GJR Investments, Inc. v. County of Escambia, Fla.

• Decision Date: 05 January 1998
• Docket Number: 96-2321,Nos. 96-2290,s. 96-2290
• Parties: 11 Fla. L. Weekly Fed. C 993 GJR INVESTMENTS, INC., Plaintiff-Appellee, v. COUNTY OF ESCAMBIA, FLORIDA, a political subdivision of the State of Florida, Lisa Minshew, Defendants, W.A. Lee, a.k.a Buck Lee, Wiley C. Page, Bennie Kenney, Defendants-Appellants. GJR INVESTMENTS, INC. Plaintiff-Appellee, v. COUNTY OF ESCAMBIA, FLORIDA, a political subdivision of the State of Florida, Defendant, Lisa Minshew, Defendant-Appellant, W.A. Lee, a.k.a. Buck Lee, Wiley C. Page, Bennie Kenney, Defendants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1359

132 F.3d 1359

11 Fla. L. Weekly Fed. C 993

GJR INVESTMENTS, INC., Plaintiff-Appellee, v. COUNTY OF ESCAMBIA, FLORIDA, a political subdivision of the

State of Florida, Lisa Minshew, Defendants,

W.A. Lee, a.k.a Buck Lee, Wiley C. Page, Bennie Kenney,

Defendants-Appellants.

GJR INVESTMENTS, INC. Plaintiff-Appellee, v. COUNTY OF ESCAMBIA, FLORIDA, a political subdivision of the

State of Florida, Defendant,

Lisa Minshew, Defendant-Appellant,

W.A. Lee, a.k.a. Buck Lee, Wiley C. Page, Bennie Kenney, Defendants.

Nos. 96-2290, 96-2321.

United States Court of Appeals Eleventh Circuit.

Jan. 5, 1998.

James M. Messer, Janet Lander, Pensacola, FL, for Lee and Escambia County.

Paula G. Drummond, Pensacola, FL, for Kenney.

Margaret C. Rodgers, Donald H. Partington, Clark, Partington, Hart, Larry, Bond, Stackhouse & Stone, Pensacola, FL, for Page.

Robert P. Smith, Hopping, Green, Sams & Smith, P.A., Tallahassee, FL, for Minshew.

Paul M. Harden, Robert H. Sturgess, Jacksonville, FL, Robert S. DuBoise, Marvin D. Nathan, Nathan, Wood & Sommers, Houston, TX, for CJR Investments, Inc.

Appeals from the United States District Court for the Northern District of Florida.

Before HATCHETT, Chief Judge, and TJOFLAT and COX, Circuit Judges.

COX, Circuit Judge:

This case concerns a highly politicized dispute over plaintiff-appellee GJR Investments, Inc.'s desire to construct an RV campground on its property on Perdido Key in Escambia County, Florida. Escambia County eventually granted GJR a permit to build the campground, although GJR had to submit four separate applications, and filed two state court lawsuits in the process. GJR then sued the county and several county officials and employees under 42 U.S.C. § 1983 for damages caused by the delay in approving the permit, alleging that the county and the named defendants had violated GJR contends that the individual defendants-appellants ¹ intentionally threw up procedural roadblocks during the permit approval process in an attempt to delay or deter its construction of an RV park on Perdido Key. GJR argues that these actions violated its rights both to due process and to equal protection under the Fourteenth Amendment, and further that the delay in effect accomplished a taking of its property without just compensation for purposes of the Fifth Amendment. ² In the district court the defendants moved to dismiss GJR's claims under Fed.R.Civ.P. 12(b)(6) on the ground of qualified immunity. The court denied the motions, and defendants appealed. For the reasons stated below, we reverse the district court's ruling.

GJR's constitutional rights by delaying the permit approval process.

I. ALLEGATIONS OF THE COMPLAINT

A complete copy of the complaint is made an appendix to this opinion. Accepting all allegations in the complaint as true, and construing facts in a light most favorable to the plaintiff, see Harper v. Thomas, 988 F.2d 101, 103 (11th Cir.1993), we summarize the allegations as follows.

Appellee GJR Investments, Inc. is a Texas corporation that is the "beneficial owner," ³ (R.1-1 at 3), of certain real property on Perdido Key in Escambia County, Florida. The property is located in an area designated by Escambia County Ordinance Code (the "Code") 89-6 as a commercial "C-1" zoning district. GJR sought to develop the property as an RV campground despite strident opposition from the residents of Perdido Key.

In October 1992 GJR filed its first application to develop the property as a campground. On the advice of the staff of the Escambia County Department of Growth Management Services that the proposed campground was not a "permitted use" in a C-1 district, GJR applied to develop the property as a special exception and planned use development ("PUD"). GJR withdrew its application in December of 1992, upon further advice from the Growth Management Services staff that the application still did not comply with the Code.

