Petition for Writ of Certiorari — Corn v. City of Lauderdale Lakes

Supreme Court brief1994

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Text

No.

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1993

HERMAN CORN, Trustee,

Petitioner,

VS.

THE CITY OF LAUDERDALE LAKES,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

GIDEON KANNER

Counsel of Record

M. REED HUNTER

CROSBY, HEAFEY, ROACH & MAY

Professional Corporation

700 South Flower Street, Suite 2200

Los Angeles, California 90017

(213) 896-8000

ANDREW T. LAVIN

RICHARD A. IVERS

ROMANIK, LAVIN, HUSS & PACLI

1901 Harrison Street

Hollywood, Florida 33020

Attorneys for Petitioner

Lawyers Brief Service * Appellate Brief Printers * (213) 613-1013 / (714) 720-1510

QUESTIONS PRESENTED

1. (a) When a land owner, consistent wiih the direc-

tive of this Court in Williamson County Regional Plan-

ning Commission v. Hamilton Bank, 473 U.S. 172

(1985), defers pursuing his federal constitutional and

civil rights claim: in a land use regulation controversy

until a final adjudication of his state law-defined rights

in property in the appropriate state court is reached, may

a Federal Circuit Court of Appeals ignore and override

final factual findings and legal determinations made in

the earlier state court proceedings (as well as the find-

ings of the United States District Court consistent with

the earlier final state court judgment) and purport to

adjudicate that owner’s rights to use his land as if a

court of first instance?

(b) When such Circuit Court adjudication conflicts

with the state court final judgment and the District Court

factual findings, does that adjudication (1) defy this

Court’s holding in Williamson County, (2) violate the

rights of that land owner to due process of the law, (3)

contravene the constitutional doctrine of comity; (4)

ignore federal law relating to full faith and credit (as

well as collateral estoppel and other doctrines of preclu-

sion), and (5S) improperly divest the District Court of its

function as finder of fact?

2. (a) Where a landowner enjoys a fully vested right

to build on his iand in a City according to present

zoning, confirmed by a final judgment of a state court of

competent jurisdiction, which judgment also expressly

estops the City trom changing the zoning, may the City

constitutionally deprive him of that right by a purported

change in zoning?

(b) In this situation, when the City — in ostensible

review of a site plan consistent with a development plan

it has already approved (by state law, a nondiscretionary

ministerial review limited to insuring technical site plan

compliance) — nonetheless changes the zoning without

notice, prehearing investigation or competent supporting

evidence, thus depriving the landowner of his vested

rights and preventing him from building, does that City

deny the landowner due process of law and just

compensation?

3. In Eide v. Sarasota County, 908 F. 2d 716, 720 (9th

Cir. 1990), cert. denied 498 U.S. 1120 (1991), the

Eleventh Circuit first articulated a conceptual construct

that there are precisely “four types of challenges [based

on allegedly unconstitutional land use regulation] a

plaintiff may bring ... [1] just compensation, [2] due

process takings, [3] arbitrary and capricious due process

and [4] equal protection claims.” This construct was the

template of the Circuit Court’s opinion below. Is this

construct consistent with this. Court’s rule that chal-

lenges to the constitutionality of land use regulations are

to be determined on an ad hoc basis?

4. Does the Eleventh Circuit’s explication of substan-

tive due process rights in this case (and other land use

cases) correctly explicate the law of this Court, or are

conflicting interpretations from other Circuit Courts of

Appeal, and other state courts, correct?

5. What is the proper measure of damages for a tempo-

rary taking of property set aside for a particular author-

ized and appropriate development if, when development

is unlawfully delayed and then finally permitted, the

economic window of opportunity for that development

has vanished?

- iil -

PARTIES TO THE PROCEEDING

Plaintiff, appellant and cross-appellee, and petitioner is

Herman Corn, Trustee. Defendants and respondents are

the City of Lauderdale Lakes, a Florida municipal corpo-

ration (the City), Howard Craft (Mayor), Alfonso

Gereffi, Jerome J. Cohan, Morris Klein, Lyman L. Allen,

Louis Greenwald and Harry Kaufman (City Coun-

cilmen).

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ............. i

PARTIES TO THE PROCEEDING. ....... iii

LISt OF APPENDICES. ......22eceececik

TABLE OF AUTHORITIES. ............-x

Cie eeeReee EE os ea oe ee eae eee

SUT sn ee Oe eee oS caked Satu eoy ae

CONSTITUTIONAL AND STATUTORY

PRET OTE oo Sk Vis a Kd ee ee oe ee 2

STATEMENT OF THE CASE ........... 3

ee eee piece

B. In 1966, Mr. Corn And The City Enter Into

An Annexation Agreement That Included

Approval Of A Development Plan And

Site-Specific Zoning Consistent With That

Development Plan... . we te ce ee 4

C. <A 1969 State Court Final Judgment Con-

firms Mr. Corn’s Right To Build And

Estops The City From Changing The Zon-

me CRA Tne Promeriy. . 6 ee ee tte 5

- V -

Defying The State Court Estoppel Order

And Reneging On Its Own Agreement, In

1977 The City Council Purports To Deny

The Development It Had Approved At The

Time Of Annexation And To Rezone The

Property .

1. The Mini-Warehouse Presents Mr.

Corn With An Extraordinary Eco-

nomic Opportunity

City Council Actions, Which Over-

ruled Planning And Zoning Board

Recommendations, Were Taken With-

out Advance Notice, Investigation As

To Their Appropriateness, Or Support-

ing Evidence

3. City Council Actions Were Taken In

Response To Pressure From Neighbor-

hood (NIMBY) Activists .

Mr. Corn In The State Courts: Vested

Rights, Lack Of Discretion, And Illegality

of City Acts Are Confirmed In A Final

Judgment

Mr. Corn In The Federal Courts: Damages

Awarded Based On Constitutional Viola-

tions.

ta ice —

Page

.10

REASONS WHY THE WRIT SHOULD ISSUE .

- Vi -

Twenty-Four Years After The Annexation

Agreement And Thirteen Years After

Commencement Of Litigation Which Gen-

erated Seven Prior Reported Decisions.

The Eleventh Circuit Goes Back To Square

One, Ignores Prior Factual Determinations

By Both State And Federal Courts As Well

As Final And Preclusive Legal Findings,

And Proceeds As If It Were Writing On A

Clean Slate As A Court Of First Instance

The Startling August 13, 1993 Eleventh

Circuit Opinion Runs Counter To

Monolithic Constitutional, Statutory And

Case Law And Threatens To Destabilize

The Clearly Defined Mode Of Interaction

Between Federal And State Trial And

Appellate Courts... 2... ...2.20202.,

1. Striking At The Very Heart Of Fed-

eralism, The Eleventh Circuit Ignored

Guiding Principles Of Full Faith And

Credit, Comity, Preclusion And Due

Process OfLaw............

The Eleventh Circuit Opinion Penal-

izes Land Owners Seeking Due Proc-

ess And Just Compensation For Uncon-

Stitutional Land Regulation Who

Follow The Procedural Dictates Of

Cee SE ee ee eee eee

Page

via

- Vii -

3. The Eleventh Circuit Rode Roughshod

Over District Court Factual Findings

(Including Findings As To Motive

And Intent) In Contravention Of The

Well-Defined Allocation Of Power

And Duties Between Federal Trial

And Appellate Courts... .....~,

In Contravention Of Mr. Corn’s Vested

Rights And An Established Body Of Con-

Stitutional Law, The 1977 City Council

Made Decisions It Was Not Empowered

To Make, Violating Its Own Required

Procedures, And Made Them On Imper-

missible Grounds .............,

1. By 1977, Mr. Corn’s Rights To Build

The Mall And Mini-Warehouse Were

Vested; The City Was Bound By A

State Court Final Judgment Estopping

It From Changing The Zoning And

Divesting It Of Discretion To Deny

Ser Ge Fs 6 a 4 ee eee

Mr. Corn Was Ambushed By The

iNo-Investigation, No-Notice, No-Due

Process Extralegal Purported Zoning

MS og eG. oo a

3. Inappropriate Deference To Neighbor-

hood (NIMBY) Activists At The

Expense Of Constitutional Rights —

The Basis Of The City’s 1977 Actions

Here — Is An Increasing And Critical

Problem Needing Address By This

WN b ek we Sees ba ee

Page

s one

. «au

- Vili -

Page

C. The Eleventh Circuit Eide Construct, Cen-

tral To the Disposition Of This Case

Below, Is Inconsistent With The Teachings

Of This Court, And Requires Litigants

Challenging Land Use Regulations To

Operate Under A Set Of Rules Different

From Those In Other Circuits... ..... .24

D. This Case Presents A Vehicle For Resolv-

ing The Significant Conflict Which Exists

Between The Several Circuits (And Be-

tween Federal And State Courts) As To

The Breadth Of Substantive Due Process

Guarantees In Land Use Cases. ....... .26

E. This Court’s Guidance Is Needed In Reso-

lution Of The Recurring Question Of The

Proper Measure Of Damages In A Land

Use Case Where An Economic Opportu-

nity Is Lost Because Of A Temporary

er.

eee eS en er.

- 1X -

LIST OF APPENDICES

APPENDIX A

OPINION, U.S. COURT OF APPEALS

ELEVENTH CIRCUIT, DATED AUGUST

Se a 6 8. dk oe OE FAR ae ee Al

AND

PETITION FOR REHEARING DENIED,

rear Gu bees 18, PRIS. ke AS9

APPENDIX B

FINDINGS OF FACT AND CONCLU-

SIONS OF LAW, UNITED STATES DIS-

TRICT COURT, S.D. FLORIDA, DATED

Po boe cy ge AG.) a re Bl

APPENDIX C

ORDER AWARDING ATTORNEYS’

FEES AND COSTS, U.S. DISTRICT

COURT, S.D. FLORIDA, DATED MAY

APPENDIX D

DECISION, DISTRICT COURT OF

APPEAL OF FLORIDA, DATED

Puede © 80, BPOSe ce ttt te D1

APPENDIX E

ORDERS, CIRCUIT COURT IN AND

FOR BROWARD COUNTY, FLORIDA,

DATED JANUARY 28, 1970 AND

ng ko Ny ee a ce El

APPENDIX F

CITY OF LAUDERDALE LAKES OR-

DINANCES NOS. 103, 104, 105, 548,

ee a ee ee FI

- xX -

TABLE OF AUTHORITIES

Cases

A.A. Profiles, Inc. v. City of Ft. Lauderdale

850 F.2d 1483 (11th Cir. 1988), cert. denied.

490 U.S. 1020 (1989) .... ; oe 6 ee

Allen v. McCurry

449 U.S. 90, 101 S.Ct. 411 (1980). . . 114.

Bailey v. City of St. Augustine Beach

538 So.2d 50 (Fla. App. 1989).

Benenson v. United States

548 F.2d 939 (Ct. Cl. 1977)

BMI Investments Inc. v. City of Casselberry

476 So.2d 713 (Fla App. 1985S)

Church of Jesus Christ of Latter-Day Saints v.

Jefferson County

721 F.Supp. 1212 (N.D. Ala. 1989)

City of Cleburne v. Cleburne Living Center

473 U.S. 432 (1985) .

C Ity of Margate v. Amoco Oil Co.

546 So.2d 1091 (Fla. App. 1989).

Commercial Bank of Cincinnati v.

Buckingham’s Executors

46 U.S. 5 How. 317 (1847).

Concrete Pipe & Prods., Inc. v. Construction

Laborers Pension Trust

113 S.Ct. 2264 (1993) .

Page

.20

wales

Coniston Corp. v. Village of Hoffman Estates

844 F.2d 461 (7th Cir. 1988). .

Connolly v. Pension Benefit Guaranty Corp.

475 U.S. 211 (1986) .

Dalehite v. United States

346 U.S. 15 (1952).

Fide v. Sarasota County

908 F.2d 716 (9th Cir. 1990) cert

denied, 498 U.S. 120(1991). . . ii. 11.1

First English Evangelical Lutheran Church v.

County of Los Angeles

482 U.S. 304 (1987) .

Greenbriar, Ltd. v. City of Alabaster

881 F.2d 1570 (11th Cir. 1989)

Hollywood Beach Hotel Co. v.

City of Hollywood

329 So.2d 10 (Fla. 1976).

Hudson v. Palmer

468 U.S. 517 (1984).

Kaiser Aetna v. United States

444 U.S. 164 (1979)

Kremer v. Chemical Constr. Corp.

456 U.S. 461 (1982) .

Logan v. Zimmerman Brush Co.

455 U.S. 422 (1982) .

Page

.19

‘Gs @

.14, 15

- XIl -

Page

Loretto v. Teleprompter Manhattan CATV Corp.

458 U.S. 419 (1982) . a

Lucas v. South Carolina Coastal Comm’ n

S05 U.S. __, 120 L.Ed2d 798 (1992). . . . .17. 25

Lynch v. Household Fin. Corp.

405 U.S. 538 (1972) . .29

MacDonald, Sommer & Frates v. Yolo County

477 U.S. 340 (1986) . 25

Marks v. City of Chesapeake

883 F.2d 308 (4th Cir. 1989). ioe

Migra v. Warren City Sch. Dist. Bd. of Educ.

465 U.S. 75 (1984). 16

Mobil Oil Corp. v. Shevin

354 So.2d 372 (Fla. 1977) . .16

Nemmers v. City of Dubuque

716 F.2d 1194 (8th Cir. 1983) . 18

Pearson v. City of Grand Blanc

756 F.Supp 314 (E.D. Mich. 1991). .24

Pearson v. City of Grand Blanc

961 F.2d 1211 (6th Cir. 1992)... . . . . .24 27

Penn Central Trans. Co. v. City of New York

438 U.S. 104 (1978) . a2

Pennell v. City of San Jose

485 U.S. 1 (1988)

’

“oe

- Xill -

Page

Preseault v. 1.C.C.

i ee F

R.D.J. Enters. Inc. v. Media Bank

600 So.2d 1229 (Fla. App. 1992). . ee. Re

Reardon v. San Francisco

66 Cal. 492 (1885)... . >. ee

Rearhard v. Lee County

968 F.2d 1131 (11th Cir. 1992) . 2 ee

Rogers v. Lodge

I rs Or

Sierra Lake Reserve v. City of Rocklis

938 F.2d 951 (9th Cir. 1991),

cert. granted and judgment vacated,

113 S.Ct. 31 (1992), on remand

987 F.2d 662 (1992). ......... are

Southern Co-Op Development Fund v. Driggers

696 F.2d 1347 (11th Cir. 1983),

cert. denied, 463 U.S. 1208 (1983). ...... .2]

Texaco, Inc. v. Short

Twining v. New Jersey

Es 1

United States v. James Daniel Good Real Property

eee See et, 9201995)... ....=. 30

- XIV -

Page

Washington ex. rel. Seattle Trust Title &

Trust Co. v. Roberge

ore Ua EE Gee a. sae os eee ee ee ee

Wheeler v. City of Pleasant Grove (Wheeler 1)

664 F.2d 99 (Sth Cir. Unit B 1981)

cert. dented, 456 U.S. 973 (1982) ..... .18, 21

Wheeler v. City of Pleasant Grove (Wheeler II])

S33 F.2e 20t (13th Cor. TGR) co ccd ew eos eee

Wheeler v. City of Pleasant Grove (Wheeler IV)

896 F.2d 1347 (11th Cir. 1990)... ..... .11,12

Williamson County Regional Planning

Commission v. Hamilton Bank 1, 10, 15,

G73 Um Bea leh « «6 «ts ele bee De a

Younger v. Harris

Co Ge ee. og 4 PR a Roe Oe ae

Constitution

United States Constitution

Fifth Amendment 2, 10

Fourteenth Amendment 2, 10

- XV -

Page

Federal Statutes

ee Ee, ee Be ee. 4 oe, @ ie 0 ee

y Ete Fae bys! Pr ne emer ms | Fae

AiR To oS ee ee er ern

State Statutes and Ordinances

Lauderdale Lakes City Code § 25.5.5.........7

City of Lauderdale Lakes

ordinance mo.103 .....+-.++:s-e8<eseeuevrdH4

ordinance no. 104... Pung ig cel carlin ka ce

ordinance no. 105 3. 4

ordinance no. 548 2, 3, 7, 9, 16

ordinance no. 549 2 Se Ve De ae

ordinance no. 552 y a Ay a ey

Fla. Stat. Section 171 et Ms kb ee he ee ee 4

Text

Carroll. Alice in Wonderland, Ch.12........ .20

Miscellaneous

1990 presidential report by the Advisory

Committee on Regulatory Barriers to

Affordable Housing, “Not In My Back Yard”

Removing Barriers to Affordable Housing .... . .22

PETITION FOR WRIT OF CERTIORARI

Herman Corn, Trustee, respectfully seeks Certiorari to

review the judgment of the United States Court of Appeals

for the Eleventh Circuit.

OPINIONS BELOW

The August 13, 1993 opinion of the United States Court of

Appeals for the Eleventh Circuit is published at 997 F.2d

1369 (11th Cir. 1993), and is reproduced herein — with the

Subsequent order denying rehearing and a suggestion for

hearing en banc — as Petitioner’s Appendix A1-60.

That opinion affirmed in part and reversed in part the

August 30, 1991 decision of United States District Court for

the Southern District of Florida, published at 771 F.Supp.

1557 (S.D. Fla. 1991) and reproduced hercin as Petitioner’s

Appendix B1-32. The subsequent District Court order

awarding attorney’s feces is at 794 F.Supp. 364 (S.D. Fla

1992), and reproduced herein as Petitioner’s Appendix

C1-16.

