Appendix — Lake Lucerne Civic Association v. Dolphin Stadium Corporation (Nos. 89-1062, 89-1050)

APPENDIX

Opinion, Court of Appeals

Eleventh Circuit

i Sor ccs eS bp eeecsescccccsens A

Order Denying Petitions for Rehearing and

Suggestions of Rehearing In Banc

(Filed for Record, October 4, 1988)................. B

App. 1

LAKE LUCERNE CIVIC ASSOCIATION, INC., et al.,

Plaintiffs— Appellants,

v.

DOLPHIN STADIUM CORP-., et al.,

Defendants-Appellees.

No. 88-5383.

United States Court of Appeals,

Eleventh Circuit.

Aug. 3, 1989.

* * *

Florida property owners brought action challenging

rezoning of county land for sports stadium complex, claiming

that rezoning impaired their contract rights and violated

substantive due process and their civil rights. The United

States District Court for the Southern District of Florida, No.

87-1546-CIV, Eugene P. Spellman, J., entered summary

judgment against property owners, and they appealed. The

Court of Appeals, Frank A. Kaufman, Senior District Judge,

sitting by designation, held that: (1) initial state litigation

did not preclude instant suit; (2) county zoning hearing did

not have preclusive effect; (3) subsequent state litigation

precluded impairment of contract and substantive due process

claims; (4) taking claim was not precluded; and (5) abstention

under Colorado River was not appropriate with respect to

discrimination claim.

Before RONEY, Chief Judge, VANCE, Circuit Judge, and

KAUFMAN’, Senior District Judge.

KAUFMAN, Senior District Judge.

*Honorable Frank A. Kaufman, Senior U.S. District Judge for the

District of Maryland, sitting by designation.

App. 2

The institution of this federal case is the latest round of

litigation following a series of state trial and appellate court

proceedings related to the construction of a new sports

stadium complex in Dade County, Florida. In this federal

case, appellants, three individual homeowners and three

homeowner associations,! assert that their contract rights

have been unconstitutionally impaired (Count I), that the

applicable zoning resolution of the Board of Commissioners

of Dade County was adopted in violation of appellants’

substantive due process rights (Count ID, and (in Count 1688)

that appellants’ “civil rights have been abrogated” by

appellee Dade County and by other defendants acting “under

color of [state] law” by a stark pattern of discriminatory

practices affecting the property and housing rights of black

citizens.” Appellants seek declaratory and equitable relief,

monetary damages, attorney’s fees and costs and have prayed

a jury trial. Jurisdiction is asserted, and is present, under

28 U.S.C. § 13831 and § 1343.

Appellees are Dade County, Florida, South Florida

Regional Council, the Dolphin Stadium Corporation, and

individuals and trustees alleged to be developers of the

stadium and adjacent commercial enterprises associated with

the stadium complex.? The district court granted summary

judgment for appellees and assessed costs against appellants.

‘While neither the court below nor any appellee has questioned the

standing of any appellant, this Court notes that that question might be

raised as to certain of the corporate appellants. However, because each

of the individual appellants possesses standing, and because all appellants

are asserting the same grounds for relief, it is not necessary for this Court

to inquire concerning the standing of the corporate appellants. See Carey

v. Population Services International, 431 U.S. 678, 682, 97 S.Ct. 2010, 2014,

52 L.Ed.2d 675 (1977).

7Whether appellants have stated, or even have intended to state, each

and all of their allegations against each appellee is not clear from the record

before us and should be clarified by the district court on remand.

App. 3

Factual and Procedural Background

The stadium complex includes the home of the Miami

Dolphins professional football team plus a commercial and

industvial development. It is located on more than 430 acres

in an area in northwestern Dade County known as Lake

Lucerne. The land for the project was donated, subject to

certain rights of reversion, by certain of the individual and/or

trustee appellees to the County, which in turn leased it to

appellee Dolphin Stadium Corporation.

In 1977, the property, then owned by certain of the

appellees, was rezoned from agricultural to single-family and

townhouse use. At that time, pursuant to the request of the

Dade County Board of County Commissioners, the owners

subjected the property to a covenant restricting its

commercial use. That covenant included the following

provision:

This Agreement may be modified, amended, or released

as to any portion of the land described herein by a written

instrument executed by the then-owner of the fee-simple

title to the lands to be affected by such .wodification,

amendment or release, along with a majority of the

property owners owners within 350 ft. of the property for

which such modification is proposed, as well as along with

a majority of the property within 350 ft. of the property

shown in the [Metropolitan Dade County Comprehensive

Development Master] Plan, and approved after public

hearing by Resolution of the Board of County

Commissioners or Zoning Appeals Board of Metropolitan

Dade County, Florida, whichever by law has jurisdiction

over such subject matter.

Subsequently, after plans were formulated for what has

now become the stadium complex, the developers were

apparently unable to obtain the necessary consents to obtain

release of the restrictive covenant as to the entire desired

area. Therefore, they reduced the area requested for rezoning

App. 4

by creating a 351 foot setback from two nearby housing

developments, thus eliminating the need for consents from

the property owners in that setback area. Also, the developers

construed the restrictive covenant as assigning to the owner

of each parcel of land, including Dade County and the State

of Florida, one vote per parcel regardless of how many parcels

that person owned. Pursuant to that construction, the

developers obtained the consents of the owners of 111 out of

a total of 161 parcels in the reduced area—more than a

majority vote of the owners on a parcel-by-parcel basis, but

the votes of only 18 of the 55 owners of all of the parcels—

far short of a majority of such owners.

