition or limitation in the policy, we think that a windstorm must be taken to be a wind of sufficient violence to be capable of damaging the insured property either by its own unaided action or by projecting some object against it. This is especially true where, as here, the more violent forms of windstorm [tornado and hurricane] are specifically named as something different from a mere windstorm'. This language was quoted with approval in Fidelity-Phenix Ins. Co. v. Board of Ed., of Town of Rosedale, 201 Okla. 250, 204 P. 2d 982, in which case it was added: `Concerning the purpose of the coverage and the field *653 of the risk, it would seem that any wind that is of such extraordinary force and violence as to thereby injuriously disturb the ordinary condition of the things insured is tumultuous in character, and is to be deemed a windstorm within the purview of the policy, in absence of a provision therein to the contrary'". See also: Trexler Lumber Co. v. Allemannia Fire Insurance Co., 289 Pa. 13, 136 A. 856 (1927).
As was said by the court below "The insurance company defendant saw fit to use the term `windstorm' without any definition whatsoever. We think that gusts of wind reaching a velocity of twenty-two miles per hour are high winds, which can be characterized as a windstorm, and if they cause damage to property, such damage is covered by an extended coverage provision such as the one in the policy".
The judgment is affirmed.


178 Ga. App. 31 (1986)
342 S.E.2d 473
GALLOWAY
v.
THE STATE.
71372.
Court of Appeals of Georgia.
Decided February 4, 1986.
Rehearing Denied February 25, 1986.
James P. Brown, Jr., Albert B. Wallace, for appellant.
E. Byron Smith, District Attorney, Thomas R. McBerry, Assistant District Attorney, for appellee.
McMURRAY, Presiding Judge.
Search and seizure. Via indictment, defendant was charged with the offense of aggravated assault. It was alleged that on June 9, 1984, defendant made "an assault on the person of Jessie Cleveland with a certain gun, a deadly weapon, by shooting at the said Jessie Cleveland with said gun. . . ." Following the entry of a plea of not guilty, defendant was tried by a jury. A verdict of guilty was returned and defendant was sentenced to confinement for a period of ten years. He appeals, enumerating error solely upon the denial of his motion to suppress evidence.
The following facts were adduced at the motion to suppress hearing: On June 9, 1984, Officer A. L. Bartlett of the Henry County Police Department, responded to a radio report about a shooting incident. Arriving at the home of the complainant, Jessie Cleveland's the officer was told that a shot had been fired at Cleveland's vehicle (which was occupied at the time by Cleveland and his family) by a passing motorist with a handgun.
The officer examined Cleveland's vehicle and observed a bullet hole in the vicinity of the left rear window. The complainant told the officer that he knew where the assailant lived. The complainant described the assailant's vehicle, a white van with a blue stripe, and he gave the officer the tag number of the vehicle. Cleveland also gave the officer directions to the assailant's house. Armed with this information, Officer Bartlett, accompanied by another policeman, Sergeant *32 Gardner, who joined the investigation, went to the home of the alleged perpetrator.
Defendant's house sat about 100 or 125 feet from the road and was surrounded by a fence which stood approximately 25 feet away. The driveway was located on the outside of the fence. In other words, the fence was between the driveway and defendant's house. There was a gate at the entrance to the driveway. (Apparently, another fence bordered defendant's entire property.)
About 20 minutes after the shooting occurred, the police neared defendant's house. Officer Bartlett observed a van parked in the driveway. The van matched the description of the van which had been given to the police by the complainant.
The driveway gate was open. The police entered the driveway and approached the van. Officer Bartlett knew the van, which was situated approximately 75 feet from the road, was on private property. Nevertheless, the officer continued his investigation.
With the aid of a flashlight, Officer Bartlett observed a handgun in the van. The officer grabbed the gun and examined it. In the officer's words: "I looked in the van from the outside and the driver's window was down. And I was looking in the van to see if possibly the subject may be in the van for our safety and I saw the handle of a handgun sticking out of the little shelf up on the top and the handle was sticking out. So I reached through the window and got the gun, opened it up and one shot had been fired."
