OCEAN ACRES, ETC. v. Dare Cty. Bd. of Health

• Decision Date: 18 May 1981
• Docket Number: No. 79-21-CIV-2.,79-21-CIV-2.
• Citation: 514 F. Supp. 1117
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: OCEAN ACRES LIMITED PARTNERSHIP, etc., Plaintiff, v. DARE COUNTY BOARD OF HEALTH et al., Defendants.

514 F. Supp. 1117

OCEAN ACRES LIMITED PARTNERSHIP, etc., Plaintiff, v. DARE COUNTY BOARD OF HEALTH et al., Defendants.

No. 79-21-CIV-2.

United States District Court, E. D. North Carolina, Elizabeth City Division.

May 18, 1981.

Roy A. Archbell, Jr., Norman W. Shearin, Jr., Shearin, Gaw & Archbell, Kitty Hawk, N. C., for plaintiff.

Howard E. Manning, Jr., Manning, Fulton & Skinner, Raleigh, N. C., Wallace H. McCown, McCown & McCown, Manteo, N. C., for Town of Kill Devil Hills.

Grover G. Wilson, Hudson, Petree, Stockton, Stockton & Robinson, Winston-Salem, N. C., for Dare County Board of Health, County of Dare and Joseph J. Stokes.

Thomas L. White, Jr., Kellogg, White, Evans & Sharp, Manteo, N. C., Gerald F. White, White, Hall, Mullen, Brumsey & Small, Elizabeth City, N. C., for Town of Nags Head.

MEMORANDUM OF DECISION AND ORDER

DUPREE, Chief Judge.

Plaintiff, a land development enterprise in Dare County, North Carolina, challenges the constitutionality of certain land use restrictions adopted and implemented by the defendants. The action is before the court for a ruling on objections by all parties to a memorandum and recommendation entered by United States Magistrate McCotter after a hearing on defendants' motions for summary judgment on the statute of limitations issues. After a complete and de novo review of the pending matters pursuant to 28 U.S.C. § 636(b), the court enters this memorandum of decision and order.

I. Background.

Plaintiff Ocean Acres Limited Partnership ("Ocean Acres") owns a tract of land in Kill Devil Hills, North Carolina adjacent to a body of water known as the fresh pond. The pond itself is owned by the Towns of Kill Devil Hills and Nags Head and is the source of fresh water for the two towns. On June 9, 1972, defendant Stokes, the Dare County Sanitarian, issued a moratorium on the installation of septic tanks within 1,500 feet of the pond, thus temporarily preventing plaintiff from carrying out a planned subdivision development on that portion of its property affected by the moratorium. In order to pursue its development plans, plaintiff installed a central sewage system at an alleged cost of $500,000.00.

The moratorium remained in effect as a policy of the Dare County Board of Health until March, 1978, having been officially reaffirmed by the Board in October, 1975. Prior to the Board's decision to rescind the moratorium, representatives of the Board and the two towns discussed a jointly-funded hydrologic study of the pond and in June, 1978, the three defendants contracted with a private engineering firm for such a study. Meanwhile, the two towns adopted ordinances on May 1, 1978, prohibiting septic tanks within 1,500 feet of the pond, such ordinances to remain in effect until the hydrologic study was completed and superseding ordinances adopted.

The study was completed in March, 1979, and it recommended that no septic tanks be allowed within 500 feet of the pond. The two towns subsequently revised their ordinances to incorporate the study's recommendations. It appears that the 500-foot restrictions remain in effect at this time.

Complaining of the septic tank restrictions in effect since 1972, plaintiff claims that its property has been taken without just compensation and that it has been deprived of property without due process of law.¹ Plaintiff further raises an equal protection claim based on an allegation of discriminatory granting of exemptions from the septic tank prohibition. Finally, plaintiff claims that defendants conspired to deprive plaintiff of its civil rights in violation of 42 U.S.C. § 1985(3). In their motions for summary judgment, defendants contend that a three-year statute of limitations applies to these claims and that the claims accrued in 1972, when the septic tank restrictions were first adopted. Therefore, it is contended that the claims are barred as a matter of law. Before the motion can be addressed on its merits, it must be ascertained whether the constitutional claims may be brought directly under the Constitution or solely pursuant to 42 U.S.C. § 1983.

II. Actions Directly Under the Fourteenth Amendment.

The question of whether plaintiff's claims may be brought directly under the Fourteenth Amendment is a threshold issue to be addressed in determining the limitations periods applicable to this action. Without distinguishing the various claims asserted under the Fourteenth Amendment, the Magistrate read the Fourth Circuit's decision in Cale v. City of Covington, 586 F.2d 311 (4th Cir. 1978), as a blanket barrier to any action for damages under the Fourteenth Amendment. The court adopts the Magistrate's conclusion, but for different reasons to be stated herein.

