Prologue — Bochese v. Town of Ponce Inlet

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oo 05- 62 JUL 6 - 2005.

SS BEE OR RECEERY

: —————gn The

Supreme Court of the United States

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v

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ALFRED L. BOCHESE,

Petitioner,

Vs.

TOWN OF PONCE INLET, FLORIDA,

Respondent.

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v

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

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PETITION FOR A WRIT OF CERTIORARI

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vv

PAUL M. MEREDITH*

P.O. Box 38

St. Augustine, FL 32085

Telephone: (904) 825-1942

Facsimile: (904) 825-1912

Florida Bar No.: 0745741

Cage

*Counsel of Record Attorney for Petitioner

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

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QUESTIONS PRESENTED

Before Petitioner entered into a contract to sell his property to

a developer he had a right to build to seventy-feet in height in

his existing zoning classification. A developer entered into a

contract to purchase the property with the Petitioner so as to

build to a seventy-foot condominium on it. The developer then

entered into a contract with the Town to rezone the property

into the same zoning classification of its adjacent develop-

ment. The Town rezoned it. Thereafter the Town decided that

the contract with the developer was invalid so it rescinded the

contract and returned the Petitioner’s property to its original

zoning. After the second rezoning, Petitioner no longer had the

right to build to seventy feet. The Eleventh Circuit ruled that

because Petitioner was not a party to the contract between the

Town and developer he had no standing even though his

property was greatly diminished in value by the rezoning. To

achieve this extraordinary result, the Eleventh Circuit de-

clared a large exception to standing under Village of Euclid v.

Amber Realty Co., 272 U.S. 365 (1926) and Florida law, pitted

Euclid against Palazzolo v. Rhode Island, 533 U.S. 606 (2001),

eliminated Rules 10(c) 15(b), and raised issues sua sponte in a

manner that is either in conflict with the other circuits and

this Court or went so far outside the boundaries of the usual

course of judicial proceedings to offend due process. The

questions raised by this opinion are framed as follows:

QUESTION 1. Does an affected landowner lack standing to

challenge the validity of a comprehensive zoning change to

his property as an unreasonable and arbitrary exercise of

legislative power because the landowner was not a third

party beneficiary to a development agreement with a gov-

ernmental entity that previously established the zoning

classification of his property?

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QUESTIONS PRESENTED - Continued

QUESTION 2. Does the “well-pleaded complaint” rule

allow an appellate court in de novo review of summary

judgment of a civil rights claim to ignore exhibits attached

to the complaint and issues tried-by express consent?

QUESTION 3. Is the due process clause of the Four-

teenth Amendment of the United States Constitution

violated when litigants are not provided the opportunity to

present legal arguments to subject matter jurisdiction

challenges raised sua sponte by the court of appeals

wherein those excluded legal arguments would have

altered the court of appeals sua sponte determination as to

its own jurisdiction?

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LIST OF PARTIES

The parties below are listed in the caption.