In the meantime, the defendant came out of his house and stood by the fence. He shouted at the police officers, informing them they had no right to search his van without a warrant. Upon being urged by the sergeant accompanying him, Officer Bartlett placed the gun back in the van.
The police left defendant's property. A warrant subsequently was obtained for defendant's arrest and defendant was taken into custody. The gun was not seized.
At trial, Officer Bartlett testified upon direct examination as follows: "Q. All right, sir. You went up to the van and looked at it. A. Yes, sir. Q. You said you put your hand on it to see if it was warm and it was. What did you do next? A. I walked back around towards the driver's side of the van. The window was open. And I had my flashlight and I looked inside the van and in a cubby hole, right above the driver's seat  a little cubby hole up on the top, and there was a gun handle  the handle of a gun sticking out the cubby hole. Q. What did you do after you saw that? A. I reached in and pulled the gun out and I opened it up to see if it was loaded. Q. What kind of gun was it? A. It was a Charter Arms 38 special. Q. Okay. How many bullets did it hold? A. Five. Q. You say you opened the breech? A. Yes, sir, I opened the breech. Q. Did you observe the bullets inside? *33 A. Yes, sir, it had five casings or five shells and one of the shells  one of the bullets had been shot. Q. Okay. So it had  all chambers were filled, is that right? A. Yes, sir. Q. And four of them were live rounds, is that right? A. Yes, sir. Q. And one was a spent round? A. Yes, sir. Q. Okay. What did you do with that gun? A. I took the bullets out of it and showed it to my sergeant and he said, `put it back. We've got to go. We've got to leave.' And so, I took the bullets and threw the bullets in the back of the van and put the gun  I believe I put the gun back in the seat, rather than back where I got it. Q. Okay. Did you notice anything else unusual about the gun while you inspected it? A. Yes, sir, it had been fired  it appeared to be recently because I got a residue on my hands of gun powder, sticky, greasy residue on my hands."
Defendant contends his Fourth Amendment rights were violated by Officer Bartlett and that, therefore, the trial court erred in failing to suppress the officer's testimony. Held:
Relying upon Bunn v. State, 153 Ga. App. 270, 272 (265 SE2d 88), defendant argues his Fourth Amendment rights were abridged because the van was found within the curtilage of his house. In Bunn, this court observed: "`Prima facie, a search made within the curtilage of the owner without a warrant is unconstitutional and void. "Curtilage" includes the yards and grounds of a particular address, its gardens, barns, buildings, etc. Bellamy v. State, 134 Ga. App. [340].' Norman v. State, 134 Ga. App. 767, 768 (216 SE2d 644). In Bellamy, supra, a truck parked in the driveway was found to be within the curtilage. In Norman, supra, we found a truck within 200 feet of the house to be within the curtilage." The flaw in defendant's argument is that, unlike Bunn, no search was made by the police in the case sub judice. On the contrary, defendant's gun simply was observed by the police in plain view. Thus, the legal principles that are applicable to a search are inapposite. State v. Brown, 158 Ga. App. 312, 315 (279 SE2d 755); State v. Brooks, 160 Ga. App. 381 (287 SE2d 95); State v. Nichols, 160 Ga. App. 386 (287 SE2d 53).
