Hy Kom Development Co. v. Manatee County, 91-782-CIV-T-17A.

• Decision Date: 16 November 1993
• Docket Number: No. 91-782-CIV-T-17A.,91-782-CIV-T-17A.
• Citation: 837 F. Supp. 1182
• Parties: HY KOM DEVELOPMENT COMPANY, Plaintiff, v. MANATEE COUNTY, Defendant.
• Court: U.S. District Court — Middle District of Florida

837 F. Supp. 1182

HY KOM DEVELOPMENT COMPANY, Plaintiff, v. MANATEE COUNTY, Defendant.

No. 91-782-CIV-T-17A.

United States District Court, M.D. Florida, Tampa Division.

November 16, 1993.

Edward D. Foreman, Thomas E. Reynolds, Law Office of Edward D. Foreman, P.A., St. Petersburg, FL, Lee Milich, Lee Milich, P.A., N. Miami, FL, for plaintiff.

Teddy Norris Williams, Manatee County Attorney's Office, Bradenton, FL, John Raymond Bush, Bush, Ross, Gardner, Warren & Rudy, Tampa, FL, for defendant.

ORDER ON DEFENDANT'S SECOND MOTION FOR SUMMARY JUDGMENT

KOVACHEVICH, District Judge.

This cause is before the Court on the Defendant's second motion for summary judgment, filed May 25, 1993, and Plaintiff's response thereto, filed July 27, 1993. By inference from both Defendant's motion itself and Plaintiff's response thereto, it is clear that both parties are relying on Defendant's first motion for summary judgment and Plaintiff's response to that motion and the same are considered in tandem with the instant motion. The second motion is considered on various grounds as set forth below.

The facts of this case have been summarized and set forth in this Court's order, filed March 22, 1993, denying Defendant's first motion for summary judgment, but are repeated herein for clarity. Plaintiff, Hy Kom purchased approximately 3.6 acres of land from Swift Development Corporation, on May 11, 1983, to allegedly construct a 49-unit condominium apartment building. Swift had been issued a building permit for the project on September 1, 1981. On June 23, 1987, Plaintiff received an amended building permit from Manatee County. On July 7, 1987, a Manatee County building official notified Plaintiff that the permit had been declared invalid on the ground that work had been suspended or abandoned. Armed with alleged evidence that work has not been suspended or abandoned, Plaintiff spent the next several months seeking relief through various administrative hearings.

Failing the award of any relief at the county level, Plaintiff sought a writ of common law certiorari from the Circuit Court. On March 13, 1991, Judge Dakan issued an order quashing the decision of the Manatee County Building Official and overturning the decision of the Manatee County Construction Board of Appeals. The Second District Court of Appeal subsequently denied Manatee County's petition for a writ of certiorari. In compliance with the court order, the building official reinstated the building permit on May 6, 1991.

Plaintiff filed the instant action on June 26, 1991, under 42 U.S.C. § 1983 against Defendant, Manatee County, charging that as a direct and proximate result of the County's alleged arbitrary and capricious actions, Plaintiff suffered deprivation of its constitutional rights of due process and equal protection of the laws, in violation of the Fifth and Fourteenth Amendments to the Constitution of the United States. Plaintiff further contends that Defendant implemented a policy or procedure, not for any legitimate purpose connected with the health, safety and welfare of its residents, but as part of its scheme to maliciously prevent Plaintiff from completing the project, in order to acquire the property for a park at a low price. Plaintiff basically claims that the actions of Defendant are the direct and proximate cause of the failure of its project resulting in millions of dollars in losses.

This Court now turns directly to the points raised in Defendant's instant motion and addresses those points one by one. Defendant first directs this Court's attention to Karatinos v. Town of Juno Beach, 621 So.2d 469 (Fla. 4th D.C.A.1993), arguing that it is "significant late authority" bolstering Defendant's position that since the Florida Department of Natural Resources would purportedly not issue a wastewater treatment permit, the Defendant's actions were not the proximate cause of any damage to Plaintiff. This Court has already rejected this argument and agrees with Plaintiff that Defendant is merely rearguing its position.

