Spence v. Zimmerman

• Decision Date: 17 May 1989
• Docket Number: No. 88-3250,88-3250
• Parties: Robert A. SPENCE, Margaret A. Spence, Plaintiffs-Appellants, v. Walter R. ZIMMERMAN, Katherine B. Zimmerman, City of Clearwater, a municipal corporation, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 256

873 F.2d 256

Robert A. SPENCE, Margaret A. Spence, Plaintiffs-Appellants, v. Walter R. ZIMMERMAN, Katherine B. Zimmerman, City of

Clearwater, a municipal corporation, et al.,

Defendants-Appellees.

No. 88-3250.

United States Court of Appeals,

Eleventh Circuit.

May 17, 1989.

Jere M. Fishback, Kleinfeld & Fishback, St. Petersburg, Fla., for plaintiffs-appellants.

Milton A. Galbraith, Jr., City Attorney's Office, City of Clearwater, Clearwater, Fla., for City of Clearwater, Shoemaker, Haesaker & Bethel.

Anthony J. Griffith, Fowler, White, Gillen, Boggs, Villareal & Banker, Clearwater, Fla., for Zimmermans.

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

Before JOHNSON and EDMONDSON, Circuit Judges, and NICHOLS ^*, Senior Circuit Judge.

EDMONDSON, Circuit Judge:

Robert and Margaret Spence, plaintiffs below, appeal from the district court's order granting summary judgment to defendants for claims based on 42 U.S.C. section 1983 and pendant state claims. We affirm.

Background

In 1979 the Spences applied to the City of Clearwater, Florida for a building permit for a single family home in a residential subdivision. In their application, they said that they would be building the house themselves and wished to complete only a portion of the structure before moving in; when the Spences wanted to move in, they would apply to the City for a Temporary Certificate of Occupancy ("TCO"). The City issued the building permit, and Mr. Spence began work at the job site; but six years later construction had progressed so slowly that the structure was still largely incomplete. ¹ In 1984 the City declined to issue a TCO, and in 1985 the City told the Spences that their building permit would be revoked if specific items were not completed within six months. Before the six months passed the Spences contracted for the sale of the partially finished house. ²

Our Standard of Review

"Rule 56(c) mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986) accord Kramer v. Unitas, 831 F.2d 994 (11th Cir.1987). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (emphasis in original). The nonmovant need not be given the benefit of every inference but only of every reasonable inference. Brown v. City of Clewiston, 848 F.2d 1534, 1540 n. 12 (11th Cir.1988). As the Supreme Court noted in Anderson, "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 250-51, 106 S.Ct. at 2511 (citations omitted) (emphasis added); accord Brown v. City of Clewiston, 848 F.2d at 1534. "Summary judgment procedure is properly regarded not as a disfavored procedural short cut, but rather as an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy and inexpensive determination of every action.' " Celotex, 477 U.S. at 327, 106 S.Ct. at 2555 (quoting Fed.R.Civ.P. 1); accord Barnes v. Southwest Forest Industries, Inc., 814 F.2d 607, 609 (11th Cir.1987). Civil Rights Violations Under 42 U.S.C. 1983.

A. SUBSTANTIVE DUE PROCESS CLAIM

1. The Temporary Certificate of Occupancy

The Spences assert that the City's refusal to issue a TCO deprived them of property without substantive due process. Although the contours of substantive due process are vague, no party in this case denies that substantive due process rights exist or that substantive due process can apply to land use decisions. The substantive due process doctrine proscribes "deprivation of a property interest for an improper motive and by means that were pretextual, arbitrary and capricious, and ... without any rational basis." Hearn v. City of Gainesville, 688 F.2d 1328, 1332 (11th Cir.1982), accord Anthony v. Franklin, 799 F.2d 681, 684 (11th Cir.1986).

