Villas of Lake Jackson, Ltd. v. Leon County

• Decision Date: 20 November 1995
• Docket Number: No. TCA 89-40247-WCS.,TCA 89-40247-WCS.
• Citation: 906 F. Supp. 1509
• Parties: VILLAS OF LAKE JACKSON, LTD., et al., Plaintiffs, v. LEON COUNTY, et al., Defendants.
• Court: U.S. District Court — Northern District of Florida

906 F. Supp. 1509

VILLAS OF LAKE JACKSON, LTD., et al., Plaintiffs, v. LEON COUNTY, et al., Defendants.

No. TCA 89-40247-WCS.

United States District Court, N.D. Florida, Tallahassee Division.

November 20, 1995.

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E.C. Deeno Kitchen, Kitchen, Judkins, Simpson & High, Tallahassee, FL, for plaintiffs.

John C. Cooper, Cooper, Coppins & Monroe, Gregory T. Stewart, Gregory T. Stewart P.A., Tallahassee, FL, for defendant.

ORDER ON REHEARING

SHERRILL, United States Magistrate Judge.

Plaintiffs moved for rehearing as to the order granting summary judgment in favor of Defendant. Docs. 395-397. Defendant responded, doc. 402, and Plaintiffs replied, docs. 405 and 407. Rehearing was granted, and oral argument was held as to the question of collateral estoppel. Docs. 410, 412, 413. The parties were asked to file supplemental materials concerning the issue of collateral estoppel, and have done so. Docs. 414-417.

I. The legal basis for rehearing

The order which granted summary judgment, doc. 392, is an interlocutory order and may be reconsidered upon motion or sua sponte. Fed.R.Civ.P. 54(b); Region 8 Forest Service Timber Purchasers Council v. Alcock, 993 F.2d 800, 805-806 and n. 4 (11th Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 683, 126 L.Ed.2d 651 (1994); Melancon v. Texaco, 659 F.2d 551, 553 (5th Cir. Unit A 1981). Plaintiffs' motion seeks reconsideration as to two issues: the effect of the 1972 letter to Dr. Bennison (the Bennison letter) as to the question of equitable estoppel, and collateral estoppel arising from the First District Court of Appeal decision.

The court has reconsidered these issues, but has also revisited the due process "takings" claim. It does so because the correct articulation of the claim available under that theory necessarily informs the court as to whether the claim is "ripe" for decision. Ripeness goes to this court's subject matter jurisdiction, a question which the court must consider sua sponte. Reahard v. Lee County, 30 F.3d 1412, 1418 (11th Cir.1994); Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n. 7 (11th Cir.1989).

II. The due process takings claim, Count III

A due process claim as alleged in Counts II and III is that Plaintiffs were "deprived" of their "property" without due process. Count II was the "arbitrary and capricious substantive due process" claim, and Count III is the "due process takings claim."

In denying the County's motion to dismiss the fourth amended complaint, the court found that a due process takings claim may be lodged for the denial of a building permit if the property owner has a right by the Florida law of equitable estoppel law to the issuance of the permit.¹ That ruling depended upon Eide v. Sarasota County, 908 F.2d 716, 725 n. 16 (11th Cir.1990), cert. denied, 498 U.S. 1120, 111 S.Ct. 1073, 112 L.Ed.2d 1179 (1991): Wheeler v. City of Pleasant Grove, 664 F.2d 99 (5th Cir., Unit B, 1981), cert. denied, 456 U.S. 973, 102 S.Ct. 2236, 72 L.Ed.2d 847 (1982), and A.A. Profiles, Inc. v. City of Ft. Lauderdale, 850 F.2d 1483 (11th Cir.1988), cert. denied, 490 U.S. 1020, 109 S.Ct. 1743, 104 L.Ed.2d 180 (1989). Upon reconsideration it is apparent that the court erred in so holding, and has misconstrued those cases.

A. A due process takings claim is not a procedural due process claim, and is not a separate kind of substantive due process claim

Eide held that the plaintiff there, who complained of a refusal to grant a rezoning, conceivably had four distinct claims that he could make. The due process takings claim was one. For the proposition that this claim exists, Eide cited Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985) as "recognizing such a due process claim, but holding the claim to be premature." 908 F.2d at 721.

