Marine One, Inc. v. Manatee County, 87-3656

• Court: U.S. Court of Appeals — Eleventh Circuit
• Writing for the Court: Before RONEY, Chief Judge, and HILL; RONEY
• Citation: Marine One, Inc. v. Manatee County, 877 F.2d 892 (11th Cir. 1989)
• Decision Date: 19 July 1989
• Docket Number: No. 87-3656,87-3656
• Parties: MARINE ONE, INC., Robert E. Schmidt, Plaintiffs-Appellants, Cross-Appellees, Marine Two, Inc., et al., Plaintiffs, v. MANATEE COUNTY, Manatee County Board of Commissioners, in their official capacity, Edward W. Chance, Vernon Vickers, Kent G. Chetlain, Westwood H. Fletcher, Jr., and Lloyd C. Hagaman, Defendants-Appellees, Cross-Appellants.

Page 892

877 F.2d 892

MARINE ONE, INC., Robert E. Schmidt, Plaintiffs-Appellants Cross-Appellees Marine Two, Inc., et al., Plaintiffs, v. MANATEE COUNTY, Manatee County Board of Commissioners, in their official capacity, Edward W. Chance, Vernon Vickers Kent G. Chetlain, Westwood H. Fletcher, Jr., and Lloyd C Hagaman, Defendants-Appellees, Cross-Appellants.

No. 87-3656.

United States Court of Appeals, Eleventh Circuit.

July 19, 1989.

David P. Ackerman, L. Louis Mrachek, and G. Joseph Curley, West Palm Beach, Fla., for plaintiffs-appellants cross-appellees.

H. Hamilton Rice, County Atty., Brandenton, Fla., Robert Pass, Tampa, Fla., for Manatee County, Manatee County Bd. of Com'rs, et al.

Frances Makemie Toole and John R. Bush, Tampa, Fla., for Edward W. Chance, Vernon Vickers, et al.

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

Before RONEY, Chief Judge, and HILL, Circuit Judge, and MARCUS ^*, District Judge.

RONEY, Chief Judge:

Plaintiffs Robert E. Schmidt and Marine One, Inc. brought an action against Manatee County, Florida and its board of commissioners, and the commissioners in their official capacities for damages under 42 U.S.C.A. Sec. 1983, alleging that the County's rescission of permits authorizing construction of a marina deprived plaintiffs of a property interest without compensation and violated plaintiffs' substantive due process rights. The district court directed a verdict against Marine One, Inc. (Marine One) and entered a judgment for defendants notwithstanding a $1,010,000 compensatory and punitive damage jury verdict for Schmidt. Plaintiffs appeal. We affirm the district court's holding that neither Schmidt nor Marine One had a protectable property interest in these permits.

From 1982 until 1985, plaintiffs operated a marina known as "Marker 50" that was located in Manatee County from 1982 until 1985. Marine One was the "operating entity" which conducted the marina business. Marine Two leased equipment to Marine One. Schmidt was an investor in the operation and Edward Thornley and Richard Pearson ran the day-to-day operations. Marine One had to look for another site to run its operation because the owner of the current site was planning to convert it to condominiums. Plaintiffs planned to build a commercial marina in Cortez, a small village in Manatee County on an inlet from the Gulf of Mexico. Cortez relies on its commercial fish houses for its economic base.

Manatee County ordinances required plaintiffs to obtain two permits. A special permit was required for all piers more than 80 feet in length. The planned marina would have three docks, the longest being 420 feet in length. No permit could be issued if a dock would come closer than 25 feet to the center line of any publicly used channel. A special use permit was required for any commercial development to ensure conformity with the County's comprehensive land use plan. The plan prohibited docks that "hinder navigation" and that "interfere with the use of surrounding properties."

Based on representations by plaintiffs' representatives that the docks would in no way impede the boat traffic into or out of the Cortez fishing area, the Manatee County Board of County Commissioners issued the permits authorizing the land to be developed for this marina and the construction of these particular docks. The permits were consolidated and are referred to collectively as "SP 84-17."

Plaintiffs obtained the other state and federal permits required, Schmidt took title to the property, and construction began on the marina in early March 1985. When construction began, the residents of Cortez complained that the pilings laid for placement of the docks crossed the channel used by fishing vessels to come and go from the Gulf of Mexico and the Cortez fish houses.

In a public hearing on March 26, 1985, the Board issued a "Stop Work Order," which halted construction of the docks and seawall. At the same time, the Board scheduled a meeting for April 12, 1985 to conduct a full public hearing to determine whether the permit should be rescinded. At the meeting, the Board heard arguments from both sides and voted unanimously to rescind the permit.

Before that hearing was held, this action was filed, seeking, among other things, preliminary and permanent injunctive relief against enforcement of the Stop Work Order or other interference with the marina project. The district court scheduled a hearing on plaintiffs' motion for a preliminary injunction for April 17, 1985, but plaintiffs cancelled on the day of the hearing. The motion was never renewed.

Unable to find an alternative location for the marina, plaintiffs continued to operate Marine One at the Marker 50 location until approximately August 1985, when Marine One closed.

At the three-week jury trial, the court directed a verdict against all plaintiffs but Schmidt. As to Schmidt, the court submitted special interrogatories to the jury, which required the jury to determine whether Schmidt had been denied all viable economic use of his "property." When the jury inquired during the course of deliberations as to whether "property" meant Schmidt's land or the permit, the court submitted a revised interrogatory form, over the County's objection, that allowed the jury to find that Schmidt had been denied all viable economic use of either his land or his permit.

The jury answered the special interrogatories by finding that Schmidt had been denied all viable economic use of his permit, but not his land, and that the County's actions in rescinding the permit were arbitrary and capricious. The jury awarded Schmidt compensatory damages in the amount of $300,000 against the County and the individual commissioners, and awarded punitive damages against the individual commissioners.

The district court then granted defendants' motion for judgment notwithstanding the verdict. Edward Thornley, Richard Pearson and Marine Two, a separate corporation, were also plaintiffs in the original action, but only Schmidt and Marine One have appealed.

To prevail under 42 U.S.C.A. Sec. 1983, plaintiffs must show that the action by the governmental body or governmental representative constitutes a violation of a federally protected right. Schmidt and Marine One claim that the County's action of revoking the building permit violated the Fifth Amendment prohibition against taking private property without just compensation and the Fourteenth Amendment requirement of substantive due process. The threshold determination, then, is whether plaintiffs have a property interest protected by the Constitution.

State law creates and defines the parameters of a plaintiff's...