Tari v. Collier County

• Decision Date: 10 July 1995
• Docket Number: No. 94-2577,94-2577
• Parties: Mathias L. TARI; Helen A. Tari, Plaintiffs-Appellants, v. COLLIER COUNTY; Burt L. Saunders; Max A. Hasse, Jr.; Richard S. Shanahan; Michael J. Volpe, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1533

56 F.3d 1533

Mathias L. TARI; Helen A. Tari, Plaintiffs-Appellants, v. COLLIER COUNTY; Burt L. Saunders; Max A. Hasse, Jr.;

Richard S. Shanahan; Michael J. Volpe, et al.,

Defendants-Appellees.

No. 94-2577.

United States Court of Appeals, Eleventh Circuit.

July 10, 1995.

David Allen Theriaque, Robert C. Apgar, Tallahassee, FL, for appellants.

Gregory W. Hootman, Elinore E. Erben, Sarasota, FL, for appellees.

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

Before DUBINA, Circuit Judge, RONEY and ESCHBACH ^*, Senior Circuit Judges.

ESCHBACH, Senior Circuit Judge:

Mathias Tari and his wife ("Tari") brought this action against Collier County, the Collier County Commissioners in their official capacities, and the members of the Collier County Code Enforcement Board in their official capacities ("the County") for the County's allegedly unconstitutional determination that the Tari's were operating a fruit tree nursery on their property in violation of a county zoning ordinance. Tari ¹ appeals the district court's determination that this claim was not ripe for adjudication. We affirm.

I.

In 1981, Tari opened a wholesale and retail fruit tree nursery business in Collier County. This operation of a nursery on his property allegedly violated Collier County Zoning Ordinance 82-2. On February 19, 1989, Tari received a Notice of Violation from a Collier County Code Enforcement Investigator after two investigators had purchased a red rose bush from Tari a few days earlier. The Notice provided that "[a]ll wholesale and retail operations must cease at the above location and all signs must be removed IMMEDIATELY upon receipt of this notice." The Notice went on to state that "[a]ny person who violates this zoning ordinance or fails to comply with any of the requirements shall upon conviction thereof be fined, or imprisoned, or both as provided by law and in addition shall pay all costs and expenses involved in the case. Each day such a violation continues shall be considered a separate offense." ² After consulting with an attorney, Tari closed down the nursery.

Tari then contacted several individuals within the Zoning Department to investigate the status of his case and to discuss his options. Investigator William Smith and Code Enforcement Director Richard Clark both advised Tari in person and over the phone that if he did not agree with the investigators' interpretation of the zoning ordinance, he could have the matter reviewed by Kenneth Baginski, the Collier County Zoning Director. Tari instead asked County Commissioner Anne Goodnight to investigate the Notice of Violation. On March 23, 1989, Tari received a letter from Assistant County Attorney Brenda Wilson informing him that the County Attorney's Office was researching his matter to provide a legal opinion to Commissioner Goodnight as to whether Tari was actually in violation of the zoning ordinance. After a series of phone conversations with Tari, Wilson sent another letter on June 8, 1989 confirming her explanation to Tari of the County's two alternative methods of enforcing a zoning violation. According to the letter, one method of enforcement is to prosecute a zoning violation in County Court as a misdemeanor. Such prosecution, however, would not take place "until such time as our opinion is completed and the State Attorney's Office is directed to proceed." Wilson further explained that the statement on Tari's Notice of Violation which indicated that each day the nursery remained in operation was a separate offense "does not mean that fines are accruing for each day you operate in violation. It simply means that each day of violation may be separately investigated and separately cited within an Information...." A second method of enforcement, according to Wilson's letter, is to take the zoning violation before the Code Enforcement Board. "All cases brought before the Code Enforcement Board are based on evidence of prior violations, but fines are only assessed prospectively. If a defendant is found to be in violation, an Order to Comply is entered and fines only begin to run upon non-compliance after the date set for compliance by the Board. No fines are assessed retroactively." On July 6, 1989, Wilson submitted her legal opinion to Commissioner Goodnight in which she concluded that Tari's use of the property violated the zoning ordinance. After the County issued a second Notice of Violation and attempted to schedule a hearing before the Code Enforcement Board, Tari chose to file suit against the County in state court on October 10, 1989. ³ In his amended complaint, Tari sought damages and an injunction prohibiting the County from applying the zoning ordinance to his property.