As to whether Karatinos bolsters Defendant's argument so as to merit its reconsideration, this Court points out to Defendant that Karatinos is only persuasive authority and that that case is factually distinguishable. In Karatinos, no permit was ever granted by the town and a trial was held during which evidence presented as to whether the Department of Natural Resources would have permitted construction on the property at issue in that case. Accordingly, we do not find that case to be "significant late authority" so as to merit this Court's reconsideration of Defendant's motion for summary judgment as to this argument.

Defendant next asserts that Plaintiff has not refuted its empirical evidence that Florida Department of Environmental Regulation (the "DER") will not grant Plaintiff's application for a wastewater treatment plant and that Plaintiff is not able to show facts that demonstrate it will ever be able to construct the condominium. Defendant therefore requests summary judgment pursuant to F.R.C.P. 56(e). Rule 56(e) states in part that:

when a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

As stated by the Supreme Court of the United States in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), "Rule 56(e) therefore requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Id. at 324, 106 S.Ct. at 2553 (emphasis added).

This Court points out that Plaintiff has responded to both of Defendant's motions for summary judgment and that Plaintiff, in its response to Defendant's first motion, set forth the sworn testimony from the deposition of Robert D. Bair supporting its position. (See pages 5-6 of Plaintiff's response to Defendant's motion for summary judgment.) As stated above, this Court considers Defendant's first motion for summary judgment and Plaintiff's response to that motion in tandem with the instant motion. Therefore, Plaintiff has satisfied the requirement of Rule 56(e) and this Court, contrary to Defendant's assertion, and has not "relied almost exclusively upon the Plaintiff's unsworn complaint allegations". Accordingly, this Court cannot grant summary judgment in favor of Defendant for Plaintiff's failing to satisfy the requirement of Rule 56(e).

Next, Defendant argues that summary judgment should be granted because the Plaintiff's claim is not ripe under Williamson Co. Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). This Court will not address this contention as it is moot in light of this Court's order, filed December 3, 1991, which adopted the Magistrate Judge's report and recommendation, filed November 8, 1991, finding "this case to be ripe for federal review on the merits under Williamson ...". The Magistrate Judge's report and recommendation has thus become the law of the case.

Defendant next asserts that Plaintiff's complaint fails to sufficiently allege a claim under 42 U.S.C. § 1983. To state a cause of action under Section 1983, a plaintiff must allege that the defendant, while acting under color of state law, Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572 (1980), deprived the plaintiff of a protected civil or constitutional right, see City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 258, 101 S.Ct. 2748, 2755, 69 L.Ed.2d 616 (1981). Plaintiff, in its complaint, does not allege that Defendant acted "under color of state law". However, the proper motion for failure to state a claim upon which relief can be granted is a motion to dismiss pursuant to F.R.C.P. 12(b)(6) and not a motion for summary judgment under Rule 56. The parties are referred to this Court's order denying Defendant's first motion for summary judgment, filed March 22, 1993, regarding when it is appropriate for a court to grant a motion for summary judgment.

Another argument asserted by Defendant is that it has not deprived Plaintiff of any "property" or any "property right" that would give rise to a cause of action under Section 1983. Plaintiff's response to this argument states that "both Federal and Florida courts recognize a constitutionally protectible interest in a building permit". (See page 4, Plaintiff's response to Defendant's second motion/memorandum for summary judgment.) Both Plaintiff and Defendant offer binding authority to support their positions. However, the fact of the matter is that the precedent from the Eleventh Circuit is difficult to follow and apply and is in apparent conflict.

Defendant argues that since a building permit is not property, relying primarily on Marine One, Inc. v. Manatee County, 877 F.2d 892 (11th Cir.1989) (Marine One I), that this Court should grant summary judgment. In Marine One I, the Eleventh Circuit stated that "state law creates and defines the parameters of a plaintiff's property interest for section 1983 purposes.... Florida law is clear that there is no property right in possession of the building permit. ..." Id. at 894 (citations omitted). The court went on to say that the appropriate remedy under Florida law for rescission of a building permit is "the right to pursue an action for injunctive relief, if the landowner has in good faith made some substantial change in position or has incurred extensive obligations in reliance on the permit so that it would be highly inequitable and unjust not...