Couf v. DeBlaker

• Decision Date: 07 August 1981
• Docket Number: No. 79-3229,79-3229
• Citation: 652 F.2d 585
• Parties: Robert M. COUF, Mary A. Brown, and Development Finance, Inc., Plaintiffs-Appellants, v. Karleen DeBLAKER, et al., Defendants-Appellees. . Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 585

652 F.2d 585

Robert M. COUF, Mary A. Brown, and Development Finance, Inc., Plaintiffs-Appellants, v. Karleen DeBLAKER, et al., Defendants-Appellees.

No. 79-3229.

United States Court of Appeals, Fifth Circuit.

Unit B

Aug. 7, 1981.

Jack F. White, Jr., St. Petersburg, Fla., for Brown.

Michael L. Kinney, Tampa, Fla., for Development Finance, Inc.

Harrison, Greene, Mann, Davenport, Rowe & Stanton, Oscar Blasingame, Stephen C. Chumbris, St. Petersburg, Fla., for defendants-appellees.

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

Before GODBOLD, Chief Judge, MORGAN and HENDERSON, Circuit Judges.

HENDERSON, Circuit Judge:

The plaintiffs appeal from the entry of a judgment notwithstanding the verdict in favor of the defendants. The suit had its genesis in a Florida zoning dispute, but beyond that there is little agreement among the parties and the issues presented are not clearly delineated. Consequently, it is necessary at the outset to briefly summarize the underlying facts and the history of the litigation.

In 1972 the city of Clearwater, Florida adopted a comprehensive land use plan to guide the long-term growth of the city. Subsequently Pinellas County, in which Clearwater is located, formulated a county-wide plan which was approved by the city in May of 1973 and became effective in January of 1974. The county plan envisioned that future residential development would be limited to no more than thirty dwelling units per acre, except in a core central business district.

On April 30, 1973, Development Finance, Inc. (hereinafter referred to as "DFI") purchased a piece of waterfront property on Turner Street in Clearwater (hereinafter referred to as "the Turner lot"). The parcel was zoned for high density residential use, which meant that it would support up to fifty-four units per acre, assuming the availability of sufficient parking and other amenities. DFI proposed to build twenty-five condominiums in a fifteen or sixteen story building, and proceeded to the point of securing a building permit.

DFI was unable to obtain construction financing, however. Believing that a larger project would be more attractive, Robert Couf, DFI's president and sole shareholder, decided to expand and build seventy-four condominiums. The larger building would have required more ground space, so Couf agreed to buy an adjoining lot, carrying the same zoning classification, from Mary Brown (hereinafter referred to as "the Brown lot").

Late in May of 1974, Couf, who did not know of the new county land use plan, made an appointment to discuss his venture with Paul Bergmann, the City Planning Director. Unfortunately for Couf, on June 6, 1974, before the scheduled meeting, the City Commission of the City of Clearwater (hereinafter referred to as the "City Commission") instructed the Planning Department to recommend that all property within 500 feet of the City's waterfront be "downzoned" ¹ and to refuse to accept any applications for building permits until after making its recommendation. ²

On June 10, 1974, Bergmann met with Couf and told him of the permit moratorium. Despite numerous conferences with Bergmann and Mayor Hougen, Couf was unable to procure a permit. At the City Commission's July 1, 1974 meeting the City Manager recommended that the Turner and Brown lots be downzoned to the medium density residential classification (i. e., twenty-four units per acre) in view of the pending review of the entire waterfront. Couf spoke at the meeting, but the City Commission nonetheless ordered the Planning Department to move forward on the City Manager's recommendation and prohibited it from accepting applications for building permits. ³

On July 19, 1974, Couf, Brown and DFI filed this action in the federal district court, seeking damages pursuant to the provisions of 42 U.S.C.A. §§ 1983, 1985 and 1986. The plaintiffs' theory of recovery developed over the course of the trial, cf. F.R.Civ.P. 15(b) (amendment to conform to evidence), and appears to focus on the charge that the defendants, who are four city commissioners, the mayor, the city manager and the planning and building directors, but not the city itself, deprived them of their property without due process of law. ⁴

Then, on July 31, 1974, Couf and Brown filed a petition for mandamus in the Circuit Court of the State of Florida for Pinellas County to require the city to issue a building permit. On September 27, 1974, the court issued a writ of mandamus directing the city and its officials to accept a building permit application for consideration under the existing zoning classification (i. e., fifty-four units per acre). ⁵ The final order granted Couf thirty days to submit his application for the permit.