The “Rolling Oaks” Litigation

In Mildred Harris, et al. v. Dade County, et al. (“Rolling

Oaks I’), filed December 21, 1984 in the Circuit Court for

Dade County, two of the three individual appellants and one

of three corporate appellants in this appeal brought suit for

equitable and legal relief, seeking to prevent construction

of the stadium project. Defendants in that case were all of

appellees in this federal action. On August 23, 1985, the

circuit court dismissed, with prejudice, four counts of the nine-

count complaint, and dismissed the five other counts as

Premature, with leave to amend. With respect to the

dismissals with prejudice, the circuit court concluded that:

(1) Count I, in which plaintiffs contended that the gift of

public land to a private for-profit development was not a

Proper public purpose, was without merit because the need

for a sports stadium constituted a proper public purpose, even

if the stadium was being developed by a private party; (2)

Count II, in which plaintiffs alleged lack of proper notice of

a public hearing, did not entitle appellants to relief because

Dade County had property exercised its discretionary powers

and because the notice and hearing requirements did not

apply to county land conveyed for the purposes involved; (3)

Count ITI, in which plaintiffs asserted an illegal contract for

zoning, did not state a ground for relief because the Dade

App. 5

County zoning authorities had not contractually obligated

themselves to make any zoning change; and (4) Count VII,

in which it was alleged that the law requiring bidding for

acquisition of county property had been disregarded, failed

to state a cause of action because the applicable law, as was

the case with Count IJ, did not apply to county land conveyed

by the County for the specific purpose involved.

With respect to the counts in Rolling Oaks I held to be

premature and dismissed with leave to amend after final

action by the Dade County Board of County Commissioners,

the circuit court concluded: (1) Count IV, in which it was

contended that appellees were prohibited by the restrictive

covenant from making a zoning change, provided no basis

for relief because that covenant itself expressly provided for

modification, and because “[a]ny judicial determination of

the continued viability of the restrictive covenant prior to

a final administrative action rezoning the subject property

would be unnecessary and premature”’;} (2) Count V, in which

it was alleged that the promised rezoning was substantially

invalid, was not meritorious because no final action had been

taken by the Board of County Commissioners and because

administrative remedies in that regard had not been

exhausted; (3) Count VI, in which plaintiffs asserted a

violation of the law prohibiting the obligation by the County

of unapproved funds and the pledging of the County’s credit,

could not be maintained prior to such expenditure or contract

to expend public funds; (4) Count VII, in which plaintiffs

claimed that the County violated an industrial revenue bonds

statute, did not state a basis for immediate relief because the

stadium, as a public project, qualified for the issuance of

industrial revenue bonds, and because a suit seeking

declaratory judgment concerning the validity of any such

bond issue would constitute an advisory opinion; and (5)

3Rolling Oaks I at p. 13. Copies of the opinions in Rolling Oaks I and

in Norwood-Noriand I, see infra at p. 1364, and of Judge Spellman’s opinion

below are in the record in this case.

App. 6

Count IX, in which it was urged that the rezoning constituted

a taking without just compensation, was prematurely stated

pending application of the zoning ordinance to plaintiffs’

property.

On appeal, in Rolling Oaks Homeowner’s Ass ’n, Inc., et

al. v. Dade County, et al., 492 So.2d 686 (Fla. 3d D.C.A. 1986)

(“Rolling Oaks IT’), in a per curiam opinion filed June 26,

1986, the District Court of Appeal for the Third District

concluded that the five counts dismissed as premature with

leave to amend should have instead been dismissed without

leave to amend, “allowing the refiling of a new suit if, as

and when such alleged causes of action mature.” Id., at 688.

The district court also held that Count VIII was not

prematurely brought and remanded that claim for further

consideration by the circuit court. Otherwise, the district

court affirmed the circuit court’s holdings.‘

The Zoning Hearing

On September 26, 1985, after the decision in Rolling Oaks

I and before the decision in Rolling Oaks II, a rezoning

hearing took place before the Dade County Board of County

Commissioners. During that hearing, some of appellants in

this appeal, several county officials, certain attorneys, some

of whom are of counsel in this appeal, residents and

community leaders supporting and opposing the stadium

project, and the Reverend Jesse Jackson testified. The

restrictive covenant and whether it had been properly

released were discussed at length.

The hearing concluded late at night after the Board of

County Commissioners passed and adopted a zoning

resolution by vote of 7-1, with one commissioners absent,

changing the zoning for several plots within the area of the

stadium complex from residential to commercial and/or

‘There is nothing in the record before us to indicate whether there has

ever been any further consideration by any Florida court of any issue not

determined on a final basis in Rolling Oaks I and II or of any issue

remanded in that litigation by the district court to the circuit court.

App. 7

industrial use, and designating certain land for stadium use.

Promulgated along with that zoning action was a

Development of Regional Impact Order relating to air and

light and providing for noise and pollution barriers and

adequate parking facilities. Compliance with that Order was

required before construction of the stadium complex could

be commenced.

The “Norwood-Norland” Litigation

Certain of the present appellants and other homeowners

and homeowner associations filed an appeal in a Florida

circuit court concerning the zoning action. In that case,

Norwood-Norland Homeowners’ Ass’n, Inc., et al. v. Dade

County, et al. (““Norwood-Norland I’), those plaintiffs

chalienged the rezoning as an improper deviation from the

Dade County Master Plan, and also asserted the wrongful

termination of the restrictive covenant by the County

Commissioners.

In an opinion filed on August 18, 1986, a three-judge

circuit court panel held that the property in question had been

designation in the Master Plan as a Sub-Metro Activities

Center, and that the building of a sports complex did not

constitute a deviation from that Plan. Noting that its function

was to “determine whether the zoning changes are a

reasonable and appropriate exercise of legislative power, and

whether the zoning is fairly debatable,” the circuit court

concluded that reasonable minds could differ as to whether

the resolution bore a “substantial relationship to the public

welfare” and upheld the rezoning on that basis.

With respect to the release of the restrictive covenant,

the circuit court, with one judge dissenting, determined that

the County’s construction of the covenant was entitled to

great deference and that appellants had failed to meet their

burden of showing that the County’s construction of the

covenant permitting one vote per parcel, and voting by Dade

County and the State of Florida, was clearly erroneous.

App. 8

Thereafter, in Norwood-Norland Homeowners’ Ass’n, Inc.,

et al. v. Dade County, et al., 511 So.2d 1009 (Fla. 3d D.C.A.

