# Petition for Writ of Certiorari — Corn v. City of Lauderdale Lakes > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1242%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1994 - **Citation:** 511 U.S. 1018 ## 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 a 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). ee 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. . 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 ns 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 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. ee = 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 tw 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, +P 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). NE | , \ 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 ae 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). at 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) Se 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) sc i> 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) 18 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 Regardless of the outcome, it is in the best interests of all concerned that the outcome be reached sooner rather than later. Toward that end, the district court may wish to consider whether the remain- ing claim can be adjudicated on the basis of the eviden- tiary record that already exists. The district court is in the best position to decide that in its sound discretion. We REVERSE the district court’s holding that the City violated Corn’s substantive due process rights. We also REVERSE its holding that the City Council mem- bers are entitled to absolute legislative immunity, insofar 3 We leave it to the district court to determine the effect on the just compensation claim of its October 7, 1991 order in response to Corn’s motion to amend the judgment, where the court concluded that, “as to the front portion of the Property, ‘[o]n July 4, 1978, CORN regained all his sticks in the “bundle of rights commonly characterized as property.”’ ... This determination necessarily means that the CITY had not ‘gone too far’ or taken CORN’s property, thus requiring just compensation.” -A 57- as their actions involving denial of the site plan are concerned, but we AFFIRM its holding that they are entitled to absolute legislative immunity insofar as their actions involving adoption of the ordinances are con- cerned. We REMAND the case to the district court for further proceedings on the just compensation claim. HATCHETT, Circuit Judge, concurring specially. I concur in the majority opinion, but write separately to emphasize that 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. This is not a case where city council members voted on a zoning proposal after merely count- ing the number of citizens who opposed the proposal without any consideration of the merits of the proposal. To the contrary, we expressly recognize that “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.” Majority op. at p. 1387 (citing Corn v. City of Lauderdale Lakes, 771 F.Supp. 1557, 1569 (S.D.Fla.1991)). Our reversal of the district court’s ruling that the city acted arbitrarily and capriciously, is based on the par- ticular facts of this case which are set forth in consider- able detail. After reviewing the evidence under the controlling principles articulated in Greenbriar v. City of Alabaster, we are convinced that the city council mem- bers in this case did evaluate the “merits” of Corn’s site plan in addition to the legitimate general welfare con- cerns of their constituents. See Greenbriar v. City of Alabaster, 881 F.2d 1570, 1579 (11th Cir.1989) (holding that “Council members who evaluate a proposal in light of their constituents’ preferences do not necessarily -A 58- overlook what [a substantive due process plaintiff] contends to be the ‘merits’ of a particular zoning plan.”). This is not the case where city council members rejected a land use proposal following one or more orchestrated public hearings where a large number of citizens showed up and mouthed the magic words “noise,” “traffic,” “congestion,” “safety,” “aesthetics,” “valuation of adjoining land,” and “effect on city services.” Instead, the record reflects that city council members voted to deny Corn’s site plan after finding a rational basis for the general welfare concerns that citizens expressed during the public meetings. See Greenbriar, 881 F.2d at 1579-80 (concluding that a developer failed to show that city council members acted irrationally or arbitrarily in rejecting a land use plan, where council members under- took their own evaluation of the proposal and the record indicated a rational basis for citizens’ concerns about the effect on surrounding neighborhoods and for their concerns about traffic problems). Moreover, as in Greenbriar, we find no indication that the city council members’ attention to citizens’ concerns in evaluating Corn’s site plan deprived their decision of a rational basis. See Greenbriar, 881 F.2d at 1579. Therefore, even though we do not hold that local governments will always prevail in defending substan- tive due process claims whenever their zoning decision follows public meetings where citizens express general welfare concerns, we conclude that in this case the city’s denial of Corn’s land use proposal was not arbitrary and capricious because the record reflects a rational basis for the expressed general welfare concerns. -A 59- IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT OCT 14 .993 MIGUEL J. CORTEZ CLERK HERMAN CORN, Plaintiff-Appellant, Cross-Appellee, versus CITY OF LAUDERDALE LAKES, Defendant-Appellee, Cross-Appellant. On Appeal from the United States District Court for the Southern District of Florida ON PETITION(S) FOR REHEARING AND SUGGESTION FOR HEARING EN BANC Before: HATCHETT, DUBINA and CARNES, Circuit Judges. PER CURIAM: (Vv) The Petition(s) for Rehearing are DENIED and no member of this panel nor other Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc (Rule 35, Federal Rules of Appellate Procedure; Eleventh Circuit Rule 35-5), the Suggestion(s) of Rehearing En Banc are DENIED. -A 60- ( ) The Petition(s) for Rehearing are DENIED and the Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it (Rue 35, Federal Rules of Appellate Procedure; Eleventh Circuit Rule 35-5), the Sugges- tion(s) of Rehearing En Banc are a}so DENIED. ( ) A member of the Court in active service having requested a poll on the reconsideration of this cause en banc, and a majority of the judges in active service not having voted in favor of it, Rehearing En Banc is DENIED. ENTERED FOR THE COURT: Ed Carnes United States Circuit Judge — —e ee a renee es a nndioniekeintionl ee EE SS SS —_—: - 1. UNITED STATES DISTRICT COURT, S.D. FLORIDA. No. 84-6034-CIV. Herman CORN, Trustee, Plaintiff, v. CITY OF LUADERDALE LAKES, et al., Defendants. Aug. 30, 1991. (771 F.Supp. 1557 (S.D.Fla. 1991)) FINDINGS OF FACT AND CONCLUSIONS OF LAW PAINE, District Judge. This matter comes before the Court following a four-day non-jury trial held August 12-15, 1991. I. Findings of Fact Background 1. Prior to June 1966, Plaintiff, HERMAN CORN, TRUSTEE (“CORN”), acquired 261 acres of real prop- erty located in the unincorporated area of Broward County and then zoned for agricultural uses (the “Parcel”). 2. After preliminary negotiations with Defendant CITY OF LAUDERDALE LAKES (the “CITY”) con- cerning possible annexation of the Parcel, CORN pre- sented a proposed development plan. 3. On July 12, 1966, the CITY adopted three ordinances: . es a. Ordinance 103 created a C-1A zoning category within the CITY, incorporating the permissible uses of the pre-existing category C-1 and requiring the submis- sion of a site development plan before issuance of a building permit; b. Ordinance 104 formally annexed the Parcel; and c. Ordinance 105 designated various zoning clas- sifications for different portions of the Parcel, including a C-1A designation for an approximately 81/2 acre portion bounded to the south by Canal C-13 and to the east by U.S. 441 (the “Property”). The land immediately north and west of the Property was concurrently zoned for residential use. 4. The uses permitted in zoning category C-1 in- cluded fertilizer sales, animal boarding kennel, automo- bile paint shop, storage warehouse, railroad freight or passenger station, and sheet metal shop. 5. Between 1966 and 1977, CORN developed much of the Parcel in accordance with the plan originally submitted to the CITY. As part of this development, CORN constructed waterways along the north and west boundaries of the Property, to form a buffer between it and adjacent residential areas. 