Petition for Writ of Certiorari — Reahard v. Lee County

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94138 4 FEB 1 6 1995

OFHICE OF THE @LaRK

No.

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1994

RICHARD REAHARD and ANN P. REAHARD.

Petitioners,

¥.

LEE COUNTY, FLORIDA,

Respondent.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

GARVIN & TRIPP Nancie G. Marzulla*

Post Office Drawer 2040 President and Chief

Fort Myers, Florida 33902 Legal Counsel

DEFENDERS OF

PROPERTY RIGHTS

6235 33rd Street, N.W.

Washington, D.C. 20015

202-686-4197

Attorney for Petitioners *Counsel of Record

Ree a Oe oe ee Me ae ‘

POT Lge Te a eee

QUESTIONS PRESENTED

1. Whether the Takings Clause of the Fifth Amendment

includes the absolute requirement that the plaintiff in an

action for just compensation retry his case in state court even

though he had originally filed the lawsuit in state court and

the case was removed by the government defendant to federal

court?

2. Whether such a requirement violates the Fifth

Amendment’s guarantee that compensatiun be paid whenever

private property is taken for public use?

3. Whether the second prong of the ripeness requirement

announced in Williamson County Regional Planning

Commission v. Hamilton Bank — which now leads to the

filing of futile and duplicative lawsuits and bars plaintiffs

from obtaining relief for the taking of their Fifth Amendment

property rights — was modified by this Court's subsequent

holdings in First English Evangelical Lutheran Church v.

County of Los Angeles and Lucas v. South Carolina Coastal

Council?

4. Whether this Court should provide badly-needed

guidance to the lower courts which are new split on how to

apply Williamson County?

PARTIES TO THE ACTION

All parties in the courts below are listed in the caption in

this Court. Pursuant to Rule 29.1 of this Court, Petitioners

have no parent companies nor any non-wholly owned subsid-

iaries.

ill

TABLE OF CONTENTS

QUESTIONS PRESENTED...........0:c.sccccssscersrcsesssseeressccecees

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OPINIONS AND ORDERS BELOW................::ceecteteetteee: 2

i laa sctenenapsinspiucinupesnsvarassventnsaretesneens 2

CONSTITUTIONAL AND STATUTORY

Sa ek 2 EL 6 BU ot } Se ieee neree 2

REE GP BES Cie orncncccscecscecersseccccvesceceseossncnnecs 3

FACTUAL BACKGROUND..............ccccccscccccssececessseecesreces 9

PROCEEDINGS BELOW..........:0:....ccccccccosccscosesereseseseeseeees 10

REASONS FOR GRANTING THE WRIT............ iannaiiont 13

I. THIS CASE INVOLVES AN

IMPORTANT CONSTITUTIONAL

QUESTION THAT SHOULD BE

RESOLVED BY THIS COURT —

WHETHER THE TAKINGS

CLAUSE OF THE FIFTH

AMENDMENT INCLUDES THE

TABLE OF CONTENTS—Continued

ABSOLUTE REQUIREMENT THAT

THE PLAINTIFFS IN AN ACTION

FOR JUST COMPENSATION FIRST

FILE SUIT IN STATE COURT EVEN

WHERE IT IS CLEAR THAT THEY HAD NO

REMEDY UNDER STATE

Fg RIEL NOP, Od) ARO RHETT DE OER ROTO 13

A. THE LOWER COURT’S

DECISION CONFLICTS WITH

PRECEDENT SET BY THIS COURT

IN FIRST ENGLISH AND LUCAS,

AND OTHER DECISIONS OF THIS

COURT REGARDING

ENE ae en Ra Ec a a RO 14

B. THIS IS AN ISSUE OF CRITICAL

IMPORTANCE TO FIFTH

AMENDMENT PLAINTIFFS

BECAUSE A RIGID APPLICATION

OF WILLIAMSON COUNTY NOW

BARS COUNTLESS PROPERTY

OWNERS FROM VINDICATING

THEIR CONSITUTIONAL RIGHTS

TOD FUT Cree Re nsscccssvcccctaccesccccecssesie 20

TABLE OF CONTENTS—Continued

C. THERE IS A SERIOUS SPLIT

AMONG THE CIRCUITS AS TO

WHETHER WILLIAMSON COUNTY ___

BARS FEDERAL COURT ACCESS

FOR A CASE BROUGHT DIRECTLY

UNDER THE FIFTH AMENDMENT ..............--- 23

Cte chdaeniassieccinndaksbocidiatansabainlen aatnnumastedaeaae 29

TABLE OF AUTHORITIES

UNITED STATES SUPREME COURT CASES

Abbott Laboratories v. Gardner, 387 U.S. 136

CEI T thesssincsvieavinicindechnepiadinesccaaalaand 15-16

Armstrong v. United States, 364 U.S. 40

( FPR issninsiincicsboceretddecanoniucendiaenamuneenaiaan 8

Barry v. Barachi, 443 U.S. 55

Tet Filininstnniensamancaacnchaisiniaeannes 27

Board of Airport Comm'rs of Los Angeles v.