ALFRED L. BOCHESE,

Petitioner

TOWN OF PONCE INLET, FLORIDA,

Respondent

CORPORATE DISCLOSURE

NOT APPLICABLE

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TABLE OF CONTENTS

Page

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

ici ccnas duonitedscasvosnssavatnaseccsebavechscas ili

CORPORATE DISCLOSURE.................ccc.ccccccccasesses ili

TABLE OF CONTENTG....................04 SR gcieste ead tapas - iv

pe MR Ce ty ys 6) fy y 7. Eee mn ernie vi

Nt RIE PAE TREO RP IAG OEED snot Lovecsannasncescssaciencsosennyen ix

Re sooo ly sis binsncossakenseccesasasassearedan 1

STATEMENT OF JURISDICTION ..........0...... eee 1

CONSTITUTIONAL AND STATUTORY PROVISIONS

a canada fe ssicteneaenasivansschnnss 1

SEALE MGI. OF THES CASE. .......ccccchscccasesccocccccscsees 1

REASONS FOR ALLOWANCE OF THE WRIT......... 10

1. REVIEW IS WARRANTED TO RESOLVE

THE ELEVENTH CIRCUIT COURT OF

APPEALS DECISION THAT CONFLICTS

WITH A DECISION OF THIS COURT CON-

CERNING STANDING OF LANDOWNERS

TO CHALLENGE ZONING ORDINANCES

-OR ACTIONS THAT ARE ARBITRARY AND

TABLE OF CONTENTS - Continued

Page

2. REVIEW IS WARRANTED TO RESOLVE

CONFLICTS WITHIN THE CIRCUIT

COURTS OF APPEALS WHETHER THE

“WELL PLEADED COMPLAINT” RULE

ALLOWS AN APPELLATE COURT IN A DE

NOVO REVIEW OF A SUMMARY JUDG-

MENT OF A CIVIL RIGHTS CLAIM TO IG-

NORE EXHIBITS ATTACHED TO THE

COMPLAINT AND ISSUES TRIED BY

EXPRESS CONSENT ......................0.00000 16

3. REVIEW IS WARRANTED TO RESOLVE

WHETHER THE DUE PROCESS CLAUSE

OF THE DUE PROCESS CLAUSE OF

THE FOURTEENTH AMENDMENT TO

UNITED STATES CONSTITUTION IS

VIOLATED WHEN LITIGANTS ARE NOT

PROVIDED THE OPPORTUNITY TO

PRESENT LEGAL ARGUMENTS TO SUB-

JECT MATTER JURISDICITION CHAL-

LENGES RAISED SUA SPONTE BY THE

COURT OF APPEALS WHEREIN THOSE

EXCLUDED LEGAL ARGUMENTS WOULD

HAVE ALTERED THE COURT OF AP-

PEALS SUA SPONTE DETERMINATION

AS TO ITS JURISDICTION....................005 25

NI ic iecesedeGianhthsnhdetnccdchdeesladeckicansstaesaicecs 29

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TABLE OF AUTHORITIES iy

Page

CASES

Aetna Health v. Davila, 542 U.S. 200 (2004).................... 17

Bochese v. Town of Ponce Inlet, 405 F.3d 964 (11th

CAG, NED csnscidibdialncisensacsnasiabdaaebiacdibaaaie 1, 11, 17, 18, 25

Branch v. Tunnell, 14 F.3d 449 (9th Cir. 1994).......00.0000... 19

Chestnut v. City of Lowell, 305 F.3d 18 (1st Cir.

| PERO ne Semen Se ALF OR eo RINT IE Nn Bae SRR PTE Rane 27

Christianson v. Colt Indus. Operating Corp., 486

ls A BUI Soci inin ds decersapaioctlanacaniniakedtine tei cea 23, 24

City of Rome v. Verizon Communs., Inc., 362 F.3d

| RN era ere We PR OSI 24

Coggin v. Longview Indep. Sch. Dist., 337 F.3d 459

PERRET lee wR Ete ta aso ee 25

Eaton v. Dorchester Development, Inc., 692 F.2d 727

Bee Se aha ire aes re 5 SER Ce. 28

Estate of Dietrich v. Burrows, 167 F.3d 1007 (6th

Ry NE aid calimettlsphtintcrnicskce liidas napa cate axe oo eae 21

Exxon Mobil Corp. v. Allapattah Servs., U.S. Lexis

| SEAMEN ON ein ar tas ALB Se oR 17

_ Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 125

hE RUE © SI ciccthsiscnctinininadiceiebicbbiioatiand pies ecuaten me .:

In re Cheney, 357 U.S. App. D.C. 274 (D.C. Cir.

SMD scck:tiieughthab-aviedictcia heabisweneisaatldhsctdsaiamedaainaameaiaeateaterdaiat 26

Kelo v. New London, Connecticut, 545 U.S. ___ (slip

opinion p. 17) (June 23, 2005)...............0...... 11, 12, 13, 15

Lawrence v. Dunbar, 919 F.2d 1525 (11th Cir. 1990) spunea 28

Lyons v. Jefferson Bank & Trust, 994 F.2d 716 (10th

ais MANU sc sacichshscaniscsciescoismeinn asshole aciaabe acta 26

Vii

TABLE OF AUTHORITIES - Continued

Page

Metcalf v. Watertown, 128 U.S. 586 (1888)................00000 17

Midway Fin. Corp. v. Walters, 1992 U.S App.

LEXIS 32229, 5-6 (9th Cir. 1992) 0.0... ceceesessseeeeesees 26

Morgran Co. v. Orange County, 818 So.2d 640 (Fla.

TE BI PD dvicnnicinishingecccidesvncrctesaiancresciaiuadi meine: 16

National Ass’n of Social Workers v. Harwood, 69

PAG GBB (1S Che. ABOG) occcsccsscscseneesidscsssinianincooursiease 26, 27

Palazzolo v. Rhode Island, 533 U.S. 606 (2001)......... 11, 14

P.C.B. Partnership v. Largo, 549 So.2d 738 (Fla.

BO EA, SII vc scsicnssscctissbiinibatcesiasinioadasccauels ace amtaasadacas 16

Phillips Petroleum v. Texaco Inc., 415 U.S. 125

CREA) acesisetssscitrinnsnansunseicvibiasiisumustesatebeimsnastccskesapisiiatictaneds 17

Rinker Materials Corp. »v. Metropolitan Dade

County, 528 So.2d 904 (Fla. 3rd DCA. 1987)................ 15

Row v. Casey, 623 F.2d 829 (3d Cir. 1980) .......... cess 26

Schnell v. Chicago, 407 F.2d 1084 (7th Cir. 1969)............ 19

Singleton v. Wulff, 428 U.S. 106 (1976) ............c cece 26

Skaggs-Albertson’s v. ABC Liquors Inc., 363 So.2d

SL: RTD vesicisicncssnhiciviccistesabohicicibadinpadtedbacdea adie 15

Torry v. Northrop Grumman Corp., 399 F.3d 876

(7th Cir. 2005)............... danhivisiinadudpishianaicchiplasencbegumiies 21

Triple Five of Minn., Inc. v. Simon, 404 F.3d 1088

(Gtk Cie: BON isn ee eae es 24

Urfirer v. Cornfeld, 408 F.3d 710 (11th Cir. 2005)............ 20

Village of Euclid v. Ambler Realty Co., 272 U.S. 365

GG ee aa 10, 12, 14, 15, 27

***

TABLE OF AUTHORITIES — Continued

Village of Willowbrook v. Olech, 528 U.S. 526 (2000)

