Rymer v. Douglas County

• Decision Date: 02 July 1985
• Docket Number: No. 83-8773,83-8773
• Citation: 764 F.2d 796
• Parties: Gary Lee RYMER and Deborah Ann Rymer, Plaintiffs-Appellants, v. DOUGLAS COUNTY, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 796

764 F.2d 796

Gary Lee RYMER and Deborah Ann Rymer, Plaintiffs-Appellants, v. DOUGLAS COUNTY, et al., Defendants-Appellees.

No. 83-8773.

United States Court of Appeals Eleventh Circuit.

July 2, 1985.

Robert D. Feagin, Gary A. Barnes, Seaton D. Purdom, Atlanta, Ga., for plaintiffs-appellants.

Arthur H. Glaser, George Randall Moody, Atlanta, Ga., for Watson & Daniel.

William C. Tinsley II, Douglasville, Ga., for Douglas County Comm. & J. Watson.

Joseph H. Fowler, Douglasville, Ga., for Cochran.

Appeal from the United States District Court for the Northern District of Georgia.

Before GODBOLD, Chief Judge, CLARK, Circuit Judge, and THOMAS ^*, District Judge.

PER CURIAM:

Appellants' claim, brought pursuant to 42 U.S.C. Sec. 1983, arises out of the appellees' issuance of a building permit, which allowed plaintiffs to acquire and build a residence on certain property in Douglas County, Georgia. Appellants maintain that the appellees either knew or should have known that the land was unsuitable for residential use because of a high water table that precluded the use of a septic tank waste disposal system. The district court dismissed plaintiffs' complaint pursuant to Fed.R.Civ.P. 12(b)(6) holding that the plaintiffs could prove no set of facts in support of their claim which would entitle them to relief under 42 U.S.C. Sec. 1983. We affirm.

I. The Underlying Controversy

The appellants' complaint alleged that in 1980, builder/developer Louis J. Menchio obtained approval to build homes in a proposed new subdivision in Douglas County. Defendant Board of Health, however, refused to give approval to one lot in the subdivision, Lot No. 22, because the water table on the lot appeared to be so high as to make it doubtful whether a septic tank waste disposal system was feasible. The Board required Menchio to submit a "plot plan" for No. 22 which would depict proposed improvements designed to make it adequate to support a septic tank system. In furtherance of this requirement, defendant Cochran, the county surveyor, performed a percolation test. This test was approved by defendant Daniel, the senior sanitarian of the Douglas County Board of Health, and therefore a plot plan was prepared for Lot No. 22. The building permit for Lot No. 22 was subsequently issued. Appellants, Gary Lee and Deborah Ann Rymer, then entered into an agreement with Menchio to purchase and construct a home on Lot No. 22. They were never informed of any potential problems in installing a septic tank system on the lot.

Sometime during construction, the subcontractor responsible for installing the septic tank system summoned defendant Daniel to the construction site because of his concern that such a system would not work on the property. Daniel drew a design for the septic tank system which the subcontractor followed. Construction was completed and the Rymers moved into their home in March of 1981. In February of 1982, they noticed what they believed to be sewage bubbling out of the ground near the house. Defendant Daniel confirmed it was sewage and recommended certain measures that could be taken to eliminate the problem, including installation of a sand filter system. However, state officials later told the Rymers that sand filter systems were not permitted for private residences. Meanwhile, defendant Daniel sent letters to the Rymers notifying them that the discharge of sewage onto their property constituted a health hazard and had to be stopped. Subsequent letters threatened legal action if the problem were not remedied. The Rymers then retained a private sanitary engineering firm. The engineering firm told the appellants the septic tank system had been properly installed but that the water table was too high to support such a system. It was their belief that a lowering of the water table in the back of the lot was possible and would perhaps help the situation.

In June of 1982, the Board of Health filed suit against the Rymers in the Superior Court of Douglas County, seeking to enjoin the discharge of sewage. Following a hearing, the court found that the discharge constituted a public nuisance and issued the injunction. Shortly thereafter, appellants spent approximately $10,000 for improvements to remedy the problem, but these efforts were unsuccessful. In December of 1982, appellees cited appellants for contempt of the superior court injunction, and four days later appellants filed this action alleging federal claims pursuant to 42 U.S.C. Sec. 1983 ¹ for deprivation of their property without due process or just compensation in violation of the Fifth and Fourteenth Amendments of the United States Constitution. More specifically, the appellants alleged that the defendants had deprived them of federally protected rights by: failing to conduct appropriate tests on the appellants' property before issuing the building permit; failing to take affirmative steps to correct the design of a septic tank system that the appellees knew or should have known could not function properly; and, failing to follow the applicable county regulations. Appellants further alleged that these actions were part of an established custom to award building permits improperly and were in furtherance of a conspiracy to develop unusable land as residential property in order that they might derive unjust profit in their respective positions as county officials.