Jews for Jesus, Inc.,

482 U.S. 569

1 DIE Picinesnecsissiniincsiainsesitnabidatepilissitaatatieiaaianael 27

City of Cleburne v. Cleburne Living Ctr., 473 U.S.

ERE Cn cnissvievcuictedenintanacanmnaiaunan 27

Dolan v. City of Tigard, 114 S. Ct. 2309

(Teac inianscinstondiiiaiaiemanicaan taal 6, 8, 25

First English Evangelical Lutheran Church

of Glendale v. County of Los Angeles,

482 U.S. 304

fl FIG Viccuceincscinmdicsvususasisabiieabsainiiiaduiandtite’ passim

FW/PBS, Inc. v. City of Dallas, 493 U.S.

BD Ci eniitictavineeiceleaaaens 26 |

Vil

TABLE OF AUTHORITIES—Continued

Healy v. Beer Institute, Inc., 491 U.S. 324

fea clece ioc ae OAC 26

Jacobs v. United States, 290 U.S. 13

5 | RE ae eae ere ae ena ee 22

Joint Anti-Fascist Refugee Comm. v. McGrath, 341

ik (| ee pela ialiaiaicsbes 16

Kentucky Dep't of Corrections v. Thompson, 490

ean RPE UI iiehacsnibiacctbcideedéasvusiceantins 26-27

Keyishian v. Board of Regents, 385 U.S. 589

EIT cs haciintetichaateaddeapaidiebnaatdeencilne swsceaéctscueue 28

Lane v. Wilson, 307 U.S. 268

EE LES es aR eRe 28-29

Lucas v. South Carolina Coastal Council.

505 U.S. , 112 S.Ct. 2886

ERENT IO passim

Lynch v. Household Finance Corp., 405 U.S. 538

| SRE SSTLCE FR NE ne eee ee 25

Nollan v. California Coastal Comm’n, 483 U.S. 825

EEE Ry Bsa 6

Patsy v. Florida Board of Regents, 457 U.S. 496

Vili

TABLE OF AUTHORITIES—Continued

Parratt v. Taylor, 451 U.S. 527

| 5 SNe ROE OT SR NIE Er EOR Ne era vRon i e 24

Planned Parenthood of Southeastern Pennsylvania

v. Casey, 112 S. Ct. 2791

CPs) utiichcekanemeiatacianndiaaeunen 26

Preiser v. Rodriguez, 411 U.S. 475

CWE ivatestducsssenniouaecen beaneamel enantio 26

Railroad and Warehouse Comm'n of Minnesota v.

Duluth Street Railway Co.,

273 U.S. 625

Bae aa en one ee 27-28

San Diego Gas & Electric v. San Diego,

BO A ee Ce iciteceietisrciniovictenesiens 23

United States v. Clarke, 445 U.S. 253

{._, SRSA arene: Lee Cees one R Oe Rr arse 9

United States v. Dickinson, 331 U.S. 745

fC TRAD TRS er SC Se NN 23

Williamson County Regional Planning Comm'n v.

Hamilton Bank, 437 U.S. 172

Chins snsensioncssicnriensedneadiacianal passim

9 come

TABLE OF AUTHORITIES—Continued

UNITED STATES COURT OF APPEALS CASES

Committee for GI Rights v. Callaway,

518 F.2d 466

NT Ri rictine dots docdavsassndacscasicosoernacess 28

Edie v. Sarasota County, 908 F.2d 716

I aos cta taal cscvassicabgoiceceasaren 17

Fields v. Sarasota Manatee Airport Auth.,

953 F.2d 1299

SNE BI biridsivcsnsencoiesastncesvesicceseseess 21-22

Kelly v. Nordberg,

1993 U.S. App. LEXIS 20719

gg Ae |.) SO ee 17

Mission Oaks Mobile Home Park v. City of Hollister,

989 F.2d 359

i os et dct vsnsencadnesibelacgbcdboedions 21

Nasierowski Bros. Inv. Co. v. City of Sterling Heights

949 F.2d 890

I cicinicd csuduanicasercevaiiontes 23, 24

National Gay Task Force v.

