Villas of Lake Jackson, Ltd. v. Leon County

• Decision Date: 08 September 1997
• Docket Number: No. 95-3698,95-3698
• Citation: 121 F.3d 610
• Parties: 11 Fla. L. Weekly Fed. C 518 VILLAS OF LAKE JACKSON, LTD.; Richard L. Pelham; Equity Resources, Inc.; Lake Jackson, Ltd.; Plaintiffs-Appellants, Public Bank, a Florida banking corporation, Intervenor-Plaintiff, v. LEON COUNTY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 610

121 F.3d 610

11 Fla. L. Weekly Fed. C 518

VILLAS OF LAKE JACKSON, LTD.; Richard L. Pelham; Equity Resources, Inc.; Lake Jackson, Ltd.; Plaintiffs-Appellants Public Bank, a Florida banking corporation, Intervenor-Plaintiff, v. LEON COUNTY, Defendant-Appellee.

No. 95-3698.

United States Court of Appeals Eleventh Circuit.

Sept. 8, 1997.

E.C. Deeno, Kitchen, Larry D. Simpson, Kitchen, Judkins, Simpson & High, Thomas G. Pelham, Shaw P. Stiller, Apgar, Pelham & Pfeiffer, Tallahassee, FL, for Plaintiffs-Appellants.

Gregory T. Stewart, John C. Cooper, Tallahassee, FL, for Defendant-Appellee.

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

Before BIRCH, Circuit Judge, and RONEY and FARRIS ^*, Senior Circuit Judges.

RONEY, Senior Circuit Judge:

The plaintiff landowners here are attempting to establish a constitutional cause of action against the County because the rezoning of the landowners' real property took away their right to build high-density apartment complexes. On summary judgment, in a comprehensive and well-reasoned 62-page opinion, the Magistrate Judge to whom the case was submitted held that

(1) the due process taking claim fails because there is no such federal cause of action independent of a claim for relief under the Takings Clause of the Constitution,

(2) the arbitrary and capricious due process claim fails because the ordinances challenged are rationally related to a legitimate governmental interest, and

(3) the equal protection claim fails for lack of evidence.

We affirm.

As to the other two counts of the complaint alleging two additional causes of action, (a) landowners do not appeal the dismissal of their Takings Clause claim on ripeness grounds, or (b) the refusal of the district court to exercise supplemental jurisdiction over their state law inverse condemnation claim.

The most significant holding on this appeal is that, other than a due process claim based on arbitrary and capricious action, there is no "substantive due process takings" cause of action available in such a case, separate and apart from a cause of action under the Takings Clause of the United States Constitution. This decision is based upon Supreme Court cases which overtake some suggestions made in prior Eleventh Circuit opinions as dictum, but is not contrary to any prior holdings of this Circuit and is in accord with our most recent decisions.

In 1972 and 1973, landowners, including some predecessors in title to the current appellants, purchased 165 acres of land on the shore of a large lake in Leon County. Of the 165 acres, all buildable property has been developed except for the tract at issue in this case, asserted to comprise 13 or 30 acres. In 1989, based on concerns for the impact of overdevelopment on the lake, Leon County rezoned the tract from an intense development category allowing apartment complexes of 43.6 units per acre to single family housing.

Thus, by this "rezoning," the landowners were deprived of the right to build high density apartment houses, a right they alleged was "vested" under state law because of their reliance upon prior regulatory activity of the County.

(1) "DUE PROCESS TAKINGS" CLAIM

The Takings Clause of the Fifth Amendment provides: "nor shall private property be taken for public use, without just compensation." U.S. Const. amend. V. In this appeal, the landowners frame this claim, not under that provision, but as one for a "due process taking" alleged as a species of substantive due process noted by prior opinions of this Court. See Bickerstaff Clay Products Co. v. Harris County, Georgia, 89 F.3d 1481, 1490 n. 16 (11th Cir.1996); Restigouche, Inc. v. Town of Jupiter, 59 F.3d 1208, 1211 n. 1 (11th Cir.1995); Tari v. Collier County, 56 F.3d 1533 (11th Cir.1995); Reahard v. Lee County, 30 F.3d 1412, 1415 n. 7 (11th Cir.1994); Corn v. City of Lauderdale Lakes, 997 F.2d 1369, 1374 (11th Cir.1993); Reahard v. Lee County, 968 F.2d 1131, 1135 (11th Cir.1992); Executive 100, Inc. v. Martin County, 922 F.2d 1536, 1540 n. 11 (11th Cir.1991); Eide v. Sarasota County, 908 F.2d 716, 721 (11th Cir.1990).

