Bensch v. Metropolitan Dade County, 90-0252-CIV.

• Decision Date: 16 December 1996
• Docket Number: No. 90-0252-CIV.,90-0252-CIV.
• Citation: 952 F.Supp. 790
• Parties: Fred and Bonita BENSCH, et al., Plaintiffs, v. METROPOLITAN DADE COUNTY, South Florida Water Management District, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

Page 790

952 F.Supp. 790

Fred and Bonita BENSCH, et al., Plaintiffs, v. METROPOLITAN DADE COUNTY, South Florida Water Management District, et al., Defendants.

No. 90-0252-CIV.

United States District Court, S.D. Florida.

December 16, 1996.

Mark V. Silverio, Silverio & Hall, Miami, FL, for plaintiffs.

H. Adams Weaver, Jones, Foster, Johnston & Stubss, West Palm Beach, FL, Ruth Clements, Office of Counsel, South Florida Water Mgmt. Dist., West Palm Beach, FL, Joni Armstrong Coffey, Asst. County Attorney, Miami, FL, for defendants.

ORDER GRANTING MOTION TO DISMISS AND DENYING MOTION TO DROP PARTIES

HOEVELER, Senior District Judge.

THIS CAUSE comes before the Court on Defendant South Florida Water Management District's (SFWMD's) Motion to Dismiss Counts II and III (Docket # 139), filed March 16, 1995; and Defendant SFWMD's Motion to Drop Parties (Docket # 141), filed March 16, 1995. The Court heard argument on these motions on April 15, 1996. These motions address Plaintiff's Fourth Amended Complaint, which was filed on January 17, 1995, subsequent to this Court's Order of April 11, 1994, which granted Defendant SFWMD's Motion to Dismiss Third Amended Complaint.¹

Plaintiffs' Fourth Amended Complaint contains eight counts: Count I (taking of property by flooding without just compensation), Count II (taking of flowage easement without just compensation), Count III (continuing trespass as result of flooding), Count IV (taking property by ordinances without compensation) Count V (denial of substantive due process), Count VI (denial of equal protection), Count VII (denial of procedural due process), Count VIII (violation of 42 U.S.C. § 1983).² Counts I-III are based on the Defendant SFWMD's construction in 1990 and subsequent operation of the G-211 water control structure. Counts IV-VIII are based on the following alleged acts of the other (non-SFWMD) Defendants: enactment and enforcement of ordinances (which, e.g., resulted in a downzoning of Plaintiffs' property such that residences would be permitted only on parcels of forty acres or larger, i.e., the one unit per forty acres rule)³ and "administrative and quasi-judicial decisions adversely affecting plaintiffs' property rights without according adequate notice or an opportunity to be heard." Fourth Amended Complaint, ¶ 98.

MOTION TO DISMISS

1. Arguments of the parties

Defendant SFWMD seeks dismissal of Counts II and III (both of which are presented as alternative claims to those contained in Count I). Defendant SFWMD argues that Count II, which alleges the taking of a flowage easement in violation of the Fifth Amendment to the U.S. Constitution⁴, is premature because Plaintiffs have failed to exhaust their state remedies on this issue, as required by Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985); see also, Reahard v. Lee County, 30 F.3d 1412 (11th Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1693, 131 L.Ed.2d 557 (1995). Defendant SFWMD also notes that this is the first time such claim has been presented during the more than ten years of litigation between these parties,⁵ and asserts the doctrine of res judicata as additional grounds for dismissal. Defendant SFWMD argues that Count III, which alleges a continuing trespass due to flooding, must be dismissed because the Eleventh Amendment to the United States Constitution bars actions against states (or their agencies) in federal court based on state law absent an explicit waiver. As no such waiver has been made, Defendant SFWMD argues that Count III must fail.

Plaintiffs urge this Court to permit Count II (taking of a flowage easement) to proceed against Defendant SFWMD because "state court procedures would be inadequate in that it is clear that they would not result in compensation for plaintiffs, ... [r]esort to the Florida courts for compensation for this type of taking would be a futile act ..." Plaintiffs' Reply [sic] Memorandum to Motion to Dismiss, filed June 2, 1995, p. 2-3. As an alternative, Plaintiffs ask the Court to exercise "pendent" jurisdiction over this claim. The Court views this as a request under 28 U.S.C. § 1367(a), which provides, in any civil action in which the district court has original jurisdiction, for supplemental jurisdiction "over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution".