Board of Education of Oklahoma City,

729 F.2d 1270

aD 27

TABLE OF AUTHORITIES—Continued

New Port Largo, Inc. v. Monroe County,

985 F.2d 1488

Re eI rata caer ai star aX ia onnenes sunsets 22

Palomar Mobilehome Park Association v.

City of San Marcos, 989 F.2d 362

CG. PN ieakdieci a birt heccevedidcceoviaxdicierses 20, 21

Peduto v. City of North Wildwood,

878 F.2d 725 (3d Cir. 1989)... eee 21

Reahard v. Lee County, 968 F.2d 1131

CR le BE Baiicdeeeadcsctacehsaptaaircaanosanencs 7,9, 14

Reahard y. Lee County, 978 F.2d 1212

ale SIP ethic wenbesiocis eta aeccssntirneens 7,45

Reahard v. Lee County, 30 F.3d 1412

IG ee Rein ict sctew wi pnritearinces’ 6, 8, 16

Sinaloa Lake Owners Ass’n. v. City of Simi Valley,

882 F.2d 1398

(9th Cir. 1989)......... icinseuinalieabataecutaite 17-18

Taylor Inv., Ltd. v. Upper Darby Township

983 F.2d 1285 (3rd Cir.),

cert. denied, 114 S. Ct. 304

(FE nee tion a eadntenas OER

TABLE OF AUTHORITIES—Continued

UNITED STATES DISTRICT COURT CASES

Lasco v. Koch, 428 F. Supp. 468

NE I aos ctsdekinsntesisaaniteaxeseien 28

Oberndorf v. City of Denver, 653 F. Supp. 304

(D. Colo. 1986)......... aenies gauges munca 18

STATE CASES

Joint Ventures, Inc. v. Department of Transp.,

563 So.2d 622

ERROR SEPT aE See e eT On nr 9

Lee County v. Morales, 557 So.2d 652

(Pia. Dist. Ct. App. 1990).....0000.cceccssssveee. Me F-

CONSTITUTIONS

eae NN II Bose sosavicardcenssonnconssoneatenrvaleety Be

Be es NII Bec escnesinsiedecbvarsrsincaciccontatecens a), a2

Nicks ccvevsscnerscinaserasconivesiones passim

Be I FEE Mececeniessvdsssarsocenscerseioenns passim

re TE coscaaadedonnenbentncsiitbats 25

Xii

TABLE OF AUTHORITIES—Continued

STATUTES

Fe het SNA cenianiitinnminmumulaaae 22

BF Ve) BF Pe snnmintntiainmiaaaae 21

Fe Ws E Bi hsiiwintsiniciommnnnannmaa 24

Ties Fe tticimiivveseninicuiinnea 15-16, 21-24

OTHER

Michael M. Berger, The “Ripeness” Mess

in Federal Land Use Cases or How the

Supreme Court Converted Federal Judges

into Fruit Peddlers, in Institute on Planning,

Zoning, and Eminent Domain § 7

(Matthew Bender 1991)................cccc00e-ec0000 20

Douglas W. Kmiec, Disentangling Substantive Due

Process and Taking Claims,

13 Zoning & Planning Law Report 57

CF diccinsavnetidscxinadrinntieiantabasiaimannanae 20

Marla E. Mansfield, Standing and Ripeness

Revisited: The Supreme Court's “Hypothetical”

Barriers,

GS PEED. 1, BRO. 3 CB cesesessntersacabecuaneens 16

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1994

RICHARD REAHARD and ANN P. REAHARD,

Petitioners,

LEE COUNTY, FLORIDA,

Respondent.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

Richard Reahard and Ann P. Reahard hereby petition this

Court for a writ of certiorari to review the judgment in this

case of the United States Court of Appeals for the Eleventh

Circuit or alternatively, for a summary reversal of the deci-

sion below.

OPINIONS AND ORDERS BELOW

1. The opinion of the United States Court of Appeals for

the Eleventh Circuit, dated September 2, 1994 and published

at 30 F.3d 1412 (11th Cir. 1994), is reproduced in Appendix

2. The decision of the magistrate judge on remand, dated

April 22, 1993 but unpublished, is reproduced in Appendix

3. The addendum opinion of the United States Court of

Appeals for the Eleventh Circuit to the magistrate judge,

issued on December 8, 1992 and published at 978 F.2d 1212

(11th Cir. 1992), is reproduced in Appendix C.

