New Port Largo, Inc. v. Monroe County, 95-4142

• Citation: 95 F.3d 1084
• Decision Date: 25 September 1996
• Docket Number: No. 95-4142,95-4142
• Parties: 27 Envtl. L. Rep. 20,170 NEW PORT LARGO, INC., a Florida Corporation, Plaintiff-Appellant, Charles H. Netter, et al., Plaintiffs, v. MONROE COUNTY, a political subdivision of the State of Florida, et al., Defendants-Appellees. Eleventh Circuit
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1084

95 F.3d 1084

27 Envtl. L. Rep. 20,170

NEW PORT LARGO, INC., a Florida Corporation, Plaintiff-Appellant Charles H. Netter, et al., Plaintiffs, v. MONROE COUNTY, a political subdivision of the State of Florida, et al., Defendants-Appellees.

No. 95-4142.

United States Court of Appeals,Eleventh Circuit.

Sept. 25, 1996.

Michael R. Seward, Law Office of Michael R. Seward, Key Largo, FL, Jeffrey B. Crockett, Aragon Martin, Burlington & Crockett, P.A., Miami, FL, for Appellants.

Alan G. Greer, James W. Middleton, Floyd, Pearson, Richman, Greer, Weil, Brumbaugh & Russomanno, P.A., Miami, FL, James T. Hendrick, Morgan & Hendrick, Key West, FL, for Appellees.

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

Before EDMONDSON, Circuit Judge, and FAY and GIBSON ^*, Senior Circuit Judges.

EDMONDSON, Circuit Judge:

New Port Largo, Inc. (NPL) appeals the district judge's rejection, after a bench trial, of the claims that Monroe County violated NPL's rights under the takings clause and the "substantive" component of the Fourteenth Amendment's due process clause. This case was before us on appeal previously. ¹ Today, we affirm the district court's rejection of NPL's substantive claims.

I. Background

The facts of this case have been set out in earlier proceedings and will not be repeated here at length. ² Instead, we present the following background relevant to our disposition of this case.

NPL contends that the rezoning of its beachfront property, a "breakwater" in Monroe County (the "property"), requires compensation from the County. NPL purchased the property from a private trust in 1979, before the contested PA rezoning. The private trust had acquired the property after the land was dredged from beneath the water for the purpose of creating a landing strip that would also shelter some previously existing beachfront lots from harsh weather. The rezoning from RU-2 (residential duplex use) to PA (private airport use) in 1980, shortly after NPL's purchase.

After the property was rezoned to PA, NPL brought suit in Florida state court in 1986, alleging that the procedures by which the property was rezoned were invalid according to the County's Major Development Project Ordinance. NPL also contended that the rezoning was a taking and violated due process. NPL prevailed in the effort to invalidate the zoning (as NPL had prevailed in 1984 in a suit by the County contesting the ownership of the property). Here, NPL asserts that, while the title suit was pending, the property was illegally occupied by one LaLonde, the operator of a private airport. NPL contends that LaLonde held over beyond the end of his lease on the advice of the County, during which time he paid to the County, and the County accepted, continued payments for the use of the property. NPL now seeks to recover the value of the land during the time the regulation limiting its use was in effect.

NPL sued a number of defendants on a number of theories. Now, the only remaining defendant is Monroe County, against whom NPL asserts claims for a temporary taking of property in violation of the Fifth Amendment and a deprivation of due process in violation of 42 U.S.C. § 1983. After a bench trial, the district court granted judgment in full to the County.

II. The Takings Issues

Plaintiff argues several substantive theories in support of its claim that its property has been taken without compensation in violation of the Fifth Amendment. NPL contends that Monroe County (1) effectively deprived NPL of the right to exclude others; (2) physically occupied NPL's property; (3) deprived NPL of all economically viable uses of its property; and (4) induced NPL to rely in good faith on the existing zoning. We reject each of these contentions in turn. ³

A. Deprivation of the Right to Exclude

NPL argues that the County's action constitutes a deprivation of the right to exclude. See generally Kaiser Aetna v. United States, 444 U.S. 164, 179-80, 100 S.Ct. 383, 393, 62 L.Ed.2d 332 (1979) ("[W]e hold that the 'right to exclude,' so universally held to be a fundamental element of the property right, falls within this category of interests that the government cannot take without compensation...."). NPL's argument here is that by rezoning to airport use, thus precluding all use of the property but as a private airport, the County effectively "circumvent[ed] eminent domain through its zoning power." The County, according to NPL, zoned private property so it could only be used for the public good; in essence, the property would function as publicly owned property.