1987), review denied, 520 So.2d 585 (Fla. 1988) (“‘Norwood-

Norland IT’), the district court denied a petition for certiorari

review of the circuit court’s opinion, writing:

The circuit court is charged with determining whether

the agency or municipality accorded procedural due

process rights, observed the essential requirements of law,

and supported its findings with substantial, competent

evidence. It is axiomatic that “zoning or rezoning is the

function of the appropriate zoning authority and not the

courts... .” Skaggs-Albertson’s v. ABC Liquors, Inc., 363

So.2d 1082, 1091 (Fla. 1978). Reviewing courts are not

empowered to act as super zoning boards, substituting

their judgment for that of the legislative and

administrative bodies exercising legitimate objectives.

Instead, the scope of review is one which recognizes a

zoning authority's power to impose reasonable regulations

in furtherance of health, safety and community welfare,

and to determine, on the evidence before the court,

whether the local authority’s zoning decision is “fairly

debatable.” The “fairly debatable” test asks whether

reasonable minds could differ as to the outcome of a

hearing. If so, the court should sustain a county

commission’s resolution.

The scope of this court’s review of a circuit court order

rendered in its appellate capacity in an administrative

action is even narrower . . . [TJhis court’s review is limited

to determining whether procedural due process was

afforded, and whether the correct law was applied.

Petitioners are not entitled to a second or third full appeal

in this court.

However, ... the standards do not necessarily end

here. When, as appears in this case, the zoning authority

has approved a use more intensive than that proposed by

the plan, the decision must be subject to “stricter

App. 9

scrutiny” than the “fairly debatable’ standard

contemplates. Zoning decisions must not only meet the

“fairly debatable” standard, but they also should be

“consistent” with the comprehensive land use plan.

Id. at 1012 (emphasis in original; certain citations omitted).

Post-Construction Events

On June 18, 1987, after the stadium had been constructed,

appellants in this action filed a suit in Dade County Circuit

Court, namely, Lake Lucerne, et al. v. Dade County, et al.,

in which they alleged (1) unconstitutional impairment of

contract rights; (2) unlawful gift of public property; (3)

unlawful public burden created by a private stadium; (4)

substantive unconstitutionality of the zoning resolution; and

(5) violation of appellants’ civil rights. That action was

subsequently—and is still—stayed at the request of appellants

pending determination of the issues presented in this federal _

action now before us.

On August 20, 1987, appellants commenced the instant

suit in the United States District Court for the Southern

District of Florida, asserting: (1) unconstitutional impairment

of contract rights; (2) substantive unconstitutionality of the

zoning resolution; and (3) civil rights violations under 42

U.S.C. § 1983, et al. In their motions to dismiss treated by

Judge Spellman as motions for summary judgment,’

appellees relied, inter alia, upon principles of res judicata,

collateral estoppel and abstention.

On March 22, 1988, Judge Spellman granted summary

judgment for appellees, holding that Courts I and II were

barred by principles of collateral estoppel and/or res judicata,

and that as to Count III, principles of res judicata and also

of abstention warranted dismissal. Earlier, Judge Spellman

‘Judge Spellman, in the court below, appropriately treated appellees’

motions to dismiss as motions for summary judgment after giving

appropriate notice to the parties that he would so do.

App. 10

|

had considered appellants’ requests for preliminary

injunctive relief because of the alleged failure by Dade

County and by Dolphin Stadium Corporation to fulfill their

obligations concerning adequate parking and adequate

safeguards with regard to light, air, noise and pollution. After

a non-evidentiary hearing on August 27, 1987, Judge

Spellman deferred determination concerning the preliminary

injunction motion and, in effect, consolidated the latter with

the merit issues which he disposed of on March 22, 1988. It

is from that March 22, 1988 determination that this appeal

has been taken.

Preclusion Generally

The District Court determined that the doctrines of both

res judicata, or claim preclusion, and collateral estoppel, or

issue preclusion, applied to Counts I and I.‘ In Allen v.

McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980),

the Supreme Court “made clear that issues actually litigated

in a state-court proceeding are entitled to the same preclusive

effect in a subsequent federal § 1983 suit as they enjoy in

the courts of the State where the judgment was rendered.”

Migrav. Warren City School District Board of Education, 465

US. 75, 83, 104 S.Ct. 892, 897, 79 L.Ed.2d 56 (1984). In Migra,

the Supreme Court held that the same preclusive effect

applied to a claim which “a § 1983 litigant could have raised

but did not raise in the earlier state-court proceeding,” /d.,

and that pursuant to the Full Faith and Credit Clause of the

Constitution, art. IV, § 1, and the federal full faith and credit

*“Issue preclusion refers to the effect of a judgment in foreclosing

relitigation of a matter that has been litigated and decided. This effect

is also referred to as direct or collateral estoppel. Claim preclusion refers

to the effect of a judgment in foreclosing litigation of a matter that never

has been litigated, because of a determination that it should have been

advanced in an earlier suit. Claim preclusion therefore encompasses the

law of merger and bar.” Migra v. Warren City School District Board of

Education, 465 U.S. at 77 n. 1, 104 S.Ct. at 894 n. 1 (citations omitted).

See also 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and

Procedure § 4402.

App. 11

statute, 28 U.S.C. § 1738, “i]t is now settled that a federal

court must give to a state-court judgment the same preclusive

effect as would be given that judgment under the law of the

state in which the judgment was rendered.” Jd. at 81, 104

S.Ct. at 896. See also Gjellum v. City of Birmingham,

Alabama, 829 F.2d 1056, 1060 (11th Cir. 1987).

Under Florida law,

[i]t has been well settled . . . that several conditions

must occur simultaneously if a matter is to be made res

judicata: identity of the thing sued for; identity of the

cause of action; identity of parties; identity of the quality

in the person for or against whom the complaint is made.

It is also a settled rule that when the second suit is

between the same parties, but based upon a different

cause of action from the first, the prior judgment will not

serve as an estoppel except as to those issues actually

litigated and determined in it. . . The determining factor

in deciding whether the cause of action is the same is

whether the facts or evidence necessary to maintain the

suit are the same in both actions.

Albrecht v. State, 444 So.2d 8, 12 (Fla. 1984) (citation omitted).

It is in that context that we now examine the preclusive

effects of the Rolling Oaks, zoning and Norwood-Norland

proceedings.

