Bickerstaff Clay Products Co., Inc. v. Harris County, Ga. By and Through Bd. of Com'rs, 94-9215

• Decision Date: 16 July 1996
• Docket Number: No. 94-9215,94-9215
• Citation: 89 F.3d 1481
• Parties: BICKERSTAFF CLAY PRODUCTS COMPANY, INC., Plaintiff-Appellee, v. HARRIS COUNTY, GEORGIA, By and Through its BOARD OF COMMISSIONERS; George Elmore; Danny Bridges; Carl C. Hobbs, III; Wallace Marriner; Warren Popp, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1481

89 F.3d 1481

BICKERSTAFF CLAY PRODUCTS COMPANY, INC., Plaintiff-Appellee, v. HARRIS COUNTY, GEORGIA, By and Through its BOARD OF COMMISSIONERS; George Elmore; Danny Bridges Carl C. Hobbs, III; Wallace Marriner Warren Popp, Defendants-Appellants.

No. 94-9215.

United States Court of Appeals Eleventh Circuit.

July 16, 1996.

Frank Edward Jenkins, III, Kirk Randall Fjelstul, Cartersville, GA, Ray L. Allison, Columbus, GA, C. Brian Boyd, Hamilton, GA, for appellants.

H. Wayne Phears, Norcross, GA, Joseph L. Waldrep, James E. Humes, II, Columbus, GA, for appellee.

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

Before TJOFLAT, Chief Judge, CARNES, Circuit Judge, and FAY, Senior Circuit Judge.

TJOFLAT, Chief Judge:

In this case, a company challenges under several provisions of state and federal law the decision of a county board of commissioners to rezone the company's property. The district court granted injunctive relief in favor of the company, and the county took this interlocutory appeal. For the reasons that follow, we affirm in part, reverse in part, and vacate in part.

I.

A.

The property in question is a landlocked 161-acre tract located in southwest Harris County, Georgia, along Interstate Highway 185. Appellee Bickerstaff Clay Products, Inc. ("Bickerstaff"), a brick manufacturing company, bought the property in 1960 because of the property's rich reserves of a mineral used in the brickmaking process. Bickerstaff uses a form of rock called weathered mylonite in the manufacture of bricks; the Harris County property lies along a vein of such rock. At the time Bickerstaff purchased the property, it had no immediate need to mine the weathered mylonite on the property. It conducted several test drills on the property and dug a trench to determine the extent of the mylonite deposit, but otherwise did not mine the property. Instead, Bickerstaff held the property in its mineral reserves for future use.

In 1984, the governing entity for Harris County, a five-member Board of Commissioners, enacted a county-wide zoning ordinance, including a comprehensive land-use plan for the county. The ordinance provided that initial determinations on zoning matters such as rezoning requests would be studied by the county planner's office, which would recommend the denial or granting of the request to a planning commission. The planning commission would hold a public meeting on the rezoning request, and then would make recommendations to the Board of Commissioners, which would have final authority over all zoning decisions. The 1984 ordinance zoned Bickerstaff's property A-1, which is the designation given to vacant property. ¹ Under the ordinance, the uses permitted on land zoned A-1 include general agriculture and forestry; the stated purpose of the A-1 category is to "preserve land areas suitable for eventual rezoning."

In 1993, Bickerstaff decided to make use of the mylonite reserves on the Harris County property. To that end, Bickerstaff applied for a mining permit from the Georgia Environmental Protection Department. In this application, Bickerstaff indicated the proposed duration and manner of the mining and explained how the company would shield surrounding areas from the noise and visual disturbances attendant to the operation. ² The application also contained provisions for land reclamation and runoff containment. In August of 1993, the Department granted Bickerstaff a permit to mine the property.

While preparing its application to the Environmental Protection Department, Bickerstaff discovered that the property had been zoned A-1, and that A-1 zoning would not permit mining. Armed with state approval of the mining operation, Bickerstaff sought to have the property rezoned M-2, which would permit mining. Bickerstaff presented its plan to the Harris County planner, who found that M-2 zoning was consistent with the county's comprehensive land-use plan and recommended that the planning commission approve the rezoning request. Following a public meeting, however, the planning commission voted to recommend that the Board of Commissioners deny the rezoning request.