4. The first decision of the United States Court of Ap-

peals for the Eleventh Circuit vacating and remanding the

magistrate judge’s decision, rendered on August 14, 1992 and

published at 968 F.2d 1131 (11th Cir. 1992), is reproduced in

Appendix D.

5. The final judgment of the magistrate judge, issued on

June 6, 1991 is unpublished, and is reproduced in Appendix

JURISDICTION

The decision of the United States Court of Appeals for

the Eleventh Circuit was issued on September 2, 1994. On

December 1, 1994, Justice Kennedy extended the time for

filing a petition for writ of certiorari to and including Febru-

ary 17, 1995. This Court has jurisdiction pursuant to 28

U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitution

provides, in pertinent part, that: “[N]or shall private property

be taken for public use, without just compensation.” The

Fourteenth Amendment to the United States Constitution

provides, in pertinent part, that: “[NJor shall any state de-

prive any person of life, liberty, or property, without due

process of law; nor deny to any person within its jurisdiction

the equal protection of the laws.”

STATEMENT OF THE CASE

This case is a classic example of how it can be virtually

impossible for a property owner to vindicate his Fifth

Amendment rights in court due to the endless procedural

requirements facing him. Jt affords this Court an opportunity

to provide badly needed guidance as to whether the require-

ment that a plaintiff first seek review of his taking claim in

state court before filing in federal court — as set forth in

Williamson County Regional Planning Commission v.

Hamilton Bank, 473 U.S. 172 (1985) — has been modified

by this Court’s more recent takings decisions. Williamson

County places two ripeness hurdles in the way of a taking

claim brought in federal court against states and their politi-

cal subdivisions. The first requirement of Williamson

County, that a claimant exhaust state administrative remedies

before filing an action in federal court, was satisfied in this

case.! The second, and independent, requirement of

Williamson County dictates that plaintiffs “seek compensa-

tion through the [judicial] procedures the State has provided

for doing so” before turning to the federal courts. /d. at 194.

Neither Williamson County nor have subsequent takings

1 The district court found as a fact that Lee County rendered a final

administrative decision in this case on January 31, 1989. Order of the

United States District Court, January 16, 1991. SeeAppendix E, infra.

The court below rejected this factual finding without explanation in ade

novo review. Petitioners believe that the court below’s de novo review of

this finding of fact was clear error

decisions by this Court treated Williamson County as mandat-

ing a jurisdictional requirement. Indeed, in Lucas v. South

Carolina Coastal Council, 505 U.S. __, 112 S. Ct. 2886

(1992), this Court explicitly treated the ripeness requirement

of (Williamson County) as a prudential concern:

Lucas has properly alleged Article III injury-in-

fact in this case, with respect to both the pre- 1990

and post-1990 constraints placed on the use of his

parcels by the Beachfront Management Act. That

there is a discretionary “special permit” procedure

by which he may regain — for the future, at least

— beneficial use of his land goes only to the

prudential “ripeness” of Lucas’s challenge, and

for the reasons discussed we do not think it

prudent to apply that prudential requirement here.

Id. at 2891-92 (citations omitted).

In sharp contrast with this Court’s 1992 ripeness holding

in Lucas, the court below failed to treat the second hurdle of

the Williamson County ripeness requirement as a prudential

matter — viewing it instead as an absolute jurisdictional bar,

even though Petitioners did present Article III injury-in-fact

and the case had already been tried twice before: “[U]ntil

they have pursued their state remedy, the federal courts are

without subject matter jurisdiction.” Reahard v. Lee County,

30 F.3d 1412, 1418 (1994), reproduced in Appendix A, infra.

Had the court below treated the second prong of

Williamson County as a prudential matter, it would have been

required to defer to the trial court’s factual determination that

the case was sufficiently concrete for adjudication by the

court, especially now that the case has been fully tried on two

previous occasions (once before a jury) and reviewed twice

on appeal.* Moreover, the court below ignored the fact that

Petitioners originally filed this lawsuit in state court, and

were prevented from pursuing the case when Respondent

removed the action to federal court in October of 1989 on the

ground that the action involved a federal question arising

under the Fifth Amendment to the United States Constitution

and thus did not belong in state court. Likewise, at the time

the lawsuit was filed, the State of Florida recognized no

cause of action for inverse condemnation,’ rendering his state

action futile as well as impossible.