Since the late 1960's, the extended controversy to which

these opinions speak has generated cight published opinions

and a number of unpublished decisions, by state and federal

courts. The remaining published opinions are: 371 So.2d

1111 (Fla. 4th Dist.Ct.App. 1975); 415 So.2d 1270 (Fla.

1982), 427 So.2d 239 (Fla. 4th Dist.Ct.App. 1983),

reproduced herein as Petitioner’s Appendix D1-11; 816 F.2d

1514 (11th Cir. 1987); and 904 F.2d 585 (11th Cir. 1990). A

further order of the Eleventh Circuit, reversing an award of

attorney’s fees to petitioner, is at 3 F.3d 442 (11th Cir.

1993). Orders of the Florida Circuit Court in and for

Broward County dated January 28, 1970 and May 18, 1971

(with accompanying stipulation) are reproduced herein as

Petitioner’s Appendix E1-6.

JURISDICTION

This is an action for deprivation of property without due

process of law or just compensation in violation of the Fifth

and Fourteenth Amendments to the United States Constitu

tion and the Civil Rights Act (42 U.S.C § 1983). The judg

ment of the Eleventh Circuit was entered on August 13,

1993. Mr. Corn’s petition for rehearing and suggestion for a

hearing en banc was denied on October 14, 1993. The fed

eral court action for damages followed a state action cul

minating in a final judgment invalidating City ordinances

548, 549 and 552 and holding that the City had no discretion

lo act as it did holdings recognized by the District Court.

yet ignored by the Eleventh Circuit, which found the City’s

actions valid

An extension of time within which to file this petition for

a writ or certiorari to February 11, 1994. was granted by

order of Justice Anthony M Kennedy, Circuit Justice for the

Eleventh Circuit, on December 29, 1993

This court has jurisdiction pursuant to 28 U.S.¢

§ 1254(1)

CONSTITUTIONAL AND STATUTORY PROVISIONS

Fifth Amendment, United States Constitution

nor shall private property be taken for public

use, without just compensation.”

Fourteenth Amendment, United States Constitution:

“Section 1... nor shall any State deprive any

person of life, liberty, or property without due

process of law...”

42 U.S.C. § 1983:

“Every person who, under color of any Statute,

ordinance, regulation, custom or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of

the United States or other person within the juris

diction thereof to the deprivation of any rights,

privileges, Of immunities secured by the Constitu

tion and laws, shall be liable to the party injured in

an action at law, suit in equity, or other proper

proceeding for redress

City of Lauderdale Lakes ordinances nos. 103, 104, 105,

S48, S549, and 552 are reproduced herein as Petitioner’s

Appendix F1-25

STATEMENT OF THE CASE

A. Introduction

Twenty-cight years ago, in 1966, the subject 261 acres

was annexed to the City of Lauderdale Lakes, to which it was

contiguous, by means of an annexation agreement between

the City and the property owner, Mr. Corn. The agreement,

which included a development plan and site-specific zoning,

was memorialized and implemented through City ordinances

nos. 103, 104 and 105, enacted at the time of annexation

Since 1969, controversies having their genesis in the

City’s efforts to thwart Mr. Corn’s rights under the 1966

agreement (notably — but not exclusively — improvement

of 8.5 acres of commercial development) have generated

eight reported state and federal court decisions (identified

ante), as well as several unreported decisions. Until the

August 13, 1993 Eleventh Circuit Court of Appeals opinion

inexplicably returned to square one to decide de novo issues

previously and finally adjudicated in Florida state courts (as

a matter of state law) and reaffirmed repeatedly in federal

courts, the decisions have invariably required the City to

adhere to its commitments and held (a) that Mr. Corn’s rights

to build on his land had vested under state law thus becoming

a 2

protected property rights, (b) that the City lacked discretion

to deny approval of the site plan, and (c) that the City was

estopped from changing the existing zoning.

B. In 1966, Mr. Corn And The City Enter Into An

Annexation Agreement That Included Approval

Of A Development Plan And Site-Specific Zon-

ing Consistent With That Development Plan

In 1966, the City and Mr. Corn agreed — after extended

negotiations — to the annexation of his 261 acres (the Larger

Site) located in an unincorporated area in Broward County,

Florida, contiguous to the City. (771 F.Supp. at 1559-60:

App. B1-2)! As is often the case, an intrinsic part of the

annexation agreement was the Cily’s approval of a proposed

development plan — the raison d'etre for the annexation.

All this was memorialized in ordinances adopted by the City

on July 12, 1966. As the Eleventh Circuit put it in its earlier

1987 Opinion: “The ordinances, respectively, annexed

Corn’s property [No. 104]; applied a varicty of zoning clas-

Sifications to his land [No. 105]; and allowed Corn to con-

Struct mini-warehouses in a portion of his properly zoned

C-1A [No. 105].” (816 F.2d at 1515) 2 (Ordinance 103

created zoning category C-1A from pre-existing category

C-1.)

| Without the cooperation of Mr. Corn, it would have taken an act of

the Florida legislature or a formal referendum to enable the City to

annex this land. Fla. Stat. Section 171 ef seq.

2 The 1966 ordinances did not identify “mini-warehouse” as the

precise eventual use, but (in typical zoning terminology) expressly

allowed any of several specified commercial and industrial uses. one

of which was warehouse. (See 997 F.2d at 1371; App. A2-3)

7: -

C. A 1969 State Court Final Judgment Confirms

Mr. Corn’s Right To Build And Estops The City

From Changing The Zoning On The Property

The next event of significance was thus recounted in a

subsequent state court opinion:

In 1969 the city attempted to change the zoning

of a portion of appellee’s property to prohibit a

contemplated project [condominium housing]

permitted by the original zoning. Litigation ensued

resulting in a judgment holding that the city was

estopped from changing the zoning. No appeal was

taken from that judgment.

City of Lauderdale Lakes v. Corn, 427 So.2d at 240-41; App.

D2. An examination of the January 28, 1970 order and May

18, 1971 final judgment (App. E2, 5), in context, demon-

Strates that the estoppel reference was to the entire Larger

Site, including the 370 foot by 1030 foot 8.5 acres zoned

C-1A (the Property) (TR 84).>

Between 1966 and 1977, Mr. Corn developed much of the

Larger Site consistent with the approved development plan,

logically developing the housing first. (771 F.Supp. at 1560;

App. B2; TR 81) In reasonable reliance on the earlier ap-

proved development plan, he spent in excess of $100,000

toward development of the Property; improvements included

waterways which formed a barrier between the Property and

the residential parts of the Larger Site. (771 F.Supp. at

1560; App. B2)

Another effort to renege on its 1966 commitments was launched

by the City in 1976 (Circuit Court for the 17th Judicial District of

Broward County, Florida case No. 76-7105). This, too, was resolved

in Mr. Corn’s favor.

= o

D. Defying The State Court Estoppel Order And

Reneging On Its Own Agreement, In 1977 The

City Council Purports To Deny The Develop-

ment It Had Approved At The Time Of Annexa-

tion And To Rezone The Property

1. The Mini-Warehouse Presents Mr. Corn

With An Extraordinary Economic Oppor-

tunity

On April 1, 1977, Mr. Corn submitted a preliminary site

plan for a 67,000 square foot Shopping mall which would

front the main adjoining thoroughfare (U.S. 411), and a

103,000 square foot mini-warchouse. separated from the

thoroughfare by the mall and from Surrounding residences by

the waterways. (771 F.Supp. at 1560; App. B2-3) This site

plan was (in the words of the final state court Opinion) “in

accordance with the development plan submitted to and

approved by the City “(427 So.2d at 241; App. D3)

At that time, small warehouses in which individuals might

Store personal property were just coming into vogue; there

was no such facility in Lauderdale Lakes. (TR 3:500) Had

the proposal been approved, this development — as subse-

quent experience of other entrepreneurs demonstrated —

would have provided an exceptional business opportunity for

Mr. Corn, and also provided a Significant convenience for

local residents

City Council Actions, Which Overruled

Planning And Zoning Board Recommenda-

tions, Were Taken Without Advance Notice,

Investigation As To Their Appropriateness,

Or Supporting Evidence

On May 12, 1977, the City’s Planning and Zoning Board

recommended approval of Mr. Corn’s site plan; on May 27,

1977, it reaffirmed that recommendation. (771 F.Supp. at

1560. App B3)

When it finally acted on the Corn site plan on July 12,

1977 (having tabled consideration of the matter three times),

the City Council introduced and at the same meeting for

mally enacted two ordinances: Ordinance 548 eliminated

warehouses aS a permitted C-1A use, and Ordinance 549

rezoned the Property (and no other land) to B-3 (771

F.Supp. at 1560, App. B3, F12-21) These ordinances were

passed without any advance notice to Mr. Corn or to the

public that any act beyond passing on the pending site plan

would be considered. This ambush manifestly violated not

only constitutional due process protections and basic fair

ness, but also the City’s own duly enacted procedural stand

ards Lauderdale Lakes City Code § 25.5.5 requires a ten

day notice and a Planning and Zoning Board hearing on any

proposed zoning change before the City Council may act

The Council then denicd approval of the Corn site plan as

inconsistent with the (newly) created zoning, with no sugges

tion that the site plan might be modified to make it accept

able. (771 F.Supp. at 1560; App. B3)

Prior to the July 12 hearing, the City had made no effort

to investigate mini-warehouses to determine empirically their

impact on traffic, noise, etc F.Supp. at 1560; App

B4:. TR 3:500-02) At the hearing, the City Council proposed

a moratorium (later formally adopted as Ordinance 552 and

771

extended), ostensibly to study and evaluate the impact of C-1

zone uses, and particularly mini-warehouses. (771 F.Supp

4 : S

At the federal district court trial, former City Mayor Howard Craft

conceded that there was no notice, that there was no investigation

prior to the hearing (“we never heard of mini-warehouses’), that the

City did not consider its 1966 agreements, that this was the only

time of which he was aware that the City Council did not follow a

Planning and Zoning Board recommendation, and that the rezoning

and use deletion was unprecedented in City history. (TR 3:470-71

494-500, 507-09)

at 1560; App. B3-4, F22-25) The study thus post-dated the

zoning change it was Supposed to justify.

3. City Council Actions Were Taken In Re-

sponse To Pressure From Neighborhood

(NIMBY) Activists

It is undisputed that all of these 1977 City Council acts

taken to frustrate Mr. Corn’s vested rights were a response to

political pressure by neighborhood NIMBY (the often-used

acronym for “Not In My Back Yard”) activists — ironically

for the most part living in the housing Mr. Corn had

developed. (See, e.g., 997 F.2d 1378-84: App. A19-34)

These activists appeared in Significant number, but — like

the City itself — offered no sworn testimony or other COg-

nizable evidence which could Support the City’s illegal

rezoning (which, of course, would have been impermissible

anyway in view of the state court judgment).

E. Mr. Corn In The State Courts: Vested Rights,

Lack Of Discretion, And Illegality of City Acts

Are Confirmed In A Final Judgment

Alter these City acts, Mr. Corn sued the City and the City

officials identified ante in the Circuit Court of the Seven-

teenth Judicial District in and for Broward County (Case No.

77-12955). (771 F.Supp. at 1561: App. B4) At that time

(prior to this Court’s decision in First English Evangelical

Lutheran Church vy. County of Los Angeles, 482 U.S. 304

(1987)), Florida categorically forbade money damages as a

remedy for unconstitutional land use regulation, no matter

how severe the consequences to the landowner. See Corn.

816 F.2d at 1517.

Following a trial, the trial court entered its final judgment

on October 20, 1978, holding that the Wwalerways and other

improvements were made by Mr. Corn in express reliance on

the

. P

the approved development plan, that the City’s July 12 ac-

tions were taken without notice, and that “Ordinances # 548,

# 549 and # 552 were enacted by the City improperly and not

in accordance with the requirements of the City Charter.”

(427 So.2d 241; App. D4) The court specifically held that

the City failed “to follow its own notice and procedure re-

quirements” and did not make the requisite showing of com-

pelling health, safety or welfare considerations. (427 So.2d

at 242, App. D4) The City Council’s action was found to be

in direct response to the “demands” of the neighborhood

activists “without consideration of the rights of the Plaintiff

herein pursuant to the Ordinances of the City of Lauderdale

Lakes.” And finally, the court expressly held that the City

was “estopped to deny Plaintiff’s rights in [the Original]

zoning Classification.” (427 So.2d at 242; App. DS) and that

ordinances 548, 549 and 552 were void and unenforceable.

(App. D5) The Court’s writ of mandamus directed the City

to approve the site plan (upon the making of minor technical

adjustments), and to issue the building permit. (427 So.2d

242; App. DS)

The trial court judgment was affirmed in all relevant

particulars by the Florida Fourth District Court of Appeal on

February 16, 1983.° City of Lauderdale Lakes v. Corn, 427

So.2d 239 (Fla. 1983) (App. D1-11). The court of appeal

held that the City was estopped from changing the zoning (to

do so would be “grossly unfair”), and that “no element of

discretion remains” in the City to deny the site plan and the

approval of the plat on the basis of controlling standards is

described as “an administrative act” and “ministerial” (427

So.2d at 243-44; App. D9-10), that under Florida law the

City’s legislative powers were in no sense impinged (427

So.2d at 244; App. D10), that Mr. Corn’s vested rights

, Along the way, a dispute arose as to whether the City would be

required to post bond on appeal. This controversy was resolved in a

published decision at 415 So.2d 1270 (Fla. 1982). The bonding

controversy has no significance in this matter.

- 10-

equitably estopped the City from changing the zoning, and

that the City should be “held to the same Standards of fair

dealing that are applied to other entities.” (427 So.2d at 244;

App. D9-10) The Florida Court of Appeal issued its mandate

on March 4, 1983, at which time the decision became final.

(771 F.Supp. at 1561: App. B5)°

F. Mr. Corn In The Federal Courts: Damages

Awarded Based On Constitutional Violations

By the time the iNegality of the City’s acts of frustration

had been definitively adjudicated (1985), Mr. Corn had been

deprived of the use of the Property for eight years. The

window of economic Opportunity for the mini-warchouse

project had been lost: other warehouse facilities in the area

had preempted Mr. Corn’s opportunity. The market was

Saturated. The Property remains vacant today.

On January 17, 1984, Mr. Corn filed the underlying case

below in the United States District Court for the Southern

District of Florida No. 54-6034-CIV, secking damages for

violation of the just compensation, due process and equal

protection clauses of the Fifth and Fourteenth Amendments

and the Civil Rights Act (42 U.S.C. § 1983). (771 F.Supp. at

1561; App. BS-6)

On October 22, 1985, the district court (Gonzalez, J.)

dismissed the action believing it to be unripe under the

Williamson County test. (771 F.Supp. at 1562: App. B7) In

Corn v. City of Lauderdale Lakes. 816 F.2d 1514 (11th Cir.

1987), the Eleventh Circuit reversed, and (significantly)

6 ; in :

In spite of the mandate, the City refused to approve the site plan

unless Mr. Corn complied with planning requirements (property

platting) that came into existence after July 1977. (771 F.Supp. at

1561; App. BS) On March 26, 1985, the 17th Judicial Circuit Court

ordered the City to issue the building permit without platting. (771

F.Supp. at 1562; App. B6)

yee

acknowledged the final state court ruling: “A final judgment

rendered in Corn’s favor estopped the City from rezoning the

property during the pendency of Corn’s ownership of it.” Jd

at 1515. The “property”

entire Larger Site including the Property.’

thus referred to was, again, the

On August 30, 1991, following a four-day nonjury trial,

the District Court (Paine, J.) issued its opinion consisting of

findings of fact, conclusions of law and extended damages

calculations purportedly pursuant to the Eleventh Circuit

standard expressed in Wheeler v. City of Pleasant Grove, 896

F.2d 1347 (11th Cir. 1990) (Wheeler IV). The district court’s

Substantive factual findings echoed the state court final

judgment, e.g., the passage of critical ordinances on the first

reading was without notice and without even an attempt at

investigation of the appropriateness of the mini-warchouse

use, “the City Council was motivated solely by an irrational

desire to thwart CORN’s plans.” Corn v. City of Lauderdale

Lakes, 771 F.Supp. at 1569; App. B22.