In May 1993 GJR submitted a second application, this time to develop the campground as an amusement/recreational facility and a PUD. The Escambia County Zoning Board of Adjustment denied this application, and GJR appealed to the Escambia County Board of County Commissioners, which affirmed the decision. GJR subsequently appealed the county commissioners' decision to the Florida state courts.

While its appeal was pending, GJR filed a third application, this time for permission to develop the campground as a permitted use under the Code. This application also was denied. Subsequently, GJR filed a suit for declaratory judgment, asking the Florida courts to declare that development of the property as a campground is a permitted use under the Code. In March 1994, the parties settled the dispute regarding the permit: The county agreed to approve a fourth application from GJR to develop the property as a campground as a permitted use, and in return GJR dismissed both of its pending state lawsuits.

In its complaint, GJR calls attention to various actions on the part of the individual defendants that GJR alleges violated its constitutional rights:

A. BENNIE KENNEY

Kenney is an assistant to W.A. "Buck" Lee, an Escambia County Commissioner. Kenney is a resident of Perdido Key who opposed the construction of the campground and was involved in a citizens' group that organized to oppose the project. GJR alleges that at defendant Wiley C. Page's invitation, Kenney attended a Growth Management Services staff meeting pertaining to GJR's second application, even though attendance at such a meeting does not fall within Kenney's job responsibilities and she had never previously been invited to attend one.

GJR also alleges that before the appeal of its second application to the Board of County Commissioners, Kenney asked Lee to order a U.S. Department of Agriculture soil analysis of GJR's property at the behest of another Perdido Key resident who opposed the project. The resident had attempted to obtain such an analysis on his own, but was informed that only the landowner or a county commissioner could request one. GJR claims that Kenney asked Lee to order such an analysis at the request of the resident.

B. W.A. "BUCK" LEE

Defendant Lee is an Escambia County Commissioner. Lee neither represented nor resided on Perdido Key, but he spoke out against the project at the Zoning Board hearing on GJR's second application despite the fact that as a county commissioner he would hear any appeal of the Zoning Board's decision. Lee also ordered a Department of Agriculture soil analysis of GJR's property, the results of which he then distributed to his fellow commissioners. GJR also alleges that Lee distributed numerous letters from Perdido Key residents opposed to the project to his fellow county commissioners, and only recused himself from the appeal proceeding at GJR's objection.

C. WILEY C. PAGE

Page is the director and supervisor of the Escambia County Department of Growth Management Services ("GMS"). GJR alleges that before the submission of its first application for development Page directed the GMS staff to misrepresent the development requirements for a C-1 district and to inform GJR that it could develop a campground on the property only as a special exception and PUD, not as a permitted use. GJR also alleges that in response to the significant public outcry against the project, Page directed the GMS staff to review GJR's first application more strictly than other development applications filed in Escambia County.

Regarding the second application, GJR alleges that Page expressly invited Kenney to attend the GMS staff meeting, knowing that she opposed the project and that attendance at such a meeting did not fall within her responsibilities as Lee's assistant. Following the meeting, Page informed GJR that even though the GMS staff recommended approval of the second petition, he would recommend that the Zoning Board deny the application. He further informed GJR that in order to obtain a permit, it would have to appear before the Zoning Board in person to plead its case and persuade the Board to award the permit. GJR claims that Page inappropriately presented county commissioners with additional letters from Perdido Key residents opposed to the project as part of the record on appeal and invited BCC members to contact him for further information regarding residents' remarks about the project. Finally, GJR asserts that Page "administratively 'rejected' " its third application out of hand. (R.1-1 at 16.)

D. LISA MINSHEW

Minshew is an attorney retained by Escambia County for land use matters. GJR alleges that Minshew initially advised the GMS staff to reject GJR's application, stating that GJR was an "out-of-state developer" and noting the Perdido Key residents' considerable hostility to the project. GJR contends that Minshew gave the GMS staff erroneous and misleading instructions regarding the prerequisites for approval of GJR's petition. Further, GJR avers, it was "standard procedure" to submit incomplete permit applications to the Zoning Board for approval, but Minshew advised the GMS staff not to do so with GJR's incomplete permit application.

GJR also asserts misconduct on Minshew's part at the Zoning Board hearing, alleging that Minshew coerced a GMS staff member into making false statements to the Board regarding the applicable criteria for approval of the project. In addition, GJR contends that after the formal presentation and comment period, Minshew engaged in an ex parte communication with Zoning Board members which prompted them to "summarily reject" the second application. Finally, GJR alleges that Minshew attempted to introduce erroneous and misleading material into the official record at the BCC appeal and knowingly misstated the applicable law to the commissioners.

II. PROCEDURAL HISTORY

Following the approval of its fourth application, GJR filed this suit against Escambia County, Minshew, Lee, Page, and Kenney. GJR's "First Cause of Action"...