II. The District Court's Order and Opinion

The district court, after reviewing the facts and allegations, found that it had jurisdiction, "[a]ccordingly, the Court assumes jurisdiction of this case and will consider defendants' arguments as going to the merits of plaintiffs' complaint." The court then reviewed the applicable case law and concluded,

... the Rymers have failed to plead a constitutional tort that justifies a Sec. 1983 action. Even if defendants knew or should have known that plaintiff's property was unsuitable for a septic tank system of waste disposal and yet proceeded to approve and affirmatively to assist in the construction of such a system, pursuant to an agreement and a public policy favoring development of even unsuitable land, the Court finds that such conduct is not 'sufficiently egregious as to be constitutionally tortious.' ... The Court concludes that plaintiffs can prove no set of facts in support of their claims which would entitle them to relief under Sec. 1983.

III. The Legal Issues in Context

Although 42 U.S.C. Sec. 1983 is a species of tort law, not every violation of state or local law by a governmental body or governmental actor constitutes an invasion of federally protected rights. Plaintiff in order to prevail must show a constitutional violation. See Williams v. Kelley, 624 F.2d 695, 697 (5th Cir.), cert. denied, 451 U.S. 1019, 101 S.Ct. 3009, 69 L.Ed.2d 391 (1981). In this case, appellants, plaintiffs below, alleged three different constitutional violations: that the defendants' actions had resulted in a Fifth Amendment taking; that the defendants' actions had resulted in a deprivation of their rights to substantive due process; ² and that the defendants' actions had infringed upon their right to procedural due process. We will address each of these claims in turn.

A. The Fifth Amendment Taking Claim

Appellants maintain that the appellees' action in wrongfully issuing the building permit upon land which they knew or should have known was unsuitable for a septic tank system resulted in their inability to use the dwelling as a residence. We find no merit to this claim. The just compensation clause of the Fifth Amendment prohibits private property from being taken for public use without just compensation. That clause is made applicable to the states through the due process clause of the Fourteenth Amendment. Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 160, 101 S.Ct. 446, 450, 66 L.Ed.2d 358 (1980). The question of what constitutes a taking has, in many instances proven to be a problem of considerable difficulty. Obviously, when a government entity exercises its power of eminent domain to obtain title to the property through formal condemnation proceedings there has been a taking. See, e.g., Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed.2d 27 (1954). A permanent physical occupation of the property through some state usage or authorization, absent a formal condemnation proceeding, may also be a taking. See, e.g., Loretto v. Teleprompter Manhattan CATV. Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982) (installation of cable television equipment on private property pursuant to state authorization). Where the government condemns a leasehold interest for temporary use, the "taking" includes the value of fixtures and permanent improvements as well as the lessee's cost of moving. United States v. General Motors Corp., 323 U.S. 373, 378, 65 S.Ct. 357, 359, 89 L.Ed.2d 311 (1945). Finally, police power regulations restricting the use of property may in some limited circumstances amount to a taking. See, e.g., Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed.2d 322 (1922) (State regulation prohibiting an owner from mining coal it owned beneath the house of an owner who bought only an interest in the surface).

In this case, in order for there to have been a taking, plaintiffs must allege they have been denied any viable economic use of their property. See Hernandez v. City of Lafayette, 643 F.2d 1188, 1200 (5th Cir.1981); York v. City of Cedartown, 648 F.2d 231, 232 n. 2 (5th Cir.1981). A reduction in value alone arising from regulation of landfills does not constitute a taking. Dirt, Inc. v. Mobile County Commission, 739 F.2d 1562, 1566 (11th Cir.1984); see also Pennsylvania Central Transportation Co. v. New York, 438 U.S. 104, 131, 98 S.Ct. 2646, 2663, 57 L.Ed.2d 631, 653 (1978). Additionally, an otherwise valid exercise of the police power is not a taking simply because the regulation deprives the owner of the most...