The District Court presented its conclusions of law in the

frame of reference of the Eide v. Sarasota County construct

Significant conclusions include: (1) Corn enjoyed vested

rights in the pre-July 12, 1977 zoning, and “[t]his issue,

having been presented, fully litigated, and resolved in a prior

Suit between these partics, cannot be relitigated” (771

F.Supp. at 1566; App. B15); (2) Corn enjoyed a protected

property interest under Florida law (771 F.Supp. at 1566;

App. B15-16); (3) the City acted arbitrarily and capriciously

in its actions in July 1977 and thereafter, including its so-

called moratorium and report which “seems nothing more

’ Having failed to demonstrate that Mr. Corn’s action was unripe,

the City flip-flopped and argued that it was overripe. But the district

court held that the action was not barred by limitations or res

judicata, and the Eleventh Circuit affirmed. Corn v. City of Lauder-

dale Lakes, 904 F.2d 585 (11th Cir. 1990).

| ,

than an att mpt at post hoc rationalization ” Cr2 Supp. at

1S69: App RD] +4

G. Twenty-Four Vears After The Annexation Agree

ment And Thirteen Years After Commencement

Of Litigation Which Generated Seven Prior

Reported Decisions, The Eleventh Circuit Goes

Back To Square One, Ignores Prior Factual

Determinations By Both State And Federal

Courts As Well As Final And Preclusive Leyal

Findings, And Proceeds As If If Were Writing

On A Clean Slate As A Court Of First Instance

This case reached the Eleventh Circuit for the third time

following an appeal by Mr. Corn and a cross appeal by the

Citv from the District Court's decision Mr. Corn asserted

error in the computation of damages under Wheeler /V and in

the holding that the individual defendants enjoyed absolut

immunity The City sought to relitigate issues previously

and finally decided by the Florida stat courts (vested rights)

and the Eleventh Circuit (statute of limitations)

The Eleventh Circuit pancl, consisting Of three judges

who had participated in neither of the prior Circuit decisions,

Wrote as if it were a court of first Impression, as if the state

court proceedings had never happened or at least as if they

had no legal effect, and usurped the District Court’s function

as trier of fact as well. The Opinion recites the basic State

court determinations, but never attempts to reconcile them

with its own squarely contrary conclusions, which include a

linding that the July 17, 1977 rezoning was proper (no men-

tion is made of the state court estoppel interdiction). (997

F.2d at 1371-72, App. A3-4) Using as its conceptual

framework the Eide v. Sarasota County template and focus

ing on substantive due process, the court found that the City

had not abused its discretion on July 12, 1977 (997 F.2d at

1373-74, 1386. App A&®, 40) (in contrast to the state court

ruling that the City had no discretion as a matter of state

law), and that what the City Council did was legislative (997

F.2d 1392-93, App. AS5S4) (in contrast to the state court ruling

that it was administrative and ministerial]

REASONS WHY THE WRIT SHOULD ISSUF

A The Startling August 13, 1993 Eleventh Circuit

Opinion Runs Counter To Monolithic Constitu-

tional, Statutory And Case Law And Threatens

To Destahbilize The Clearly Defined Mode Of

Interaction Between Federal And State Triai

And Appellate Courts

if r J a ] aM ! } | i wl u

ré ny inne ) SCT ir & | pr ent j ( j ] 1¢ j 1

a grand pronunciamento with broad impact

The district court’s error reaches beyond the fisc of one

Florida community and the merits of one case Mort

broadly, this case involves questions about how decision

making is allocated between a democratic institution

such as an elected city council, and the federal courts. It

involves fundamental issues about the allocation of rights

and powers within our constitutional system. (997 F.2d

at 1373; App. A7

The problem with this grandiose language is that the opinion

does violence to the precise value if purports to espouse: the proper

“allocation of rights and powers within our constitutional svstem

1. Striking At The Very Heart Of Federalism,

The Eleventh Circuit Ignored Guiding

Principles Of Full Faith And Credit, Com-

ity, Preclusion And Due Process Of Law

No concept is more fundamental to the system of feder-

alism than the notion that federal courts must yield to state

court determinaticns of state law, and give full faith and

credit to the final judgments of state courts. The City had it

exactly right when it wrote in a March 21, 1984 (unsuccess-

ful) Motion to Dismiss:

In 1980, the Supreme Court of the United States

held 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 judgment is

rendered. Allen vy. McCurry, 449 U.S. 90, 101

S.Ct. 411 (1980).

What the City recognized as obvious, the Eleventh Circuit

—— which must have known better — chose not to recognize

at all. Snubbing the Florida court system, the Eleventh

Circuit found that the City’s illegal acts were valid.

For more than a century, this Court has recognized that

federal courts are bound by construction of state law by state

courts. See, e.g., Commercial Bank of Cincinnati v.

Buckingham’s Executors, 46 U.S. 5 How. 317, 342-43

(1847). Moreover, under 28 U.S.C. § 1738, judicial proceed-

ings of a state court “shall have the same full faith and credit

in every court within the United States and its Territories and

Possessions as they have by law or usage in the courts of

such State, Territory or Possession from which they are

taken.” Thus, with a few exceptions not relevant here, mat-

ters finally determined in a state court of competent jurisdic-

tion are not open for reexamination in a federal court.

Kremer v. Chemical Constr. Corp., 456 U.S. 461, 485

(1982).

This bedrock rule not only avoids duplicative litigation

and enhances the stability of the law; it also promotes the

comity between state and federal courts that is the “bulwark

of the federal system.” Allen, 449 U.S. at 95-96; see also

Kremer, 456 U.S. at 478. The respect to a state court final

adjudication comity dictates is particularly important when a

federal court reviews a situation, as here, where a party’s

rights are grounded in fully adjudicated state law. See gener-

ally Younger v. Harris. 401 U.S. 37, 44 (1971).

This concept, which speaks to basic due process of law,

controls the relationship of federal and state courts in every

Substantive field. However, because of the procedure pre-

scribed by this Court in Williamson County for “ripening” a

land use regulation case, intellectual detours by federal

courts such as here present have a particular potential for

mischief in this area of the law.

2. The Eleventh Circuit Opinion Penalizes

Land Owners Seeking Due Process And

Just Compensation For Unconstitutional

Land Regulation Who Follow The Proce-

dural Dictates Of This Court

Williamson County holds that before a landowner may

seek damages in federal court arising out of unconstitutional

land regulation, he must first “seek compensation through the

procedure the state has provided for doing so ... [T]he

State’s action is not ‘complete’. in the sense of Causing a

constitutional injury ‘unless or until the State fails to provide

an adequate postdeprivation remedy for the property loss.’ ”

Id. at 194, 195 (quoting Hudson v. Palmer, 468 U.S. 517, 532

n.12 (1984)). Thus, Williamson County compels a supplicant

to litigate first in state court to “ripen” his cause before

seeking damages in federal court. This is exactly what

Mr. Corn did here. His reward at the end of the trial for

scrupulously following the procedure this Court prescribed: a

- 16-

Circuit Court of Appeal which simply ignored at least these

State court findings:

* that Mr. Corn had acquired vested rights under

Florida law to develop his property according to

the existing zoning and approved 1966 develop-

ment plan (427 So.2d at 243: App. D8-9);

* that the City lacked discretion under Florida law to

change that zoning or to deny approval of the site

plan (427 So.2d at 242-44; App. D6-10):

* that the City was expressly estopped by a final

judgment from a Florida court of competent juris-

diction from changing the zoning (427 So.2d at

243; App. D9); and

* that ordinances nos. 548, 549 and 552 were void

and unenforceable. (427 So.2d at 241-42; App. DS)

These final determinations of State law would have mani-

festly received collateral estoppel effect under Florida law.

Mobil Oil Corp. v. Shevin, 354 So.2d 372, 374 (Fla. 1977);

R.D.J. Enters. Inc. v. Media Bank, 600 So.2d 1229 (Fla. App.

1992). Under section 1738. they bind federal couris as wel]

Allen, 449 U.S. at 96 (issue preclusion or collaiera] estoppel

applies in a § 1983 action); Migra v. Warren City Sch. Dist.

Bd. of Educ., 465 U.S. 75, 80-81 (1984) (claim preclusion or

res judicata applies in a § 1983 action).

Had the Eleventh Circuit been faiihful to its comity

obligations, it could not have reached the result it did. While

the District Court understood for the most part the limita-

tions the prior proceedings placed on it,’ the Eleventh Cir-

cuit did not. In view of the preclusive finding that

Mr. Corn’s rights were vested and the 1977 ordinances which

. The District Court made an “independent review of the evidence”

as to whether Mr. Corn’s substantive due process rights were

violated, reaching the same result as the state courts. (771 F.Supp.

at 1569; App. B21)

see

forced the Property into idleness were invalid, liability for a

temporary taking was established. See Lucas v. South

Carolina Coastal Comm’n, 505 U.S. __, 120 L.Ed2d 798

(1992). The Eleventh Circuit had but one legitimate qustion

to decide: how much monetary damages should be awarded

to Mr. Corn. If the August 13 opinion is followed, land-

owners will be required to litigate liability in state court,

only to face the pointless and duplicative task of doing so all

Over again in federal court. The horrendous extra burden this

will place on litigants and the judiciary cannot be what this

Court intended when it promulgated Williamson County.

3. The Eleventh Circuit Rode Roughshod Over

District Court Factual Findings (Including

Findings. As To Motive And Intent) In

Contravention Of The Well-Defined Alloca-

tion Of Power And Duties Between Federal

Trial And Appellate Courts

This caption needs little elaboration. The Eleventh

Circuit simply ignored findings of fact made by the District

Court, which heard the evidence and observed the

1G In its result-driven analysis, the Eleventh

Circuit badly overreached, divesting the District Court of its

witnesses.

allocated fact-finding powers.

10 For example, the District Court found that the City was

“motivated solely by an irrational desire to thwart CORN’s plans.”

(771 F.Supp. at 1569; App. B22) But it is axiomatic that findings as

to motive and intent are factual, and uniquely within the purview of

the trial court. Rogers v. Lodge, 458 U.S. 613, 622-23 (1982). The

testimony of Mayor Howard Craft (see n.4, ante) is alone sufficient

to sustain this finding.

= -

B. In Contravention Of Mr. Corn’s Vested Rights

And An Established Body Of Constitutional

Law, The 1977 City Council Made Decisions It

Was Not Empowered To Make, Violating Its

Own Required Procedures, And Made Them On

impermissible Grounds

1. By 1977, Mr. Corn’s Rights To Build The

Mall And Mini-Warehouse Were Vested;

The City Was Bound By A State Court

Final Judgment Estopping It From Chang-

ing The Zoning And Divesting It Of Discre-

tion To Deny The Site Plan

A brief look at the City actions the Eleventh Circuit

upheld demonstrates how far it wandered afield. At the time

he went into the July 12, 1977 hearing, Mr. Corn enjoyed:

* a development plan approved by the City pursuant

to the agreed annexation which entitled him to

develop the mini-warchouse project;

* vested rights under Florida law to so develop;!!

* a state court final judgment that estopped the City

from changing the zoning on the Property; and

de The definition of property interests and the determination

whether a particular interest is a vested property right to which the

protections of the United States Constitution attach are, of course,

quintessentially questions of state law. Preseault vy. I.C.C., 494 U.S

1 (1990); Williamson County, 473 U.S. at 184: Logan v. Zimmerman

Brush Co., 455 U.S. 422, 430 (1982); Texaco, Inc. vy. Short, 454 U.S.

516, 525 (1982); Wheeler v. City of Pleasant Grove, 664 F.2d 99,

100 (Sth Cir. Unit B 1981), cert. denied, 456 U.S. 973 (1982). As to

Florida law, see Hollywood Beach Hotel Co. y. City of Hollywood,

329 So.2d 10, 16-17 (Fla. 1976). A particularly insightful explica-

tion of the meaning of vested rights (rights “which cannot be inter-

fered with or taken away without just compensation ) is found in

Nemmers v. City of Dubuque, 716 F.2d 1194, 1197 (8th Cir. 1983).

-19-

* a City Council empowered only to conduct an

administrative-ministerial review.

By all reason this should have made the site plan hearing

a technical review of details. But the reality was otherwise.

2. Mr. Corn Was Ambushed By The No-

Investigation, No-Notice, No-Due Process

Extralegal Purported Zoning Change

In enacting the 1977 ordinances with no advance notice,

the City not only ignored its own charter requirements, but

also ignored the standards which “seem to be universally

prescribed in all systems of law established by civilized

countries.” !4 Twining v. New Jersey, 211 U.S. 78, 110-11

(1908). Mr. Corn was blindsided: he had no real opportunity

lo prepare to be heard on the subject matter of any of the

ordinances. And the curiously perverse procedure the City

adopted of enacting the ordinance first and thereafter under-

taking a study to justify the ordinance, not only (again)

violated the City charter, but was disturbingly reminiscent of

ae The denial of notice and hearing, and the failure of the City to

follow fair procedures — or even its own procedures — are matters

traditionally considered under the rubric of procedural due process.

But there is no conceptual reason they cannot be part of a pattern of

arbitrary and capricious behavior that implicates substantive due

process as well (the procedural due process claim for relief in this

case was dismissed before the district court resolution). There is no

clear delineation: “(T]he line between “procedure” and “substance”

is hazy in the setting of the regulation of land uses.” Coniston Corp.

v. Village of Hoffman Estates, 844 F.2d 461, 468 (7th Cir. 1988).

“Where, as here, the plaintiff alleges that the denial of due process

consists of an official’s arbitrary action, a claim for violation of

Substantive due process is indistinguishable from a claim for

violation of procedural due process.” Sierra Lake Reserve v. City of

Rocklis, 938 F.2d 951, 957 (9th Cir. 1991), cert. granted and judg-

ment vacated, 113 S.Ct. 31 (1992), on remand 987 F.2d 662 (1992).

— a

- 20 -

the command of the Queen of Hearts: “Sentence first —

verdict afterwards.” Carroll, Alice in Wonderland, Ch. 12.

As Mayor Craft testified (see p. 11 n.4, ante), the 1977

City Council paid no attention whatsoever to the solemn

commitments the City made to Mr. Corn in 1966. The whole

scenario could serve as a textbook prototype of what this

Court has defined as constitutionally impermissible: frustra-

tion of “investment-backed profit expectations.” Williamson

County, 473 U.S. at 200.

The state court holding that the 1977 zoning change was

illegal came as no Surprise. Florida law unequivocally holds

that when a city purports to change a zoning ordinance to

defeat a permit application and site plan that would be ap-

proved under existing zoning, that City acts “arbitrarily,

Capriciously, discriminatorily and illegally.” City of

Margate v. Amoco Oil Co., 546 So.2d 1091, 1093-94 (Fla.

App. 1989).

3. Inappropriate Deference To Neighborhood

(NIMBY) Activists At The Expense Of

Constitutional Rights — The Basis Of The

City’s 1977 Actions Here — Is An Increas-

ing And Critical Problem Needing Address

By This Court

In its 1993 opinion, the Eleventh Circuit called

Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570 (11th

Cir. 1989), a “red cow,” 1.@., a precise precedent. (997 F.2d

at 1390 & n.2; App. A48) It is not even close.'3 But the

? Greenbriar, the landowner sought a change of zoning to enable

a desired project as to which he had no right, vested or otherwise [id.

at 1572, 1581]; here, Mr. Corn sought only to build according to a

vested right under existing zoning. In Greenbriar, the City won

below, thus getting the benefit of a favorable review standard: that

Should have inured to Mr. Corn here. The real “red cows” are A.A.

(continued)

case at bench has one significant fact in common with

Greenbriar: in both cases public officials abdicated their

governmental powers in favor of NIMBY activists.'* There

(fn. continued)

Profiles, Inc. v. City of Ft. Lauderdale, 850 F.2d 1483 (11th Cir.

1988), cert. denied, 490 U.S. 1020 (1989); Southern Co-Op Develop-

ment Fund v. Driggers, 696 F.2d 1347 (11th Cir. 1983), cert. denied,

463 U.S. 1208 (1983); and Wheeler v. City of Pleasant Grove, 664

F.2d 99 (Sth Cir. Unit B 1981) (Wheeler J). In each of these com-

parable vested rights-substantive due process appeals, the landowner

(whose position was not as strong as Mr. Corn’s here) prevailed.

14 The August 13 Opinion notes that “[i]n Greenbriar ... the City’s

decision was based upon “political pressure” from citizen voters who

turned out as a crowd to oppose the development.” (997 F.2d at

1389; A46). This language from Greenbriar (881 F.2d at 1579) is

quoted with approval:

[Njothing is more common in zoning disputes than

selfish opposition to zoning changes. The Constitution

does not forbid government to yield to such opposition; it

does not outlaw the characteristic operation of democratic

government, operations which are permeated by

pressures from special interests ... The fact “that town

officials are motivated by parochial views of local

interests which work against plaintiffs’ plan and which

may contravene state subdivision laws” ... does not state

a claim of denial of substantive due process.” (997 F.2d

at 1389; A47)

This harsh standard has drawn critical comment from within the

Eleventh Circuit. In an acerbic (but finally obedient) opinion, one

district judge wrote that Greenbriar “ciearly stands for the proposi-

tion that elected officials who vote on zoning requests can act for

purely political reasons, because partisan, political decision-making,

even by unknowledgeable, close-minded politicians ... is automati-

cally deemed rational and, therefore, cannot be arbitrary and

Capricious unless it is the product of corruption ... The only

limitation appears to be that there be no forty pieces of silver ...

Anything goes! ... [T]he Greenbriar answer ... simply says,

“THAT’S POLITICS!’.”

(continued)

is Virtually no dispute on this point the only question is as

to the propriety of the abdication.!®

This problem may be more severe in the Eleventh Circuit

than elsewhere, but it approaches crisis proportions through-

out the country. It is the subject of a 1990 presidential report

by the Advisory Committee on Regulatory Barriers to Af-

fordable Housing, “Not In My Back Yard” Removing Bar-

riers to Affordable Housing Slogans tend to be high-

minded; the reality behind the acronyms is often no more

than social or economic self-aggrandizement. There is ev ery

incentive in this situation for public officials — often

motivated by nothing more exalted than a desire to per

petuate themselves in office — to count noses and pander. If

a court overturns a decision (and they rarely do), the officials

(fn. continued

Church of Jesus Christ of Latter-Day Saints v. Jefferson County, 721

F.Supp. 1212, 1214-16 (N.D. Ala. 1989) (emphasis in Original)

Something is disturbingly amiss in the Southeast United States

obeisance to NIMBY activists is proliferating like kudzu

15 ; .

The concurring opinion of Judge Hatchett (997 F.2d at 1393-94

App. A57-58) is revealing. It makes but one point, and makes it

repeatedly: “nothing in the opinion should be interpreted as creating

a new rule of law that developers will always be unsuccessful in

Stating a substantive due process claim when a large number of

citizens Oppose a land use proposal”; “we do not hold that local

governments will always prevail in defending substantive due

process claims whenever their zoning decision follows public

meetings where citizens express general welfare concerns” (997 F.2d

at 1393, 1394; App. AS7-58). Why was this concurrence necessarv?

