Reserve, Ltd. v. Town of Longboat Key

• Citation: 17 F.3d 1374
• Decision Date: 01 April 1994
• Docket Number: No. 92-2149,92-2149
• Parties: The RESERVE, LTD., Plaintiff-Appellant, v. TOWN OF LONGBOAT KEY, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1374

17 F.3d 1374

The RESERVE, LTD., Plaintiff-Appellant, v. TOWN OF LONGBOAT KEY, Defendant-Appellee.

No. 92-2149.

United States Court of Appeals,

Eleventh Circuit.

April 1, 1994.

Donald Edward Hemke, Alan C. Sundberg, Carlton, Fields, Ward, Emmanuel, Smith & Cutler, PA, Thomas J. Roehn, Annis, Mitchell, Cockey, Edwards & Roehn, PA, Tampa, FL, for plaintiff-appellant.

David P. Persson, Davis, Persson & Smith, Sarasota, FL, Edward F. Ryan, Nancy E. Stroud, Burke, Bosselman & Weaver, Boca Raton, FL, for defendant-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before COX, Circuit Judge, JOHNSON, Senior Circuit Judge, and ATKINS ^*, Senior District Judge.

COX, Circuit Judge:

The Reserve, Ltd., a Florida limited partnership (the "Reserve"), appeals the grant of summary judgment in favor of the Town of Longboat Key ("Longboat Key"). We affirm in part, vacate in part, and remand for further proceedings.

I. BACKGROUND ¹

Reserve sought to construct a spa complex in Longboat Key. In 1986, Longboat Key approved the first of several site plans for the complex. (R. 1-1 at Ex. B). ² Thereafter, Reserve acquired eight acres in Longboat Key upon which to build the proposed complex. Reserve obtained a building permit from Longboat Key to construct fifty- seven condominium units and a spa ("permit"). (R. 1-1 at Ex. D). ³ At the time, section 150.40(A) of the Longboat Key Code provided that a permit would be revoked if, after construction commenced, no "substantial work" was accomplished in any thirty day period. ⁴ Reserve contends that it spent approximately $6 million in acquiring acreage, designing the complex, demolishing pre-existing buildings on the site, site work, and construction costs. (Appellant's Br. at 10). ⁵

Throughout the 1980's, Reserve's principal, Dr. Murray Klauber ("Dr. Klauber"), was involved in numerous disputes with Longboat Key over matters unrelated to the spa project. (Klauber Apr. 30, 1991 Dep. at 38-94). In addition, Dr. Klauber was active in politics in Longboat Key in the 1980's. (Id. at 65, 142-44, 168-72; Klauber May 15, 1991 Dep. at 537-39, 541-43). Beginning as early as 1984, Dr. Klauber opposed the candidacy of several members of the Longboat Key Commission. (Id.). By 1988, Dr. Klauber's relationship with Longboat Key was, at best, strained.

On May 10, 1988, Longboat Key notified Reserve that "substantial work" had not been completed on the spa complex within the last thirty-four days and warned that Reserve's permit would be revoked if "substantial work" was not accomplished by June 5, 1988. (R. 1-1 at Ex. I). Reserve contacted Longboat Key in order to determine what would constitute "substantial work." Longboat Key informed Reserve that the completion of five pile caps would be considered "substantial work." (Smally Dec. 14, 1990 Dep. at 194-95). Although work was begun on five pile caps, not a single pile cap was completed between May 10, 1988 and June 5, 1988. (R. 2-58 at 2). On June 6, 1988, Longboat Key revoked Reserve's permit for failure to complete "substantial work" on the spa complex within a thirty day period. (R. 1-2 at Ex. J). At the time the permit was revoked, workmen were constructing a pile cap. (Smally Jan. 21, 1991 Dep. at 73).

Reserve, through Klauber and its attorneys, informally approached Longboat Key officials on several occasions in an endeavor to have its permit restored. (R. 1-1 at Ex. K; R. 2-67 at Ex. A, Ex. D; Klauber May 1, 1991 Dep. at 396-99). Those officials refused to reinstate Reserve's permit. (Id.). ⁶ In addition, the Longboat Key Commission called on the letter of credit Reserve posted as a site restoration bond. (Klauber May 15, 1991 Dep. at 447-48). Ultimately, Reserve restored the site and discontinued its efforts to build the spa complex. (Id.).

Reserve filed a ten count complaint against Longboat Key. (R. 1-2). In Count I, Reserve alleges that the revocation of its permit, pursuant to the "substantial work" standard, violated its procedural due process rights because the "substantial work" standard is unconstitutionally vague. (Id. at 8). Count II alleges that Reserve's permit, in which Reserve had a constitutionally protectible property interest, was revoked arbitrarily and irrationally in order to retaliate against Reserve's principal, Dr. Klauber, in violation of Reserve's substantive due process rights. (Id. at 9). Count III alleges that in revoking Reserve's permit, Longboat Key treated Reserve differently than other similarly situated developers in violation of Reserve's equal protection rights. (Id. at 10). Count IV, which seemingly mirrors Count II, alleges that Reserve's permit was arbitrarily and unreasonably revoked. Counts V through X allege an assortment of other claims against Longboat Key which are not the subject of this appeal. (Id. at 11-16).