Preclusive Effects of ihe “Rolling Oaks” Litigation

[1] In Rolling Oaks I and II, direct attacks were made,

before rezoning of the Lake Lucerne area, upon the

development of the Dolphin stadium complex. In that

App. 12

EEE

Pm en oe caer

litigation, five of the counts were deemed premature;

accordingly, they could thereafter be appropriately and

timely stated in a subsequent court action.’

Preclusive Effects of the Zoning Hearing

[2} Appellees ask us to treat the September 26, 1985

hearing before the Board of County Commissioners of Dade

County as a quasi-judicial proceeding and to apply to that

Board’s decision the preclusive effect of a state court

adjudication. In response, appellants characterize rezoning

by the Board as legislative in nature and entitled to no

preclusive effect because of the lack of the due process

trappings required in a judicial-type proceeding. While we

agree with the result sought by appellants, our reasoning

is slightly different. “Occasionally courts have used language

to the effect that res judicata principles do not apply to

administrative proceedings, but such language is certainly

too broad. When an administrative agency is acting in a

judicial capacity and resolves disputed issues of fact properly

before it which the parties have had an adequate opportunity

to litigate, the courts have not hesitated to apply res judicata

to enforce repose.”” United States v. Uiah Construction &

Mining Co., 384 U.S. 394, 421-22, 86 S.Ct. 1545, 1559-60, 16

L.Ed.2d 642 (1966) (footnotes omitted). “When [formality in

an administrative hearing] is sufficiently diminished, the

administrative decision may not be res judicata. The starting

point in drawing the line is the observation that res judicata

applies when what the agency does resembles what a trial

court does.” 4 K. Davis, Administrative Law Treatise 52 (2d

ed. 1983).

™Tn ordinary circumstances a second action on the same claim is not

precluded by dismisal of a first action for prematurity or failure to satisfy

a precondition to suit. No more need be done than await maturity, satisfy

the precondition, or switch to a different substantive theory that does not

depend upon the same precondition.” 18 C. Wright, A. Miller, & E. Cooper,

Federal Practice and Procedure § 4437, p. 347.

App. 13

Florida courts have long recognized and applied in

appropriate instances administrative preclusion principles

to zoning hearings. See Coral Reef Nurseries, Inc. v. The

Babcock Co., 410 So.2d 648, 651-53 (Fla. 3d D.C.A. 1982) (and

cases there cited). Under those principles, it is “the character

of administrative hearing [which] ... determines ... the

applicability of the doctrine of administrative res judicata.”

Coral Reef, 410 So.2d at 652. Thus, it is necessary to examine

the “procedural due process which is afforded to the

interested parties,” that is, “the safeguards of due notice,

a fair opportunity to be heard in person and through counsel,

the right to present evidence, and the right to cross-examine

adverse witnesses.” Jd. A review of the transcript of the

hearing of September 26, 1985 reveals that that proceeding

feil far short of meeting those judicial-type standards.

From the beginning, the zoning hearing was a rather

raucous affair. Because he had to catch a plane, the Reverend

Jesse Jackson was the first formally to speak; he strongly

opposed the project. He was not questioned by the

Commissioners or counsel or anyone else. His testimony

resembled a presentation before a congressional committee

more than testimony in a court of law. After Reverend

Jackson left, county officials and attorneys for persons

favoring the Dolphin Stadium project spoke. They were

repeatedly interrupted by shouts of residents, which in turn

caused the Mayor as the Commission chairman to instruct

the residents to quiet down and allow the hearing to proceed

in a more orderly fashion. Such participation by the

opponents of the project, while undeniably unconstructive,

hardly amounted to cross-examination. Also, there was no

ordered or directed questioning of the witnesses by the

Commissioners or anyone else.

More specifically, there was no quasi-judicial treatment

of the release of the restrictive covenant during the hearing.

Proponents of the projects explained to the Commissioners

how the release had been validly obtained. They were

interrupted by residents in the manner indicated previously,

but no discussion of applicable law and facts with reference

to the restrictive covenant occurred. Nor is there anything

on the record to indicate that the Board considered the

authenticity of the consents obtained to release the restrictive

covenant.® In that regard, it must be emphasized that such

failure did not occur because appellants failed to seize the

opportunities to explore that issue; rather, it was the

structure of the hearing itself which patently failed to provide

those opportunities. The record itself belies appellees’

contention that the Commissioners acted in the judicial

manner required if a preclusive effect is to be given to

administrative action. Accordingly, the zoning

determinations do not themselves preclude appellants from

making their claims in the instant case.

Preclusive Effects of the ““Norwood-Norland”’ Litigation

After the zoning hearing, the Norwood-Norland litigation

reached first a Florida circuit court and then a Florida district

court. That litigation involved a direct appeal from the zoning

action. It did not involve a claim of unconstitutional taking

without compensation. That latter issue was not raised until

the still pending and stayed state court proceeding and this

federal case were filed.

In determining the preclusive effect to be given in this

case to Norwood-Norland J and II, our inquiry is not confined

to what was presented and pled during those state court

proceedings. Rather, we must also examine the scope of the

reviewing authority of those state tribunals, for if those state

courts lacked jurisdiction to entertain an appeal from the

"Appellees argue that the Commissioners must have assumed that the

release was valid when they adopted the rezoning resolution. In this sense,

say the appellees, the Commissioners considered the 351 foot setback and

the method of apportioning votes as well. Since we conclude that the zoning

hearing was not conducted in a sufficiently judicial manner to afford to

it preclusive effect, we need not reach those contentions of appellees,

though they are hardly overly persuasive.