Precisely because the majority opinion, fairly read, seems to do

precisely what the Judge Hatchett said it did not do: make NIMBY

protestation, no matter how self-serving or irrational, a sufficient

basis —~ in itself, without more — for land use decisions.

6 ' ,

16 To bolster its conclusion that the NIMBY opposition was a good

and sufficient basis for the 1977 City acts, the Eleventh Circuit

called the unsworn opinions and idiosyncratic concerns of the

activists “evidence” and “facts.” (997 F.2d at 1386; App. A38-39)

es.

are personally absolved of responsibility. In the process,

constitutional safeguards take the hindmost.

The most instructive precedent of this Court is

Washington ex. rel. Seattle Trust Title & Trust Co. v

Roberge, 278 U.S. 116 (1928). Striking down a zoning

ordinance that made operation of a “philanthropic home for

children or for old people” contingent on approval of two-

thirds of neighbors living within a specified radius as an

invalid delegation of power and a violation of the due proc-

ess Clause (id. at 118), this Court held (id. at 121):

The right of the trustee to devote its land to any

legitimate use is property within the protection of

the Constitution.

What happened below is uncomfortably close to Roberge

redux, only worse: it lacks Roberge’s statutory frame-

work.!

Mr. Corn does not suggest that barriers be placed before

citizens wishing to appear before a governmental body and

thus directly participate in the political process. This is a

cherished American tradition; the right to be heard — even

when speaking from misinformation or self-interest — must

be preserved. But this Court needs to remind regulators that

there is a “sanity check”; officials must not yield to public

pressure when constitutional rights are at risk.

Aiso instructive is City of Cleburne v. Cleburne Living Center,

473 U.S. 432, 448 (1985) (a city may not avoid the strictures of the

Constitution “by deferring to the wishes or objections of some

traction of the body politic”). See also Marks v. City of Chesapeake,

883 F.2d 308, 310-12 (4th Cir. 1989). Florida state law is consistent

that public opposition is not a sufficient basis for zoning decision.

Bailey v. City of St. Augustine Beach, 538 So.2d 50, 52 (Fla. App.

1989); BML Inves. ~ents Inc. v. City of Casselberry, 476 So.2d 713

(Fla. App. 1985).

- 24 -

C. The Eleventh Circuit Eide Construct, Central To

the Disposition Of This Case Below, Is Inconsis-

tent With The Teachings Of This Court, And

Requires Litigants Challenging Land Use Regula-

tions To Operate Under A Set Of Rules Differ-

ent From Those In Other Circuits

In Eide v. Sarasota County, 908 F.2d 716 (9th Cir. 1990),

the Eleventh Circuit unveiled a construct for resolution of

constitutional challenges to land use regulations. The Court

noted that the required threshold step was “determining what

type of claim Eide is making,” and then pronounced that

there were precisely “four types of challenges [based on

allegedly unconstitutional land use regulation] a plaintiff

may bring ... [1] just compensation, [2] due process takings,

[3] arbitrary and capricious due process and [4] equal protec-

tion claims.” 7d. at 720.

Since Eide, this construct has been used pervasively in the

Eleventh Circuit, at both trial and appellate levels. See, €.2.,

Rearhard v. Lee County, 968 F.2d 1131, 1134-35 (11th Cir.

1992). It was the matrix for the decision below: the con-

Struct is repeated at 997 F.2d 1373-74 (App. A 7-9).'*

This Court has, of course, adopted its own quite different

approach:

[W]e have frequently observed that whether a

particular restriction will be rendered invalid by

the government’s failure to pay for any losses

proximately caused by it depends largely “upon the

particular circumstances [in that] case.” (citations)

The Eleventh Circuit construct has been referred to, to Mr.

Corn’s knowledge, in only one other circuit: it is mentioned as

unhelpful in a district court opinion (Pearson v. City of Grand

Blanc, 756 F.Supp 314, 318 (E.D. Mich. 1991)), and as helpful in

the Sixth Circuit affirmance of that opinion (Pearson vy. City of

Grand Blanc, 961 F.2d 1211, 1215-16 (6th Cir. 1992)).

—

In engaging in these essentially ad hoc, factual

inquiries...

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

104, 124 (1978).'9

This Court’s ad hoc, fact-focused construct posits an

almost infinite variety of situations; the Eleventh Circuit

posits but four rigid categories. The problem with the kind

of categorization exercise the Eleventh Circuit attempted,

however intellectually nimble in the abstract, is that

categorization inevitably means exclusion.-” — There is, for

example, no really appropriate place in the Eleventh Circuit

template for vested rights. This fact worked adversely to Mr.

Corn in this case; the construct had no capacity to recognize

the superior status that state-court adjudicated vested prop-

erty rights enjoy in the hicrarchy of protected interests.

The Eide construct does not express the test this Court has

established. It imposed upon Mr. Corn, and will impose

upon future Eleventh Circuit landowner-litigants, a straight-

jacket landowners in other circuits will escape.

"9 See also Concrete Pipe & Prods., Inc. v. Construction Laborers

Pension Trust, 113 S.Ct. 2264, 2290 (1993); Lucas, 112 S.Ct. at

2893: MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340,

349 (1986); Connolly v. Pension Benefit Guaranty Corp., 475 U.S.

211, 224 (1986). As this Court emphasized in Loretto v. Tele-

prompter Manhattan CATV Corp., 458 U.S. 419, 426 (1982), while

ad hoc considerations contro] these cases, “the inquiry is not

standardless. The economic impact of the regulation, especially the

degree of interference with investment-backed expectations, is of

particular significance.”

20 In Eide, 908 F.2d at 724-25 n.15, the Eleventh Circuit gently

chided this Court for failing to make clear into which of the four

available pigeonholes one of its cases (Pennell v. City of San Jose,

485 U.S. 1 (1988)) fits.

-26 <

D. This Case Presents A Vehicle For Resolving The

Significant Conflict Which Exists Between The

Several Circuits (And Between Federal And

State Courts) As To The Breadth Of Substantive

Due Process Guarantees In Land Use Cases

The substantive due process analysis in the August 13

opinion (997 F.2d at 1374-76; App. A9-13) did violence to

logic and precedent in a number of ways.7! First, it ignored

Eleventh Circuit precedent that where a City act is illegal, as

were the zoning change and site plan denial here, such act as

a matter of law cannot “bear a substantial relation to the

public health, safety, morals or general welfare.” (997 F.2d

at 1374; App. Al10) See, e.g., AA Profiles, 850 F.2d at 1488.

Second, one of the prongs of the test applied was “whether

the deprivation ... is the result of an abuse of governmental

power sufficient to raise an ordinary tort to the stature of a

constitutional violation.” (997 F. 2d at 1374: App. A9) This

Suggests that the court misperceived what was before it: a

constitutional land use regulation claim which implicates the

exercise of the state's inherent police power and a self-

executing Constitutional provision, and does not sound in

tort. See, e.g., Reardon v. San Francisco, 66 Cal. 492, 505

(1885).*? Third, the Eleventh Circuit failed to factor in the

vested rights and preclusive ruling aspects of the case. The

The district court found liability under substantive due process.

Since the measure of damages under this theory is the same as under

a takings claim (Wheeler v. City of Pleasant Grove, 833 F.2d 267,

270 n.3 (11th Cir. 1987) (Wheeler I/1)) the district court did not try

the inverse condemnation claim; it was remanded by the Circuit.

(997 F.2d at 1393 & n.3; App. AS6-57)

“ “[I]t is not a tort for Government to govern .. .” (Dalehite v.

United States, 346 U.S. 15, 57 (1952) — even if that governance

takes private property. Whether just compensation is payable is “an

entirely separate question.” Kaiser Aetna v. United States, 444 U.S.

164, 174 (1979).

fact significant to this Court is that the analysis bore scant

resemblance to the substantive due process analysis this case

would have received in other circuits or state courts through-

out the land.

The Sixth Circuit opinion in Pearson v. City of Grand

Blanc contains a circuit-by-circuit review of substantive due

process land use law. (961 F.2d at 1217-20) According to

Pearson, the Third and Fourth Circuits are somewhat more

sensitive than others to landowner rights, the Ninth and

Eleventh Circuits are essentially congruent in approach (open

to some question in view of the Eleventh Circuit construct),

the Eight Circuit decisions are in such internal disorder that

there is no ascertainable circuit position ... and so on. The

Sixth Circuit’s own test is extremely draconian; it will inter-

fere in zoning abuse cases only when such abuse is so ex-

treme that it “shocks the conscience.” Jd. at 1222. With

respect, the “shocks the conscience” standard shocks the

conscience, the right of a citizen to receive rights guaranteed

by the Constitution should not be captive to the subjective

emotional response of a jurist.

Pearson also stresses that federal courts are typically

much more deferential to public entities in substantive due

process challenges than state courts. /d. at 1221-24. There

seems to be little rational basis for this dichotomized hierar-

chy of protection, particularly when state courts are often

called on to determine and enforce rights under the United

States constitution.2? The Pearson court concluded:

- Pearson suggests that a linchpin of the various analyses is

whether the critical decision is legislative (high deference) or

quasi-judicial, administrative, or ministerial (less deference). In the

case at bench, of course, the Eleventh Circuit somehow saw the

challenged acts as legislative, even though the preclusive state court

rulings held them to be administrative and ministerial. No reason

appears why a federal court should be telling a state how to

categorize its own governmental decisions.

—

We wish it were within our power to harmonize

these decisions, but the conflicts among circuits

are too great. Harmony will have to await action

by the Supreme Court. Id. at 1220 n.45. (Emphasis

added.)

The quantum of federal constitutional protection a citizen

enjoys should not depend on the serendipity accident of

geographical location. The case at bench extends an oppor

tunity to cure the pervasive conflicts and conceptual confu

sion in the application of substantive due process law to land

use Cases.

E. This Court's Guidance Is Needed In Resolution

Of The Recurring Question Of The Proper

Measure Of Damages In A Land Use Case

Where An Economic Opportunity Is Lost Be-

cause Of A Temporary Taking

In 1977, when Mr. Corn went before the City, he was on

the brink of an exceptional economic Opportunity: ownership

of the first mini-warchouse in the Lauderdale Lakes area

When the dust settled in 1985, and he was legally empowered

to pursue that project, the window of opportunity was gone:

the relevant market was saturated.*4

In context, the related issues are: Where lawless govern-

ment acts cause the economic feasibility of a contemplated

As noted ante, this question was presented to but not addressed

by the Eleventh Circuit, since unaccountably it returned to square

one on the liability issue. The District Court spoke to the proper

measure of damages for the partial and temporary taking (771

F.Supp. at 1570-71; App. B23-26), and Mr. Corn presented the issue

to the Eleventh Circuit at pp. 40-43 of his Opening Brief, and p. 15

of his Brief of Cross-Appellee and Reply Brief For Appellant

(question is what damages apply “[i]f by the time the regulations

which effected a temporary taking are set aside the confiscated

project is no longer feasible).”

~ 20

project to be lost forever, does the temporary taking become

permanent (Mr. Corn’s position below)? If not, how may

compensation reflect not only the temporary loss of use but

the fact that the land may be worth but a fraction of what it

was prior to the regulatory freeze? Is an owner required

somchow to attempt to mitigate damages by secking to build

consistent with the less desirable zone classification he is

Challenging (which would render any ultimate vindication

pyrrhic)? And where the owner is freed to build part of an

integrated project (here the mall) before he is able to develop

the remainder, must he proceed with such partial develop

ment even though piccemeal construction is economically

contra-indicated?

There is some law from lower courts that is helpful, typi

cally only by analogy. See, e.g., Benenson v. United States,

548 F.2d 939 (Ct. Cl. 1977). But this Court has not spoken

to these recurring problems. Its address would insure fair

ness and uniformity, and effect a significant saving of time

and judicial resources

CONCLUSION

This case offers almost an embarrassment of certiorari

worthy issues. They engage the very fabric of federal law

and speak to the relationships — largely grounded in the

United States Constitution — on which that system is based

the relationship of federal courts to state courts, of trial

courts to appellate courts, of the judiciary to local govern-

ments and of the several institutions of governance to the

rights secured in the constitution. The Eleventh Circuit

ignored the principles underlying these relationships and ran

roughshod over the rules that embody those principles

The individual right at the center of this controversy is the

“personal right in property . That rights in property are

basic civil rights has long been recognized.” Lynch \

Household Fin. Corp., 405 U.S. 538, 552 (1972). This Court

- 30-

has reaffirmed the primacy of that right this term, identifying

as “an essential principle” the fact that “[i]ndividual freedom

finds tangible expression in property rights.” United States

v. James Daniel Good Real Property, __ U.S.__, 114 S.Ct.

492, SOS (1993). Regulating authorities and reviewing courts

need to be reminded to stop trifling with the constitutional

rights of citizens in the name of political expediency.

It has been almost a decade since this court spoke in

Williamson County. This petition offers an appropriate

vehicle to resolve the recurring problems raised in_ its

aftermath.

DATED: February 11, 1994.

Respectfully submitted,

GIDEON KANNER

Counsel of Record

M. REED HUNTER

CROSBY, HEAFEY, ROACH & MAY

Professional Corporation

and

ANDREW T. LAVIN

RICHARD A. IVERS

ROMANIK, LAVIN. HUSS & PAOLI

Altorneys for Petitioner

HERMAN CORN, Trustee

wk t:

UNITED STATES COURT OF APPEALS

ELEVENTH CIRCUIT

No. 91-6011.

HERMAN CORN,

Plaintiff-Appellant, Cross-Appellee,

CITY OF LAUDERDALE LAKES,

Defendant-Appellee, Cross-Appellant.

Aug. 13, 1993.

997 F.2d 1369 (11th Cir. 1993)

Appeals from the United States District Court for the

Southern District of Florida.

Before HATCHETT, DUBINA and CARNES, Circuit

Judges.

CARNES, Circuit Judge:

This case involves a zoning dispute between the City

of Lauderdale lakes, Florida, and a developer, a dispute

that has generated a large volume of litigation in state

and federal courts during the past sixteen years. In this

latest chapter, the district court has found that the City’s

zoning actions violated the developer’s substantive due

process rights and, after dismissing the claims against

individual City Council members, the district court has

awarded damages against the City. The developer has

appealed contending that the district court awarded

insufficient damages and should not have dismissed the

Council members. The City has cross-appealed on the

liability issue. We hold that the district court erred in

concluding that the City’s zoning actions violated

substantive due process, and we reverse on that basis,

which renders moot the developer’s appeal of the dam-

ages calculations. We also conclude that the district

-A 2-

court erred in part in dismissing the City Council mem-

bers on legislative immunity grounds and reverse its

judgment on that basis as well.

I. INTRODUCTION

The property involved in this case is an 8.5 acre

parcel (“the property”) that abuts a state highway, @

residential condominium complex, and a neighborhood

of single family dwellings. The property, along with a

much larger tract of land of which it was a part, was

annexed by the City in 1966 with the support of the

developer, Herman Corn, who sought to increase the

value of his holdings. The City originally zoned the

property to permit commercial use subject to approval of

the City. The property lay idle for years, as Corn devel-

oped the adjacent land by selling condominium units and

single-family dwellings to the citizens of Lauderdale

Lakes. In 1977, Corn submitted to the City a site plan

proposing to develop the property into a 67,000 square

foot strip shopping center, and behind that, a 900-unit,

103,000 square foot mini-warehouse facility.

The City’s Planning and Zoning Board reviewed the

site plan for compliance with technical requirements,

and after requesting several changes, recommended

approval to the City Council. The City Council returned

the site plan to the Board for further review, and the

Board again recommended approval. Before voting on

the site plan, the City Council and the City Building

Committee held public hearings at which residents of the

neighborhoods adjoining the proposed development

voiced strong opposition to the plan, primarily to the

mini-warehouse part of it. After discussing the matter at

length and hearing from all sides, the City Council at a

July 12, 1977 meeting adopted on first reading two

ordinances which affected the property. The first

oe %

ordinance eliminated mini-warehouses as a permitted use

within the relevant zoning classification, and the second

one changed the zoning on the property to a more re-

Strictive business classification. Under Council proce-

dures, those two ordinances were not finally enacted and

did not become effective until September of 1977. At

the same July 12 meeting, and before the two ordinances

took effect, the Council voted unanimously to deny

approval of Corn’s site plan. The next week, the Coun-

cil adopted a third ordinance, this one imposed a 150-

day city-wide moratorium against construction on

property in the applicable zoning classification in order

to permit completion of a study on the propriety of

commercial zoning in residential areas. These actions

spawned the litigation that continues to this day.

Herman Corn filed a lawsuit in a Florida state court in

August of 1977 challenging the validity of the three

ordinances adopted in July and the City’s denial of his

site plan. After a trial, the state court found that Corn’s

reliance on the zoning classification of the property in

preparing it for development established Corn’s vested

right to the development and equitably estopped the City

from denying approval of the site plan. The court

declared the ordinances invalid, directed the City to

approve the site plan, and ordered a building permit to

be issued after the correction of some technical defects

in the plan. That judgment was affirmed by a Florida

court of appeals. Then a dispute arose over the City’s

insistence that Corn comply with a subsequently enacted

platting ordinance. After additional litigation, the state

court ordered the City to approve the site plan despite

Corn’s failure to comply with the platting ordinance.