Be MID cccpsnccconstetndetcncanscbblaicghetictessitioneapeltetanins 11, 12

Wingrove Estates Homeowners Ass’n v. Paul Curtis

Realty, Inc., 744 So.2d 1242 (Fla. 5th DCA. 1999)........ 15

16.

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TABLE OF APPENDICES

The opinion for the Eleventh Circuit Court of

Appeals is reported at Bochese v. Town of

Ponce Inlet, 405 F.3d 964 (lith Cir. 2005) ......App. 1

District Court’s Order granting motion for

summary judgment dated March 24, 2004......App. 39

The Fourteenth Amendment of the United

States Constitution, Section 1........................ App. 85

The First Amendment of the United States

Cm ais bissostinsicaniticntileptinhitianstcnintatnincseninpetl App. 85

Article III of the United States Constitution

I FSI Dicesndcnsinasebenkitininiceninsvaliotsantcnaniontel App. 85

Pk eg REN cee A App. 86

Federal Rules of Civil Procedure 10(c)............. App. 87

Federal Rules of Civil Procedure 15(b)............ App. 87

Florida Statutes 163.3194 .00...........ccccccseeeeees App. 88

Florida Statutes 166.041(3)(c)................cccccceees App. 91

Pretrial Stipulation that raises building

height issues of fact and issues of law ............. App. 92

Exhibit B of Amended Complaint .................. App. 102

Exhibit C of Amended Complaint .................. App. 106

District Court’s Order denying motion to

strike Petitioner’s expert Randal Rex............ App. 114

District Court’s Order allowing withdraw of

answers to requests to admit and amended

District Court’s Order denying motion to file

second amended complaint ............................ App. 119

1

OPINION BELOW

The opinion for the Eleventh Circuit Court of Appeals

is reported at Bochese v. Town of Ponce Inlet, 405 F.3d 964

(11th Cir. 2005). The Eleventh Circuit on April 7, 2005

affirmed in part the unpublished opinion of the district

court entered on March 24, 2004.

°

STATEMENT OF JURISDICTION

This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254(1).

The Eleventh Circuit’s opinion was rendered on April

7, 2005.

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CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourteenth Amendment of the United States Consti-

tution

The First Amendment

Article III of the Constitution

42 U.S.C. § 1983

Federal Rules of Civil Procedure 10(c)

Federal Rules of Civil Procedure 15(b)

Florida Statutes 163.3194

Florida Statutes 166.041(3)(c)

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STATEMENT OF THE CASE

The Petitioner Alfred Bochese asserts in this case that

the Town of Ponce Inlet through improper pre-textual,

2

arbitrary and unreasonable legislation, down-zoned his

oceanfront property and in addition, adopted and placed

an arbitrary and unreasonable thirty-five foot building

height restriction on the use of-his property causing a

diminution in its value.’ Petitioner alleges that through

this arbitrary and irrational legislative action, the Town of

Ponce Inlet intentionally singled him out compared to the

similarly situated property owners in the same zoning

classifications in violation of the equal protection clause.

The Petitioner also maintains that this unlawful action

was taken in retaliation for his whistle-blowing activities

related to exposing false statements made to FEMA by

Town officials.

In 1990, Petitioner purchased oceanfront land in the

Town of Ponce Inlet, Florida. Before purchasing the

oceanfront property, the Petitioner determined that the

exiting Tl zoning classification of the property permitted

seventy-foot building height pursuant to Ordinance 84-11.’

* The Petitioner also claimed the impairment/unlawful destruction

of his contract with the developer and the attendant damages. He now

has the property under contract for sale so that the contract issue is

largely moot. The Petitioner continues to maintain that his property

was far more valuable with the seventy-foot height use and that his

current contemplated sale is significantly lower due to the destruction

of its development value.

* In 1983 the Town, pursuant to Ordinance 83-012, placed a

building height referendum on the ballot to amend its Town Charter

restricting future buildings to thirty-five feet. The Town voters passed

the building height restriction and the Charter was amended. However,

in 1984, after concerns over possible litigation with ocean front property

owners located in the T1 and PUD zoning classifications over the

propriety of the new charter building height restrictions, the Town

adopted Ordinance 84-11 which clarified the intended scope of the

Ordinance referendum and grand-fathered in properties, including

Petitioner’s, located in the T1 and PUD zoning classifications with a

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