In essence, landowners argue that under the due process clause they may challenge the taking that occurs when a specifically recognized property right, vested under state law, is taken away--even though they might still retain enough use of the property to avoid a taking under the Takings Clause if you considered the parcel as a whole--because the due process clause protects each of those specific, finite, property rights in the entire bundle of rights associated with a piece of property.

Recent Supreme Court "takings" jurisprudence and the well established contours of substantive due process law dictate, however, that if a challenge to a "regulatory taking" states a claim upon which relief may be granted at all, it is a cause of action under the Takings Clause, subject to the ripeness prerequisite of exhaustion of the state-court inverse condemnation remedy. See Bickerstaff, 89 F.3d at 1489 n. 15 (noting that landowner's claim under the Takings Clause subsumed and was broader than his substantive due process claim). There is no independent "substantive due process taking" cause of action. The only substantive due process claim is for arbitrary and capricious conduct.

In Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 160, 67 L.Ed. 322 (1922), the Court held a land-use regulation to be invalid on a challenge in equity, Justice Holmes writing that "while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking." It is this language that has given rise to some rhetoric, but no holding, that a regulation that "goes too far" gives rise to a substantive due process takings claim. See Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 185, 105 S.Ct. 3108, 3116, 87 L.Ed.2d 126 (1985); Eide v. Sarasota County, 908 F.2d 716, 721 (11th Cir.1990).

In Eide, a case heavily relied upon by plaintiffs, we had mentioned "due process takings" as one of four potential challenges a landowner could bring against an adverse zoning decision. As distinguished from a just compensation claim, we stated that a successful due process takings suit, for instance, would "result in an invalidation of the local authority's application of the regulation and, perhaps, actual damages, whereas a just compensation claim is remedied by monetary compensation for the value taken." 908 F.2d at 721. We cited Williamson as "recognizing such a due process claim, but holding the claim to be premature." Id. The cited discussion in Williamson arose before the Supreme Court had resolved the debate over whether the remedy for the constitutional prohibition against regulatory takings arose from the Due Process Clause or the Takings Clause. Eide, in noting the possible distinction between these two theories which it specifically did not resolve, footnoted that

[t]his distinction may be academic if the Supreme Court decides that a non-physical "taking" claim is properly redressed by 908 F.2d at 721 n. 8.

only the Just Compensation Clause or only the Due Process clause.

The notion of due process as an independent ground has now been refuted, however, by at least two Supreme Court cases which, read together, firmly place all the constitutional constraints on regulatory takings recognized by this Court under the Takings Clause alone. First English Evangelical Lutheran Church of Glendale v. Los Angeles County, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987), held that a landowner could receive just compensation for a temporary taking under the Takings Clause. That holding confirmed that a challenge to a land-use regulation as confiscatory falls under the Takings Clause.

It has ... been established doctrine at least since [Mahon] that "[t]he general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking." While the typical taking occurs when the government acts to condemn property in the exercise of its power of eminent domain, the entire doctrine of inverse condemnation is predicated on the proposition that a taking may occur without such formal proceedings.

....

[T]he need for preserving a degree of freedom in the land-use planning function ... must be evaluated in the light of the command of the Just Compensation Clause of the Fifth Amendment.

....

It is axiomatic that the Fifth Amendment's just compensation provision is "designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole."

....

Where this burden results from governmental action that amounted to a taking, the Just Compensation Clause of the Fifth Amendment requires that the government pay the landowner for the value of the use of the land during this period. Invalidation of the ordinance or its successor ordinance after this period of time, though converting the taking into a "temporary" one, is not a sufficient remedy to meet the demands of the Just Compensation Clause.

Id. at 316-19 (citations omitted) (emphasis added).

First English established that the Takings Clause challenge carries the full range of remedies for confiscatory regulation: if the regulation is not for a public purpose, it may be invalidated, and just compensation awarded for a temporary taking; if the regulation serves a valid public purpose, yet still goes so far in diminishing the landowner's interests as to constitute a taking, just compensation may be awarded running from the regulation's effective date; if the government has or decides to terminate the regulation, that award compensates the landowner's injury over a temporary period; if not, a permanent taking is compensated. "Once a court determines that a taking has occurred, the government retains the whole...