App. 15

administrative action an issue presented herein, the

determinations of that issue by those state courts cannot have

a preclusive effect. “Judicial finality--the predicate for res

judicata—arises only from a final decision rendered after the

parties have been given a reasonable opportunity to litigate

a claim before a court of competent jurisdiction.” Olmstead

v. Amoco Oil Co., 725 F.2d 627, 632 (11th Cir. 1984), quoting

Kaspar Wire Works, Inc. v. Leco Engineering & Machine, 575

F.2d 530, 537-38 (5th Cir. 1978) See Davis v. Dieujuste, 496

So.2d 806, 808-10 (Fla. 1986); Estate of Paulk v. Lindamood,

529 So.2d 1150, 1154 (Fla. Ist D.C.A. 1988). Also, as we

consider the issue of preclusive effect of the Norwood-Norland

litigation, we need to keep in mind the nature of relief sought,

i.e., the invalidity of the zoning action and not the question

of whether the zoning action constituted an uncompensated

taking. It is in those contexts that we analyze the specifics

of whether and to what extent the Norwood-Norland

holdings, in and of themselves, preclude the grant of relief

sought by appellants in this federal litigation.

Count I—Impairment of Contract Rights

[3] Appellants contend that their contract impairment

claim as stated in Count I in this case was not decided in

the Norwood-Norland litigation because the Florida courts

did not determine whether the consents for release of the

restrictive covenant were valid and whether the zoning

resolution constituted an unconstitutional interference with

appellants’ contractual rights. That contention may not

prevail, since in Norwood-Norland I] the circuit court

considered the Board’s resolution and evaluated the

substantive legal claims which appellants now again assert,

namely, the propriety of the 351-foot setback, the

apportionment of votes per parcel rather than per owner, and

the rights of Dade County and the State of Florida, as

individual owners of parcels, to one vote for each parcel

App. 16

owned.’ Because the circuit court did adjudicate those

questions, its determinations are entitled to preclusive effect

if it had jurisdiction over those issues on appeal from the

administrative zoning action.

Under Florida law, “{wJhere a party is entitled as a matter

of right to seek review in the circuit court from administrative

action, the circuit court must determine whether {in the

administrative proceeding] procedural due process is

accorded, whether the essential requirements of the law have

been observed, and whether the administrative findings and

judgment are supported by competent substantial evidence.

The district court, upon review of the circuit court’s judgment,

then determines whether the circuit court afforded procedural

due process and applied the correct law.” City of Deerfield

Beach v. Vaillant, 419 So.2d 624, 626 (Fla. 1982). See also

Norwood-Norland II, 511 So.2d at 1012.

The purpose of such a restricted scope of review is to guard

against the substitution of the judgment of the courts for that

of the administrative body in the exercise of the latter’s

powers, see Metropolitan Dade County v. Brisker, 485 So.2d

1349, 1351 (Fla. 3d D.C.A.), review denied, 494 So.2d 1151

(Fla. 1986); Dade County v. Yumbo, 348 So.2d 392, 394 (Fla.

3d D.C.A.), cert. denied, 354 So.2d 988 (Fla. 1977), at least

when the administrative action is not arbitrary or

discriminatory, and when reasonable minds can differ as to

the benefits of the administrative action. Reversal b ya

Florida court is not warranted simply because, as a reviewing

court, it might prefer a different result that that reached by

the administrative zoning authority. Nonetheless, Florida

The circuit court concluded with respect to the 351-foot setback: “It

is not controverted . . . that appellees had a right to change the application

prior to the rezoning hearing.” As to the other contentions, that court wrote

that “{tJhe construction given by the County in the zoning proceedings

should be given great weight,” and stated that the appellants failed to

meet their burden of showing that the homeowners, and not the developers,

were the ultimate intended beneficiaries of the covenant.

App. 17

law does not call for its courts to rubber-stamp administrative

zoning actions, but rather carefully to consider their validity

or invalidity. See, e.g., Gulf Pines Memorial Park v. Oaklawn

Memorial, 361 So.2d 695, 698-99 (Fla. 1978).

In accordance with those principles, the circuit court in

Norwood-Norland I considered whether the release of the

covenant was valid and, in so doing, concluded that essential

legal requirements had been met and that substantial

evidence existed to support the zoning actions. Also, in the

Norwood-Norland litigation, the circuit and district courts

accepted the County Commissioners’ construction of the

covenant. Thus, appellants are not entitled to consideration

by this court on the merits of the validity of the zoning

authority’s actions with respect to the restrictive covenant

and its release.'° In that light, we affirm Judge Spellman’s

application of res judicata to Count I.!!

Count IJ—Substantive Unconstitutionality

of the Zoning Resolution

Substantive Due Process

[4] Appellants complain in Count II that the rezoning

for the stadium development violated the Dade County

Comprehensive Land Use Plan and destroyed appellants’

'? Appellants contended during oral argument before us that neither

the circuit court nor the district court determined in Norwood-Norland

I or IT whether the releases were authentic. That is apparently true.

However, counsel, during oral argument before us, stated that the circuit

court had the boxes of releases before them. Thus, that court could have

determined their authenticity if that court had been specifically asked

so to do. However, appellants seemingly did not so request. Having not

pressed that opportunity in Norwood-Norland, appellants cannot so do in

this federal litigation.

In the court below, appellants sought partial summary judgment with

respect to the claimed violation of the restrictive covenant. That claim

may of course not succeed in this case in view of the preclusive effect to

which we hold the Florida court’s determinations i in Norwood-Norland

are entitled.

App. 18

Ce a a ee ee

expectation of a residential neighborhood. In so doing,

appellants seemingly allege denial of substantive due process

based upon violation of the Land Use Plan, and also

apparently contend that enforcement of the zoning action

without appropriate arrangements with respect to air, light,

noise, pollution and parking constitutes a taking of

appellants’ property without just compensation.

“Where property interests are adversely affected by

zoning the courts generally have emphasized the breadth of

municipal power to control land use and have sustained the

regulation if it is rationally related to legitimate state

concerns... .” Schad v. Mt. Ephraim, 452 U.S. 61, 68, 101

S.Ct. 2176, 2182, 68 L.Ed.2d 671 (1981). See Rogin v.

Bensalem Township, 616 F.2d 680, 689 (3d Cir. 1980), cert.

denied sub nom. Mark-Garner Assoc., Inc. v. Bensalem

Township, 450 U.S. 1029, 101 S.Ct. 1737, 68 L.Ed.2d 223

(1981) (“The test for determining whether a law comports

with substantive due process is whether the law is rational] y

related to a legitimate state interest.”). See also Shelton v.

