Greenbriar, Ltd. v. City of Alabaster, s. 88-7086

Decision Date01 September 1989
Docket NumberNos. 88-7086,88-7204,s. 88-7086
PartiesGREENBRIAR, LTD. and Mary Roensch, Plaintiffs-Appellees, Cross-Appellants, v CITY OF ALABASTER, an Alabama municipal corp., Roger N. Wheeler, Marvin Neal Bailey, Wayne Lucas and Nina W. Kent, Defendants-Appellants, Cross-Appellees. GREENBRIAR, LTD. and Mary Roensch, Plaintiffs-Appellees, v. CITY OF ALABASTER, an Alabama municipal corp., Defendant-Appellant, Roger N. Wheeler, et al., Defendants.
CourtU.S. Court of Appeals — Eleventh Circuit

Parsons, Lee & Juliano, P.C., Robert E. Parsons, Cabaniss, Johnston, Gardner, Dumas & O'Neal, Helen C. Foster, Birmingham, Ala., for defendants-appellants, cross-appellees.

Burr & Forman, F.A. Flowers, III, John F. De Buys, Jr., Mark McCarroll Lawson, Birmingham, Ala., for plaintiffs-appellees, cross-appellants.

Appeals from the United States District Court for the Northern District of Alabama.

Before FAY and ANDERSON, Circuit Judges, and HENDERSON, Senior Circuit Judge.

ANDERSON, Circuit Judge:

The city of Alabaster appeals from a judgment of the district court holding that its rejection of plaintiffs' request for the rezoning of certain property constituted a violation of substantive due process. The district court ordered that the property at issue be rezoned pursuant to plaintiffs' request and awarded $75,000 damages. We find that, as the decision of the City was a final one, this question is ripe for adjudication. Furthermore, we hold that the City's refusal to rezone was not arbitrary and capricious, and hence that plaintiffs suffered no violation of their substantive due process rights. Accordingly, we reverse the judgment of the district court.

I. FACTS

In 1970 the city of Alabaster ("City") first adopted a zoning ordinance. The property at issue in this action, consisting of 76 acres, 1 was zoned multi-family residential, which it remained for 16 years. In October 1986 the city adopted a new zoning ordinance and map, which rezoned the property at issue from multi-family residential to single-family residential.

The 1986 zoning ordinance, which is currently in force, provides for a zoning classification known as "Planned Development District" ("PDD"). A PDD "is a method of development which permits a tract of land to be developed as one lot, rather than separate lots." Zoning Ordinance, City of Alabaster, Article VI, Section 15.1 (1986). The PDD is designed "to encourage coordinated development; to permit higher densities in conjunction with functional open space; to promote efficient use of land; and to promote preservation and enhancement of existing natural landscape features." Id. Uses permitted in a PDD include "multi and single family residential dwellings, townhouses, and accessory structures; and uses permitted in the B-3 Business District [i.e. community shopping district]." Id.

In November 1986, Greenbriar, Ltd. and Mary Roensch ("Greenbriar" or "plaintiffs"), the property owners, submitted a preliminary PDD plan to the City, seeking to have the land at issue rezoned from single-family residential to PDD. The plan proposed that the 76 acres be developed with 49.8 acres as apartments and townhouses, 8.1 acres as retail and commercial, 11.1 acres as single-family, and 2.1 acres as a park. Street rights-of-way would require 5.7 acres. Following consultations with members of the City Council, the Planning and Zoning Commission and the City Building Inspector, a public hearing was held before the Planning and Zoning Commission in January, 1987. At the close of the hearing the plan was rejected by a 5-2 vote.

After the proposal underwent additional revisions, a second hearing before the Planning and Zoning Commission was held in March, 1987. 2 Three votes on the proposal at this meeting--one to reject the proposal, one to approve the proposal, and one to pass the issue to the City Council without a recommendation--resulted in 4-4 ties. The City Council then convened a public hearing on the proposal on March 19, 1987. 3 The Council rejected the proposal by a 5-1 vote.

Under Alabaster's zoning ordinance, the City Council has final authority on the question of rezoning; it is not required to accept the recommendation of the Planning and Zoning Commission. If the City Council refuses to rezone an area PDD, the Planning and Zoning Commission must wait at least six months before reconsidering the same rezoning request. If the City Council rezones an area PDD, the developer must submit a final plan to the Planning and Zoning Commission, which then has exclusive control over amendments and modifications to the plan.