6. CORN spent in excess of $100,000.00 preparing the Property to be developed, although it is not clear whether this money was directed toward general com- mercial preparation or a specific intended use. 7. During 1975, the CITY retained the services of a land use planner, who questioned the propriety of C-1A zoning for the Property. No formal action, however, was taken with respect to changing the zoning classification of the Property until July 12, 1977. | 8. On April 1, 1977, CORN submitted a preliminary | site plan (the “Site Plan”) for development of the Property. The site plan depicted the construction of an eee 4: approximately 67,000 square foot shopping center on the eastern portion of the Property, which would front U.S. 441, and an approximately 103,000 square foot mini- warehouse on the western, or rear, portion. 9. Many CITY residents publicly opposed the CORN project. 10. On May 12, 1977, the CITY’s Planning and Zoning Board recommended approval of the Site Plan to the City Council, the body authorized to make a final decision thereon. At the request of the City Council, the Planning and Zoning Board again considered the Site Plan at a public meeting held May 26, 1977. By letter dated May 27, 1977, the Planning and Zoning Board re-affirmed its May 12 recommendation of approval. 11. At public meetings held May 31, June 14, and June 21, 1977, the City Council tabled consideration of the Site Plan. 12. On July 12, 1977, the City council for the first time discussed changes in both the uses permitted within C-1A property and the zoning classification of CORN’s Property. The City Council in fact passed two or- dinances on first reading that were ultimately adopted: a. Ordinance 548 amended Article XXXVII, Sec- tion 37.2 of the Broward County Zoning Classification Restrictions and Regulations, as adopted by reference, to eliminate storage warehouses as a permitted use in category C-1, and consequently category C-1A; and b. Ordinance 549 rezoned the Property from C-1A to B-3, a more restrictive category. 13. After passing Ordinances 548 and 549, the City Council voted unanimously to deny approval of CORN’s Site Plan. There was no discussion of what modifica- tions would make the plan acceptable. 14. Ordinance 552, which imposed a 150-day build- ing moratorium on all C-1 property in the CITY, was -B 4- proposed at the July 12, 1977 meeting and later adopted. The stated purpose of the moratorium was to permit the Planning and Zoning Board, which had purportedly advised that C-1 property abutting residential property should be rezoned, to review the CITY’s commercial zoning scheme. 15. Prior to July 12, 1977, the City Council made no attempt to investigate mini-warehouses or compare the traffic, noise, and other adverse effects allegedly created by mini-warehouses with those created by any other type of use still permitted under zoning category C-1, as amended, or category B-3. Its actions were, instead, motivated by a desire to thwart CORN’S proposed project. 16. CORN sued these same Defendants in the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida, Case No. 77-12955 (the “State Court Action”), seeking, inter alia, a writ of mandamus directing the City Council to approve the Site Plan, a judicial declaration that Ordinances 548, 549, and 552 were invalid, and monetary damages for inverse condem- nation. Upon a defense motion, the inverse condemna- tion claim was voluntarily dismissed. 17. Ordinance 568 extended the building moratorium through July 4, 1978. 18. On October 20, 1978, following a_ three-day non-jury trial, Circuit Judge Frank A. Orlando entered Final Judgment, concluding that CORN’s conduct in reliance upon the C-1A status of his Property since 1966 created vested rights, which the CITY was equitably estopped to deny. Judge Orlando therefore declared Ordinances 548, 549, and 552 void and unenforceable against CORN or the Property, and directed the CITY to approve the Site Plan, then issue a building permit, upon correction of three technical deficiences. -B 5- 19. The Final Judgment was stayed pending appeal to the Fourth District Court of Appeal. 20. A dispute arose regarding the need for, and proper amount of, a supersedeas bond on appeal. CORN submitted a pleading entitled “Damage Summary” that Stated “[w]e have a commitment from Coral Gables Federal Saving & Loan Assn. to borrow 80% of total costs at 10.5211% interest for 24 years,” then projected his potential damages as including increased loan costs and increased closing costs. 21. A seventy-five percent (75%) loan-to-value ratio, leaving the owner with twenty-five percent (25%) equity, was customary in the banking industry for construction loans in 1977. 22. On February 16, 1983, in City of Lauderdale Lakes v. Corn, 427 So.2d 239 (Fla. 4th Dist.Ct.App. 1983) (“Corn I”), the Fourth District Court of Appeal upheld the trial court’s application of the doctrine of equitable estoppel and the propriety of mandamus, thereby affirming the Final Judgment. The appellate court issued a mandate on March 4, 1983, at which time its opinion became final. 23. During October 1983, seven months after the appellate mandate, CORN submitted a revised site plan (the “Revised Site Plan”) to the CITY for approval. No explanation was offered for the seven-month delay. 24. The City Council refused to approve the Revised Site Plan unless CORN platted the Property, citing a Broward County platting requirement imposed after July 1977. 25. On January 17, 1984, CORN filed the instant action (the “Federal Court Action”), seeking damages -B 6- under 42 U.S.C. § 1983! for violation of civil rights granted under the takings clause of the Fifth Amend- ment,” the due process clause of the Fourteenth Amend- ment,’ and the equal protection clause of the Fourteenth Amendment. 26. Among the items of damage specified in each Count of the Complaint were “increased financing and interest charges as a result of the delay in construction” of the project. 27. On October 26, 1984, a full year after submitting the Revised Site Plan, CORN filed a Motion to Enforce Final Judgment in the State Court Action, asserting that, because the CITY should have approved the Site Plan as submitted in 1977, the subsequent platting requirement did not apply. Again, CORN offered no explanation for the one-year delay. 28. On March 26, 1985, Judge Estella M. Moriarty, the successor to Judge Orlando’s division, entered an Order on Plaintiff's Motion to Enforce Final Judgment, concluding that CORN was entitled to issuance of a building permit without platting the Property. 1 42US.C. § 1983 provides, in pertinent part: Every person who, under color of [state law], subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. “{P]rivate property [shall not] be taken for public use, without just compensation.” U.S. Const. amend V. “No State shall ... deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend XIV. -B 7- 29. CORN chose, however, not to pursue develop- ment of the Property. 30. On October 22, 1985, United States District Judge Jose A. Gonzalez, Jr. dismissed this Federal Court Action as not ripe under Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). In Corn v. City of Lauderdale Lakes, 816 F.2d 1514 (11th Cir.1987) (“Corn II”), the Eleventh Circuit Court of Appeals reversed the dismissal. 31. The undersigned later held that CORN’s cause of action was not barred by the statute of limitations or res judicata. In Corn v. City of Lauderdale Lakes, 904 F.2d 585 (11th Cir.1990) (“Corn III’), the Eleventh Circuit affirmed this holding. 32. CORN remains the owner of the Property, which has not been developed. 33. CORN dismissed BEN EIGNER as a Defendant prior to the instant trial. 34. CORN likewise dismissed Counts III and IV, proceeding to trial on Counts I (a takings claim) and II (a substantive due process claim). Wheeler IV Factors The parties acknowledged, and the Court ruled (DE 196), that any damages for a temporary regulatory taking of property must be awarded in accordance with Wheeler v. City of Pleasant Grove, 896 F.2d 1347 (11th Cir.1990) (“Wheeler IV’). As discussed infra, Wheeler IV requires the Court to determine (i) the fair market value of the subject property under various circum- Stances, (ii) the landowner’s equity in a proposed project, (iii) the length of the temporary taking, and (iv) the market rate of return during this period. -B 8- 35. Ronald Ames, an expert retained by CORN, valued the Property as developed and as restricted on nine separate valuation dates. The parties have stipu- lated that the values for the Property as developed are correct for purposes of this litigation. The CITY ob- jects, however, to the methodology used to value the Property as restricted. Specifically, Mr. Ames assigned values to both the front and rear portions of the Property based upon a direct sales comparison approach, then adjusted these values downward. Between 1977 and 1983, Mr. Ames reduced the value by one-half (1/2) due to a perceived atmosphere of hostility toward develop- ment within the CITY that grew from the July 12, 1977 ordinances and an alleged incident involving property owned by J.C. Penney. From 1983 to 1985, Mr. Ames reduced the value by