Anthony v. Franklin County, 85-3672

• Decision Date: 15 September 1986
• Docket Number: No. 85-3672,85-3672
• Citation: 799 F.2d 681
• Parties: Claire W. ANTHONY, et al., Plaintiffs-Appellants, v. FRANKLIN COUNTY and Willis "Bill" Collins, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 681

799 F.2d 681

Claire W. ANTHONY, et al., Plaintiffs-Appellants, v. FRANKLIN COUNTY and Willis "Bill" Collins, et al Defendants-Appellees.

No. 85-3672.

United States Court of Appeals Eleventh Circuit.

Sept. 15, 1986.

Philip J. Padavano, Tallahassee, Fla., for plaintiffs-appellants.

Alfred O. Shuler, Apalachicola, Fla., for defendants-appellees.

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

Before HILL, Circuit Judge, HENDERSON ^* and BROWN ^**, Senior Circuit Judges.

HILL, Circuit Judge:

FACTS

Appellants are the owners of real property on the Isle de Chien (commonly known as Dog Island), an island located in the Gulf of Mexico, wholly situated within the The ferry was operated by a number of public and private organizations, most recently by Franklin County. On July 17, 1979, the DOT conveyed the ferryboat to the county and agreed to subsidize its operation out of the "80% seventh cent gas tax." On September 1, 1981, the county passed a resolution to discontinue the ferry service for economic reasons; county-operated ferry service actually terminated in April, 1982. The Dog Island Conservation District, a public body, currently operates a limited passenger ferry service. There are substantial differences between the former and present services. First, the Conservation District replaced the original ferryboat with a small motor boat capable of carrying six passengers. In addition, the ferry operates on a less frequent, weekend-only, basis. Those who wish to transport automobiles or other large items to and from Dog Island must charter a landing craft. As a result, it is prohibitively expensive for appellants to take their cars to and from the island on a regular basis. Although property values on Dog Island have continued to increase since Franklin County terminated ferry service, some owners' rental income has decreased due to the inconvenience of travelling to and from the mainland.

territorial boundaries of Franklin County, Florida. In 1953, the Florida Department of Transportation ("DOT") established a ferry service to operate between the mainland and Dog Island. This ferry service was initiated at the request of Franklin County, on behalf of the developers, to encourage development on Dog Island. The ferry operated on a continuous schedule, with the capacity to carry motor vehicles, construction materials and other items of personal property. As anticipated, ferry service did facilitate real estate development: County records show three hundred eighty-three property owners on Dog Island, sixteen of whom are entitled to a homestead exemption. Approximately one hundred cottages, primarily used for vacation and leisure, were constructed on the island. Appellants allege that they purchased their property with the expectation of continued ferry service.

On August 31, 1983, appellants filed suit against Franklin County and the County Commissioners under 42 U.S.C. Sec. 1983. The complaint alleged that the termination of county-operated ferry service constituted a taking of appellants' property without substantive due process and violated equal protection by subjecting them to a discriminatory property tax system. Appellants also included a pendent state inverse condemnation claim. The essence of appellant's section 1983 claims is that: (1) the ferry service was the functional equivalent of a county road and, therefore, its discontinuance constitutes a deprivation of access; and (2) the county has engaged in an irrational scheme of ad valorem taxation by continuing to collect property taxes for governmental services which cannot be used without a public transportation system.

On June 27, 1985, after extensive discovery, appellants moved for partial summary judgment on the issue of liability. Franklin County responded and filed a cross-motion for summary judgment. The district court dismissed the case without prejudice because appellants had an adequate remedy under state law.