Shortly after the City Council vote refusing to rezone the area PDD, plaintiffs filed this action in district court pursuant to 42 U.S.C. Sec. 1983, seeking damages and injunctive relief and alleging that the City's decision deprived them of due process in violation of the Fourteenth Amendment. The complaint contained no allegations of a taking of property without just compensation. 4

At trial the parties stipulated that the court, rather than the jury, would decide all issues pertaining to damages should the plaintiffs succeed on the question of liability. The court granted the City's motion for a directed verdict as to procedural due process, but denied the motion for a directed verdict as to substantive due process. The court granted Greenbriar's motion for directed verdict on the issue of whether, for purposes of 42 U.S.C. Sec. 1983, the defendants were acting under color of law. At the conclusion of trial, the court submitted to the jury the following special interrogatory:

Was a majority of the Mayor and City Council of the City of Alabaster which denied plaintiffs' PDD zoning application, arbitrary and capricious in reaching their decision? R11:105.

The jury responded in the affirmative, and the court entered judgment for plaintiffs, ordering the City to amend its zoning map and zoning ordinance to rezone the subject property to PDD, and directing the City to determine whether the property would be developed pursuant to Greenbriar's original or amended plan.

The City subsequently moved that the court set aside, alter or amend the order and judgment, contending, inter alia, that the court erred in permitting the jury to determine whether the City acted arbitrarily and capriciously. The court denied the motion, holding that the issue was properly submitted to the jury and that the jury's answer to the special interrogatory constituted a permissible view of the evidence and was "fairly debatable." Greenbriar, Ltd. v. City of Alabaster, No. 87-0708 (N.D.Ala. Feb. 3, 1988), at 12-13. The court adopted the jury finding as the ultimate fact and conclusion of law. After a hearing on the evidence as to damages, the court awarded Greenbriar the sum of $75,000. 5 Finally, the court stayed execution of the order and judgment pending appeal, and approved a supersedeas bond submitted by the City in the amount of $85,000.

The City timely appealed from the judgment. 6

II. RIPENESS

The Constitution protects against zoning decisions which take property without just compensation, U.S. Const., Amend. V. The parties here do not deny that final zoning decisions are also subject to substantive due process scrutiny, i.e., such decisions must not be arbitrary and capricious so as to amount to an abuse of governmental power. See Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 121, 71 L.Ed. 303 (1926); Spence v. Zimmerman, 873 F.2d 256, 258-62 (11th Cir.1989); Bello v. Walker, 840 F.2d 1124, 1128-30 (3d Cir.1988); 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). See also Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 3122-23, 87 L.Ed.2d 126 (1985). Whether the violation alleged is a taking without just compensation or a deprivation of substantive due process, the decision of a municipality is not ripe for review unless that decision is final and definite with respect to the property at issue. 7 "Until a property owner has 'obtained a final decision regarding the application of the zoning ordinance and subdivision regulations to its property,' 'it is impossible to tell whether the land retain[s] any reasonable beneficial use or whether [existing] expectation interests ha[ve] been destroyed.' " MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 106 S.Ct. 2561, 2566, 91 L.Ed.2d 285 (1986) (quoting Williamson County, 105 S.Ct. at 3116, 3118, n. 11).

In this case, plaintiffs assert only a substantive due process claim; they make no claim that there has been a taking without just compensation. It is clear that resolution of the substantive due process inquiry "depends, in significant part, upon an analysis of the effect the Commission's application of the zoning ordinance and subdivision regulations had on the value of respondent's property and investment-backed profit expectations. That effect cannot be measured until a final decision is made as to how the regulations will be applied to respondent's property." Williamson County, 105 S.Ct. at 3123. Accordingly, before addressing the substantive merits of the City's claim, we must consider whether the City's rejection of Greenbriar's rezoning plan was final. 8

In determining whether an administrative agency or local government body has reached a final decision regarding the particular land in question, courts have found an absence of finality where property owners did not avail themselves of the opportunities provided by state or federal statute to seek variances or waivers from zoning decisions, see, e.g., Williamson County, 105 S.Ct. at 3117-18; Hodel v. Virginia Surface Mining & Reclamation Association, Inc., 452 U.S. 264, 297, 101 S.Ct. 2352, 2371, 69 L.Ed.2d 1 (1981), or where the property owners had not submitted a plan for development of the property prior to the...

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