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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1989

## Text

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

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0869%3A2. Public record. Not legal advice.