In Williamson County, the Court discussed a "due process taking" theory that had been argued by the petitioner. 473 U.S. at 197-199, 105 S.Ct. at 3122-3123. The Court referred to the due process takings claim as a "notion" or "theory" throughout the discussion, and at one point said: "the due process argument finds support, we are told...." Id., emphasis added. The Court then said that it did not have to pass upon the merits of the argument that such a claim exists, finding instead that such a claim was premature. 473 U.S. at 199, 105 S.Ct. at 3123. Thus, Williamson County itself is an uncertain precedent for the proposition that a taking without compensation will give rise to a due process claim.²

Williamson County did, however, discuss at some length the theory of a due process takings claim, noting that a regulation which goes "too far" so as to destroy a property right without resorting to the procedures for eminent domain (and just compensation) would be an invalid exercise of the police power, the remedy for which would be invalidation of the regulation and, "if authorized and appropriate, damages." 473 U.S. at 197, 105 S.Ct. at 3122. However, since both Williamson County and Eide were decided, the Supreme Court decided Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992). Lucas involved a conventional Fifth Amendment just compensation takings claim. Lucas held that "when the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is to leave his property economically idle, he has suffered a taking pursuant to the Fifth Amendment." 505 U.S. at 1019, 112 S.Ct. at 2895. The Court determined that compensation is the appropriate remedy in this circumstance. Id. 505 U.S. at 1030, 112 S.Ct. at 2901. The Court pointed out that the state may elect to rescind its regulation, but still must provide compensation for the period of temporary taking, citing First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 321, 107 S.Ct. 2378, 2389, 96 L.Ed.2d 250 (1987). Id. 505 U.S. at 1030 n. 17, 112 S.Ct. at 2901 n. 17.

The direct Lucas holding is that regulation under the police power can, under certain circumstances, be "confiscatory" of property, and, as a consequence, just compensation may be required under the Fifth Amendment. But implicit in Lucas is the proposition that the regulation may well have been a valid exercise of the police power for the common good. Further, Lucas "acknowledged explicitly" that through the "full scope of the State's police power" the government may, "consistent with the Takings Clause, affect property values by regulation without incurring an obligation to compensate...." Id. 505 U.S. at 1023, 112 S.Ct. at 2897. Indeed, the Court found a government may avoid the requirement of compensation, even for a regulation that denies all economically viable use of property, if background principles of nuisance and property law prohibited those uses in the first place. Id. 505 U.S. at 1026-27, 112 S.Ct. at 2899.

It would appear, therefore, that Lucas makes academic any distinction between a Fifth Amendment takings claim and a Fourteenth Amendment due process takings claim. As will be discussed ahead, if the premise of a due process takings claim is that a regulation becomes "invalid" if it "goes too far," that is, if property has been destroyed without compensation, First English and Lucas vitiate an essential element of that premise. Compensation must be paid. The State may elect also to rescind the regulation, thus reducing the interim payment due, but it need not if full compensation is forthcoming.

The due process takings claim has been seen heretofore in this circuit as distinct from an "arbitrary and capricious" substantive due process claim, which Eide found to be simply a substantive due process claim. Eide, 908 F.2d at 722 and n. 9. See also Executive 100, Inc. v. Martin County, 922 F.2d 1536, 1540 n. 11 (11th Cir.1991). But there are only two components of due process, substantive and procedural. McKinney v. Pate, 20 F.3d 1550, 1555 (11th Cir.1994) (en banc), cert. denied, ___ U.S. ___, 115 S.Ct. 898, 130 L.Ed.2d 783 (1995). A due process takings claim has to be either one or the other.

If a due process takings claim as it arises in this case³ is premised upon substantive due process, then it really cannot be distinct from an "arbitrary and capricious" substantive due process claim. For a substantive due process claim is actionable only if the County acted irrationally.⁴ "Substantive due process claims challenging legislative acts not involving a fundamental right are reviewed under the rational basis test." TRM, Inc. v. United States, 52 F.3d 941, 945 (11th Cir.1995).⁵ A due process takings claim, on the other hand, seems to be actionable simply by the fact that the regulation went "too far" and "destroyed" (in due process terms, "deprived" the owner of) a property right. If this claim is based upon notions of substantive due process, the missing element, the irrationality of the regulation, could only be supplied by the fact that compensation for the property deprived was either denied or unavailable. But that dilemma, if it ever existed, has been cured by First English, Lucas, and Joint Ventures, Inc. v. Department of Transportation, 563 So.2d 622 (Fla.1990). In the latter case, Florida recognized an inverse condemnation remedy based upon zoning classifications for the first time. Reahard v. Lee County, 30 F.3d at 1417.

The only remaining alternative then, is that a due process takings claim is premised upon denial of adequate procedures for the deprivation of property, that is, the failure of the County to use the procedures established for eminent domain. But this is even less plausible since "the entire doctrine of inverse condemnation is predicated on the proposition that a taking may occur without such formal proceedings eminent domain." First English, 482 U.S. at 316, 107...