one-third (1/3) due primarily to the assumption that the project intended in 1977 was no longer feasible. The Court finds that the unadjusted figures more accurately represent the fair market values of the Prop- erty as restricted, particularly between 1977 and 1983. While any appraisal necessarily includes some degree of speculation, Mr. Ames’ fifty percent (50%) reduction based upon “hostility” to development crosses the line into sheer guesswork. Moreover, Wheeler IV does not authorize a reduction in the value of restricted land for public perceptions that may have been created by passing the subsequently invalidated ordinance. The raw direct sales comparison figures, absent Mr. Ames’ speculation, are the most credible evidence of value in the record. Mr. Ames valued the Property as of July 12, 1977, when the Site Plan was rejected, July 1 of each year from 1978 though 1984, and March 26, 1985, when the Order on Plaintiff’s Motion to Enforce Final Judgment was entered. No valuations were made for July 4, 1978, -B 9- when the moratorium expired, or March 4, 1983, when the Fourth District Court of Appeals affirmed the Final Judgment by mandate. From the evidence presented, the Court finds that the values on these dates had not changed from Mr. Ames’ last preceding valuation date. In summary, the Court finds the fair market values of the Property to be as follows: Date Value-WH Value-SC | Value-Raw Value-Bck 7-12-77 | $2,020,000 | $2,600,000 $860,000 $253,000 7-1-78 2,070,000 2,750,000 860,000 253,000 7-4-78 2,070,000 2,750,000 860,000 253,000 7-1-79 2,210,000 2,850,000 1,360,000 425,000 7-1-80 2,320,000 2,900,000 1,360,000 425,000 7-1-81 2,570,000 2,950,000 1,360,000 425,000 7-1-82 2,750,000 3,100,000 1,360,000 425,000 3-4-83 2,750,000 3,100,000 1,360,000 425,000 7-1-83 2,750,000 3,150,000 1,850,000 916,000 7-1-84 2,810,000 3,150,000 1,850,000 916,000 3-26-85 2,850,000 2,800,000 2,220,000 1,287,000 Value- WH = value of that portion of the Property upon which CORN intended to build a mini-warehouse facility if the project were complete Value-SC = value of portion upon which CORN intended to build a shopping center if complete Value - Raw = value of total Property as restricted Value -Bck = value of back portion as restricted -B 10- 36. As indicated during trial, the Court interprets Wheeler IV as requiring a fact-specific determination of the landowner’s equity, rather than a reflexive applica- tion of the industry standard, whenever possible. Herman Corn and Stephen Corn testified that CORN intended to build the mini-warehouse and shopping center entirely for cash. The Court rejects this testimony as not credible, particularly in light of the Damage Summary filed in the State Court Action and the Com- plaint herein, each of which refers to financing. In the absence of any evidence regarding the construction costs of the proposed project or a specific loan-to-value ratio contemplated by CORN, the Court will apply the cus- tomary seventy-five percent (75%) loan-to-value ratio. 37. The parties presented conflicting, and somewhat complex, testimony as to the appropriate rates of return during the applicable timeframe. The Court finds the testimony of H.J. Alexandrowicz most persuasive, and will employ the rates of return that he determined be- tween 1977 and 1983. For the remaining two years, which Mr. Alexandrowicz did not address, the interest rate for 90-day Treasury Bills (“T-Bills™) will be used. Thus, the market rates of return were as follows: -B 11- Date Rate of Return 7-12-77 8.88% 7-1-78 8.88% 7-4-78 8.88% 7-1-79 9.12% 7-1-80 9.13% 7-1-81 9.47% 7-1-82 9.08 % 3-4-83 9.08 % 7-1-83 8.50% 7-1-84 9.60% 3-26-85 7.50% 38. Prejudgment interest at the rate paid on 90-day T-Bills, compounded annually, is properly added to any damages awarded herein. See Front Royal and Warren County Industrial Park Corp. v. Town of Front Royal, 749 F.Supp. 1439, 1448 & n. 14 (W.D.Va.1990). The T-Bill rates between 1977 and 19991 were as follows: -B 12- Date Rate 1977 5.30% 1978 7.20% 1979 10.00% 1980 11.50% 1981 14.10% 1982 10.70% 1983 8.50% 1984 9.60% 1985 7.50% 1986 6.00% 1987 5.80% 1988 6.70% 1989 8.80% 1990 8.10% 1991 6.14% ne em _—————$——— ——— -B 13- Il. Conclusions of Law Liability a. Individual Defendants Neither the Pretrial Stipulation (DE 149), Plaintiff’s Trial Memorandum, nor his proposed Findings of Fact and Conclusions of Law makes any mention of the individual Defendants’ liability for damage under 42 U.S.C. § 1983. The issue was likewise ignored during trial. CORN has apparently abandoned this portion of the claim. Alternatively, CORN has failed to meet his burdens of production and proof in this regard. Judg- ment will be entered in favor of Defendants HOWARD CRAFT, ALFONSO GEREFFI, JEROME J. COHAN, MORRIS KLEIN, LYMAN L. ALLEN, LOUIS GREENWALD, and HARRY KAUFMAN. b. The CITY A taking may be physical, where a public entity enters upon private land, or regulatory, where a public or- dinance invalidly restricts the landowner’s private uses. See First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 329-30, 107 S.Ct. 2378, 2393-94, 96 L.Ed.2d 250 (1987) (Stevens, J., dissenting). There are four distinct types of constitutional challenges to zoning ordinances. A plaintiff may assert that the regulation: 1. has taken his property without just compensa- tion in contravention of the Fifth Amendment (a -B 14- “just compensation” claim);* 2. goes so far and destroys the value of his prop- erty to such an extent that it has the same effect as a taking by eminent domain (a “due process takings” claim); 3. is arbitrary and capricious, bearing no substan- tial relation to the public health, safety, morals, or general welfare, and is therefore an invalid exercise of the police power (an “arbitrary and capricious due process” or “substantive due process” claim); or 4. denies equal protection (an “equal protection” claim). Eide v. Sarasota County, 908 F.2d 716, 720-22 (11th Cir.1990). CORN has raised a just compensation claim? and a substantive due process claim.° The Court will first consider substantive due process, which CORN has termed his “main claim.” A violation of substantive due process under 42 U.S.C. § 1983 requires proof that (i) the plaintiff has been deprived of a federal constitutionally protected interest, and (ii) the deprivation resulted from an abuse of governmental power sufficient to raise an ordinary tort to the stature of a constitutional violation. Rymer v. * The takings clause applies to states and their political subdivisions through the Fourteenth Amendment. See Wheeler v. City of Pleasant Grove, 833 F.2d 267, 270 n. 3 (11th Cir.1987) (citing Chicago, B. & Q.R. Co. v. City of Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 (1897)). ’ CORN, citing Eide, 908 F.2d at 721 n. 8, suggests that the just compensation and due process takings claims are best viewed as identical. See Plaintiff’s Trial Memorandum at 16 n. 5. . Curiously, one Eleventh Circuit Court of Appeals decision has stated that “[t}]he plaintiff in Corn presented only a takings claim, and not a substantive due process claim.” Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1574 n. 8 (11th Cir.1989). -B 15- Douglas County, 764 F.2d 796, 801 (11th Cir.1985). A substantive due process claim, unlike a just compensa- tion claim, does not require denial of all reasonable use of the property; it is sufficient that the government has arbitrarily interfered with the owner’s right to a particu- lar use. See, e.g., Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1576 n. 11 (11th Cir.1989). 1. Deprivation of Property Interest The State Court Action established that CORN had acquired vested rights in the zoning that existed before July 12, 1977. This issue, having been presented, fully litigated, and resolved in a prior suit between these parties, cannot be relitigated. Krug v. Meros, 468 So.2d 299, 302 (Fla. 2d Dist.Ct.App.), review denied, 480 $0.2d 1295 (Fla.1985); see also Allen v. McCurry, 449 U.S. 90, 96, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980) (collateral estoppel in § 1983 claim determined by state law). The question becomes whether CORN’s vested rights rise to the level of a constitutionally protected property interest. State law creates and defines the parameters of a plaintiff’s property interests. Paul v. Davis, 424 U.S. 693, 709, 96 S.Ct. 1155, 1164, 47 L.Ed.2d 405 (1976); Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972) “Mere abstract need or desire for a benefit will not create a_protectible property interest; instead there must be a legitimate claim of entitlement to the expected benefit.” Spence v. Zimmerman, 873 F.2d 256, 258 (11th Cir.1989) (citing Roth, 408 U.S. at 577, 92 S.Ct. at 2709) (emphasis added). Additionally, CORN presented sufficient evidence at trial of its vested rights in the prior zoning. -B 16- The CITY, citing both Marine One, Inc. v. Manatee County, 877 F.2d 892, 894 (11th Cir.1989) (“Marine One I’), and Mackenzie v. City of Rockledge, 920 F.2d 1554, 1559 (11th Cir.1991), argues that Florida law grants no property right in the possession of a building permit, nor, therefore, approval of preliminary site plans. Defendants’ Trial Brief at 9. Because this line of cases is inconsistent with Eleventh Circuit precedent and has been impliedly renounced, the argument Is rejected. In Marine One I, a landowner sued a county and its board of commissioners, alleging that the county’s rescission of permits authorizing construction of a marina deprived it of property without compensation. The Eleventh Circuit Court of Appeals affirmed a judgment for the defendants notwithstanding a jury verdict, finding no constitutionally protected property interest. 