The County's act of rezoning the property to private airport was not, in itself, a deprivation of the right to exclude. NPL nowhere contends that, as a matter of law, the rezoning to private airport required it to admit the public. Because the property could have remained dormant, consistent with the PA zoning, NPL cannot argue that the rezoning was a deprivation of the right to exclude in the traditional sense.

Thus, NPL presses a more creative argument. In support of its theory that it was basically forced to invite the public onto its land, NPL relies on Rippley v. City of Lincoln, 330 N.W.2d 505 (N.D.1983), which found a taking where residential property was rezoned for "public use." The North Dakota court reasoned that the rezoning had "the purpose and practical effect of appropriating private property for public uses without giving the landowners the constitutionally required compensation." Id. at 508-09.

The Rippley case is unpersuasive as authority for this particular plaintiff for a number of reasons, but suffice it to say that the Rippley rezoning allowed only public uses (such as school, park, sewage treatment plant, and so on). There, the property would have yielded no revenue unless the City of Lincoln decided to purchase it. Id. at 508. Otherwise, the Rippley plaintiffs could use their property only by allowing the public access free of charge: all residential and commercial uses were prohibited. Id. Here, regardless of Plaintiff's chances of ever turning a profit, see below Part II.B, Plaintiff remained free to transact some business, for profit, with the public at large. Thus, we reject the argument that the rezoning was a de facto condemnation. The reasoning of Rippley, even were we to conclude it is persuasive, does not require compensation here.

Plaintiff's analogies to Nollan v. California Coastal Comm'n, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987), and Dolan v. City of Tigard, 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994), are also inapposite. In these cases, a state had demanded that a person open his or her property to public traffic, again without compensation. That fact distinguishes NPL's situation: the regulation in this case told NPL how it could use the property for profit, but did nothing to require NPL to open its property to the public for use just as the public wished.

B. The Physical Occupation

NPL alleges that the County "commandeered" the property by "conspiring" with LaLonde, the airport tenant, to ensure his continued occupation of the property beyond the expiration of his lease, and by accepting rents from LaLonde, thereby exercising dominion over property which was actually NPL's. We conclude that NPL is, at this time, due no compensation on this "physical occupation" theory.

By now it is beyond question that a permanent physical occupation of private property by the state constitutes a taking for which a landowner must be compensated. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015, 112 S.Ct. 2886, 2893, 120 L.Ed.2d 798 (1992) (takings clause requires compensation for "regulations that compel the property owner to suffer a physical 'invasion' of his property"); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 434, 102 S.Ct. 3164, 3175, 73 L.Ed.2d 868 (1982) ("[W]hen the character of the governmental action is a permanent physical occupation of property, our cases uniformly have found a taking to the extent of the occupation....") (citations and internal quotation marks omitted). We point out, however, that NPL's property has not been physically occupied in the traditional sense. Loretto is an inapt analogy: the landowner there could not exclude the cables from his property, at any cost; here, the airport zoning allowed NPL, if it chose, to let the property sit completely empty. The County did not directly physically occupy anything. Cf. id. at 436, 102 S.Ct. at 3176 ("[S]uch [a physical] occupation is qualitatively more severe than a regulation of the use of property....").

And, we decline now to address NPL's variation on this theory: that the County effected a physical occupation by "conspiring" with LaLonde to ensure LaLonde's continued presence on NPL's land and receiving rents on that land. ⁴ Assuming that the takings clause would mandate compensation for rents unlawfully received by a governmental entity for land not belonging to it, NPL has failed to show that a claim of this nature is now ripe. Specifically, nothing has been called to our attention in the record to show that NPL, by state law procedures, tried and failed to get "just compensation" for this rent-taking activity--which we see as involving a different theory from that underlying the regulatory "taking" accomplished by the zoning ordinance. See generally Williamson, 473 U.S. at 195, 105 S.Ct. at 3121 ("[A] property owner has not suffered a violation of the Just Compensation Clause until the owner has unsuccessfully attempted to obtain just compensation through the procedures provided by the State for obtaining such compensation...."). With no indication that Florida property law or tort law deny recourse to one whose property is unlawfully leased by someone, including a government subdivision, to a third party, we cannot consider whether the Fifth Amendment would allow some compensation for that act.

C. Deprivation...