DISCUSSION

Adequate State Remedies

Appellants' principal claim is that the County deprived them of access to their property, constituting a taking "without substantive due process" in violation of the fifth amendment. ¹ In Williamson County Regional Planning Commission v. Hamilton Bank, --- U.S. ----, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), the Supreme Court held that a property owner must exhaust state procedures for obtaining just compensation, including resort to a state inverse condemnation action, before bringing a "taking" claim under 42 U.S.C. Sec. 1983. Id. 105 S.Ct. at 3121-22. The Court reasoned that the fifth amendment does not prohibit takings, only uncompensated takings. "[B]ecause the Constitution does not require pretaking compensation, and is instead satisfied by a reasonable and adequate provision for obtaining compensation after the taking, the State's action here is not 'complete' until the State fails to provide adequate compensation for the taking." Id. (footnote omitted). Thus, "if a State provides an adequate remedy for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation." Id. at 3121. Florida law provides compensation for deprivation or impairment of the right of access, Anhoco Corp. v. Dade County, 144 So.2d 793 (Fla.1962), which may be enforced in an action for inverse condemnation, see, e.g., Pinellas County v. Austin, 323 So.2d 6 (Fla.Dist.Ct.App.1975). Appellants have not shown that the Florida procedures were unavailable or inadequate; until they have utilized those procedures, their taking claim is premature.

Substantive Due Process

Appellants' complaint specifically alleged that the County's decision to discontinue ferry service to Dog Island denied them substantive due process and requested that the court affirmatively require Franklin County to reinstate the ferry service. ²

[U]nder [the substantive due process] theory government regulation does not effect a taking for which the Fifth Amendment requires just compensation; instead, regulation that goes so far that it has the same effect as a taking by eminent domain is an invalid exercise of the police power, violative of the Due Process Clause of the Fourteenth Amendment. Should the Government wish to accomplish the goals of such regulation, it must proceed through the exercise of its eminent domain power, and, of course, pay just compensation for any property taken. The remedy for a regulation that goes too far, under the due process theory, is not "just compensation," but invalidation of the regulation, and if authorized and appropriate, actual damages.

Williamson County, 105 S.Ct. at 3122 (footnote omitted).

The substantive due process doctrine proscribes "deprivation of a property interest for an improper motive and by means that were pretextual, arbitrary and capricious, and ... without any rational basis." Hearn v. City of Gainesville, 688 F.2d 1328, 1332 (11th Cir.1982). Economic and social legislation is presumed valid if it is rationally related to a legitimate state interest. See, e.g., Village of Belle Terre v. Boraas, 416 U.S. 1, 4-9, 94 S.Ct. 1536, 1538-41, 39 L.Ed.2d 797 (1974). In this case, we conclude that termination of county-operated ferry service did not deprive appellants of a property interest. Therefore, we need not examine Franklin County's actions.

The substantive due process claim in this case presents a novel interpretation of the denial of right of access. Appellants cite several Florida statutes to support their assertion that Florida law classifies a ferry as a "road" which Franklin County has a duty to maintain. ³ Therefore, terminating ferry service was equivalent to closing a road or street. Since this ferry service was the only "road" between the mainland and Dog Island, its termination completely deprived them of access to their property or, at a minimum, substantially diminished access. Appellants compare this deprivation to the cases where the government has vacated the only viable street adjacent to a mainland piece of property.

Upon first impression, appellants' argument would appear to present this court with a perplexing dilemma: either require the county to provide perpetual ferry service to Dog Island or deprive appellants of access to their property. When, long ago, Chief Justice Bleckley of the Supreme Court of Georgia was confronted with an apparent paradox, he observed, "When the right point of view is discovered, the problem is more than half solved." Ellison v. Georgia Railroad Co., 87 Ga. 691, 706-07, 13 S.E. 809 (1891). The right point of view is this: the county's action has not affected appellants' right of access to their property in any way, it merely ceased to transport them, at public expense, to and from their property. This is not a case where the government inflicted harm, but merely one where a benefit, once conferred, has been withdrawn. Property on Dog Island obviously was made more valuable by the existence of public conveyance to and from the island. This means of transportation may have increased the value of appellants' property, but its absence is not a deprivation of access.

More importantly, this is not a case in which access to property was cut off or even impaired. Appellants' "road closing" analogy fails upon consideration of the principle underlying the right of access cases. Property ownership includes two access-related rights: "the right to pass to or from the public way immediately adjacent to the land" and "the right to go somewhere once the owner is upon the abutting road--to have access to the system of public roads." Stoebuck, The Property Right of Access Versus the Power of Eminent Domain, 47 Tex.L.Rev. 733, 735 (1969). The cases cited by ap...