Plaintiff asserts three Fourteenth Amendment claims. The first alleges a taking of plaintiff's land without just compensation in violation of the Fifth Amendment as applied to the states by the Fourteenth Amendment. The second alleges an unlawful exercise of the police power in the adoption of the septic tank prohibition in violation of the due process clause of the Fourteenth Amendment. The third alleges discriminatory administration of the septic tank prohibition in violation of the equal protection clause of the Fourteenth Amendment. As a fourth claim for relief, plaintiff realleges the three Fourteenth Amendment claims as actionable pursuant to 42 U.S.C. § 1983.

In an inverse condemnation case, the exercise of the police power at issue is accepted as valid and the question for determination is whether the resulting deprivation of property rights is of such magnitude as to be considered a "taking." If the deprivation is a taking, just compensation must be paid. E. g., Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979); Pennsylvania Coal Company v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922). In contrast, the due process claim is based on the contention that the exercise of the police power is not in fact in furtherance of the public health, safety, morals or general welfare and therefore that the regulation deprives plaintiff of property without due process of law and entitles plaintiff to damages. E. g., Nectow v. City of Cambridge, 277 U.S. 183, 48 S.Ct. 447, 72 L.Ed. 842 (1928). The two claims arise from different constitutional rights and must be analyzed separately.

A. The inverse condemnation claim is actionable directly under the Fourteenth Amendment and the "damages" sought are in fact the "just compensation" guaranteed by the Fifth and Fourteenth Amendments. As the Supreme Court stated in an inverse condemnation case,

"the suits were based on the right to recover just compensation for property taken by the United States for public use in the exercise of its power of eminent domain. That right was guaranteed by the Constitution. The fact that condemnation proceedings were not instituted and that the right was asserted in suits by the owners did not change the essential nature of the claim. The form of the remedy did not qualify the right. It rested upon the Fifth Amendment. Statutory recognition was not necessary .... The suits were thus founded upon the Constitution of the United States." Jacobs v. United States, 290 U.S. 13, 16, 54 S.Ct. 26, 27, 78 L.Ed. 142 (1933).

The fact that the present action seeks recovery from local governments rather than from the United States does not diminish the "self-executing" character of the just compensation clause. Carolina Beach Fishing Pier, Inc. v. Town of Carolina Beach, 274 N.C. 362, 372, 163 S.E.2d 363 (1968). See, e. g., Chicago, Burlington and Quincy Railroad Company v. Chicago, 166 U.S. 226, 241, 17 S.Ct. 581, 586, 41 L.Ed. 979 (1897).² Accordingly, the court concludes that the inverse condemnation claim for just compensation may be asserted directly under the Fourteenth Amendment.³ Cf. Amen v. City of Dearborn, 532 F.2d 554 (6th Cir. 1976); City of Inglewood v. City of Los Angeles, 451 F.2d 948, 952 (9th Cir. 1972); Traylor v. City of Amarillo, 492 F.2d 1156, 1157 & n. 2 (5th Cir. 1974); Miller v. County of Los Angeles, 341 F.2d 964 (9th Cir. 1965) (holdings as to jurisdiction directly under the Fourteenth Amendment implicitly recognizing the right to monetary relief).

B. A more difficult question is presented by the due process claim. In a different context numerous courts, including the Fourth Circuit, have held that an action for damages may not be brought directly under the Fourteenth Amendment if foreclosed by the various requirements of 42 U.S.C. § 1983. Cale v. City of Covington, 586 F.2d 311 (4th Cir. 1978); Kostka v. Hogg, 560 F.2d 37 (1st Cir. 1977). The Supreme Court expressly reserved ruling on the question of whether to "imply a cause of action directly from the Fourteenth Amendment which would not be subject to the limitations contained in § 1983." Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 278, 97 S.Ct. 568, 571, 50 L.Ed.2d 471 (1977). All these cases, however, arose in efforts to circumvent limitations inherent in Section 1983. Cale involved an attempt to impose monetary liability on a municipality for the acts of its employee, despite the Supreme Court's holding that "a municipality cannot be held liable under § 1983 on a respondeat superior theory." Monell v. Department of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). The Fourth Circuit appeared to limit its ruling to the respondeat superior issue, 586 F.2d at 313, and found in Section 1983 "a congressional policy that while money damages against an individual may be necessary to enforce the Fourteenth Amendment, they are in certain circumstances inappropriate against municipalities on account of the same act of the same employee." Id. at 317.⁴ Similarly, Mt. Healthy involved an attempt to sue a governmental entity not then considered a "person" under Section 1983 by bringing the action directly under the Fourteenth Amendment.

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