877 F.2d at 894. Citing a number of Florida state cases decided in the 1970’s, the court wrote: These cases make clear that Florida law does not provide the ability to recover money dam- ages for rescission of a permit. Cf. Corn v. City of Lauderdale Lakes, 816 F.2d 1514, 1517 (11th Cir.1987) (under Florida law, exclusive remedy available to property owner challenging zoning ordinance was suit to invalidate the zoning ordinance and enjoin its enforcement). The only right provided a permit holder under state law, then, is the right to retain the permit and invalidate any rescinding resolution once he has satisfied the requirements of equitable estoppel. Thus, the district court correctly stated that if [plaintiff] acquired any right at all as a result of his reliance, it was a right to pursue equitable estoppel under proper circumstances. -B 17- Because [plaintiff] had this remedy available to him, if the facts would indeed support the claim, the State did not deprive him of any protectable property interest. Having failed to prove the existence of a cognizable property interest, the claims of both [plaintiff and his company] must fail as a matter of law. 877 F.2d at 895 (emphasis added). This language suggests that, if a state does not recog- nize a common law action for inverse condemnation, then a landowner has no property interest for purposes of 42 U.S.C. § 1983. The landowner would therefore lack any opportunity to recover monetary damages, an anomalous result that is inconsistent with Supreme Court teachings. See First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 319, 107 S.Ct. 2378, 2388, 96 L.Ed.2d 250 (1987) (where government’s action has worked a taking, subse- quent invalidation of action does not relieve it of duty to provide compensation for period of taking).° Certainly, Corn II did not hold that a landowner has no damage action for takings effected by invalid zoning ordinances passed in Florida. 9 The court therein simply noted that, under the Williamson County ripeness test, 10 a Florida . Conversely the availability of a state inverse condemnation claim renders any federal claim premature. Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 196-97, 105 S.Ct. 3108, 3121-22, 87 L.Ed.2d 126 (1985). Section 1983 would then have little application to takings law. ’ Had it done so, both Corn III and this trial would have been unnecessary. © In Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 193, 196-97, 105 S.Ct. 3108, 3120, 3121-22, 87 L.Ed.2d 126 (1985), the Supreme Court held that a 42 U.S.C. § 1983 claim for money damages stemming from a regulatory taking is not ripe until the plaintiff demonstrates that (i) a final decision has been (continued) -B 18- plaintiff was not required to seek damages in state court before filing a federal lawsuit." More importantly, as argued in a motion for rehear- ing, the Marine One I court overlooked its own recent precedent. In A.A. Profiles, Inc. v. City of Fort Lauderdale, 850 F.2d 1483 (11th Cir.1988), a landowner obtained a building permit for construction of a wood- chipping business after the city commission approved the use by resolution. During construction, the city rezoned the subject parcel to prevent wood-chipping. In an opinion issued just eleven months before Marine One I, the Eleventh Circuit held that the landowner had acquired property rights in its proposed development. 850 F.2d at 1488 (citing Wheeler v. City of Pleasant Grove, 664 F.2d 99 (Sth Cir. Unit B 1981) (“Wheeler ry?) “The rezoning ordinance denied appellant this property interest because the new classification did not accommodate a development like the wood-chipping operation.” 850 F.2d at 1488.'° (fn. continued) made applying the regulation to the subject property, and (ii) there 1s no adequate state remedy, such as inverse condemnation, available to redress the injury occasioned by the final decision. See Corn I, 816 F.2d at 1515-16. 11 , State inverse condemnation proceedings are now apparently available in Florda. See Executive 100, Inc. [v.] Martin County, 922 F.2d 1536, 1539 (11th Cir.1991) (citing Joint Ventures, Inc. v. Dept. of Transp., 563 So.2d 622, 628 (Fla.1990). This subsequent develop- ment has no bearing on the ripeness determination in Corn J], 12 Decisions rendered by a Unit B panel of the former Fifth Circuit are binding precedent in the Eleventh Circuit. Stein v. Reynolds Securities, Inc., 667 F.2d 33, 34 (11th Cir.1982). 13 The Eleventh Circuit, in another pre-Marine One | case involving a Florida landowner, held that state law creates a constitutionally protectible property interest in a building permit if (1) the municipality lacks discretion and must issue a building permit to an (continued) -B 19- On rehearing, the Marine One | court stated a new basis for its holding: There is one salient feature of the instant case, however, that distinguishes it from the three cases that petitioners cite [Wheeler I, A.A. Profiles, and Corn II}. In each of those cases, a city’s application of its zoning laws to owner or private property was determined to constitute a taking of that property; /* here the land upon which construction was to be permitted - is publicly-owned. The state owns the waters and the submerged lands upon which petitioners sought to build a dock. 898 F.2d 1490, 1492 (11th Cir.1990) (“Marine One IT’) (emphasis in original). The public/private distinction had not been mentioned in Marine One J. Thus “clarify- ing” its decision, the court denied the motion for rehear- ing. Id. at 1493. In Mackenzie, 920 F.2d at 1559, a landowner sued a city, alleging that he was wrongfully denied a permit to build a marina. Citing Marine One I, but neither A.A. Profiles nor Marine One II, another Eleventh Circuit panel held that Florida law creates no property right in the application for or possession of a building permit. (fn. continued) applicant who complies with the statutory requirements and (2) the applicant has fulfilled the requirements. Spence v. Zimmerman, 873 F.2d 256, 258 (11th Cir.1989) (citing Littlefield v. City of Afton, 785 F.2d 596, 602 (8th Cir.1989)) (em- phasis in original). Thus, the arbitrary denial, as well as revocation, of a building permit might violate federal constitutional] rights. 14 Just as Corn II did not hold that the plaintiff lacked a damage action, neither did it determine that a taking had occurred; hence the instant trial. 15 Because Mackenzie likewise involved a marina, the court could. and perhaps should, have grounded its decision in the public/private distinction raised in Marine One I[]. -B 20- In sum, A.A. Profiles held that a Florida landowner who obtains a building permit and spends money in reliance upon existing zoning has a constitutionally protected property interest in his proposed development. The Marine One II opinion essentially acknowledged the strength of this holding by shifting the entire foundation of the court’s prior ruling. To the extent that Mackenzie relies upon Marine One I, it is inconsistent with A.A. Profiles and Marine One II. CORN did not, of course, secure a building permit for his mini-warehouse project. But Judge Orlando held that the CITY lacked any discretion to deny preliminary Site plan approval, the prerequisite to a building permit application. The Judge in fact ordered the CITY to issue a building permit in accordance with the final site plans. The Fourth District Court of Appeals affirmed the Final Judgment in full. Corn I, 427 So.2d at 242. CORN thus had no less a “legitimate claim of entitlement” to pro- ceed with his development than one possessing a permit. See Spence v. Zimmerman, 873 F.2d at 258 (lack of discretion to deny Is key). ii. Abuse of Governmental Power CORN must further prove that the CITY’s actions in blocking development were arbitrary and capricious, lacking an adequate public purpose. See Rymer, 764 F.2d at 802 (landowner protected against arbitrary use of government power). CORN argues that collateral estoppel establishes this element as well, citing the following language from the Final Judgment: Further, no competent, substantial evidence was before this Court showing that these Ordinances were enacted as a result of compell- ing reasons or [of? — sic] public health and safety. -B 21- Collateral estoppel, however, applies only to “necessary and material issues resolved in the first suit.” Seaboard Coast Line R.R. Co. v. Cox, 338 So.2d 190, 191 (Fla.1976) (emphasis added); see generally 32 Fla.Jur.2d Judgments and Decrees § 119 (1981) (collect- ing cases). The State Court Action concerned vested rights and equitable estoppel, which focus on the con- duct of the landowner, not the governmental entity; the theory of vested rights overrides even a valid exercise of the zoning power. See Town of Largo v. Imperial Homes Corp., 309 So.2d 571, 574 (Fla.2d Dist.Ct.App. 1975). Any discussion of the public health considerations underlying Ordinances 548, 549, and 552 appears to be mere dictum. The party who claims the benefit of a former judg- ment bears the burden of showing its applicability. Seaboard Coast Line R.R. Co. v. Industrial Contracting Co., 260 So.2d 860, 864 (Fla. 4th Dist.Ct.App.1972). Because CORN has not proven that the issue of public purpose was central to the Final Judgment, collateral estoppel does not apply. 