City of College Station, 780 F.2d 475, 482-83 (5th Cir. en

banc), cert. denied, 477 U.S. 905, 106 S.Ct. 3276, 91 L.Ed.2d

566 (1986). In Norwood-Norland I, the circuit court explicitly

noted that construction of a sports stadium was a legitimate

public purpose under Florida law, and that it comported with

the Land Use Plan. The district court, in review of the circuit

court, wrote that “[wJhen ... the zoning authority has

approved a use more intensive that that proposed by the plan,

the decision must be subject to ‘stricter scrutiny’ than the

‘fairly debatable’ stendard contemplates. Zoning decisions

must not only meet tii “fairly debatable’ standard, but they

also should be ‘consistent’ with the comprehensive land use

plan.” Norwood-Norland II, 511 So.2d at 1012 (emphasis in

original). Under that “strict scrutiny” standard of review,

the district court affirmed the circuit court’s determination

of the existence of a legitimate public purpose under state

App. 19

law. Thus, because the Florida state courts have addressed

appellants’ substantive due process concerns, appellants are

precluded from relitigating those questions in this federal

action.

Taking

[5] That brings us to appellants’ taking claim. “Although

a zoning ordinance or other law comports with the

requirements of substantive due process, it nonetheless may

violate the ‘taking’ clause of the Fifth Amendment that is

applicable to the states through the Fourteenth Amendment.

Thus, if an otherwise valid law severely diminishes the value

or impairs the use of a parcel of land, the state or local

government may be constitutionally obligated to compensate

the owner.”’ Rogin, 616 F.2d at 690 (footnotes omitted).

In Albrecht v. State, supra, certain landowners, after

exhausting the state administrative process, unsuccessfully

filed a petition against the Department of Environmental

Regulation of Florida in a Florida District Court of Appeal

challenging the facial validity of a Florida statute under

which that Department had denied a dredge and fill permit

on the land involved. The Supreme Court of Florida refused

to grant certiorari review. The landowners then brought a

new suit in a Florida circuit court, alleging an

unconstitutional taking without compensation and seeking

compensation for inverse condemnation. In the new case,

writing for a unanimous court, Justice Adkins noted that “a

claim of uncompensated taking constitutes a separate and

distinct cause of action from that litigated previously.” Id.

at 12. The first involved a challenge to “the propriety of the

agency’s action,” while the second related to a claim of taking

without compensation. Id. Justice Adkins stated that “the

12See also Penn Central Transportation Co. v. New York City, 438 U.S.

104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978); Schad, 452 U.S. at 68, 101 S.Ct.

at 2182; Developments in the Law—Zoning, 91 Harv.L.Rev. 1427, 1462

(1978).

App. 20

standards necessary for exercise of the police power’’ may

be met, but nevertheless may “result in a taking,” and that

“the propriety of the agency action must be final] y

determined before a claim of inverse condemnation exists.”

Id. Justice Adkins concluded that “the doctrine of res judicata

{had been] improperly applied” by the circuit court and stated:

Permitting the petitioners to bring their claim in

circuit court does not conflict with out decision in Key

Haven [427 So.2d 153 (Fla. 1982)]. In that case we provided

alternative methods of bringing a claim of inverse

condemnation once all executive branch review of the

action has been completed. Direct review in the district

court of the agency action may be eliminated and

proceedings properly commenced in circuit court if the

aggrieved party accepts the agency action as proper. Key

Haven, 427 So.2d at 159. The point is that the propriety

of the agency action must be finally determined before

a claim for inverse condemnation exists. In Key Haven

we merely provided an alternative to direct review for

those parties who wish to accept the propriety of the

action. This was not meant to extinguish the property

owner’s right to bring the separate claim of inverse

condemnation in circuit court at the conclusion of all

judicial as well as executive branch appeals regarding

propriety of the action. Whether the party agrees to the

propriety or it is judicially determined is irrelevant. In

either case the matter is closed and a claim of inverse

condemnation comes into being. We emphasized that once

@ party agrees to the propriety of the action and chooses

the circuit court forum, it is estopped from any further

denial that the action itself was proper. Jd. at 160. This

is not to say that once a party chooses to litigate the

propriety of the action through the district court that it

: is estopped from bringing a claim of inverse condemnation

; in circuit court.

App. 21

Id. at 12-13.

In Dade County v. National Bulk Carriers, 459 So.2d 213

(Fla. 1984), in an opinion filed five months after Albrecht,

the property owner had been denied a use permit to excavate

a lake on its property in order to build, by fill, certain of its

land to a higher point of elevation. The zoning commissioner

also rezoned the property for preservation purposes. On

appeal, the circuit court, in upholding the administrative

zoning action, “noted that its opinion should not be construed

as a denial of [a landowner’s] right to raise the taking issue

in a separate action.” Jd. at 215. Writing for the Supreme

Court, Justice Adkins remanded, holding that the court below

had misconstrued a Florida statute and also because:

In our recent decisions in Albrecht v. State, and Key

Haven Associated Enterprises, Inc. v. Board of Trustees

of the Internal Improvement Trust Fund, we recognized

the proposition that under certain circumstances a statute

or regulation may meet the standards necessary for an

exercise of the police powers and authorize a taking. See

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 [43 S.Ct.

