Brown v. Crawford County, Ga., 91-8344

Citation960 F.2d 1002
Decision Date20 May 1992
Docket NumberNo. 91-8344,91-8344
PartiesClarence Eugene BROWN, Plaintiff-Appellee, v. CRAWFORD COUNTY, GA., Defendant, Alfornia Hatcher, Perry Atkinson, Raymond Corbin, Freddie Tidwell, and David Moncrief, individually and in their official capacities as members of the Board of Commissioners of Crawford County, Ga., and John Doe and other unknown individuals, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1002

960 F.2d 1002
22 Fed.R.Serv.3d 1063
Clarence Eugene BROWN, Plaintiff-Appellee,
Alfornia Hatcher, Perry Atkinson, Raymond Corbin, Freddie
Tidwell, and David Moncrief, individually and in their
official capacities as members of the Board of Commissioners
of Crawford County, Ga., and John Doe and other unknown
individuals, Defendants-Appellants.
No. 91-8344.
United States Court of Appeals,
Eleventh Circuit.
May 20, 1992.

Page 1003

W. Warren Plowden, Jr., Jones, Cork & Miller, Gregory C. Morton, Macon, Ga., Thomas M. Green, Mincey & Green, Roberta, Ga., for defendants-appellants.

Charles A. Mathis, Jr., Mathis, Jordan & Adams, Harold S. Lewis, Milledgeville, Ga., for plaintiff-appellee.

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

Before HATCHETT and BIRCH, Circuit Judges, and MORGAN, Senior Circuit Judge.

MORGAN, Senior Circuit Judge:

This case concerns the question of whether county commissioners were entitled to absolute immunity when they voted to place a temporary moratorium on issuing permits for mobile homes in order to

Page 1004

study residential county development. The district court denied the commissioners' motion to dismiss. Because the commissioners should have been accorded absolute legislative immunity, we reverse with instructions to grant the motion to dismiss.


In 1987, Georgia Woodlands, Inc. (GWI) purchased a 330-acre tract of property in Crawford County, Georgia, and recorded a plat for a residential subdivision on January 20, 1988. This subdivision, known as Lake Deerwood, is impressed with restrictive covenants prohibiting mobile or manufactured homes and limiting the subdivision to conventional site-built houses. On March 11, 1989, plaintiff-appellee Clarence Eugene Brown, a land developer, purchased a 195-acre tract of land situated across the street from Lake Deerwood. Under the existing zoning regulations, Brown's property was zoned as an agricultural-residential district. The previous owners of Brown's land had received approval from the Crawford County Planning and Zoning Commission (Planning and Zoning Commission) to develop the land as a residential subdivision, allowing manufactured or singlewide and doublewide mobile homes. 1

Following his purchase of the land, Brown appeared at a regularly scheduled meeting of the Planning and Zoning Commission and presented for approval a plat for a residential subdivision of his property, known as Wildwood Estates. Brown also advised the Planning and Zoning Commission that he intended to develop the subdivision for mobile homes. At the time that Brown purchased his property, Lake Deerwood was being developed, and GWI senior vice president William E. Beasley was constructing a residence there. Beasley openly expressed his concern that potential purchasers of lots in Brown's Wildwood Estates would place mobile homes on those lots and degrade the value of the neighboring property in Lake Deerwood.

Beasley and another Crawford County resident sponsored a petition objecting to Brown's proposed subdivision. The petition, addressed to the Crawford County Board of Commissioners (Board of Commissioners), was signed by more than 100 Crawford County residents. At the regularly scheduled Board of Commissioners meeting on April 3, 1989, Beasley and a number of county residents presented their petition, and discussed their concerns regarding Brown's proposed mobile home subdivision.

Thereafter, the Board of Commissioners instructed the county attorney to draft a resolution placing a temporary moratorium of general application on mobile home permits for the southeastern portion of Crawford County, encompassing approximately one third of Crawford County, consisting of approximately 150 square miles. The moratorium was to be effective pending the completion and review of a comprehensive development plan being prepared by the Middle Georgia Development Center, which had been requested by the Board of Commissioners in the spring of 1988, to submit a development plan for Crawford County with recommendations for amendments and new zoning regulations. 2 The Board of Commissioners decided to call a special meeting on April 5, 1989, to review the proposed resolution.