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-warehouse use for elimination, leaving a num- ber 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 -B 22- hoc rationalization. See 11126 Baltimore Boulevard v. Prince George’s Coxnty, 886 F.2d 1415, 1425 (4th Cir.1989) (supporting evidence must exist when decision made). In short, the City Council was motivated solely by an irrational desire to thwart CORN’s plans. The CITY takes the unusual position that, because the City Council exercised no independent judgment, but rather blindly followed the will of residents who op- posed a mini-warehouse project, their actions are per se valid. See Defendants’ Trial Brief at 11-12 (citing Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570 (11th Cir.1989)). Indeed, one district court has held that Greenbriar clearly stands for the proposition that elected officials who vote on zoning requests can act for purely political reasons, because partisan, political decisionmaking, even by unknow- ledgable, close-minded politicians fearful of harm more than political, is automatically deemed rational and, therefore, cannot be arbitrary and capricious unless it is the product of corruption... .” Church of Jesus Christ of Latter-Day Saints v. Jefferson County, 721 F.Supp. 1212, 1214 (N.D.Ala.1989) (emphasis In original). Greenbriar itself, however, merely stated that “(cJouncil members who evaluate a proposal in light of their constituents’ preferences do not necessarily over- look what [plaintiff] contends to be the ‘merits’ of a particular zoning plan,” provided they “undertak[e] their own evaluations of the proposal.” 881 F.2d at 1579-80 (emphasis added). Moreover, the appellate court in both Wheeler I and A.A. Profiles refused to accept public Outcry against a project as evincing a legitimate state interest. 664 F.2d at 100; 850 F.2d at 1487-88. The -B 23- City Council herein undertook no independent evalua- tion of the merits and acted irrationally. Because the Court finds the CITY liable for an arbi- trary and capricious due process taking, it need not consider whether the ordinances “go too far” and entitle CORN to just compensation under the Fifth Amendment. “Regardless of which constitutional provision a taking falls under, the measure of damages to which the ag- grieved landowner is entitled is the same.” See Wheeler v. City of Pleasant Grove, 833 F.2d 267, 270 n. 3 (11th Cir.1987).’° Damages In First English Evangelical Lutheran Church of Glendale v. County of Los Angles, 482 U.S. 304, 319, 107 S.Ct. 2378, 2388, 96 L.Ed.2d 250 (1987), the Supreme Court recognized a constitutional right to damages for a temporary regulatory taking, but did not articulate the proper measure of damages. Defendants moved for partial summary judgment (DE 152), asking that damages be limited to “the rental value of the property for the period of the alleged taking” (DE 153), the measure ordinarily applied in temporary physical takings cases. See, e.g., Kimball Laundry Co. v. United States, 338 U.S. 1, 7, 69 S.Ct. 1434, 1438, 93 L.Ed. 1765 (1949); Yuba Natural Resources, Inc. v. United States, 904 F.2d 1577, 1581 (Fed.Cir.1990). This Court denied the motion on the basis of Wheeler IV, which, drawing upon the Eighth Circuit decision Nemmers v. City of Dubuque, 764 F.2d 502, 505 (8th Cir.1985), set forth a detailed, specific mathematical formula for temporary regulatory takings cases. os Query whether the Fifth Amendment even applies if the regula- tion does not serve a public purpose. See id. — eae -B 24- In Nemmers v. City of Dubuque, 716 F.2d 1194 (8th Cir.1983), (“Nemmers I’), a landowner bought a tract of land that was later annexed by a city. Pending comple- tion of the annexation, Nemmers invested in the develop- ment of a light industrial park upon the city’s “receptive- ness to industrial development of the [t}ract.” But the annexed property was ultimately zoned agricultural, then residential. The Eighth Circuit Court of Appeals, revers- ing a district judge, held that Nemmers was due compen- sation for a taking of his vested rights in the planned industrial use. 716 F.2d at 1200. In a separate appeal regarding damages, the court awarded “the estimated value of the difference in zoning” between light indus- trial and residential. 764 F.2d 502, 505 (8th Cir.1985) (“Nemmers IT”) (emphasis added). In Wheeler III, the Eleventh Circuit Court of Appeals, citing Nemmers II, held that In the case of a temporary regulatory taking, the landowner’s loss takes the form of an injury to the property’s potential! for producing in- come or an expected profit. The landowner’s compensable interest, therefore, is the return on the portion of the fair market value that is lost as a result of the regulatory restriction. Accord- ingly, the landowner should be awarded the market rate return computed over the period of the temporary taking on the difference between the property’s fair market value without the regulatory restriction and its fair market value with the restriction. 833 F.2d at 271 (emphasis added) (citations omitted). On remand following Wheeler III, the district court found that the invalidated ordinance had not destroyed the highest and best use of the land. Because “the fair market value. of the [subject] property was _ not -B 25- diminished by the enactment of [the ordinance],” the court awarded no damages. See 896 F.2d at 1350. The Eleventh Circuit reversed. After reiterating the quoted language from Wheeler III, the court spelled out the damage formula for a temporary taking. “The property's fair market value without the regulatory restriction” was defined, however, as the value of “[t]}he complex which appellants had the right to build,” as if it were completed, and without regard to the cost of con- struction. Wheeler IV, 896 F.2d at 1351.'’ Yet no type of building was postulated in ascertaining the “fair market value with the restriction,” even though other, and more profitable, uses remained. This definitional inconsistency marks a departure from Nemmers II, and, accordingly, the theoretical underpinnings of Wheeler III. Moreover, it is simply unfair to award compensatory damages for “an injury to the property’s potential for producing income,” 896 F.2d at 1351, when the property could still be put to its highest and best use. See Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1576 n. 11 (11th Cir.1989) (“[d]iscerning what alternative uses are permitted clearly is relevant in determining what damages result '7 As CORN observed during trial, it is irrelevant under Wheeler [V whether the completed project, valued at $2,300,000.00, would have cost $6,000.00 or $6,000,000.00, even though this would clearly affect the landowner’s profit. -B 26- from an arbitrary decision”).'* The Wheeler IV formula seems designed to discourage arbitrary governmental acts as much as make landowners whole. Perhaps the most equitable solution would be to order reimbursement of all money invested by a landowner for the intended use, and award additional damages only if the most profitable use was taken. In any event, the Court is compelled to apply Wheeler IV so long as it remains the law of this Circuit. E.g., Fox v. Acadia State Bank, 937 F.2d 1566, 1567 (11th Cir.1991); United States Vv. DeFabritus, 605 F.Supp. 1538, 1544 (S.D.N.Y.1985) (a district court cannot ignore binding precedent with which it may disagree). The Court has made findings as to the fair market values of the Property, CORN’s equity, the market rate of return, and the proper rate of prejudgment interest. Before conducting any mathematical calculations, the period, physical scope, and permanence of the regulatory taking must be clarified. i. Period of Taking There is little question that, under Wheeler IV, the temporary takings period began on July 12, 1977.” 