158, 67 L.Ed. 322) (1922); Graham v. Estuary Properties,

Inc., 399 So.2d 1374 (Fla.), cert. denied, 454 U.S. 1083 [102

S.Ct. 640, 70 L.Ed.2d 618] (1981). In Albrecht we held that

a claim of uncompensated taking constitutes a separate

and distinct cause of action from an action challenging

the propriety of an agency’s action in denying a permit

to dredge and fill. We recognized that the determination,

judicially or otherwise, that such an action was authorized

under the applicable statute does not necessarily also

determine that there is no taking. We distinguished

between a zoning change or denial on the one hand and

a permit denial on the other hand in Key Haven. We

explained that “{a)] zoning ordinance is, by definition,

invalid if it is confiscatory,” 427 So.2d at 159, and

consequently, no inverse condemnation would be

necessary. On the other hand, as in Key Haven, if the

App. 22

|

“statute authorizes a permit denial which is confiscatory,”

id., a separate condemnation proceeding is an appropriate

remedy. Under the type of statutory permitting-scheme

involved in Key Haven, Albrecht, and Graham v. Estuary,

it was contemplated that its application may result in a

taking. Such is not the case in the application of a zoning

ordinance. To be valid, it must be reasonable. If a zoning

ordinance is confiscatory, the relief available is a judicial

determination that the ordinance is unenforceable and

must be stricken. We hold that this cause should be

remanded to the circuit court for a determination of

whether the county’s action is confiscatory and constitutes

a taking without just compensation, in which event the

action of the board must be stricken. A denial of rezoning

cannot be both reasonable and confiscatory.

Id. at 215-16 (certain citations omitted).

Our decision in Corn v. City of Lauderdale Lakes, 816 F.2d

1514 (11th Cir. 1987), involved a § 1983 suit for damages for

inverse condemnation by Florida zoning action, and required

this court to apply Williamson County Regional Planning

Commission v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108,

87 L.Ed.2d 126 (1985). In Williamson,

the Supreme Court of the United States held that a

Section 1983 claim for money damages stemming from

a regulatory taking of property in violation of federal

constitutional rights is not ripe for review on the merits

until the Plaintiff demonstrates, first, that a final decision

by the relevant authority regarding application of the

regulation to the subject property has been made, i.e., the

“initial decision-maker has reached a definitive position

on the issue that inflicts an actual, concrete injury,” 473

U.S. at 193 [105 S.Ct. at 3120); and second, that no

adequate state remedy, such as inverse condemnation,

is available to redregs the injury occasioned by the final

, decision. Jd. at 196-97 [105 S.Ct. at 3121-22). the rationale

of the Court is that, absent the state’s denial to a property

App. 23

————__________ ______________

owner of just compensation, there can be no cognizable

harm to any federal constitutional right. 473 U.S. at 194

n. 13 [105 S.Ct. at 3120 n. 13). (“The nature of the

constitutional right therefore requires that a property

owner utilize procedures for obtaining compensation

before bringing a § 1983 action.”’).?

?The appellant in Williamson County had challenged the zoning

ordinance as invalid on two theories: First, he argued it violated the

Fifth Amendment’s Just Compensation Clause, as applied to the states

through the Fourteenth Amendment; alternatively, he claimed the

regulation was a violation of the Due Process Clause of the Fourteenth

Amendment to the Constitution. Because the Court found the action

was not ripe for review, it did not reach the merits of the appellant’s

challenges or decide whether a confiscatory zoning regulation—a

“taking’’—is more appropriately considered a violation of the Due

Process or the Just Compensation Clause. Nevertheless, in holding

that the claim was premature under either theory, id. at 199-201 [105]

S.Ct. at 3123—3124), the Supreme Court implicity ruled that the same

ripeness test must be applied to both claims.

Corn, 816 F.2d at 1515-16 (certain citations omitted).

In Corn, over a period of more than ten years, there were

numerous zoning actions and state court decisions affecting

the property involved. As in this case, the taking issue had

not been decided in any of those proceedings. Accordingly,

as did this court in Corn, “[w]Je note at the outset that there

is no issue the first prong of Williamson County’s ripeness

test has been satisfied” and that “[tJhe remaining dispute

centers on fulfillment of Williamson County’s second prong:

whether, in fact, there exists an available and adequate state

remedy to compensate [the landowner] for his loss.” Jd. at

1516. After discussing Florida law as set forth in National

Bulk Carriers, Albrecht and Key Haven, including the absence

of an action for inverse condemnation as a remedy when a

valid zoning change has occurred and the availability of such

an action when a permit denial is involved, this court held

in Corn:

App. 24

In light of the foregoing, we conclude that Florida does

not avail a property owner an action to recover just

compensation through inverse condemnation for injuries

sustained as a result of an unreasonable zoning ordinance

later declared invalid. We further find no support for the

availability of an action for money damages, based either

on trespass or violation of the right of due process, as

guaranteed by the Florida Constitution.* As discussed

above, the cited authorities are persuasive that the

remedy of invalidation is an exclusive one pursuant to

Florida law, because zoning is a function of the police

power rather than the exercise of eminent domain.

*Article 1, Section 9 of the Florida Constitution provides that “No

person shall be deprived of life, liberty or property without due process

of law...”

Id. at 1519.

While it is difficult, as it was in Corn, to classify the

contentions in Count I of the complaint in this case as

growing totally out of alleged invalidity of a zoning ordinance

rather than something more akin to denial of a permit, on

balance, it would appear that we are dealing with more of

the former than the latter. Accordingly, we hold that the

second prong of Williamson County has been satisfied and

that appellants, on remand, may pursue under 42 U.S.C. §

1983, their taking claim in this case.

That claim requires determination of whether or not

appellants have suffered sufficient diminution of their

property rights from the occurrences of which they complain

in this case, so as to entitle them to any compensation. See

Penn Central Transportation Co. v. New York City, 438 U.S.

104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978); Developments in

the Law—Zoning, 91 Harv.L.Rev. 1427 (1978).'?

‘Whether or not, after appropriate discovery opportunity is affor ied

to the parties, there will remain any triable fact issue with regard to the

taking claim will be up to the district court, on remand, to determine.

App. 25

Count IIJ—Alleged Pattern of Discrimination

[6,7] In their third count, the individual appellants, who

are black residents of the Lake Lucerne area, claim a history

of unconstitutional and discriminatory community

development by appellee Dade County, and a conspiracy

among the County and appellees South Florida Regional

Planning Council, Dolphin Stadium Corporation, Joe Robbie,

and Morton Properties to further the interests of the

developers of the Dolphin Stadium project while ignoring the

property rights of appellants. The district court abstained

from exercising federal jurisdiction over the claims of

appellants, brought pursuant to 42 U.S.C. § 1983, et al., in

Count IT because of the pending state action, which contained

a similar count. In so doing, the district court applied the

abstention standards stated by the Supreme Court in Moses

H. Cone Memorial Hospital v. Mercury Construction Corp.,

460 U.S. 1, 14-16, 103 S.Ct. 927, 936-37, 74 L.Ed.2d 765

(1983). Appellees rely upon those determinations by Judge

Spellman and also contend that appellants’ Count III

contentions are barred by principles of preclusion. The latter

argument may not prevail since appellants’ Count III civil

rights claims represent different allegations than the attacks

in Rolling Oaks I and II and in Norwood-Norland I and II.