The moratorium resolution was presented at the special meeting. The proposed moratorium prevented the county from issuing mobile home permits on any included property containing less than twenty-five acres unless the property was part of a subdivision which had received final plat approval prior to the moratorium and in which one or more lots had been deeded to individual purchasers by the developer. The moratorium also excepted cases in

Page 1005

which application for a mobile home permit had been made prior to passage of the moratorium, and the applicant had expended funds or otherwise substantially changed position based upon assurances from zoning officials that mobile homes were a permitted use. The period of the moratorium was to be ninety days, subject to continuance for an additional ninety-day term if the Board of Commissioners had not acted on the recommendations of the Middle Georgia Development Center by adopting a revised zoning plan. The Board of Commissioners voted unanimously to enact the proposed moratorium at its special meeting on April 5, 1989.

Brown and other land developers affected by the moratorium received a copy of the resolution from the Board of Commissioners with an explanatory letter from the county attorney, both of which are exhibits to his complaint. In pertinent part, the letter informed the developers as follows regarding the effect of the moratorium:

The resolution should be self-explanatory. It attempts to protect existing lot owners. It also attempts to protect developers of mobile home subdivisions who have already sold at least one lot in their subdivision. As you may know, the Middle Georgia APDC is currently revising Crawford County's zoning ordinance and maps. Those revisions may affect subdivisions that are now in the process of development. For the protection of all concerned, it was decided by the Board that mobile home developments should be put on hold pending those revisions.

Brown's plat received final approval on April 14, 1989, following adoption of the moratorium. Because Brown did not obtain final approval and sell at least one lot prior to imposition of the moratorium, no mobile home permits could be issued to prospective purchasers in Wildwood Estates. Brown, however, could sell lots for the construction of any other occupancy. At least one other developer was affected similarly by the moratorium.

Brown initiated this action under 42 U.S.C. §§ 1983 and 1985 against Crawford County and the Board of Commissioners in their official and individual capacities. His complaint alleges that the defendants conspired to prevent him from developing his property for the intended purpose as a mobile home subdivision, when the Board of Commissioners enacted a temporary moratorium, which prevented issuing mobile home permits in the portion of Crawford County where Brown's property is located. He contends that the moratorium violated his rights under the Fifth and Fourteenth Amendments by taking his property without just compensation and depriving him of procedural and substantive due process, and equal protection. 3 Brown

Page 1006

also claims similar violations under the Georgia Constitution. His complaint seeks compensatory and punitive damages, declaratory and injunctive relief against the defendants as well as attorneys' fees and costs under 42 U.S.C. § 1988.


Review of this case is complicated by docket omissions and unusual procedures employed by the district court. Defendants-appellants represent that three days after the complaint was filed on August 2, 1989, the district court conducted a hearing on Brown's request for temporary injunctive relief. There is no transcript of this hearing in the record submitted to this court. Defendants-appellants state that the district court directed that they either lift the moratorium or be subjected to an injunction accomplishing that result. Defendants-appellants explain that the moratorium was lifted subsequent to the district court's direction and that court was so advised. 4

The docket shows that Chief Judge Wilbur D. Owens, Jr. sent a "Memorandum to Counsel" on his letterhead stationery on October 10, 1989. This memorandum, addressed to Brown's counsel with copies to defendants' counsel and the city attorney, directs the counsel to prepare a delineated discovery order. Chief Judge Owens admonishes the counsel that "[i]f the court does not receive a proposed Rule 16(b) and Rule 26(f) combined order within thirty (30) days, the court will direct all of you to appear in Macon for a conference preparatory to the court['s] fashioning and entering such orders." The discovery order was entered by Chief Judge Owens on January 2, 1990.

Thereafter, full discovery, including depositions of all the individual defendants-appellants comprising the Board of Commissioners, ensued. The joint pretrial order was filed on November 7, 1990. Among the issues for trial, defendants-appellants list: "Whether the individual county commissioners are entitled to absolute immunity in this case." Defendants-appellants include the following caveat concerning trial in the joint pretrial order:

Defendants contend that they are entitled to a judgment as a matter of law as to all of Plaintiff's claims. Defendants therefore do not agree that there is any issue for determination by the jury in this action. Defendants only agree that the issues listed below have been framed by the pleadings. Plaintiff, however, asserts that Defendants' contentions that they are entitled to judgment as a matter of law are erroneous.

The next docket entry available to this reviewing court is the individual...

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