18 wheeler IV also makes no allowance for any use to which the landowner may have put the money that he intended to invest in the development. Conversely, by strictly limiting damages to his equity, the owner is denied any recovery for the “spread” that he might have earned between a lender’s interest rate and the project’s expected return. These many considerations illustrate that “the issue of what constitutes just compensation in this context is a particularly meaty one, which merits substantial reflection and analysis.” MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 363, 106 S.Ct. 2561, 2573, 91 L.Ed.2d 285 (1986) (White, J., dissenting). 19 The CITY points out that, even if CORN had received prelimi- nary site plan approval on July 12, 1977, he would not have obtained (continued) -B 27- CORN asserts that it did not end until March 26, 1985, the date on which Judge Moriarty granted Plaintiff’s Motion to Enforce Final Judgment. The Court disagrees. The Complaint in this action makes no claim for dam- ages beyond March 4, 1983, when Corn J became final. More importantly, CORN did not file his Revised Site Plan until seven months after the appellate mandate, then did not move for enforcement of the Final Judgment for another year. No explanation was offered at trial for these lengthy delays. It would be patently unfair to reward CORN for his own delay. Il. Physical Scope of Taking CORN seeks damages for the entire Property during the takings period, claiming that the Property was Subject to a de jure or de facto moratorium through March 4, 1983. He quotes a footnote from Corn II as proof that the CITY has conceded, and the Eleventh Circuit has “conclusively determined,” that “[t]here was no use to which Plaintiff could put the Property during this period”: In its brief, the City has indicated that al- though the ordinances imposed a moratorium on development of Corn’s land, the ban was a temporary one which arguably did not restrict all uses of all of Corn’s property. However, at Oral argument, in response to a direct question by the court as to whether Corn failed to pursue the variances available to him, counsel! for the (fn. continued) a permit and built the project for several months. However, Wheeler IV measured the takings period from the City’s arbitrary withdrawal of a building permit. 896 F.2d at 1351-52. The practical delays associated with completing construction affected neither the begin- ning nor end of the regulatory taking. See id. -B 28- City stated that “there is no question” that Corn could not have sought any additional variances in view of the City’s ban on all building by him.... 816 F.2d at 1516 n. 3, quoted in Plaintiff’s Trial Memorandum at 23.7” The quoted passage does not, as CORN suggests, delineate the timeframe during which the CITY banned all building by him; this Court agrees that a total ban lasted for nearly a full year. Moreover, as discussed supra at 1566-1567, Corn II was an appeal of Judge Gonzalez’s order dismissing the Federal Court Action as not ripe under Williamson County. The appellate court was thus concerned with the finality of the City Coun- cil’s July 12, 1977 actions, not the substantive merits of CORN’s § 1983 claims. A footnoted reference regarding a procedural matter is hardly the proper foundation for the doctrine of law of the case. See generally 3 Fila. Jur.2d Appellate Review §§ 421-423 (1978) (collecting cases) (law of the case limited to rulings on questions of law actually presented on former appeal). Finally, even if the Eleventh Circuit intended to comment upon the merits, and this comment were not dictum, the under- signed would decline to apply the law of the case doc- trine as inconsistent with the trial evidence and manifestly unjust. See United States v. Robinson, 690 F.2d 869, 872 (11th Cir.1982). 20 CORN cites language from a footnote in Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1576 n. 12 (11th Cir.1989) that in Corn IJ the court found “that the local authority had placed a complete moratorium on development.” Inasmuch as the same opinion States that “[t}he plaintiff in Corn presented only a takings claim, and not a substantive due process claim,” see supra at n. 6, it is unlikely that CORN truly wishes to adopt Greenbriar’s recitation of facts. -B 29- The record establishes that after July 4, 1978, when the building moratorium expired by its own terms, there was no legal impediment to constructing any project that complied with the B-3 zoning classification, includin the exact shopping center described in the Site Plan.? CORN’s own expert, Ronald Ames, admitted that the mini-warehouse and shopping center are separate types of property that serve separate markets. CORN has suggested, but did not prove, that building a shopping center on the front portion of the Property would some- how “landlock” the rear portion; certainly the shopping center depicted in the Site Plan did not “landlock” the proposed mini-warehouse. In short, the shopping center could have been built, and assumedly would have gener- ated the return that CORN now seeks from the CITY. CORN quotes Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 130-31, 98 S.Ct. 2646, 2662-63, 57 L.Ed.2d 631 (1978) for the proposition that “(tlaking jurisprudence does not divide a single parcel into discrete segments,” but rather focuses on “the parcel as a whole.” Plaintiff’s Trial Memorandum at 25.77 The Penn Central court, however, was discussing laws limiting subsurface excavation and development of air rights, not adjacent, distinct portions of a 261-acre Parcel. CORN has consistently stated that, under A.A. Profiles and Wheeler I, a landowner may acquire a constitutionally protected property interest in a single 21 CORN’s argument that the CITY would likely have prevented any construction during pendency of the state appeal is both specula- tive and inconsistent with evidence that the mini-warehouse was the primary, if not sole, subject of dispute. 22 CORN’s argument, taken to its logical extreme, could obligate the CITY to pay damages under Wheeler /V for the entire 261-acre Parcel purchased in 1966. ee LS ns -B 30- intended use. For the front portion of the Property, however, a shopping center was CORN’s intended use. On July 4, 1978, CORN regained all his sticks in the “bundle of rights commonly characterized as property.” Plaintiff's Trial Memorandum at 15 (citing Nollan v. California Coastal Comm’n, 483 U.S. 825, 831, 107 S.Ct. 3141, 3145, 97 L.Ed.2d 677 (1987)). There being no “taking” of the front portion beyond this date, the CITY is not obligated to pay damages therefor. See Spence v. Zimmerman, 873 F.2d 256, 259 (11th Cir.1989) (citing Kerley Industries, Inc. v. Pima County, 785 F.2d 1444 (9th Cir.1986) (no deprivation where landowner had right to use desired permit).” iii. Permanence of Taking Finally, CORN raises another argument mentioned nowhere in the operative pleadings: that due to the delays occasioned by the CITY’s actions, his loss “has matured into a permanent taking.” Plaintiff’s Trial Memorandum at 47. Having forever “missed the market” for his mini-warehouse/shopping center project, CORN requests damages under Wheeler IV for the “lifetime” of the proposed development. Id. at 50. It should again be noted that development of the shopping center was possible at any time after July 4, 1978. As to the mini-warehouse, the valuations rendered by Ronald Ames, which steadily increase from $2,.020,000.00 in July 1977 to $2,850,000.00 in March 1985, bely the suggestion that the project was no longer feasible. And, as the CITY notes, neither Wheeler IV nor any reported case authorizes permanent damages for a temporary taking. Beyond their inherently speculative 23 The Court’s decision is better viewed as grounded in an absence of liability, and not, as CORN suggests, a duty to mitigate damages. -B 31- nature, such damages would not adequately “account[] for the fact that the owner still retains the property after Front Royal, 749 F.Supp. the taking is invalidated.... at 1445. The Court will therefore award damages for a regulatory taking of the entire Property between July 12, 1977 and July 4, 1978, and the rear portion of the Prop- erty between July 5, 1978 and March 4, 1983. Calcula- tions will be made as to the damages suffered during each approximately one-year interval between valuation dates. Compounded interest, at the fluctuating T-Bill rates, will then be added for each year from the end of a given interval to the present. The sum of these intervals will be CORN’s total award. The individual calculations of damages and interest are detailed in the attached Appendix and summarized below: Date Range Damages Damages + Int 7-12-77 to 7-4-78 $81,065.60 $241,077.65 7-5-78 to 6-30-79 39,934.03 110,613.47 7-1-79 to 6-30-80 40,698.00 107,361.57 7-1-80 to 6-30-81 43,253.38 102,334.23 7-1-81 to 6-30-82 50,782.88 100,211.91 7-1-82 to 3-4-83 35,888.70 66,276.19 TOTAL DAMAGES $291,622.59 $727,875.02 -B 32- In light of all the foregoing, it is hereby ORDERED and ADJUDGED as follows: 1. The Clerk of the Court is directed to enter Final Judgment (a) against CORN on his claims against the individual Defendants HOWARD CRAFT, MORRIS KLEIN, LYMAN L. ALLEN, ALFONSO GEREFFI, JEROME J. COHAN, LOUIS GREENWALD, and HARRY KAUFMAN, but (b) for CORN, in the amount of $727,875.02, on his claims against the CITY. 2. The Court reserves ruling as to any prevailing party’s entitlement to, and the reasonable amount of, attorneys’ fees under 42 U.S.C. § 1988. 