Longboat Key moved for summary judgment. (R.1-57, 2-58). As to Count I, the district court held that Reserve's procedural due process rights were not violated, concluding that the "substantial work" standard was not unconstitutionally vague. (R.3-87 at 5). As to Counts II, III, and IV, the district court arrived at two conclusions. First, the district court concluded that summary judgment was due to be denied with respect to Longboat Key's contention that Counts II, III, and IV were not ripe for adjudication "[b]ecause the question of whether the Plaintiff [Reserve] has sought and received a final decision from Longboat Key [regarding the revocation of its permit] presents a genuine issue of material fact." (Id. at 3-4). Second, the district court treated Counts II, III, and IV as "governed by the standards applicable to substantive due process claims." (Id. at 6). In order to state a substantive due process claim, a claimant must demonstrate that it has a constitutionally protectible property interest. (Id.). The district court concluded that Reserve did not have a protectible property interest in its building permit. (Id.). Accordingly, the district court granted partial summary judgment as to Counts I through IV in favor of Longboat Key and denied Longboat Key's Motion for Summary Judgment in all other respects. (Id. at 8). ⁷ Reserve filed an Emergency Motion for Rehearing on the Dismissal of Counts I through IV, and in the alternative, a Motion to Certify under 28 U.S.C.A. Sec. 1292(b) (1993). (R.3-90). The district court denied the motions. (R.4-107). This appeal follows.

II. STANDARD OF REVIEW

We review a grant of summary judgment de novo. Vernon v. Resolution Trust Corp., 907 F.2d 1101, 1104 (11th Cir.1990). On review, we are bound by the same standards that governed the district court on the summary judgment motion below. Earley v. Champion Int'l Corp., 907 F.2d 1077, 1080 (11th Cir.1990). Any factual disputes must be resolved in favor of the nonmoving party. Barnes v. Southwest Forest Indus., Inc., 814 F.2d 607, 609 (11th Cir.1987).

III. ISSUES ON APPEAL & CONTENTIONS OF THE PARTIES

Reserve advances three arguments pertinent to our resolution of this case. First, Reserve contends that its procedural due process rights were violated because its permit was revoked pursuant to the unconstitutionally vague "substantial work" standard, and the district court erred in holding otherwise. Longboat Key counters that "substantial work" is not unconstitutionally vague and that the grant of summary judgment on Reserve's procedural due process claim in Count I should therefore be affirmed.

Second, Reserve contends that it was denied substantive due process because it was deprived of a constitutionally protectible property interest--its permit--arbitrarily and irrationally, and the district court erred in holding otherwise. Reserve argues that its permit was revoked by Longboat Key in order to retaliate against its nemesis, Dr. Klauber. Longboat Key counters that Reserve did not have a protectible property interest in its permit and that the grant of summary judgment on Reserve's substantive due process claim in Count II should therefore be affirmed. In the alternative, Longboat Key argues that the record is devoid of evidence to support the contention that Reserve's permit was arbitrarily or irrationally revoked.

Third, Reserve contends that whether or not it had a protectible property interest in its permit is irrelevant to its equal protection claim in Count III. ⁸ Reserve claims that the revocation of its permit violated its equal protection rights because other similarly situated developers' permits were not revoked by Longboat Key. Reserve contends that Longboat Key revoked its permit in order to retaliate against Reserve's principal, Dr. Klauber. Longboat Key counters that the record is devoid of evidence to support an equal protection claim and therefore the district court's grant of summary judgment as to Count III should be affirmed.

Finally, Longboat Key contends that even if Reserve's arguments in support of Counts II, III, and IV are correct, Counts II, III, and IV are not ripe for adjudication because Reserve never secured a final decision from Longboat Key regarding the propriety of the revocation of its permit. Reserve responds that it did secure a final decision from Longboat Key such that Counts II, III, and IV are ripe for adjudication. Alternatively, Reserve argues that even if it failed to secure a final decision from Longboat Key, Counts II, III, and IV fall within the futility exception to the ripeness doctrine.

IV. DISCUSSION

A. PROCEDURAL DUE PROCESS

Reserve contends that the revocation of its permit, pursuant to the "substantial work" standard, violated its procedural due process rights because the "substantial work" standard is unconstitutionally vague. Reserve notes that the Longboat Key Code does not contain guidelines for determining when "substantial work" has been completed, and argues that the term "substantial work," standing alone, is unconstitutionally vague on its face. We disagree.

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