Because it was clear in June that an application would have been rejected, the state court excused Couf's failure to then file for a permit. The court's order noted that "(t)he apparent intent, purpose and design of the City of Clearwater to 'down zone' the property in question ... is to be praised," Order at 5-6, but held that because the plaintiffs had "substantially altered their position in reliance upon" the availability of a permit under the old zoning classification the city's "legislative representatives" had abused their discretion. Concluding that the constructive application was denied without good legal cause, the court held that the City Commission's decision was arbitrary.

On October 25, 1974, twenty-eight days after the writ issued, the city and the other defendants appealed, thereby superseding operation of the writ, Fla.App.R. 5.12. The order was subsequently affirmed without opinion. DeBlaker v. Couf, 319 So.2d 209 (Fla.App. 1975). Couf never applied for a permit as provided for in the state court order, and the project failed to materialize.

In the federal action, Mrs. Brown sought to recover the cost of her state court litigation and damages for the decreased value of her property. ⁶ Couf sued for his lost profit on the development, as well as his interest in the Turner lot, which he forfeited when the mortgage was eventually foreclosed. But cf. Southpark Square Ltd. v. City of Jackson, 565 F.2d 338, 343 (5th Cir. 1977), cert. denied, 436 U.S 946, 98 S.Ct. 2849, 56 L.Ed.2d 787 (1978) ("a city would be unduly hamstrung if its permit decision subjected it to potential liability on the basis of financial arrangements independently made by property owners affected by those decisions.").

Although the parties treat this case as involving a change in zoning classification, all the defendants have done before the federal action commenced was communicate their intention to deny a building permit. We are not sure that the denial of a building permit can be the predicate for a federal cause of action, see Southpark Square Ltd., but even if it can we agree that it cannot support a recovery in this case. As the district court's final ordered stated,

Assuming that some duty owed to the Plaintiffs was breached by Defendants under state law, federal law or the United States Constitution, that breach was fully remedied by the immediate state court order which enjoined Defendants to accept and consider Plaintiffs' application for a building permit under the existing ... zoning classification. At that point Plaintiffs had been granted all the relief to which they were entitled.

Order at 6.

On the other hand, when downzoning finally came, it had a more lasting effect on the plaintiffs and their property. Throughout this appeal the plaintiffs seem to suggest that downzoning was accomplished with the actions the defendants took in the summer of 1974, although as we have noted the necessary ordinance was not enacted until well after this suit was initiated, note 5, supra. This lack of precision is unfortunate, but whenever it actually happened, the zoning change cannot support recovery any more than did the permit denial.

Unless an ordinance or classification has the purpose or effect of injuring a protected group or restricting a protected activity, the Constitution places very few substantive limitations on local zoning. Cf. Schad v. Borough of Mount Ephraim, --- U.S. ----, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981) (exotic dancing); Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (family living). Such regulation must be sustained "if it is rationally related to legitimate state concerns and does not deprive the owner of economically viable use of his property." Schad, --- U.S. at ----, 101 S.Ct. at 2182; see Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). ⁷

(L)ocal zoning is a quasi-legislative procedure, not subject to federal juridicial consideration in the absence of arbitrary action.

....

... A zoning commission is a quasi-legislative body. It is not required to make findings of fact or state the reasons for the action taken. Its actions are entitled to a presumption of validity. The only question which federal district courts may consider is whether the action of the zoning commission is arbitrary and capricious, having no substantial relation to the general welfare.

South Gwinnett Venture v. Pruitt, 491 F.2d 5, 7 (5th Cir.) (en banc), cert. denied, 419 U.S. 837, 95 S.Ct. 66, 42 L.Ed.2d 64 (1974). The power to channel growth through zoning is "one of the firmest and most basic of the rights of local control." Stansberry v. Holmes, 613 F.2d 1285, 1288 (5th Cir.), cert. denied, --- U.S. ----, 101 S.Ct. 240, 66 L.Ed.2d 112 (1980), and where a community expresses that power as part of "a rational and understandable effort to deal with a perceived evil," id. at 1289, a federal challenge cannot be sustained in the district court. Id.; Blackman v. City of Big Sandy, 507 F.2d 935 (5th Cir. 1975); South Gwinnett Venture; cf. Developments in the Law Zoning, 91 Harv.L.Rev. 1427, 1443-62, 1550-78 (1978) (substantive limitations on zoning). See...