3. Any party seeking an award of attorneys’ fee shall file a proper motion, with supporting affidavits and a memorandum of law, within thirty (30) days hereof. DONE and ORDERED. -B 33- APPENDIX 7-12-77 to 7-4-78 a. Damages FMV-without restriction (FMV-with restriction) X Equity X Duration (in years) X Rate of Return (in %) DAMAGES b. Interest -7-4-78 to 12-31-78 Damages plus accrued interest X T-Bill Rate (in @) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest -1-1-79 to 12-31-79 Damages plus accrued interest X T-Bill Rate (in %) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest -1-1-80 to 12-31-80 Damages plus accrued interest X T-Bill Rate (in %) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest $4,620,000.00 (860,000.00) 3,760,000.00 25 940,000.00 .98 921,200.00 8.88 81,065.60 60 .20 49 40 00 3,078.47 10.00 1.00 ,307.85 ,386.32 ,386.32 11.50 1.00 10,509.43 $ 101,895.75 -B 34- -1-1-81 to 12-31-81 Damages plus accrued interest X T-Bill Rate (in %) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest -1-1-82 to 12-31-82 Damages plus accrued interest X T-Biil Rate (in ®) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest -1-1-83 to 12-31-83 Damages plus accrued interest X T-Bill Rate (in %) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest -1-1-84 to 12-31-84 Damages plus accrued interest X T-Bill Rate (in @) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest -1-1-85 to 12-31-85 Damages plus accrued interest X T-Bill Rate (in %) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest 101,895.75 14.10 1.00 14,367.30 116,263.05 116,263.05 t0.70 1.00 12.440.15 128,703.20 128,703.20 8.50 1.00 10,939.77 139,642.97 139,642.97 9.60 1.00 13.405.7: 153,048.70 153,048.70 7.50 1.00 11,478.65 164,527.35 -B 35- -1-1-86 to 12-31-86 Damages plus accrued interest X T-Bill Rate (in @) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest 1-1-87 to 12-31-87 Damages plus accrued interest X T-Bill Rate (in %) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest -1-1-88 to 12-31-88 Damages plus accrued interest X T-Bill Rate (in @) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest 1-1-89 to 12-31-89 Damages plus accrued interest X T-Bill Rate (in %) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest -1-1-90 to 12-31-90 Damages plus accrued interest X T-Bill Rate (in %) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest $ 164,527.35 6.00 1.00 9,871.64 $ 174,398.99 $ 174,398.99 $ 184,514.13 $ 184,514.13 6.70 1.00 ~ 12.362.45 $196,876.58 $ 196,876.58 8.80 1.00 17,325.14 $ 214,201.72 $ 214,201.72 8.10 1.00 17,350.34 $ 231,552.06 nN -B 36- -1-1-91 to 8-30-91 Damages plus accrued interest X T-Bill Rate (in %) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest 7-5-78 to 6-30-79 a. Damages FMV-without restriction (FMV-with restriction) X Equity X Duration (in years) X Rate of Return (in %) DAMAGES b. Interest -6-30-79 to 12-31-79 Damages plus accrued interest X T-Bill Rate (in @) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest -1-1-80 to 12-31-80 Damages plus accrued interest X T-Bill Rate (in %) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest $ 231,552.06 6.14 .67 9,525.59 $ 241,077.65 $2.070,000.00 (253,000.00) 1.817,.000.00 ys. 454,250.00 99 449,707.50 8.55 $ 39,934.03 $ 39,934.03 10.00 1.996.70 $ 41,930.73 $ 41,930.73 11.50 1.00 4,822.03 $ 46,752.76 -B 37- -1-1-81 to 12-31-81 Damages plus accrued interest X T-Bill Rate (in %) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest -1-1-82 to 12-31-82 Damages plus accrued interest X T-Bill Rate (in %) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest -1-1-83 to 12-31-83 Damages plus accrued interest X T-Bill Rate (in @) X Duration (in ycars) Interest During Calendar Year NEW Damages plus accrued interest -1-1-84 to 12-31-84 Damages plus accrued interest X T-Bill Rate (in %) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest -1-1-85 to 12-31-85 Damages plus accrued interest X T-Bill Rate (in %) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest $ 46,752.76 14.10 1.00 6,592.14 $ 53,344.90 $ 53,344.90 10.70 1.00 ~ § 707.90 $ 59,052.80 2.80 8.50 1.00 5,019.49 $ 64,07 $ 70,223.23 7.50 1.00 5,266.74 $ 75,489.97 -B 38- -1-1-86 to 12-31-86 Damages plus accrued interest X T-Bill Rate (in %) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest -1-1-87 to 12-31-87 Damages plus accrued interest X T-Bill Rate (in %) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest -1-1-88 to 12-31-88 Damages plus accrued interest X T-Bill Rate (in %) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest -1-1-89 to 12-31-89 Damages plus accrued interest X T-Bill Rate (in %) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest -1-1-90 to 12-31-90 Damages plus accrued interest X T-Bill Rate (in %) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest $ 75,489.97 6.00 1.00 4,529.40 $ 80,019.37 $ 80,019.37 5.80 1.00 4,641.12 $ 84,660.49 $ 84,660.49 6.70 1.00 5,672.25 $ 90,332.74 $ 90,332.74 8.80 1.00 7,949.28 $ 98,282.02 $98,282.02 8.10 1.00 $ 7,906.84 106,242.86 -B 39- -1-1-91 to 8-30-91 Damages plus accrued interest X T-Bill Rate (in %) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest 7-1-79 to 6-30-80 a. Damages FMV-without restriction (FMV-with restriction) X Equity X Duration (in years) X Rate of Return (in %) DAMAGES b. Interest -6-30-80 to 12-31-80 Damages plus accrued interest X T-Bill Rate (in %) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest -1-1-81 to 12-31-81 Damages plus accrued interest X T-Bill Rate (in %) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest $ 106,242.86 6.14 .67 4,370.62 $ 110,613.47 $2,.210,000.00 (425,000.00) 1,785,000.00 ao 446,250.00 1.00 446,250.00 9.12 $ 40,698.00 $ 40,698. 4.3 0. 4,680. $ 45,378. $45,378.27 14.10 1.00 6,398.34 $ 51,776.61 -B 40- -1-1-82 to 12-31-82 Damages plus accrued interest X T-Bill Rate (in %) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest -1-1-83 to 12-31-83 Damages plus accrued interest X T-Bill Rate (in @) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest -1-1-84 to 12-31-84 Damages plus accrued interest X T-Bill Rate (in @) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest -1-1-85 to 12-31-85 Damages plus accrued interest X T-Bill Rate (in %) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest -1-1-86 to 12-31-86 Damages plus accrued interest X T-Bill Rate (in %) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest 51,776.61 10.70 1.00 5,540.10 57,316.71 §7,316.71 8.50 1.00 4,871.92 62,188.63 62,188.63 9.60 1.00 5,970.11 68,158.74 68,158.74 7.50 1.00 73,270.65 6.00 1.00 4,396.24 77,666.89 -B 41- -1-1-87 to 12-31-87 Damages plus accrued interest X T-Bill Rate (in %) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest -1-1-88 to 12-31-88 Damages plus accrued interest X T-Bill Rate (in %) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest -1-1-89 to 12-31-89 Damages plus accrued interest X T-Bill Rate (in %) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest -1-1-90 to 12-31-90 Damages plus accrued interest X T-Bill Rate (in %) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest -1-1-91 to 8-30-91 Damages plus accrued interest X T-Bill Rate (in %) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest $ 77,666.89 5.80 1.00 4,504.68 $ 82,171.57 $ 82,171.57 6.70 5,505.50 $ 87,677.07 $ 87,677.07 8.80 1.00 7,715.58 $ 95,392.65 $ 95,392.65 8.10 1.00 7,726.80 $ 103,119.45 $ 103,119.45 6.14 .67 4,242.13 $ 107,361.57 4. -B 42- 7-1-80 to 6-30-81 a. Damages >. FMV-without restriction (FMV-with restriction) X Equity X Duration (in years) X Rate of Return (in @) DAMAGES b. Interest -6-30-81 to 12-31-81 Damages plus accrued interest X T-Bill Rate (in %) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest -1-1-82 to 12-31-82 Damages plus accrued interest X T-Bill Rate (in @) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest -1-1-83 to 12-31-83 Damages plus accrued interest X T-Bill Rate (in %) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest $ 2,320,000.00 (425,000.00) 1,895,000.00 fA 473,750.00 1.00 473,750.00 9.13 $ 43,253.38 § 43,253.38 14.10 1.00 6,098.73 $ 49,352.11 $ 49,352.11 10.70 1.00 5,280.68 $ 54,632.79 $ 54,632.79 8.50 1.00 4,643.79 $ 59,276.58 -B 43- -1-1-84 to 12-31-84 Damages plus accrued interest X T-Bill Rate (in @) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued intcrest -T-1-85 to 12-31-85 Damages plus accrued interest X T-Bill Rate (in %) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest -1-1-86 to 12-31-86 Damages plus accrued interest X T-Bill Rate (in @) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest -1-1-87 to 12-31-87 Damages plus accrued interest X T-Bill Rate (in @) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest -1-1-88 to 12-31-88 Damages plus accrued interest X T-Bill Rate (in @) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest $ 59,276.58 9.60 1.00 5,690.55 $ 64.967.13 $ 64,967.13 7.50 1.00 4,872.54 $ 69,839.66 $ 69.839. 