Since that time, March of 1985, Corn has had the right to

begin development of the property in the fashion he

originally intended. Instead of developing the property,

however, Corn filed this lawsuit under 42 U.S.C. § 1983

-A 4-

seeking damages for the City’s delay in approving

development of his property.

Corn’s complaint stated four causes of action: an

equal protection claim; a Fifth Amendment just compen-

sation claim; a substantive due process claim: and a

procedural due process claim. Named as defendants

were the City and its Council members in their individ-

ual capacities. Corn later voluntarily dismissed his

equal protection and procedural due process claims, and

was left with a just compensation claim and a substan-

tive due process claim.

The district court first dismissed Corn’s action on

ripeness grounds. This Court reversed that determina-

tion. Corn v. City of Lauderdale Lakes, 816 F.2d 1514

(11th Cir.1987). On remand, the City renewed its

motions to dismiss for failure-to state a claim and for

summary judgment claiming that the action was barred

by res judicata, by the statute of limitations, and as to

the individual City Council members, by legislative

immunity. The district court granted the motion to

dismiss the individual City Council members on legisla-

tive immunity grounds. The court refused to grant

Summary judgment or a 12(b)(6) dismissal to the City

based on the statute of limitations and res judicata, but

certified its denial as an appealable interlocutory order.

This Court affirmed the denial, holding that the action

was not barred by res judicata or the statute of limita-

tions. Corn v. City of Lauderdale Lakes, 904 F.2d 585

(11th Cir.1990). The case was remanded to the district

court again, this time for trial.

The district court then held a non-jury trial, after

which it entered findings of fact and conclusions of law.

Corn v. City of Lauderdale Lakes,- 771 F.Supp. 1557

(S.D.Fla.1991). The district court entered judgment for

Corn on the substantive due process claim, finding that

the City had acted arbitrarily and Capriciously in denying

approval of Corn’s site plan. The court reserved judg-

ment on the Fifth Amendment just compensation claim,

because it considered the caltulation of damages under

either count to be identical and, thus, judgment on the

Substantive due process claim served to make Corn

whole. The court set damages in the amount of

$727,875.02.

Corn filed a motion to amend the findings of fact and

conclusions of law. The court granted the motion, in

part, to make clear that the individual Council members

had been dismissed on legislative immunity grounds

earlier. The district court denied the motion in all other

material respects and reaffirmed its findings, noting that

Corn’s motion was largely an improper attempt to take a

“second bite at the apple.”

Corn, seeking the entire apple, filed this appeal.

challenging the district court’s calculation of damages as

well as the dismissal of the individual Council members.

The City cross-appealed, arguing that the trial court

erred in concluding that the City acted arbitrarily and

Capriciously thereby violating Corn’s substantive due

process rights. The City also asks us to revisit our

earlier determination that Corn’s substantive due process

claim is not barred by the statute of limitations, 904 F.2d

585, arguing that that prior holding is not the law of the

case. We need not address that contention, because our

holding that the district court erred in finding a violation

of substantive due process renders the City’s statute of

limitations attack superfluous.! Because Corn’s just

compensation claim remains to be adjudicated on

remand, his contention that the district court erred in

The City also reiterates its position that this Court erred in its

holdings that Corn’s entire lawsuit is not barred on grounds of res

judicata, 904 F.2d 585, or ripeness, 816 F.2d 1514, but those

contentions are clearly foreclosed by the law of the case doctrine.

-A 6-

dismissing the Council members on legislative immunity

grounds must be addressed. We decide that the district

court erred in dismissing on that ground, but only insofar

as denial of the site plan is concerned.

Il. STANDARD OF REVIEW

“[T]he ultimate issue of whether a zoning decision is

arbitrary and capricious is a question of law to be deter-

mined by the court. Although Subsidiary facts are

properly for the factfinder, the ultimate issue is for the

court.” Greenbriar, Ltd. v. City of Alabaster, 881 F.2d

1570, 1578 (11th Cir.1989). Thus, facts determined by

the district court are to be respected unless they are

clearly erroneous, but our review of the district court’s

application of law to those facts, including the ultimate

determination of whether an action is arbitrary and

capricious, is plenary. See In re Grand Jury Subpoena,

957 F.2d 807, 809 (11th Cir.1992); Stephens v. Depart-

ment of Health and Human Servs., 901 F.2d 1571, 1573

(11th Cir.), cert. denied, 498 U.S. 998, 111 S.Ct. $55.

112 L.Ed.2d 562 (1990). The same is true of the legisla-

tive immunity issue.

III. DISCUSSION OF THE LIABILITY ISSUE

The district court’s holding, that the City’s refusal to

permit Corn to proceed with construction of a 900-unit

mini-warehouse development in a residential area vio-

lated the Due Process Clause of the United States Con-

Stitution, Corn v. City of Lauderdale Lakes, 771 F.Supp.

1557 (S.D.Fla.1991), is due to be reversed. The burden

is on a developer seeking to establish a substantive due

process claim to prove that the governmental body acted

arbitrarily and capriciously in refusing permission for

the development. The record shows that Corn failed to

aii 9

carry that burden, and it also affirmatively shows that

the City did not act arbitrarily and Capriciously.

The district court’s error reaches beyond the fisc of

one Florida community and the merits of one case.

Faithfulness to the teachings of prior decisions of this

Court, and thus to the rule of precedent, is also at stake.

More broadly, this case involves questions about how

decisionmaking is allocated between a democratic

institution, such as an elected city council, and the

federal courts. It involves fundamental issues about the

allocation of rights and powers within our constitutional!

System. Those issues and questions have all been

answered by controlling precedent, but contrary to the

way the district court answered them in this case.

A. THE GENERAL LAW APPLICA-

BLE TO LAND USE RESTRIC-

TIONS

Rights do not exist in a vacuum but are defined in a

reciprocal relationship to other rights. In land use

matters, for example, the rights of a developer are

defined in relation to the rights of the constituents of the

municipal government to regulate and control the devel-

opment of land in the community for the greater good as

defined by the majority. Of course, the minority, in this

case the developer, is not wholly dependent upon the

tender mercies of the majority for the definition and

protection of the minority’s rights. To some extent the

minority’s rights are protected from majority encroach-

ment by state law enforced through the state court

System. In this case, the developer has had resort to

those courts to claim his state law protection. Having

secured an enforceable state law judgment requiring the

City to issue him a building permit on his terms, the

developer has decided not to utilize that judgment and

< t.

pursue the development. Instead, he has pursued a

money judgment for the alleged infringement of his

rights — not his rights under state law, but his rights

under the Constitution.

The Constitution’s allocation or adjustment of the

reciprocal right of developers and the community’s

majority has been settled to a considerable extent in a

number of court decisions. Insofar as the Constitution is

concerned, a municipal government may control the use

of land within its jurisdiction for what it perceives to be

the common good, subject only to four restrictions.

These four restrictions define the limits of constitutional

rights a developer has and thus the constitutional claims

he may make against the governmental entity that has

restricted his use of land:

1. the Fifth Amendment right not to have his land

taken without just compensation (a “just compensa-

tion” claim);

2. the Due Process Clause right not to have the

use and value of his land infringed upon to such an

extent that it is tantamount to having been taken by

eminent domain (a “due process takings” claim);

3. the Due Process Clause right not to have his

use of the land restricted arbitrarily and capri-

ciously, which is a right not to have his use of his

land restricted for reasons having no substantial

relation to the public health, safety, morals, or

general welfare (a “substantive due process” or

“arbitrary and capricious due process” claim);

4. the Equal Protection Clause right not be treated

in a way that violates that clause (an “equal protec-

tion” claim).

Eide v. Sarasota County, 908 F.2d 716, 720-23 (11th

Cir.1990), cert. denied, 498 U.S. 1120, 111 S.Ct. 1073,

112 L.Ed.2d 1179 (1991); Executive 100, Inc. v. Martin

-A 9-

County, 922 F.2d 1536, 1540 (11th Cir.), cert denied, om

U.S. __, 112 S.Ct. 55, 116 L.Ed.2d 32 (1991). Subject

to those four limitations, the Constitution does not

prevent a local government from restricting, controlling,

or limiting the development of land to promote what it

perceives to be the general welfare interests of the

community as a whole.

B. SUBSTANTIVE DUE PROCESS

LAW APPLICABLE TO LAND

USE RESTRICTIONS

In the district court Corn pressed two claims, a just

compensation claim and also a substantive due process

claim, which he termed his “main claim.” The district

court granted judgment in favor of Corn on the substan-

tive due process claim and did not reach the just com-

pensation claim. We have before us for review the

district court’s holding that in restricting use of his land

the City violated Corn’s substantive due process rights.

The law in this Circuit is settled, and the parties do

not disagree, that there are two components to such a

claim. As this Court has said:

The current test in this circuit as to whether

there has been a violation of substantive due

process in the context of § 1983 is twofold.

First, it must be determined whether there has

been a deprivation of federal constitutionally

protected interest, and secondly, whether the

deprivation, if any, is the result of an abuse of

governmental power sufficient to raise an

ordinary tort to the stature of a constitutional

violation.

Rymer v. Douglas County, 764 F.2d 796, 801 (11th

Cir.1985), quoted in Greenbriar, Ltd. v. City of

-A 10-

Alabaster, 881 F.2d 1570, 1577 (11th Cir.1989). Apply-

ing this test, the district court found that Corn had

established both the constitutionally protected interest

component and the sufficient abuse of government

power component. The two components of the substan-

tive due process test are conjunctive, and a reviewing

court finding an absence of one component need not

decide whether the other exists. See, e.g., Greenbriar,

881 F.2d at 1577 (“In light of our disposition of this case

on the basis of the second prong of this test, we need not

address the first prong.” (footnote omitted).

We need not address questions about the first com-

ponent, because the district court erred in finding that

Corn had carried his burden of proving the second

component of a substantive due process claim. The

reason a substantive due process claim is also called an

“arbitrary and capricious due process claim” is because a

showing that the government has acted arbitrarily and

capriciously is a prerequisite for such a claim. That is

what the second component requires: The plaintiff

developer must show that the defendant government or

government officials abused power by acting arbitrarily

and capriciously, which means that the action “does not

bear a substantial relation to the public health, safety,

morals, or general welfare.” Eide, 908 F.2d at 721. This

particular requirement, which is dispositive of the

present case, was discussed by this Court less than four

years ago in the closely analogous Greenbriar case:

It has long been established that zoning

regulations will not be declared unconstitu-

tional as violative of substantive due process

unless they “are clearly arbitrary and un-

reasonable, having no substantial relation to the

public health, safety, morals, or general wel-

fare.” Village of Euclid, Ohio v. Ambler Realty

-A 11-

Co., 272 U.S. 365, [394,] 47 S.Ct. 114, 121, 71

L.Ed. 303 (1926)....

...[CJourts have held that a deprivation of a

property interest is of constitutional stature if it

is undertaken “ ‘for an improper motive and by

means that were pretextual, arbitrary and

capricious, and ... without any rational

basis.’ ” Spence v. Zimmerman, 873 F.2d 256,

258 (11th Cir.1989) (quoting Hearn vy. City of

Gainesville, 688 F.2d 1328, 1332 (11th

Cir.1982)).

881 F.2d at 1577. The law has not changed since our

Greenbriar decision, and Corn does not argue that it has.

The law is also settled that certain interests will

provide a rational basis for governmental action restrict-

ing land use. The Supreme Court has held that restric-

tions may be imposed in order to protect “family values,

youth values, and the blessings of quiet seclusion.”

Village of Belle Terre vy. Boraas, 416 U.S. 1, 9, 94 S.Ct.

1536, 1541, 39 L.Ed.2d 797 (1974). Legitimate zoning

interests also include protection from the “ill effects of

urbanization,” Agins v. City of Tiburon, 447 U-S. ane,

261, 100 S.Ct. 2138, 2142, 65 L.Ed.2d 106 (1980), the

exclusion of industry from residential areas, Village of

Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114,

71 L.Ed. 303 (1926), and the regulation of traffic, City of

Memphis v. Greene, 451 U.S. 100, 126-29, 101 S.Ct.

1584, 1600-01, 67 L.Ed.2d 769 (1981), and noise,

Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct.

2294, 33 L.Ed.2d 222 (1972). The exercise of police

power in this area is not narrowly constrained, because

[t]he concept of the public welfare is broad and

inclusive. The values it represents are Spiritual

as well as physical, aesthetic as well as mone-

tary. It is within the power of the legislature to

-A 12-

determine that the community should be beauti-

ful as well as healthy, spacious as well as

clean, well-balanced as well as carefully

patrolled.

Berman vy. Parker, 348 U.S. 26, 33, 75 S.Ct. 98, 102-03,

99 L.Ed. 27 (1954) (citation omitted).

This Court has held that permissible basis for land use

restrictions include concern about the effect of the

proposed development on traffic, on congestion, on

Surrounding property values, on demand for city ser-

vices, and on other aspects of the general welfare.

Greenbriar, 881 F.2d at 1580 & n. 20: Spence v.

Zimmerman, 873 F.2d 256, 260 (11th Cir.1989)

(Protection of Surrounding neighborhoods from eco-

nomic, environmental, and aesthetic harm is legitimate.);

Grosz v. City of Miami Beach, 721 F.2d 729, 738 (11th

Cir.1983) (Restriction on organized religious gatherings

in residential areas serves zoning interests of reduced

traffic, noise, and litter.), cert. denied, 469 U.S. 827, 105

S.Ct. 108, 83 L.Ed.2d 52 (1984). Other circuits have

also recognized the breadth of the “public welfare”

concept. See, e.g., Pearson v. City of Grand Blanc, 961

F.2d 1211, 1224 (6th Cir.1992) (“[C]oncerns about

traffic and the deterioration of the neighborhood [as a

result of a proposed zoning change to permit a fast food

restaurant] are rationally related to the goals of zoning.”

The Pearson opinion contains an excellent circuit-by

circuit summary of substantive due process zoning

Cases.); Rogin v. Bensalem Township, 616 F.2d 680-,

689-90 (3d Cir.1980) (holding that the defendant

township had “a legitimate interest in controlling popula-

tion growth and density and the zoning amendments [at

issue were] a rational and reasonable means to accom-

plish that purpose”), cert. denied, 450 U.S. 1029, 101

S.Ct. 1737, 68 L.Ed.2d 223 (1981); Construction Indus.

Assoc. v. City of Petaluma, 522 F.2d 897, 905-09 (9th

-A 13-

Cir. 1975) (Land use may be governed in order to pre-

serve small town character and avoid problems associ-

ated with uncontrolled growth.), cert. denied, 424 U.S.

934, 96 S.Ct. 1148, 47 L.Ed.2d 342 (1976).

Although it is broad, the power of government to

control land use and development is_not without limita-

tion. The four constitutional doctrines that limit govern-

ment power in the land use area already have been

mentioned. This case concerns the fourth limitation,

Substantive due process doctrine, which prevents a

government from restricting land use for no reason, or

for an illegitimate reason such as corruption, racial or

ethnic prejudice, or any other illegitimate motivation.

See Greenbrair, 881 F.2d at 1579 n. 18. The restrictions

a government imposes on land use must be Substantially

related to the general welfare. If not, the governmental

action is arbitrary and Capricious in violation of substan-

tive due process.

The question posed by the facts of this case is

whether the City Council’s Purposeful action to prevent

Corn from building a 900-unit mini-warehouse in a

residential area was rationally based upon, i.e.. was

Substantially related to, general welfare interests such as

the effect that development would have on congestion,

traffic, noise, city services, aesthetics, and Surrounding

property values. The record facts permit only one

correct answer to that question. Because the facts

determine this appeal, and because the district court

clearly erred in regard to them, we set the facts out in

considerable detail. Virtually all of them are undisputed

and are drawn from official records admitted into

evidence.

-A 14-

C. THE FACTS RELEVANT TO THE

SUBSTANTIVE DUE PROCESS

ISSUE

When the City agreed to annex Corn’s property and to

give it a permissive zoning classification, the City was

concerned about how Corn would use the property, and

it created a new zoning category, C-1A, specifically for

that property. The new zoning category reserved for the

City the right to control the use of Corn’s property.

Herman Corn himself admitted that under his agreement

with the City, “anything we put in there would first have

to be approved by the Council.” The property is a parcel

of land approximately 8.5 acres in area and bounded by a

highway on its east side. To the west of the property lies

a complex of single family homes separated from the

property by a canal. A condominium complex lies to the

north and is also separated from the property by a canal.

Corn was the developer for these residential complexes

which border his proposed warehouse site.

Even with the right of prior approval reserved to the

City, there were early concerns about the zoning of

Corn’s property. In the 1970s, the City was required to

Submit a master land use plan to the county. In July of

1975, while the City Council was considering such a

plan, Michael Shiff, a land use consultant the City had

hired to draft its master land use plan, reported to the

Council that it should not zone Corn’s land in a way that

would permit warehouses that close to a residential

development. Shiff recommended that Corn’s property

should be rezoned, because C-1 and C-1A commercial

development (light industrial usage), should not be

permitted next to residential areas. He specifically

reported: “I don’t think you want to put warehouses

where you have existing residential development.” The

City incorporated Shiff’s position into the interim land

-A 15-

use plan it adopted and transmitted to county officials,

who in turn incorporated it into the interim county plan.

The City did not move_to rezone the property at that

time, because no development was pending, and it was

assumed the problem would be taken care of in the final

master land use plan that would eventually be developed.

As it turned out, the final land use plan was not adopted

until 1979.

Corn submitted his first site plan for the development

of the property in 1976; the details of it are not clear

from the record. Although the Planning and Zoning

Board recommended approval of the plan to the City

Council, the public opposition io it at a hearing called to

consider the plan caused Corn to withdraw it.