"The essential purpose of the Fourth Amendment is to shield the citizen from unwarranted intrusions by the government upon his privacy. Cardwell v. Lewis, 417 U. S. 583, 589 (94 SC 2464, 41 LE2d 325) (1974), citing Jones v. United States, 357 U. S. 493, 498 (78 SC 1253, 2 LE2d 1514) (1958). `What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.' Katz v. United States, 389 U. S. 347, 351 (88 SC 507, 19 LE2d 576) (1967). See also United States v. Dionisio, 410 U. S. 1, 14-15 (93 SC 764, 35 LE2d 67) (1973). Consequently, a police officer who observes contraband in plain view is entitled to seize it, so long as he is at a place where he is entitled to be, i.e., so long as he has not violated the defendant's Fourth Amendment rights *34 in the process of establishing his vantage point. See Ker v. California, 374 U. S. 23 (83 SC 1623, 10 LE2d 726) (1963); Harris v. United States, 390 U. S. 234 (88 SC 992, 19 LE2d 1067) (1968); Brooks v. State, 129 Ga. App. 393 (199 SE2d 578) (1974); Hatcher v. State, 141 Ga. App. 756 (234 SE2d 388) (1977)." State v. Aultman, 160 Ga. App. 550, 551 (287 SE2d 580). This doctrine is applicable equally to homes and automobiles. Thus, in State v. Key, 164 Ga. App. 411, 412 (296 SE2d 60), this court ruled: "Under the `plain view' doctrine, a law enforcement officer has a right to visually search the entirety of a car from his vantage point on a street or roadside. See State v. Scott, 159 Ga. App. 869 (285 SE2d 599) (1982). The viewing need not be motivated by any articulable suspicion. On the contrary, law enforcement officers simply have the right to look into automobiles, so long as they have a legitimate reason and are looking from a place in which they have a right to be (e.g., a street or roadside). Any incriminating evidence they have the fortune to see in plain view may be seized and later admitted as evidence. State v. Scott, supra." Did Officer Bartlett have a right to be in defendant's driveway when he looked into the van? We think he did.
In State v. Nichols, 160 Ga. App. 386, supra, the State appealed from the grant of the defendant's motion to suppress the admission of a roto-tiller in evidence. In that case, a policeman, accompanied by the owner of the roto-tiller, went to the defendant's mobile home to talk with him. The roto-tiller was located on defendant's property near the trailer. The owner was able to identify the roto-tiller as his own. The State conceded that the roto-tiller was within the curtilage. Nevertheless, this court reversed the grant of the motion to suppress, holding: "From the record it appears that the officer went to the door of the trailer on the same route as would any guest, deliveryman, postal employee, or other caller. The vantage point from which the roto-tiller was visible was about half way between the door of the trailer and the roadside where the officer parked his car. This observation breached no right of privacy of the defendant." Id. at 386.
In the case sub judice, the officer approached the van "on the same route as would any guest, deliveryman, postal employee, or other caller." See State v. Nichols, 160 Ga. App. 386, supra. Thus, the entry upon the property was a "valid intrusion" by the police. State v. Lyons, 167 Ga. App. 747, 748 (307 SE2d 285). The van was not parked in an area in which defendant had an expectation of privacy. See Lang v. State, 165 Ga. App. 576 (302 SE2d 683). And it cannot be said that Officer Bartlett violated defendant's Fourth Amendment rights when he established his vantage point.
"`A police officer may seize what is in plain sight if, as here, he is in a place where he is constitutionally entitled to be. Ker v. California, 374 U. S. 23 (83 SC 1623, 10 LE2d 726); Harris v. United States, *35 390 U. S. 234 (88 SC 992, 19 LE2d 1067); Green v. State, 127 Ga. App. 713, 715 (194 SE2d 678) (1972). And where such a plain-view seizure takes place, there is in effect no search at all. Grimes v. United States, 405 F2d 477 (5th Cir. 1968); Lewis v. State, 126 Ga. App. 123 (190 SE2d 123).' Cook v. State, 134 Ga. App. 712, 715 (215 SE2d 728) (1975)." State v. Nichols, 160 Ga. App. 386, 387, supra. This holds true whether or not the officer expected or suspected that he would discover the object seized. State v. Scott, 159 Ga. App. 869, 870 (2) (285 SE2d 599). And it holds true whether the object seized is spied with the aid of a flashlight or the naked eye. Redd v. State, 240 Ga. 753, 754 (243 SE2d 16); State v. Lyons, 167 Ga. App. 747, supra.
The trial court did not err in denying defendant's motion to suppress.
Judgment affirmed. Banke, C. J., and Benham, J., concur.