The Board of Commissioners then held a public hearing on Bickerstaff's application for rezoning. In accordance with the zoning ordinance, Bickerstaff was allowed to present its proposed plan for mining its land, and any citizen with an opinion about Bickerstaff's proposal was allowed to speak. The Board made no decision on the rezoning request at that time, but instead met privately two weeks later to consider the request. At that meeting, the Chairman of the Board of Commissioners moved to rezone the property R-1, which allows only low-density residential development. ³ Bickerstaff had not requested R-1 zoning, and had no notice that the Board would consider rezoning the property R-1. The Chairman's motion passed by a vote of four to one.

B.

Following the Board's decision, Bickerstaff brought this suit against Harris County, alleging violations of the United States Constitution, the Georgia Constitution, and state real property law. ⁴ Bickerstaff's primary contention is that rezoning the property R-1 constituted a taking of Bickerstaff's property because the rezoning rendered the property virtually useless: the property cannot be developed as a residential subdivision because there is effectively no access to a public roadway. ⁵ According to Bickerstaff, this taking was in violation of the Fifth and Fourteenth Amendments to the United States Constitution ⁶ and Article I of the Georgia Constitution ⁷ because the taking was accomplished (1) pursuant to an invalid exercise of the county's police power, and (2) without providing Bickerstaff just compensation. Bickerstaff therefore asked the district court to award the company just compensation for a temporary taking, in the event the R-1 zoning was held invalid, or for a permanent taking if it was not. See First English Evangelical Lutheran Church v. Los Angeles County, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987) (recognizing a Takings Clause claim for the temporary deprivation of all use of private property).

In its answer to Bickerstaff's complaint the county denied that it was liable under any of Bickerstaff's theories of recovery. As for Bickerstaff's Fifth Amendment claim, the county contended that the suit was not ripe for federal court review because Bickerstaff had not pursued its remedies in state court. See Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 186, 105 S.Ct. 3108, 3116, 87 L.Ed.2d 126 (1985). The county noted that, although Bickerstaff had filed a suit on the same claims in the Harris County Superior Court, Bickerstaff had persuaded that court to stay its hand pending the outcome of the instant case. The county further contended that because the superior court had jurisdiction over the controversy, the instant case was barred. ⁸ The district court did not rule on these contentions and scheduled a bench trial on Bickerstaff's claims for declaratory and injunctive relief.

The bench trial focused on Bickerstaff's acquisition of the property, its plans to mine the land, and the circumstances surrounding the rezoning of the property R-1. After entertaining the parties' evidence, the court entered an order declaring the R-1 and prior A-1 zoning classifications invalid. The court enjoined the enforcement of either the R-1 or the A-1 zoning classification on both state and federal grounds. It concluded that these measures were "not substantially related to any valid health, safety or welfare considerations" and thus, under the due process clauses of both the state and federal constitutions, constituted invalid exercises of the county's police power. In addition, these classifications were enacted in derogation of Bickerstaff's right under Georgia law and the Harris County zoning ordinance to mine the property as either a vested right or a nonconforming use. The court thus enjoined the county from applying any zoning classification to the property other than M-2. Finally, the court held that the R-1 classification, by rendering Bickerstaff's property worthless, had effected a taking of the property without just compensation in violation of the state and federal constitutions. Proceedings to determine just compensation have been stayed pending our resolution of this appeal.

Following the district court's entry of the injunctive relief described above, the county took this interlocutory appeal. We have jurisdiction under 28 U.S.C. § 1292(a)(1) (1994). We review the district court's factual findings for clear error. Fed.R.Civ.P. 52(a). Questions of law and mixed questions of law and fact are reviewed de novo. See Nadler v. Mann, 951 F.2d 301, 305 (11th Cir.1992).

II.

As noted, the district court's injunction addressed three zoning classifications: A-1, R-1, and M-2. The court invalidated the A-1 and R-1 classifications and ordered the Board to apply the M-2 classification to the property. We summarily vacate the aspect of the court's injunction that prohibits the Board from applying any zoning classification to the property except M-2. The court cited no authority, state or federal, for such action--which, in effect, usurped the Board's legislative function--and Bickerstaff has cited us to none.

In the discussion that follows, we address first the court's decision to strike down the A-1 zoning and conclude that Bickerstaff's challenge to that zoning is time barred. Turning next to the Board's decision to zone the property R-1, we conclude that the court had no basis for invalidating the decision on the ground that Bickerstaff had acquired a right to mine the property as either a vested right or a nonconforming use under Georgia law. The court's alternative holding--that, under Georgia law, the Board's decision constituted a taking without just compensation--is, however, correct. We therefore affirm the...