66 6.00 1.00 4,190.88 $ 74,030.04 $ 74,030.04 5.80 1.00 4,293.74 $ 78,323.78 $ 78,323.78 6.70 1.00 $,247.69 $ 83,571.47 ‘sy -B 44 1-1-89 to 12-31-89 Damages plus accrued interest X T-Bill Rate (in ®) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest 1-1-90 to 12-31-90 Damages plus accrued interest X T-Bill Rate (in %) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest 1-1-91 to 8-30-91 Damages plus accrued interest X T-Bill Rate (in %} X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest ~ 1-81 to 6-30-8 a. Damages FMV-without restriction (FMV-with restriction) X Duration (in years) X Rate of Return (in DAMAGES $ 83, 57 x l 47 ®() ()0) 7,354.29 $ 90,925.76 A co $ O88. $ 98 ) OOO (900) 00.0 b. Interest 6-30-82 to 12-3] Damages plus acc X T-Bill Rate (in 7 X Duration (in years Interest During Ca NEW Damages -B 46- -1-1-87 to 12-31-87 Damages plus accrued interest X T-Bill Rate (in @) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest -1-1-88 to 12-31-88 Damages plus accrued interest X T-Bill Rate (in @) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest -1-1-89 to 12-31-89 Damages plus accrued interest X T-Bill Rate (in %) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest -1-1-90 to 12-31-90 Damages plus accrued interest X T-Bill Rate (in %) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest -1-1-91 to 8-30-91 Damages plus accrued interest X T-Bill Rate (in @) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest $ 72,494.73 5.80 1.00 4,204.69 $ 76,699.42 $ 81,838.28 7,201.77 $ 89,040.05 $ 89,040.05 $ 8.10 1.00 7,212.24 $ 96,252.29 $ 96,252.29 6.14 67 3,959.63 100,211.91 6. -B 47- 7-1-82 to 3-4-83 a. Damages FMV-without restriction (FMV-with restriction) X Equity X Duration (in years) X Rate of Return (in @) DAMAGES b. Interest -3-4-83 to 12-31-83 Damages plus accrued interest X T-Bill Rate (in %) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest -1-1-84 to 12-31-84 Damages plus accrued interest X T-Bill Rate (in %) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest -1-1-85 to 12-31-85 Damages plus accrued interest X T-Bill Rate (in %) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest $2,750,000.00 (425,000.00) 2,325,000.00 25 $81,250.00 .68 395,250.00 9.08 $ 35,888.70 S$ 35,888.70 ~ St} . 2,501.44 $ 42,075.59 7.50 1.00 3,155.67 $ 45,231.26 -B 48- -1-1-86 to 12-31-86 Damages plus accrued interest X T-Bill Rate (in %) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest -1-1-87 to 12-31-87 Damages plus accrued interest X T-Bill Rate (in %) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest -1-1-88 to 12-31-85 Damages plus accrued interest X T-Bill Rate (in Z) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest -1-1-89 to 12-31-89 Damages plus accrued interest X T-Bill Rate (in %) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest -1-1-90 to 12-31-90 Damages plus accrued interest X T-Bill Rate (in %) X Duration (in years) Interest During Calendar Year NEW Damages plus accrued interest 45,231.26 6.00 1.00 2,713.88 47,945.14 47,945.14 5.80 1.00 2,780.82 50,725.96 50,725.96 6.70 1.00 3,398.64 54,124.60 54,124.60 8.80 1.00 4,762.96 58,887.56 58,887.56 8.10 1.00 4,769.89 63,657.45 -B 49- -1-1-91 to 8-30-91 Damages plus accrued interest $ 63,657.45 X T-Bill Rate (in %) 6.14 X Duration (in years) .67 Interest During Calendar Year 2,618.74 NEW Damages plus accrued interest $ 66,276.19 APPENDIX | ron B UNITED STATES DISTRICT COURT, S.D. FLORIDA. No. 84-6034-CIV. Herman CORN, Trustee, Plaintiff, v. CITY OF LAUDERDALE LAKES, et al., Defendants, May 20, 1992. (794 F.Supp. 364 (S.D.Fla.1992)) ORDER AWARDING ATTORNEYS’ FEES AND COSTS PAINE, District Judge. Background Plaintiff, HERMAN CORN, Trustee (“CORN”), sued the CITY OF LAUDERDALE LAKES (the “CITY”) and several of its officials for damages under Title 42, United States Code, Section 1983,' essentially alleging that a CITY ordinance arbitrarily deprived him of a 261-acre parcel without the due process of just compen- sation. During a four-day non-jury trial held August 12-15, 1991, CORN requested more than $27,000,000.00 in damages for a complete and permanent taking. In its Findings of Fact and Conclusions of Law (DE 208),” the Court ruled that CORN’s constitutional rights had “Every person who, under color of [state law], subjects ... any citizen... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” 2 The decision is reported at 771 F.Supp. 1557 (S.D.Fla.1991) <2. been violated, but awarded only $727,875.02 for a partial and temporary taking. The subsequent Final Judgment (DE 209) expressly reserved jurisdiction to consider attorneys’ fee and costs. On February 3, 1992, CORN filed a Motion for Attorneys’ Fees and Costs (the “Motion”) (DE 236), supported by a memorandum of law (DE 237) and several affidavits (DE 238-44). The CITY has submitted a Memorandum of Law in Opposition to the Motion (the “Response”) (DE 254), attaching an affidavit and deposi- tion transcripts as exhibits. Finally, CORN filed his Reply Memorandum on the Motion (the “Reply”) (DE 255). The Court has reviewed and considered the entire record, and applied its own knowledge and experience concerning reasonable and proper fees, in resolving the Motion. See Norman v. Housing Auth. of Cuy of Montgomery, 836 F.2d 1292, 1303 (11th Cir.1988). Analysis 1. Attorneys’ Fees Title 42, United States Code, Section 1988 was enacted in 1976 “to encourage the enforcement of federal law through lawsuits filed by private persons.” Pennsylvania v. Delaware Valley Citizens’ Council, 483 U.S. 711, 737, 107 S.Ct. 3078, 3093, 97 L.Ed.2d 585 (1987) (Blackmun, J., dissenting). It provides that, in any action brought under Section 1983 of that Title, “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” 42 U.S.C.A. § 1988(b) (West Supp.1992). The provision necessitates three distinct inquiries: (a) whether CORN prevailed, (b) whether the court should exercise its discretion in favor of a fee award, and (c) if so, what fee is reasonable. 3 (a) Prevailing Party A “prevailing” plaintiff succeeds “on any significant issue in litigation which achieves some of the benefit ‘the party sought in bringing suit.” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). One who recovers less than all of the damages requested nonetheless “prevails”; the degree of his overall success affects the reasonableness, not the availability, of a fee award. See Texas State Teachers Assoc. v. Garland Indep. School Dist., 489 U.S. 782, 109 S.Ct. 1486, 1493, 103 L.Ed.2d 866 (1989). CORN, who was awarded nearly three-quarters of a million dollars, is clearly a prevailing party. (b) Discretion A successful civil rights plaintiff should recover attorneys’ fees, unless special circumstances make such an award unjust. See Newman v. Piggie Park Enter., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968); Dowdell v. City of Apopka, 698 F.2d 1181, 1189 (11th Cir. 1983). The CITY cites Kerr v. Quinn, 692 F.2d 875, 877 (2d Cir.1982), for the proposition that, “[w]here the merits of a claim are obviously strong and would be so recognized by local counsel and where the probable damage award is high and would be so recog- nized by counsel, a district court has discretion to deny an application for counsel fees.” (DE 254 at 1). But the CITY does not explain how CORN’s claim was obvi- Ously strong or the damages clearly substantial: indeed. given the CITY’s persistent, unwavering resistance to the claim, any such explanation would ring hollow. Moreover, the court does not find that the case was so Strong as to preclude the recovery of prevailing party fees. -C 4- (c) Reasonable Fee In Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974), the Fifth Circuit Court of Appeals adopted a twelve-factor method, drawn from the American Bar Association Code of Professional Respon- sibility, Disciplinary Rule 2-106, for determining a reasonable fee under Section 1988. The trial judge should consider: (1) the time and labor required; (2) the novelty and difficulty of the questions involved; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customery fee; (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and the length of the profes- sional relationship with the client; and (12) awards in similar cases. 488 F.2d at 717-19. Johnson was [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1242%3A1. Public record. Not legal advice.