In January of 1977, the City Council and the Planning

and Zoning Board conducted a joint meeting to discuss

the master land use plan that was still being developed

for the City. Milton Scheingarten, an architect on the

Planning and Zoning Board, had discovered that Corn’s

property was improperly zoned, because elementary

principles of land use planning require a buffer between

residential areas and an_ industrial use, such as

warehouses. The Planning and Zoning Board officially

recommended to the City Council in that January 1977

joint meeting that Corn’s property be rezoned to a more

restrictive classification, which would not permit

warehouses. Some discussion concerning Corn’s prop-

erty and whether it should be rezoned to prohibit mini-

warehouses ensued, but the issue was deferred until a

later time.

In April of 1977, Corn submitted a new site plan to

the City Council which included a mini-warehouse

development as well as a shopping center. The City

Council referred the site plan to the Planning and Zoning

Board for a review for compliance with the requirements

of City agencies. After Corn had made some, but not all.

-A 16-

of the changes recommended by various City agencies,

the Board on May 12, 1977 recommended to the City

Council that it approve the site plan. The Council

requested the Board to consider the plan again, appar-

ently because of concern about fire truck access to the

proposed mini-warehouse buildings and property, and

the Board reconsidered the plan in a meeting held on

May 26, 1977. The next day the Board again recom-

mended approval of the site plan. The Board had five

members but only three members voted; the vote was

Split two to one in favor of recommending approval.

Documents in the record establish, and it is undis-

puted, that under local law the three-member Planning

and Zoning Board has no authority to make the ultimate

decision concerning zoning or adoption of site plans.

Instead, the authority to make such decisions is vested in

the City Council. The Board makes recommendations,

but those are merely advisory. The final decision about

how land should be zoned and whether a particular

development comports with the general welfare of the

community is the decision of the City Council. The

power to restrict the use of property involves an exercise

of the police power, and the City Council alone has the

authority to determine whether the general welfare of the

community warrants exercise of that power.

In order to investigate whether Corn’s proposed

development was compatible with the general welfare of

the City, the City Council held a number of meetings and

public hearings. Corn’s son Stephen, who was deeply

involved in the proposed development, attended these

meetings and represented Corn’s interests. Concerned

citizens also attended these meetings and were permitted

to speak for or against the proposed development. Most

of the citizens who spoke were from the neighborhood

adjoining the property, and they spoke against the plan,

especially the mini-warehouse aspect of it. Various City

ss een eat

-A 17-

officials were also questioned at these meetings about

the planned development and the problems it would

create. The subjects discussed by Stephen Corn, various

citizens, and City officials included problems of conges-

tion, traffic, noise, strain on City services, aesthetics, the

character of the Surrounding neighborhood, and property

values.

Il. The May 31, 1977 City Council

Meeting

At a meeting on May 31, 1977, the City Council took

up the Planning and Zoning Board’s recommendation

that Corn’s site plan be approved. Council member

Gereffi asked what would protect the residents of the

adjacent condominiums from the mini-warehouses. He

wanted to know if they would be looking at blank walls.

Questions were also raised about fire hazards and about

whether the mini-warehouses could later be turned into

things such as second-hand stores. References were

made to some 19th Street warehouses which had created

traffic and parking problems. The City Council decided

to table the proposal until more input could be obtained

from residents of the City.

2. The June 14, 1977 City Council

Meeting

At a City Council meeting on June 14 1977, the issue

was taken up again. Stephen Corn was present and

answered questions from the Council members. Ex-

pressing concern about the mini-warehouses, Council

member Gereffi pointed out that there were con-

dominiums north of Corn’s property, and he asked

whether there would be big trucks going in and out of

the warehouses at midnight, because if so, “these people

-A 18-

living in these condominiums are going to have a

headache.” Corn responded that the warehouses would

be closed at a certain time in the evening.

Council member Gereffi also questioned Stephen

Corn about the setback directly in front of the canal

between the condominiums and the warehouses and

whether that setback was enough to insulate the residents

of the condominiums from trucks going back and forth

to the mini-warehouses. Council member Gereffi re-

ferred to a “Cypress Chase” incident where residents had

been kept awake by noise either from air conditioning

units On stores in front of them or from refrigerator units

on trucks which were left on while the trucks unloaded

next door to a residential area. Council member Gereffi

asked if refrigerated trucks would be coming to the

warehouses, and Stephen Corn said that there would be

no reason for them to do so.

The City Council then: discussed the reason that

Mr. Scheingarten of the Planning and Zoning Board had

dissented from the Board’s recommendation that Corn’s

proposal be approved. Mr. Scheingarten dissented

because he thought that the plan provided for insuffi-

cient parking space and fire truck access. A different

member of the Planning Board told the Council that the

plan did not provide for retail parking space because it

was not intended to be a retail development. Council

member Greenwald replied, however, that the property

was zoned commercial, and he raised the possibility that

Corn could later convert the mini-warehouse units into

stores. The Mayor said:

[T]}hat’s exactly what happened on 19th St.

They came in under the warehouse rules. The

warehouse parking strips. After they had

everything all built up, they turned them into

retail stores, instead of warehouses. And that’s

the reason the parking is such an incredible

-A 19-

mess on 19th St. I’m not Suggesting that’s

what you all are intending to do, but it is a fact,

that’s how 19th St. got to be like it is. With the

recommendation of the Planning and Zoning

Board.

Because Mr. Scheingarten, the Planning Board member

who had dissented from the recommendation of ap-

proval, was not present, further consideration of Corn’s

plan was tabled.

3. The June 2], 1977 City Council

Meeting

The third City Council meeting at which Corn’s site

plan was considered was held on June 21, 1977. At this

meeting, Council member Gereffi and Stephen Corn

engaged in a discussion about lane width and fire truck

access. Council member Cohan was concerned that the

planned development might be a_ potential firetrap

because of inadequate space in the lanes and for parking.

Gereffi also brought up the subject of refrigerated trucks

again, and he asked about truck traffic at the ware-

houses:

You got the canal, you got north of the canal

is condominiums. You’re going to have trucks

coming in. These people that bought these

condominiums, came down here to live in quiet

and peace. How much time, and how often js

your trucks going to be running to the mini-

warehouses. These are the people that’s living

in this City. These are the people we have to

Satisfy. These are the people who are going to

have the headaches. As | Said before, they

came down to get away from ghetto areas.

They come down to live in a_ beautiful

-A 20-

condominium, they come down to have peace

of mind. They retired with that intention.

Now, you are going to have to Satisfy these

people on how the traffic that’s going to be

running back and forth, within 60 or 80 feet of

your warehouses. These are the people who are

going to have to be sitting up and taking notice

of that, to look out the windows.

Stephen Corn answered by giving the setbacks that

would exist from the buildings to the canal, the canal’s

width, the roadway, and so forth. He also said that at

another larger mini-warehouse he had never seen more

than fifteen people there at a time.

Several times during the meeting, Council members

criticized Corn for not having met with the residents of

the adjoining neighborhood to discuss their concerns

with them and to satisfy them that his development was

not going to ruin their property. He was reminded that

those people were taxpayers and voters. At this meeting,

citizens were permitted to speak to the Council about

Corn’s proposed development, and a number of them did

Speak Out in opposition to the plan. Most or all of those

who spoke were residents of the neighborhood in which

Corn wanted to build his mini-warehouses. One resident

was concerned about noise and questioned whether there

would be air conditioning units. That resident also

expressed concern about the aesthetics and how the back

of the warehouses would be landscaped. She also asked

about recreational vehicles, like boats, and their storage.

Another resident asked about roadway access to the

planned development, pointing out that it was narrow

and could cause a “regular tie-up” if two cars met. He

Said, “[i]t will be a madhouse .... We spent a lot of

money for those condominiums and it’s a damnable

Shame what’s happening there.” Yet another resident

expressed the fear that someone might rent several of the

-A 21-

units, knock down their internal! walls, and set up a

manufacturing plant of some kind. A number of people _

spoke out about traffic problems and fire hazards that

would be created by the mini-warehouses.

The Fire Chief was then asked about the plan, and he

Said that he was not happy with the lane widths and the

space for parking, because it left little room for fire

trucks to maneuver.

Finally, the proposal was tabled and referred to the

Building Committee with the understanding that some

meeting would be arranged with all interested parties

invited to attend. Although the exact membership of that

committee is unclear, the record does show that one or

more Council members and one or more members of the

Planning and Zoning Board were on the committee.

4. The Juy 8, 1977 Building Com-

mittee Meeting

On July 8, 1977, a meeting of the Building Committee

was held and attended by members of the Planning

Board, some Council members, and a number of local

citizens. The meeting began with a presentation by

Stephen Corn of the proposal for the site. A Planning

Board member framed the issues for the residents who

were present. In doing so, he noted that the Planning

Board had requested six months earlier that the Council

rezone the property from its current very permissive

zoning status, but as it now stood the Planning and

Zoning Board had to make its recommendation about

Corn’s plan under the ordinances currently applicable to

the property.

Many citizens made comments at this meeting in

Opposition to the mini-warehouse aspect of the planned

development:

-A 22-

1. Mr. Zorban disputed Stephen Corn’s statement that

the Fire Department had said that it would have no

difficulty gaining access to the development. He ques-

tioned the need for 900 mini-warehouses: “It looks

awful, it is horrible, if we look out [at] those buildings

there is nothing there to look at, it would be like bar-

racks, a prison camp of some kind, it’s horrible looking.

Now we could beautify it if we put [in] half the amount.”

2. Mrs. Schneider complained about the increased

noise that would be caused, Saying: “There are people

who face that area. You’re going to have trucks and

everything coming in and out. That creates a noise

problem too.”

3. Another resident questioned whether their fire

insurance rates would go up because of the proximity of

the mini-warehouses.

4. George Hudson asked about the type of storage

that would be permitted. A followup question by Coun-

cil member Cohan asked whether there would be com-

bustibles stores in the warehouses, and he was told that

the landlord probably would not allow that.

5. Eileen Lefkowitz wanted to know whether Corn

believed he would be able to rent 900 units of

warehouse, and, if not, what his plans were. If he could

not rent them, she feared he would tear the individual

units down and build a big warehouse like the one on

19th Street. She said the mini-warehouses were

“absolutely unnecessary” and not appropriate in a

residential area.

6. Bob [last name unknown] raised concerns about

the added noise and the traffic hazard that would be

caused by this project, and he also expressed concern

about what Corn would do if the mini-warehouses didn’t

work. He was afraid that Corn would let people open up

-A 23-

stores. He was generally concerned that mini-

warehouses just did not fit into the neighborhood.

7. Mrs. Smith, who lived on the fourth floor of an

adjacent condominium, said that she did not think any

amount of landscaping would help her. She would be

looking at the roof and 900 doors anyway. She also

expressed concern about the inevitable street lighting

that would be around the warehouses and said that the

development would lower property values. She pointed

out that the mini-warehouses she knew of were not in

nice residential neighborhoods, and that the development

would cause people to come and go at all hours. She

noted that Stephen Corn himself was moving out of the

neighborhood because he did not want to live in a

“downtrodden area.” She said that her opinions were

Shared by everyone who lived in the affected

neighborhood.

8. Mr. Lamb said that he had had experience with

mini-warehouses, and that he had never seen one in a

residential area. He also said that he had seen lots of

different little businesses, like television repair shops,

being run out of mini-warehouses, and that people would

do that on their own. He also expressed his opinion that

the proposed development would create hazards, such as

fire hazards, and that it did not belong in that area.

9. George Pearle said that although he thought the

builder was “eminently within his rights,” the question

was whether it was “morally right.” He stated that the

Salesman that had sold him his condominium had said

the builder planned to declare the land behind the build-

ing to be a park or something like that, and he would not

have bought his condominium had he known that Corn

would attempt to develop the property this way.

10. Morris Davis said that the area was not suitable

for any type of commercial use, that it was “unconscion-

able” for Corn to build a commercial complex so close to

-A 24-

the condominiums, and that the rear portion of the lot

should be rezoned to something other than commercial.

Council member Greenwald spoke about how the

Corn family’s development of the area had been unfair,

because it had proceeded from construction of homes to

condominiums and now to commercial warehouses,

without telling people who bought along the way about

the ultimate plan. Greenwald recommended that the

matter be forwarded to the City Attorney to see if there

was a way to avoid allowing this project to proceed next

to residential areas.

5. The July 2, 1977 City Council

Meeting

At a July 12, 1977 City Council meeting, lengthy

consideration was given to two ordinances relating to

Corn’s property and to the question of whether his site

plan should be approved. One ordinance eliminated

mini-warehouses and some other uses from the type of

zoning applicable to Corn’s property. The other ordi-

nance changed the zoning of Corn’s property from

commercial to business, a more restrictive classification

and one which would not permit mini-warehouses. Both

ordinances were enacted or adopted “on first reading” at

this meeting, although they did not become law until

September of 1977. Before the vote on the two or-

dinances, Corn was heard through his attorney and

through his son, residents of the affected neighborhood

were heard, and Council members spoke on the matter.

The discussion is instructive to the issue at hand.

Council member Kaufman reviewed for those who

had not been present at the July 8, 1977 meeting of the

Building Committee what had transpired there. He also

Said that he had read the Supreme Court’s decision in

Village of Belle Terre v. Boraas, 416 US. 1, 94 S.Ct.

-A 25-

1536, 39 L.Ed.2d 797 (1974), and believed that it author-

ized the City Council to rezone the property in question

in order to protect family values and clean air, secure the

blessing of quiet seclusion, and keep the adjoining area a

pleasant place for people to live. Referring to what he

had heard at the July 8 Building Committee meeting, and

to the first ordinance being considered, Council member

Kaufman said:

At that meeting that was stated by the people

that live there. They bought the condominiums

in the area there, hopefully that they would

have a place they could look out to from their

windows and have pleasant views, and not to

look out into something that perhaps in their

opinion is detrimental to their way of life.

I state the facts of this case because it pertains

to this. My conclusion, my personal opinion,

and after reading this case, I feel the ordinance

that has been presented here, in regard to that, ,

is a justified ordinance.

Council member Greenwald then continued the

discussion:

We had this meeting on last Thursday [July 8,

1977]. We had quite a gathering of. people

there, we had a lot of input from the public.

And when we listened very carefully, it dawned

upon me personally, that there was something

unconscionable about the fact that these mini-

warehouses were going to be erected.

When the people got up there and spoke, and

pointed out the reasons that they objected, and

felt this was unfair. It dawned upon me,

although I had seen this site plan previously,

that there was something wrong here. That this

builder, at this time, after he built the Single

-A 26-

homes, individual dwellings, then he went to

the condominiums, put the condominiums up.

Wait until he sold out the single homes.

Then went to the condominiums. Completed

his condominiums which that area became no

longer a certain single dwelling area. Finished

his condominiums. Sold out his con-

dominiums.

Then came in and said, I'd like to have a

shopping center to the north of 41st St?) You

remember what happened on that.

Now, he comes in and says, I'd like to have

another shopping center on the left of 41st St.

That’s not enough. Now he says in back of that

Shopping center on 41st St. to the South, he

wants to put up 900 mini-warehouses. 900

mini-warehouses.

When I first learned about this, we asked the

person, are you sure its 900? Isn't it 90? He

says no, 900. So | looked at the site plan, and |

have it in front of me. I think this should be

put up on the board. The whole site plan, in-

cluding the shopping center and the mini plan.

| fully realized that where these’ mini-

warehouses, these 900 mini-warehouses are

going to be erected, or supposed to be erected,

that that property is zoned C-1. C-1 zoning

provides almost any kind of commercial build-

ings, | understand. There’s nothing in C-1

when it was adopted in 1973, which calls for

the erection of mini-warehouses. Because in

1973, nobody had by the wildest figment of the

imagination had the idea of putting 900 mini-

warehouses, which sizes run form 5-1/2 feet

wide by 11. To maybe 20 feet, wide.

-A 27-

All the people will see from the 2nd floor to the

3rd floor in spite of trees being put up. At this

meeting they were discussing, they will put up

high trees, olive trees, we’ll have exits, more

exits, we'll do this, we’ll do that.

But the crux of the matter is, you don’t build a

cesspool then build a tent around it. We say

this. That these people who have these homes,

and bought these condominiums have as much

vested interest in their land as the builder.

I've spoken to real estate agents, subsequent to

this, and they tell me, who in the world is going

to come in and buy if they want to sell a con-

dominium, on the second floor, and look down

at 900 doors. They will say, I’m buying a

scene of doors. This is a doorway house, a

stock of doors.

| spoke to Mr. Brady [the City Attorney] on

this and right after the meeting, and this was

merely a coincidence, right after this meeting

when we heard the input from the people, when

they pointed out the fact that their homes would

be devalued. The extra traffic that will come in

there, the possibility of 900 trucks going to

each individual mini-warehouse, and loading

and unloading. I’m not saying all on one day,

but 900 warehouses, 900 trucks.

Council member Greenwald also discussed the history

of the C-1 zoning classification that Corn’s property

then had, which would have permitted mini-warehouses

as a use. That zoning classification came about in 1973

when there were builders on the City Council. Corn was

the original owner of the land and had it before it had

been zoned commercial. Thus, he could not contend that

he had bought the land with a C-1 zoning and that to

change the zoning would deprive him of value he had

purchased when he obtained the land.

Council member Greenwald concluded his remarks as

follows:

I say this thing is unconscionable. Borrowing a

term regarding recreational leases. There’s

something wrong in it. These people are going

to lose their valuation, traffic is going to be

jammed up, Oakland Park Blvd ... will be

widened and we'll have more traffic. You got

2 shopping centers and then 900 mini-

warehouses. We are talking about beautifying

our City. Spending money for beautification.