On November 7, 1989, the case was removed to federal court. The county moved to dismiss Count V, which alleged an as applied arbitrary and capricious due process claim and Count VI, which alleged a just compensation temporary takings claim, of Tari's complaint on ripeness grounds. According to the County, it had not made a final decision regarding the zoning violation when the notice was issued on February 14, 1989 and therefore the district court lacked subject matter jurisdiction under Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). The district court denied this motion. At the preliminary pretrial conference held on July 7, 1993, the County again raised the issue of ripeness in a motion for summary judgment, and the district court referred the matter to a magistrate judge to conduct an evidentiary hearing on the issue. On November 3, 1993, the magistrate judge issued a report and recommendation in which he determined that the complaint was ripe. The district court rejected the magistrate's recommendation on February 28, 1994, and dismissed the complaint on the grounds that Counts V and VI were not ripe for adjudication, and the court thus lacked jurisdiction over the remaining state law claims. A timely notice of appeal was filed.

II.

The only issue before us concerns the ripeness of Counts V and VI of Tari's amended complaint. "The question of ripeness 'goes to whether the district court had subject matter jurisdiction.' " Reahard v. Lee County, 30 F.3d 1412, 1415 (11th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1693, 131 L.Ed.2d 557 (1995) (quoting Greenbriar Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 (11th Cir.1989)). Thus, we review the issue de novo. Id., 30 F.3d at 1415.

In an as applied arbitrary and capricious due process claim, a plaintiff claims that the application of a zoning regulation to his property is arbitrary and capricious, does not bear a substantial relation to the public health, safety, morals or general welfare, and is therefore an invalid exercise of the police power. Eide v. Sarasota County, 908 F.2d 716, 721 (11th Cir.1990), cert. denied, 498 U.S. 1120, 111 S.Ct. 1073, 112 L.Ed.2d 1179 (1991). To remedy such a claim, a court can issue an injunction preventing the unconstitutional application of the regulation to the plaintiff's property, as well as award damages to compensate for the effects of the application. Id. at 722. A just compensation temporary takings claim, on the other hand, seeks money damages for the value of the property rights taken by the application of a regulation. Id. at 720. To establish a violation of the just compensation clause, a property owner "must demonstrate that his property was 'taken,' i.e., that the regulation 'goes too far,' and that there is no provision to award him just compensation." Id., (citing MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 348, 106 S.Ct. 2561, 2566, 91 L.Ed.2d 285 (1986)).

For either claim to be considered ripe for adjudication, "the governmental entity charged with implementing the regulations" must have reached a "final decision regarding the application of the regulations to the property at issue." See Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 186, 105 S.Ct. 3108, 3116, 87 L.Ed.2d 126 (1985); ⁴ see Eide, 908 F.2d at 724. A final decision is made when the "initial decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury." Williamson, 473 U.S. at 193, 105 S.Ct. at 3120. As the Court explained in MacDonald, Sommer & Frates in the context of a just compensation claim, "[a] court cannot determine whether a regulation has gone 'too far' unless it knows how far the regulation goes." Id., 477 U.S. at 348, 106 S.Ct. at 2566. ⁵ Similarly, in an as applied arbitrary and capricious claim, "[i]f the authority has not reached a final decision with regard to the application of the regulation to the landowner's property, the landowner cannot assert an as applied challenge to the decision because, in effect, a decision has not yet been made." Eide, 908 F.2d at 725. ⁶ Of course, requiring a landowner to wait until the County has made a final decision to apply a zoning ordinance to his property does not mean that he has to exhaust his administrative remedies and appeal the final ruling of the initial decisionmaker. Williamson, 473 U.S. at 193, 105 S.Ct. at 3119; Greenbriar Ltd., 881 F.2d at 1574 n. 8. If, however, other actors can still "participate in the [Zoning] Commission's decisionmaking," then a final decision has not yet been made. Id.

Applying these legal principles to the instant case, it is apparent that the County had not made a final decision to apply the zoning ordinance to Tari's property by sending the Notice of Violation on February 14, 1989. Despite the language in the Notice which instructed Tari to cease his operations immediately, it was made obvious to him that the decision of the Code Enforcement Investigator to send the Notice, much like the decision of a police officer to make an arrest, was not a final decision to apply the zoning ordinance to his property. ⁷ Smith and Clark...