To support a claim under the fourteenth amendment for deprivation of property without due process of law, the Spences must first establish that they had a valid "property interest" in some benefit that was protectible under the fourteenth amendment at the time they were deprived. Scott v. Greenville County, 716 F.2d 1409, 1418 (4th Cir.1983). Mere abstract need or desire for a benefit will not create a protectible property interest; instead there must be a legitimate claim of entitlement to the expected benefit. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). No property interests are created by the Constitution; such interests are created by "existing rules or understandings that stem from an independent source such as state law--rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Id. We conclude that the Spences never had a property interest in a TCO.

The relevant rule is section 109.3 of the Standard Building Code, used by the City of Clearwater, stating that "[a] temporary certificate of occupancy may be issued for a portion or portions of a building which may be safely occupied prior to final completion of the building." (emphasis added). In April 1984 when the Spences applied for the TCO, they admitted that the structure was incomplete and unsafe and agreed to perform the essential work if the City would allow them to move in. At that time, necessary electrical panels and circuits were absent; the hot water heater, stove, bathing facilities and heating system were missing; interior walls were unfinished; and no insulation existed inside or out.

The Spences claim that after they submitted their application, the City bowed to pressure from the subdivision's homeowners' association and illegally increased the TCO requirements to include certain requirements that were also in the subdivision's restrictive covenants. The Spences admit they never met reasonable minimum housing code standards for safe occupancy of the building. For example, they never installed a shower facility, a heating system other than a small fireplace, a cooking stove, an electrical panel connected with the electrical power supply, interior walls or insulation. The Spences do not dispute that the City had every right to require that they meet reasonable minimum safety requirements before a TCO would be issued. They take issue instead with the City's addition of requirements that the Spences claim go beyond safety requirements for the structure.

In Littlefield v. City of Afton, 785 F.2d 596, 602 (8th Cir.1986), the Eighth Circuit held that state law creates a constitutionally protectible property interest in a building permit if (1) the municipality lacks discretion and must issue a building permit to an applicant who complies with the statutory requirements and (2) the applicant has fulfilled the requirements. Accord Carolan v. City of Kansas City, 813 F.2d 178, 181 (8th Cir.1987) (noting that both conditions must be met before a constitutionally protected property interest in a building permit arises). We agree with the Eighth Circuit and extend its reasoning to TCOs.

We note first that the Building Code states that a TCO "may be issued," indicating that the municipality has discretion whether to issue the TCO. See Sullivan v. Town of Salem, 805 F.2d 81 (2d Cir.1986) (no legitimate expectation or entitlement where statutory authority to have subdivision roads accepted is couched in discretionary "may" and not mandatory "shall" language). We know of no Florida court decision holding that a municipality must provide for TCOs or if they are provided for that their issuance is mandatory in certain circumstances. The Spences have thus failed to meet the first part of the test.

The Spences also have failed to make any showing that they met the safety requirements for a TCO; therefore, they do not meet the second part of the test. The Spences have not demonstrated that but for the alleged addition of new and improper TCO requirements, the city's officers would have been required to grant them the TCO; therefore they have shown no legitimate claim of entitlement to the TCO. See Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54, 59 (2d Cir.1985). The City could legitimately require the Spences to meet reasonable safety standards before issuing them a TCO. Even if the City could not legitimately ask that additional requirements unrelated to safety be met before issuing a TCO, the Spences' interest in the TCO was nothing more than an abstract need or desire for a benefit until they met at least the minimum requirements for the TCO. ³ Such abstract need or desire does not amount to a property interest that is protectible under the due process clause. The district court correctly granted summary judgment on this issue. See Roth, 408 U.S. at 577, 92 S.Ct. at 2709; Yale Auto Parts, 758 F.2d at 60.

2. The Building Permit

By a March 1, 1985 letter, Building Director Edward Bethel told the Spences that unless various conditions were met within six months--installing a driveway, sodding the yard, finishing the exterior of the structure, installing sidewalks, and removing all construction materials from the outside of the structure--the building permit would be revoked. The Spences, seemingly unable to meet these conditions despite the structure having been under construction for six years, contracted to sell the incomplete structure before the six months expired. The sale...