We fix up the entrances, with beautification.

Now we have this coming into our City.

So I spoke to Mr. Brady [the City Attorney ],

Mr. Brady said, that the best way to do this, is

to change the zoning. We went to court once

before with Mr. Corn, and the city in their

desire, and the council in their desire, to protect

the people who elected them, and put us on the

council. To see to their interest. And I say

again, I have nothing against builders.

I say to this council, do not table this thing

tonight. Vote, to pass it.

The City Council also heard from Corn’s attorney

who urged rejection of the ordinances and approval of

the site plan. The basic theme of his remarks was that

changing the zoning of the property and refusing to

approve the site plan would violate Corn’s rights and

lead to legal action. Council member Cohan reacted by

characterizing the remarks of Corn’s attorney as implied

threats, and saying:

-A 29-

I say to this council that the action that is

before the council, has the approval of our City

Attorney. And I believe we owe as much

respect for his opinions, as for any other

attorney.

While this has been said before, | concur. That

the basic responsibility of this council, is to

safeguard the best interests of the citizens of

this City.

I urge this council in making their decision to

keep that in mind, as their means of deter-

mination.

A discussion between members of the City Council and

the City Attorney was followed by a lengthy discussion

of setbacks under the ordinance being considered.

The City Council then heard from a number of

citizens, all of whom lived in adjoining neighborhoods

and all of whom were very much opposed to the mini-

warehouses development. A Mrs. Lefkowitz said the

planned development would not only devalue their

property but the City of Lauderdale Lakes as a whole.

She said that the mini-warehouses she had seen were in

sium areas, and she repeated a consistent complaint of

those who had bought homes, condominiums, or apart-

ments from Corn in that area:

When Mr. Corn’s salespeople sold these apart-

ments, they told the buyers that it was intended

to be used as a park. But he did not put any-

thing in writing. We therefore hope that we

can have the property rezoned, so that we can

be proud of the area.

We will gladly sell the condos back to Mr.

Corn if he cares to put mini-warehouses

throughout the entire Oakland Estates. Another

thing, I would like to add, would Mr. Corn’s

aaa aa iii

-A 30-

attorney as well as Mr. Corn, like to live next

to mini-warehouses?

A Mr. Goldstein commented that the residents of his

neighborhood already had enough problems from an-

other shopping center that faced them. He also said:

I was particularly interested in the comments of

the attorney for Mr. Corn, in talking about the

vested rights of the owners. Corn property.

Never mentioning once, the vested rights of the

people living there, whom he has sold the

homes to. And as the previous speaker men-

tioned, I venture to say, he never once men-

tioned to them, when they purchased, that

mini-warehouses were going to be built there.

I think he owes them a moral obligation. If not

perhaps a legal obligation. To see that they

live in the lifestyle he promised them, and |

cannot imagine that he for one minute would

Say, in all honesty that looking out on mini-

warehouses, constitutes Florida living.

- A Mr. Greenstein and a Mr. Landau also spoke in

favor of the ordinances and against Corn’s planned

mini-warehouses. Mr. Landau described how the devel-

opment would aggravate existing traffic problems, and

he reminded the City Council and Mayor who had

elected them:

At the present time, if I go out of my apart-

ment, it takes me about 10 minutes to enter my

apartment due to the heavy traffic. I cannot

cross to the recreation area, without taking my

life in my hands. Now he suggested another

shopping area with 900 warehouses. Now

when is this nonsense going to stop? When

somebody is going to get killed. Are we going

-A 31-

to stop then? It’s going to be too late. Let’s

take this under consideration.

I'd like to speak a word now to our distin-

guished council and the mayor. I remember

. that every one of you came knocking at our

door to support you. We have done that.

Today we are knocking at your doors, for the

Same purpose, to support us for our welfare,

and for the welfare of Lauderdale Lakes.

Another resident, Mr. Goldberg, characterized Corn’s

attitude as “the public be damned.”

After all of this discussion, the City Council un-

animously adopted or enacted on first reading the pro-

posed ordinance eliminating storage warehouses as a

permitted use in property zoned commercial, such as

Corn’s land. The Council then discussed and adopted or

enacted on first reading the other proposed ordinance,

which rezoned the property from C-1 to B-3, a more

restrictive zoning classification reserved for business

usage.

Even though both ordinances were adopted or enacted

“on first reading” at this July 12, 1977 meeting, they

would not actually take effect until September of 1977.

Apparently for that reason, it was necessary for the City

Council to pass on Corn’s proposed site plan which

could have been approved under the then-existing

ordinances. Even where existing ordinances permit such

approval, the final decision is in the hands of the City

Council.

Council member Kaufman was called upon to sum-

marize the discussion of the site plan that had taken

place at the July 8, 1977 Building Committee meeting.

He said that the people in the adjoining neighborhood

objected to mini-warehouses because they would be “an

eyesore, not conducive to the esthetic value of what we

-A 32-

are trying to retain in the City of Lauderdale Lakes.” He

also said that the Building Committee had gone over the

entire site plan and into the question of whether the

development would create fire and safety hazards.

The Mayor called upon the City Engineer to discuss

whether or not Corn’s site plan met engineering stand-

ards. The City Engineer said that he had submitted

letters concerning two aspects of the plan which

bothered him “considerably.” One problem was that the

site plan did not meet applicable parking regulations that

had been adopted by the City Council. As laid out in the

site plan, the parking spaces would abut directly against

the physical building structure, which was not permitted

under the regulations. If the parking spaces were put the

minimum distance from the building required under the

regulations, some of the buildings on the site plan would

have to be eliminated. The City Engineer continued,

Saying:

We also objected in both of our letters, I'll read

from one of those. In our opinion the layout of

the mini-warehouses presents serious difficul-

ties relating to fire protection, which could

jeopardize the life and property of its

occupants.

In both cases, I feel that one entry into this

center core area is dangerous. Now, it’s a little

out of the engineering line, but I felt it had to

be pointed out. I feel there should be at least

two entrances into any type of a structure of

this magnitude.

Council member Cohan stated that the City Engineer’s

objections confirmed two contentions that he had had for

some time, that the parking was wrong and that another

roadway was need.

-A 33-

The Mayor pointed out that a number of objections

had been made to the plan and that Corn had been given

an Opportunity to make corrections:

For example, our Fire Chief pointed out that he

was sorely concerned about the possibility of

even getting a fire truck in and out of those

little alleys in there. I have not seen any sort of

recommended changes that the proposed

developer that’s been done on the site plan.

A number of times, the parking situation has

been pointed out, not only that it’s limited, that

perhaps it’s insufficient. But that in fact,

according to the codes it just does not meet the

law. That’s been pointed out a number of

times.

We’ve pointed out that there well may be the

Opportunity for a number of flammable or

otherwise dangerous materials to be stored in

the thing, and the City does not have any way

to properly police what is stored in all those

warehouses. That in fact it might generate a

substantial safety hazard.

The Council heard from Corn’s attorney and from

Stephen Corn at this meeting. Both of them said that the

Planning and Zoning Board had approved the site plan,

but the Mayor corrected them, Saying that the Planning

and Zoning Board only made recommendations to the

City Council and lacked the power to approve anything.

The Mayor also pointed out that the vote of the Board

had been split two to one.

about parking and noted that if the City Engineer is

correct

that the cars cannot be parked that close to the

building then they must be moved 5 feet out

from the building, then they will be blocking

He reiterated his concern

-A 34-

those streets, and you won’t be able to drive

cars through there. You certainly will not be

able to drive the fire truck down any one of

those streets, if that be the case. Then the site

plan very obviously has to be completely and

totally revised. If that be the case, certainly

there is no way it can be approved at this hour

with that stipulation.

Council member Greenwald pointed out that the City

Council had on numerous occasions disagreed with the

Planning and Zoning Board, which is merely an advisory

committee. He also said that “the heart of the issue” is

whether the builder would be permitted to build 900

mini-warehouses.

After all of that discussion, the City Council voted

unanimously not to approve Corn’s site plan.

6. The July 19, 1977 City Council

Meeting

At a July 19, 1977 meeting the City Council enacted a

moratorium on building permits for property zoned

commercial until completion of a study. The study was

to be done by the Planning and Zoning Board, in con-

junction with the Office of the Consulting City Planner,

about the zoning scheme of Lauderdale Lakes, and in

particular about commercially zoned property adjacent to

residentially zoned property. The Board was charged

with preparing a report concerning whether residential

property would suffer adverse effects as a result of being

Situated next to a C-1 zoning district.

-A 35-

7. Results of the Planning and

Zoning Board’s Study

The Planning and Zoning Board conducted its Study

of commercially zoned property within the City and

reported to the City Council on December 23, 1977.

That report noted that there were two areas of land

within the City that were zoned commercial at the time

the study was ordered (one of which was Corn’s

property). Both plots of land were adjacent to residen-

tial areas. The Board also reported that orderly planning

should allow for a buffer zone between residential areas

and commercial areas, an~intermediate area where the

more restricted business zoning is proper. The lack of

such a buffer was found to be a great detriment to

persons living in the residential area adjacent to a com-

mercial zone. The Planning and Zoning Board recom-

mended that all commercially zoned areas adjacent to

residential areas be rezoned to business districts, so that

the business district could serve as a buffer between the

commercial area and the residential area.

Mr. Shiff, the City’s land use consultant, reported to

the Planning and Zoning Board that, according to the

county zoning regulations as adopted by the City, com-

mercial zoning is “[i]ntended for certain repair and other

services, wholesale, storage and warehouse uses and

Sales of large or heavy machinery and equipment.”

Mr. Shiff observed that “[t]his category is a highly

permissive zoning district which “requires a buffer

between itself and residential areas.” With specific

reference to Corn’s property, he concluded that the old

zoning relationship “without a proper stepdown in

zoning categories may have an adverse affect [sic] on

the surrounding residential properties.” He also recom-

mended that the City rezone each of its commercial lots

to business use. Mr. Shiff is the same land use

-A 36-

consultant who had recommended in 1975 that the City

not zone Corn’s land in a way that would permit con-

struction of warehouses so close to a residential area.

8. Stephen Corn’s Concession

and the Unanimous Opin-

ions of All of the Land Use

Officials and Experts

It is undisputed that no other mini-warehouse com-

plex that anyone knew of had ever been built next to a

residential area, as the Corns wanted to build this one.

Stephen Corn, in addition to being the developer’s son,

was the person most responsible for planning the mini-

warehouse development. In testifying on the issue of

damages at the 199] trial, he explained why this mini-

warehouse project would have been different from any

other mini-warehouse project he had ever seen or heard

of:

Well, I know I felt this was a unique location

for a mini-warehouse project. Most of them

were built, even at the time, were in more

commercial areas. They weren’t in areas that

were residential, and, generally speaking, you

did not have property zoned correctly for this

use in as good a location. Whether there was

any property zoned just like this, I have no

idea.

Thus, the very reason this project would have been so

valuable to the Corns is that no other municipality would

have permitted them to build a mini-warehouse project

in a residential area. That fact alone establishes that the

City’s decision was not arbitrary and capricious.

All municipal land use officials who gave an. opinion

at any time during the municipal process or at trial

A 37-

agreed that what Corn wanted to do defied a fundamental

precept of good land use policy: industrial uses such -as

warehouses should not be permitted immediately con-

tiguous to a residential area. The evidence was over-

whelming and virtually undisputed that permitting Corn

to build his huge warehouse project would have an

adverse effect on residential property values.

D. THE DISTRICT COURT’S ERRO-

NEOUS ANALYSIS

The heart of the district court’s holding that the City

violated Corn’s substantive due process rights is con-

tained in the following paragraph from its opinion:

Nonetheless, the Court, upon an independent

review of the evidence, holds that the CITY

acted arbitrarily and capriciously. The City

Council expressed concern for increased traffic.

noise, and other adverse effects allegedly

created by mini-warehouses. Yet prior to July

12, 1977, no effort was made to investigate

mini-warehouses. Moreover, the City Council

targeted only the mini-warehouses use for

elimination, leaving a number of uses that

arguably cause more traffic, noise, and air

pollution; no comparison between mini-

warehouses and the remaining permitted uses

was ever conducted. See City of Kissimmee v.

Ellis, 431 So.2d 283, 285 (Fla. 5th Dist.Ct.

App.1983) (city cannot prohibit proposed use

that is no more obnoxious than permitted use).

The moratorium seems nothing more than an

attempt at post hoc rationalization. See 11126

Baltimore Boulevard v. Prince George’s

County, 886 F.2d 1415, 1425 (4th Cir.1989)

(supporting evidence must exist when decision

-A 38-

made). In short, the City Council was moti-

vated solely by an irrational desire to thwart

CORN ’s plans.

Corn v. City of Lauderdale Lakes, 771 F.Supp. at 1569.

The quoted paragraph summarizes the district court’s

analysis, which contains a clearly erroneous factfinding

as well as errors of law. The errors of law include

creation of a requirement that a formal investigation

precede a land use decision, application of a strict

scrutiny standard instead of more deferential review, and

misapplication of controlling precedent. We will discuss

each of these errors in turn.

1. The Clearly Erroneous Finding

About the City’s Motivation

Corn argues that the district court’s conclusion that

the City Council was motivated solely by an irrational

desire to thwart his development plans is a factfinding

which we can review only for clear error. Assuming,

without deciding, that the statement in question is a

factfinding, we have no doubt that it is clearly er-

roneous. Clear error exist when a reviewing court after

examining all of the evidence, is left with a definite and

firm conviction that a mistake has been made. See, e.g.,

Concrete Pipe and Products of California, Inc. v. Con-

struction Lab. Pens. Trust, _ U.S. _, _, 113 S.Ct.

2264, 2279, 124 L.Ed.2d 539 (1993); Anderson v.

Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511,

84 L.Ed.2d 518 (1985); United States v. United States

Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92

L.Ed. 746 (1948); United States v. Roy, 869 F.2d 1427,

1429 (11th Cir.), cert. denied, 493 U.S. 818, 110 S.Ct.

72, 107 L.Ed.2d 38 (1989). The evidence, which we

have set out at length, leaves us with the definite and

firm conviction that the district court was mistaken not

-A 39-

to find that the City’s actions were motivated by and

Substantially related to general welfare concerns about

congestion, noise, traffic, aesthetics, safety, property

value and the like. There is not evidence that the City

had any bad motive; there is no evidence that it acted

without a motive.

As discussed earlier, one week after the City Council

had decided to enact the rezoning ordinances and to deny

approval to Corn’s site plan, it passed a moratorium on

building permits for commercially zoned areas to Stay in

effect until completion of a study by the Planning and

Zoning Board about commercial zoning and industrial

uses contiguous to residential areas. When completed,

that study confirmed the wisdom of the action the City

had taken. The district court dismissed the moratorium

Study as “nothing more than an attempt at post hoc

rationalization.” 771 F.Supp at 1569. It is understand-

able why the timing of the study might undermine its

utility as a justification for the City’s earlier actions.

However, it would be illogical to treat the fact that such

a study was ordered as evidence that the prior action had

been arbitrary. Governmental! actions may be undone as

well as done, and there was nothing to prevent the City

from reconsidering its actions had the Study reached a

contrary conclusion. Even if we assume that the mora-

torium and study which confirmed the wisdom of the

City’s action was done solely in anticipation of litiga-

tion, that is not evidence that the City’s earlier actions

were arbitrary and capricious. The most we are willing

to conclude is that the moratorium and Study constitute a

wash, it is neither evidence of arbitrariness nor evidence

of the lack of it. In any event, it does not appear that the

district court treated the moratorium and Study as affirm-

ative evidence of arbitrariness. We do not, either.

What counts is not the motivation for the moratorium

and study, but the motivation for the earlier action

-A 40-

adopting the rezoning ordinance and denying the site

plan. In respect to those actions, the evidence is over-

whelming and undisputed. Indeed, most of it comes

from public records, the minutes of official meetings

which were admitted at the trial without objection. That

evidence uniformly and overwhelmingly establishes that

the opposition to Corn’s 900-unit mini-warehouse

project was based on general welfare concerns of City

officials and citizens alike. The evidence shows how

those general welfare concerns were expressed to the

City Council in a series of public hearings at which both

sides were heard. The evidence also establishes that the

City Council members became convinced that the project

was incompatible with the best general welfare interests

of the City and acted accordingly in a rational manner.

The evidence is not subject to any other plausible ex-

planation. The district court’s contrary factfinding is

clearly erroneous. We turn now to the two errors of law

that also underlie the district court’s holding.

2. The Erroneous Holding that a -

Formal Investigation is Required

for Land Use Decisions

The district court’s holding is based upon the er-

roneous assumption that government cannot act in land

use matters based upon facts gathered at pubic hearings,

but must instead conduct a more formal investigation

before acting. The court acknowledged that the City

Council had expressed concern for general welfare

interests and the adverse effects that a 900-unit mini-

warehouse project would have upon those interests. The

court then dismissed that important fact, because, it said,

before the City acted on July 12, 1977, “no effort was

made to investigate mini-warehouses.” 771 F.Supp. at

1569. The record shows without dispute that at its June

-A 41-

14, 1977 meeting, the City Council investigated the

matter by questioning Stephen Corn concerning the

particulars of the development of the proposed ware-

houses, and it discussed the matter with a member of the

Planning Board. At its June 21, 1977 meeting, the City

Council discussed the matter at length, again questioned

Stephen Corn about the proposed development, and

listened to a number of citizens who presented reasons

why the development should not be permitted. At the

July 8, 1977 joint meeting of the Building Committee

and some Council members, at least ten citizens spoke

about how the development would impact their neighbor-

hood and the City. The proceedings of that meeting

were reported to those Council members who had not

been present. At the July 12, 1977 City Council meeting

itself, before any action was taken. the City Council

heard presentations from Stephen Corn, Corn’s attorney,

the City Attorney, and a number of citizens. During

these meetings, the City Council inquired about and

heard the opinions of city officials, such as the City

Engineer, the Fire Department Chief, and others. Only

after the City Council had investigated the matter at

length during these meetings did it take any action.