In addition, while there was some discussion of racial

discrimination during the zoning hearing, there was not, as

discussed supra, full and fair opportunity for litigation of that

issue at that time.

However, for reasons unrelated to preclusion, the district

court abstained from deciding and dismissed Count II

because of the pending Lake Lucerne state action. Relying

upon the factors articulated by the Supreme Court in Moses

H. Cone, Judge Spellman concluded that a Florida state court

would be the most efficient and appropriate forum for

resolution of the civil rights claims.

App. 26

In Noonan South, Inc. v. The County of Volusia, 841 F.2d

380 (11th Cir. 1988), Judge Vance, writing for this court,

wrote that in Colorado River Water Conservation District v.

United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483

(1976), the Supreme Court had “suggested” that when there

is a pending “parallel state court action, ... federal courts

[should] consider a number of factors in determining the

appropriateness of dismissal: (1) whether one of the courts

has assumed jurisdiction over property; (2) the inconvenience

of the federal forum; (3) the potential for piecemeal litigation;

. .. (4) the order in which the forums obtained jurisdiction’’;

and that in Moses H. Cone, the Supreme Court had

“mentioned two additional factors: (5) whether federal or state

law will be applied; and (6) the adequacy of each forum to

protect the parties’ rights.”’ Noonan South, 841 F.2d at 381.

Our application of those factors leads us to disagree with the

district court’s dismissal of Count ITI on abstention grounds.

Jurisdiction over property is not implicated in either the

stayed state or the instant federal action, and each forum

would appear equally convenient for the parties. As to the

potential for piecemeal litigation, counsel for appellants,

during oral argument before us, specifically stated their

desire to move ahead in this federal case and have continued

the existiny stay in the state action. Accordingly, there is

little or no potential for duplicative or simultaneous litigation

of the issues raised in Count ITI in state and federal forums.

Emphasis upon the order in which the forums obtained

jurisdiction “does not turn on which complaint was filed first.

Instead, it is measured ‘in terms of how much progress has

been made in the two actions.’ ” Noonan South, 841 F.2d at

382, quoting Moses H. Cone, 460 U.S. at 21, 103 S.Ct. at 940.

In the instant case, the record indicates that there has been

little activity in the state court case and that there will be

little or none prior to resolution of the issues being remanded

to the federal district court pursuant to this opinion.

App. 27

As for the final two factors added by the Supreme Court

in Moses H. Cone, whether the civil rights issues raised in

Count III are determined in state or federal court, federal

law will govern their adjudication. While, like the district

court, we are convinced that “[tJhere is absolutely no reason

why the courts of the state of Florida are any less competent

than [a federal] Court to adjudicate the civil rights claim at

issue,”!4 the sixth “factor will only weigh in favor or against

dismissal when one of the forum is inadequate to protect a

party’s rights.”” Noonan South, 841 F.2d at 383.

In short, since “‘[aJbstention from the exercise of federal

jurisdiction is the exception, not the rule,” Colorado River,

424 U.S. at 813, 96 S.Ct. at 1244, since “the circumstances

permitting the dismissal of a federa] suit due to the presence

of a concurrent state proceeding for reasons of wise judicial

administration are considerably more limited than the

circumstances appropriate for abstention,” Noonan South,

841 F.2d at 381, quoting Colorado River, 424 U.S. at 818,

96 S.Ct. at 1246, and since appellants have indicated by their

actions their desire to pursue their federal civil rights claim

in federal court only, we reverse the district court’s dismissal

of Count III and remand appellants’ contentions in Count

II], as well as appellants’ taking claim in Count I, for further

appropriate proceedings in the federal district court.'*

AFFIRMED in part; REVERSED in part; and

REMANDED for further proceedings consistent with this

opinion.'®

Judge Spellman’s opinion at p. 5.

'SAfter oral argument, some of appellees filed a Motion to Dismiss

Because of Lack of Subject Matter Jurisdiction. Appellants responded with

a Motion to Strike and Motion for Sanctions. Both motions are denied.

In this appeal, review is not sought of state court judgments; rather,

appellants seek reversal, inter alia, of the district court’s application of

preclusion principles. Appellees’ argument is misplaced. However, we do

not find it to be frivolous. See Hollins v. Wessel, 819 F.2d 1073, 1074 (11th

Cir.1987).

'6On remand, the district courts’ assessment of costs upon appellants

should be considered anew.

App. 28

[FILED OCTOBER 4, 1989]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH COURT

No. 88-5383

LAKE LUCERNE CIVIC

ASSOCIATION, INC., et al.

Plaintiffs-Appellants,

versus

DOLPHIN STADIUM CORP., et al.,

Defendants-Appellees.

Appeal from the United States District Court for the

Southern District of Florida

ON PETITION(S) FOR REHEARING AND

SUGGESTION(S) OF REHEARING IN BANC

(Opinion August 3, 1989, 11 Cir., 198 ’ F.2d ).

Before RONEY, Chief Judge, VANCE, Circuit Judge, and

KAUFMAN*, Senior District Judge.

PER CURIAM:

(~) The Petition(s) for Rehearing are DENIED and no

member of this panel nor other Judge in regular active

service on the Court having requested that the Court be

polled on rehearing in banc (Rule 35, Federal Rules of

Appellate Procedure; Eleventh Circuit Rule 35-5), the

Suggestion(s) of Rehearing In Banc are DENIED.

ENTERED FOR THE COURT:

/s/ Paul H. Roney

United States Circuit Judge

*Honorable Frank A. Kaufman, Senior U.S. District Judge for the District

of Maryland, sitting by designation.

App. 29