2. Analysis

A motion to dismiss on the basis of the pleadings should rarely be granted. Madison v. Purdy, 410 F.2d 99, 100 (5th Cir. 1969)⁶. Dismissal is appropriate, however, when Plaintiffs have failed to sufficiently allege a basis for this Court's jurisdiction. The Court will address the arguments for dismissal as to each Count.

a. Count II

Count II presents the question of whether Defendant SFWMD's actions constitute a taking of a flowage easement. Plaintiffs allege that such taking is evidenced by the "increased groundwater levels and frequent and prolonged flooding", and note that "such increased groundwater levels are permanent and flooding will inevitably recur", Fourth Amended Complaint, ¶ 78. Essentially, Plaintiffs argue that Defendant's actions in the construction and operation of the G-211 water control structure have resulted in a complete taking of an easement — an easement in which Plaintiffs have a recognizable property interest. Plaintiffs argue that they are entitled to compensation as a consequence of the taking of that easement. Although Plaintiffs have included several demands for relief, see pages 47-48 of Plaintiffs' Fourth Amended Complaint, the only relief applicable against Defendant SFWMD for the violation alleged in Count II is "just compensation".⁷ This claim is properly characterized as one for "inverse condemnation".

The Supreme Court has provided the following definition of "inverse condemnation":

"a cause of action against a governmental defendant to recover the value of property which has been taken in fact by the governmental defendant, even though no formal exercise of the power of eminent domain has been attempted by the taking agency."

United States v. Clarke, 445 U.S. 253, 257, 100 S.Ct. 1127, 1130, 63 L.Ed.2d 373 (1980), quoting D. Hagman, Urban Planning and Land Development Control Law 328 (1971). The taking clause of the Fifth Amendment to the United States Constitution permits such actions as it prohibits the taking of private property for public use without just compensation. The Supreme Court has permitted inverse condemnation actions for property interests other than those in fee simple. For example, in Dolan v. City of Tigard, 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994), the Court recognized an interest in the ability to restrict access to one's property. See also, Corn v. City of Lauderdale Lakes, 95 F.3d 1066 (11th Cir.1996) (discussing various property rights protected by the Fifth Amendment).

Although the concept of inverse condemnation is deceptively simple in its description, the case law which has developed in this area (which could be generally described as a branch of "takings" law) is unfortunately muddled. See, e.g., Reahard v. Lee County, 30 F.3d at 1417, n. 12 (noting potential tension between Eleventh Circuit precedent and Supreme Court decisions). In general, federal courts have recognized a ripeness requirement regarding the pursuit of an inverse condemnation action, in accordance with the case or controversy aspect of our jurisdiction under Article III of the United States Constitution. An aggrieved plaintiff is directed to initially approach the regulatory body whose actions have affected plaintiff's property interest. Evidence of this approach, or its attempt, informs a court's later determination as to whether the regulating body's action is final (or complete) — a requirement for the initiation of an inverse condemnation action in federal court. If a remedy is not forthcoming from the regulatory body, a plaintiff is generally directed to seek recompense in state court — commonly known as the exhaustion requirement. The two-part ripeness requirement described above, however, is not uniformly applied in cases raising the issue of an alleged taking.

The Eleventh Circuit has identified the standards to be applied in cases raising the issue of a taking, and has noted the apparent confusion of standards to be applied based on the nature of the claim alleged. Eide v. Sarasota County, 908 F.2d 716, 720-726 (11th Cir.1990) (dismissing as unripe claims brought under § 1983 for the denial of a rezoning request after characterizing them as an as-applied challenge on the basis of arbitrary and capricious due process violations), cert. denied, 498 U.S. 1120, 111 S.Ct. 1073, 112 L.Ed.2d 1179 (1991). The following summary is based on that court's description of the four types of claims available to a plaintiff presenting a taking issue and the available remedies. A plaintiff can claim that her property was taken without just compensation by a regulation, in violation of the just compensation clause of the Fifth Amendment, i.e., that there is no provision to award her compensation; the remedy available to a successful plaintiff is monetary compensation for actual loss of value. Alternatively, a plaintiff may claim that the application of a regulation destroys the value of her property to such an extent that it is a taking by eminent domain — which the Eleventh Circuit identifies as a due process takings claim; the remedy is invalidation of the application of the regulation and, perhaps, actual damages. Id. at 721. As a third option, a plaintiff may claim that the subject regulation is arbitrary and capricious, bearing no substantial relation to the public good, and is therefore an invalid exercise of the police power — the Eleventh Circuit has labelled such a claim as an "arbitrary and capricious [or...