The district court properly rejected the argument that

if the City Council blindly followed the will of its

constituents who opposed the mini-warehouse project,

its action was automatically valid. 771 F.Supp. at 1569.

There could be circumstances in which a city’s residents

wanted a development blocked for illegitimate reasons,

such as racial prejudice. But that is not this case.

Merely because citizen input may not be a sufficient

basis for a rational government land use decision in

every instance does not mean it can never be a sufficient

basis for such a decision. In most cases it will be. See

Greenbriar, 881 F.2d at 1579. Where, as here, citizens

consistently come before their city council in public

-A 42-

meetings on a number of occasions and present their

individual, fact-based concerns that are rationally related

to legitimate general welfare concerns, it is not arbitrary

and capricious for a city council to decide without a

more formal investigation that those concerns are valid

and that the proposed development should not be

permitted.

The record conclusively demonstrates that the City

Council members were presented with abundant informa-

tion, from all sides, about mini-warehouse projects. In

the finest tradition of participatory government, the

matter was investigated and resolved in a series of public

meetings at which Corn and interested citizens presented

information and opinions to the governmental decision-

makers — the members of the City Council. City

officials, such as the Fire Chief and the City Engineer

offered advice and were questioned. Various parti-

cipants drew upon their experiences with similar devel-

opments and the problems that those developments had

caused. As often occur, some misinformation was

presented, some information was corrected, and some

was contradicted and disputed; but that is the nature of

democratic decisionmaking. The information and views

the citizens presented to their government officials at

these meetings involved the same general welfare con-

cerns that the Supreme Court and this Court have repeat-

edly held are rational and permissible basis for land use

restrictions: noise, traffic, congestion, safety, aesthetics,

valuation of adjoining land, and effect on city services.

It is undisputed that prior to the time the City Council

made its decision at the July 12, 1977 meeting, there had

been four public meetings in the nature of hearings on

the issue. Stephen Corn, City officials, and other citi-

zens had presented information and opinions to the

municipal decisionmakers. The district court’s holding

that the City Council’s action was arbitrary and

-A 43-

capricious because, “prior to July 12, 1977, no effort

was made to investigate mini-warehouses” amounts to a

per se rule that no municipality can act rationally on the

basis of information gathered at public meetings, but

instead must conduct more formal investigations. There

is no basis in the Constitution for such a requirement,

which would be antithetical to our democratic form of

government.

Corn argued before this Court, and apparently con-

vinced the district court, that insufficient investigation

was conducted because the Mayor admitted at trial that

he had neither personally visited any other mini-

warehouse project at the time the City acted, nor had he

sent anyone else from the City to inspect an existing

mini-warehouse located three miles from the City.

Corn’s argument is off the point both factually and

legally. Factually, the record shows that the Mayor did

not vote on the ordinances or the site plan, and Corn

failed to prove that the five City Council members who

did vote on it had never visited a mini-warehouse

project. More fundamentally, the Constitution does not

require on-site inspections as a predicate for land use

decisions. See Federal Communications Commission v.

Beach Communications, Inc., __ U.S. __, _, B82 8.01.

2096, 2102, 124 L.Ed.2d 211 (1993) (“[A] legislative

choice is not subject to courtroom fact-finding and may

be based on rational speculation unsupported by evi-

dence or empirical data.”). It would be absurd-to Sug-

gest, for example, that a city council could not rationally

decide to forbid construction of a nuclear waste facility

near a residential area unless the council members had

personally inspected a similar facility before they voted.

Before the City Council took action in this Case, its

members learned about mini-warehouses in general and

Corn’s planned development in particular. The Constitu-

tion requires no more investigation than that.

-A 44-

3. The Erroneous Constitutional

Standard

The district court also erred by applying to the City’s

actions a Strict scrutiny standard of review instead of the

deferential review that our decisions require. In con-

cluding that the City had acted arbitrarily and capri-

ciously, the district court reasoned that “the City Council

targeted only the mini-warehouse use for elimination,

leaving a number of uses that arguably cause more

traffic, noise, and air pollution; no comparison between

mini-warehouses and the remaining permitted uses was

ever conducted.” 771 F.Supp. at 1569. That strict

scrutiny standard has no place in substantive due process

land use doctrine.

The only authority the district court cites for such a

heightened standard of review is a Florida appellate

court decision that did not even mention substantive due

process. City of Kissimmee v. Ellis, 431 So.2d 283, 285

(Fla. 5th Dist.Ct.App.1983). Even if that state inter-

mediate appellate court decision had been directly on

point, the district court should instead have applied the

holdings of Greenbriar Ltd. v. City of Alabaster, 881

F.2d 1570 (11th Cir.1989), and other precedent of this

Circuit which limits the inquiry to whether the City’s

action had a rational relationship to a legitimate general

welfare concern. No decision of this Court has ever held

that the Due Process Clause prevents government from

restricting land use to promote the general welfare

unless it contemporaneously restricts all land uses in its

jurisdiction which “arguably cause” the same or greater

adverse effect on the general welfare. We decline to

extend the due process clause in such a manner, which

would hobble the power of local government to promote

the general welfare through land use control.

-A 45-

The district court’s criticism of the City for “target-

ing” mini-warehouses and leaving other uses that

“arguably cause” more problems not only reflects appli-

cation of the wrong legal standard, it also has little or no

factual basis in this case. The record is devoid of evi-

dence that when it acted to stop Corn’s project the City

Council had before it any requests to permit other uses

that “arguably cause” the same problems as the mini-

warehouses Corn wanted to build. The City retained the

right to disapprove any future use that might cause the

same problems. Municipal governments, like people, act

to deal with the problems with which they are con-

fronted. There is no basis in the Constitution or in

common sense for holding that a government cannot

solve a problem with which it is confronted unless its

solution solves all future problems that may arise as

well. Municipal governments have the power to deal

independently with the problems of their cities on an

as-needed basis; the Constitution does not require that

they address in one ali-encompassing action every

conceivable problem that could arise.

By applying a level of scrutiny that is far too strict,

the district court appears to have put itself in the place of

the City Council and made a de novo review of whether

it would have taken the same action the City Council

did. Such scrutiny impinges upon the right and authority

of municipalities to make land use decisions and would

alter the allocation of functions between municipal

governments and the federal courts. This Court has

admonished district courts not to usurp the role of city

councils and zoning boards:

We stress that federa! courts do not sit as

zoning boards of review and should be most

circumspect in determining that constitutional

rights are violated in quarrels over zoning

decisions. Raskiewicz v. Town of New Boston,

-A 46-

7154 F.2d 38, 44 (1st Cir.1985) (“federal courts

do not sit as a super zoning board or zoning

board of appeals”); Albery v. Reddig, 718 F.2d

245 (7th Cir.1983) (federal appeals court

should not become accustomed to idea that

constitutional rights are implicated in quarrel

over zoning rules); Scott v. Greenville County,

716 F.2d 1409 (4th Cir.1983) (noting reluc-

tance of federal courts to sit as zoning boards

of appeal).

Spence v. Zimmerman, 873 F.2d 256, 262 (11th

Cir.1989); see also Construction Indus. Assoc. V. City of

Petaluma, 522 F.2d 897, 906 (9th Cir.1975) (“Being

neither a super legislature nor a zoning board of appeal,

a federal court is without authority to weigh and reap-

praise the factors considered or ignored by the legisla-

tive body in passing the challenged zoning regulation.”),

cert. denied, 424 U.S. 934, 96 S.Ct. 1148, 47 L.Ed.2d

342 (1976). In this case, the district court erred by

raising the level of constitutional scrutiny to a point

where it substituted its judgment for that of the City

Council.

4. The Application of Precedent

The district court’s holding is plainly inconsistent

with this Court’s Greenbriar decision. In that case there

was no formal investigation, and the city’s decision was

based upon “political pressure” from citizen voters who

turned out as a crowd to oppose the development.

Greenbriar, 881 F.2d at 1579. Despite that fact and the

apparent lack of any investigation other than public

meetings, in Greenbriar this Court held that the city’s

action in denying permission for the development was

not arbitrary and capricious. In doing so, we quoted and

-A 47-

adopted as “apt” the following analysis about “political

pressure” as a basis for such decisions:

[Nothing is more common in zoning disputes

than selfish opposition to zoning changes. The

Constitution does not forbid gov ‘nment to

yield to such opposition; it does not outlaw the

characteristic operations of democratic

government, operations which are permeated by

pressure from special interests.... The fact

“that town officials are motivated by parochial

views of local interests which work against

plaintiffs’ plan and which may contravene state

subdivision laws” ... does not state a claim of

denial of substantive due process.

Id. (quoting Coniston Corp v. Village of Hoffman

Estates, 844 F.2d 461, 467 (7th Cir.1988) (quoting

Creative Environments, Inc. v. Estabrook, 680 F.2d 822,

832 (1st Cir.), cert. denied, 459 U.S. 989, 103 S.Ct. 345,

74 L.Ed.2d 385 (1982))).

To distinguish the Greenbriar decision the district

court relied upon Wheeler v. City of Pleasant Grove, 664

F.2d 99 (5th Cir. Unit B 1981) (“Wheeler I”), cert.

denied, 456 U.S. 973, 102 S.Ct. 2236, 72 L.Ed.2d 847

(1982), and A.A. Profiles, Inc. v. City of Ft. Lauderdale,

850 F.2d 1483 (11th Cir.1988), cert. denied, 490 USS.

1020, 109 S.Ct. 1743, 104 L.Ed.2d 180 (1989). It said

that “the appellate court in both Weeler / and A.A.

Profiles refused to accept public outcry against a project

as evincing a legitimate state interest.” 771 F.Supp. at

1569. Hu-~ever, there are clear distinctions between

those two cases on the one hand, and both this case and

our more recent Greenbriar decision on the other hand.

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Wheeler I involved a municipality's decision to

prevent an apartment complex from being built in a city

after a referendum showed overwhelming resistance to

it. Unlike the present case, in that case the city’s deci-

sion “bore no substantial relationship to legitimate

concerns for health, safety, welfare, or the general

well-being of the community.” 664 F.2d at 100. In

Wheeler I, there was decision by plebiscite; here there

was not. In this case, relevant information and legiti-

mate concerns of citizens and officials alike were ex-

pressed, discussed, and weighed by the municipal

decisionmakers in a process that allowed the developer

full input.

A.A. Profiles did not even involve a substantive due

process issue, so that decision cannot be controlling. It

was a procedural due process and just compensation

case, 850 F.2d at 1485, two inquiries that differ from a

substantive due process analysis. A.A. Profiles is also

distinguishable from this case because there the city

proffered as a basis for its action “threats of violence by

area residents.” Jd. at 1488. There certainly were no

threats of violence or attempts at physical coercion in

this case; all that was involved was public input into a

political decision.

The inappi:cabiiity of Wheeler ¢ and A.A. Profiles to

this case is shown by the mere recent decision of this

Court in Greenbriar. While various holdings of that

decision have been referred to previously, it warrants

more detailed discussion because it is a “red cow”

case... In Greenbriar, the city council refused to change

2 The term “red cow” is used in some legal circles, particularly in

Florida, to describe a case that is directly on point, a commanding

precedent. See, e.g., United States v. Kopituk, 690 F.2d 1289, 1308

(11th Cir.1982), cert. denied, 461 U.S. 928, 103 S.Ct. 2090, 77

L.Ed.2d 300 and cert. denied, 463 U.S. 1209, 103 S.Ct. 3542, 77

L.Ed.2d 1391 (1983). In other states, the same notion of a closely

(continued)

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the zoning of a developer’s land from single-fami«:

residential to “Planned Development District” (“PDLI-

which would have permitted multi-family residences,

townhouses, accessory structures, and the retail ad

commercial businesses of a community shopping dis~

trict. 881 F.2d at 1571-72 One or two public hearin,zs

were held before the planning and zoning commission,

which ultimately deadlocked on the proposal. After

holding its own public hearing on the proposal, the city

council rejected it. Jd. at 1572. Greenbriar, the would-

be developer, sued claiming a violation of substantive

due process. Jd. A jury returned a verdict finding that

the mayor and city council had been arbitrary and

Capricious in reaching the decision to deny Greenbriar’s

PDD zoning application. The district court entered

judgment for the developer in accordance with that

verdict. /d. at 1572-73. This Court reversed. We began

our discussion of the legal issues involved in a substan-

tive due process claim by noting:

It has long been established that zoning

regulations will not be declared unconstitu-

tional as violative of substantive due process

unless they “are clearly arbitrary and unreason-

able, having no substantial relation to the

public health, safety, morals, or general wel-

fare.” Village of Euclid, Ohio v. Ambler Realty

Co., 272 U.S. 365, [39%,] 47 S.Ct. 114, 121, 71

L.Ed. 303 (1926).

(fn. continued)

fitting authoritative decision is conveyed by any of the following

terms: “spotted dog,” “spotted horse,” “white horse,” “white pony,”

or “goose” case. See Jefferson v. Ysleta Indep. School Dist., 817

F.2d 303, 305 n. 1 (Sth Cir.1987). We choose “red cow” from the

metaphorical menagerie because this is a Florida case and because

that metaphor is the strongest one, a red cow being more difficult to

overlook than the other animals.

” 6

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881 F.2d at 577. This Court continued, stating:

The relevant question for consideration is

whether there existed a rational basis for the

City’s rejection of Greenbriar’s plan, or,

phrased in the alternative, whether the City’s

action bore no substantial relation to the gen-

eral welfare.

Id.

The developer, Greenbriar, argued before this Court

that “its proposal for PDD status was well-suited to the

needs of the surrounding communities,” and that city

officials had “acted ‘solely on partisan political reasons

unrelated to the merits of plaintiffs’ proposal... .’ ” Id.

at 1579 (quoting Greenbriar’s brief). Greenbriar also

pointed to evidence in the record that council members

had been subjected to “political pressure” and that some

of them were even “scared of the crowd.” /d. This

Court responded a follows:

[A] planning commission or a City Council is

not a judicial forum; it is a legislative body

held democratically accountable — through

precisely the forms of political suasion to

which Greenbriar objects. See Couf v. De

Blaker, 652 F.2d [585,] at 590 (Sth Cir.1981)

(“Our opinions repeatedly characterize local

zoning decisions as ‘legislative’ in nature”);

South Gwinnett Venture v. Pruitt, 491 F.2d [5,]

at 7 (5th Cir. 1974) (“local zoning is a quasi-

legislative procedure, not subject to federal

juridical consideration in the absence of arbi-

trary action”). Council members who evaluate

a proposal in light of their constituents’ prefer-

ences do not necessarily overlook what

Greenbriar contends to be the “merits” of a

particular zoning plan. Here, there is no

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indication that Council members’ attention to

citizens’ concerns in assessing Greenbriar’s

zoning plan deprived their decision of a ra-

tional basis.

881 F.2d at 1579 (footnote omitted). This Court said, “it

is of some relevance” that at the public hearings “all of

the representatives of neighborhood associations that

spoke were opposed to the granting of PDD status to the

property.” /d. at 1579 n. 17. Exactly the same is true in

this case. This Court went on to hold in Greenbriar that

the Constitution does not forbid government from

yielding to political pressure that is characteristic of

democratic government, an the fact that municipal

officials are motivated by parochial views of local

interest does not state a claim of denial of substantive

due process, even if those parochial views contravene

State laws. Id. at 1579.

How closely the Greenbriar decision fits this case can

be seen from the following paragraph of our Greenbriar

Opinion, which, with only minor modifications for the

names of the parties and the specific proposal being

considered, could well have been written for this case:

Greenbriar has failed to demonstrate that local

officials did not rationally conclude that the

PDD proposal was not in the best interest of the

community. Greenbriar contends that its

proposal for PDD status was compatible with

the traffic, public health and other needs of

neighboring areas, and that the plan was modi-

fied to incorporate, and/or account for, each of

the suggestions or objections of City officials

and surrounding property owners. However,

review of the record indicates that several

members of the City Council simply disagreed

with Greenbriar’s assessment of the plan’s

compatibility with the surrounding area, that

-A 52-

there existed a rational basis for such disagree-

ment, and that modifications to the plan failed

to alleviate their concerns.

Id. (footnote omitted). The concerns that had been

expressed to and by the city council members in

Greenbriar were concerns about the effect of the pro-

posed development on the surrounding neighborhoods,

including the effect it would have on the value of the

property in those neighborhoods and on the levels of

traffic. Again, the following paragraph with which this

Court ended its discussion of the substantive due process

claim in the Greenbriar case could just as easily have

been written for this case:

In sum, review of the record indicates that

neighborhood representatives offered several

reasons for their opposition to the proposed

development, and that Council] members prop-

erly took those views into account in undertak-

ing their own evaluations of the proposal.

Greenbriar has failed to show that Council

members acted irrationally or arbitrarily in

rejecting the PDD rezoning plan. To the

contrary, we conclude that the record clearly

reflects a rational basis for the City’s decision

not to rezone the subject property.

Id. at 1580 (footnote omitted). Wheeler J and A.A.

Profiles are distinguishable from this case. Greenbriar

is not. It controls this case and requires t

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