By failing to understand Williamson County in light of

later decisions of this Court, the court below has joined many

federal courts across the nation which continue to apply

2 The court below mandated in the first appeal that the trial court

undertake an exhaustive review of the facts of this case looking specifi-

cally at:

1) the economic impact of the regulation on the claimant; ... 2) the

extent to which the regulation has interfered with his investment-backed

expectations... . [3]) the history of the property — when was it pur

chased? How much land was purchased? Where was the land located?

What was the nature of title? What was the composition of the land and

how was it initially used?; [4]) the history of development — what was

built on the property and by whom? How was it subdivided and to whom

was it sold? What plats were filed? What roads were dedicated?; [5])

the history of zoning and regulation — how and when was the land

classified? How was use proscribed? What changes in classifications

occurred?; [6]) how did development change when the title passed; [7])

what is the present nature and extent of the property; [8]) what were the

reasonable expectations of the landowner under state common law?; [9})

what were the reasonable expectations of the neighboring landowners

under state common law?; and [10]) perhaps most importantly what was

the diminution in the investment-backed expectations of the landowner if

any, after passage of the regulation?

Reahard v. Lee County, 968 F.2d 1131, 1136 (11th Cir. 1992), reproduced

in Appendix D, infra.

3 See Lee County v. Morales, 557 So.2d 652, 656 (Fla. Dist. Ct. App.

1990) (“A zoning change cannot give rise to a cause of action for inverse

condemnation.”).

Williamson County as if takings jurisprudence had not devel-

oped beyond the state of law in 1985. As discussed below,

the holding in Williamson County has been interpreted incon-

sistently by federal courts as a jurisdictional, prudential and

even a procedural requirement. Much of the inconsistency

and confusion arises from the uncertainty at the time of the

Williamson County decision surrounding the fundamental

nature of a just compensation case. This Court has addressed

many of these questions since 1985. Indeed, while it may

now be fairly said that the Williamson County decision is

inconsistent with this Court’s subsequent holdings in impor-

tant respects, some lower courts continue to apply Williamson

County as if subsequent decisions had not answered many of

the open questions. Thus, the time has come for this Court to

reexamine Williamson County in light of subsequent holdings

of this Court, including First English Evangelical Lutheran

Church of Glendale v. County of Los Angeles, 482 U.S. 304

(1987), Nollan v. California Coastal Commission, 483 U.S.

825 (1987), Lucas v. South Carolina Coastal Council, 505

U.S. ___, 112 S. Ct. 2886 (1992), and Dolan vy. City of

Tigard, 114 S. Ct. 2309 (1994), all of which have fleshed out

the elements of a Fifth Amendment cause of action.

For example, at the time of the Williamson County deci-

sion, this Court had not yet determined whether a cause of

action for a temporary taking (for economic injuries suffered

prior to judicial invalidation of the ordinance) was cogni-

zable. In fact, the majority of the Williamson County Court

appears to assume that a state need not provide such a mon-

etary remedy so long as it allowed a cause of action to invali-

date the unconstitutional state action: “The fact that a jurist

as eminent as Oliver Wendell Holmes characterized a regula-

tion that ‘goes too far’ as a ‘taking’ does not mean that such a

regulation may never be canceled and must always give rise

to a right to compensation.” Williamson County, 473 U.S. at

203 (Stevens, J., concurring). Under this view, a requirement

that the plaintiff first litigate the validity of the ordinance or

statute in state court before he could claim just compensation

under the Fifth Amendment may appear logical and even

prudent. Under this “California rule” (subsequently rejected

in First English)‘, the plaintiff could litigate only the validity

of the ordinance and had no right to demand that the state

involuntarily condemn his property and pay money damages;

likewise, temporary takings were not recognized and pay-

ment for such damages was not required. This view can no

longer be sustained in light of First English.

First English also established the principle that temporary

takings are compensable, an issue open at the time of the

Williamson County decision. First English, 482 U.S. at 319.

Moreover, the First English Court specifically found that the

cause of action arose at the time the ordinance was passed

and that compensation was due for the period between that

passage and the date on which the offending ordinance was

invalidated or repealed: “These cases reflect the fact that

‘temporary’ takings which, as here, deny a landowner all use

of his property, are not different in kind from permanent

takings, for which the Constitution clearly requires compen-

4 As Justice Stevens said in his dissent in First English Evangelical

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

(1987), highlighting the conflict between First English and Williamson

County:

In short, even if the California courts adhere to a rule of never

granting monetary relief for a temporary regulatory taking, I

believe we should require the property owner to exhaust his state

remedies before confronting the question whether the net result

of the state proceedings has amounted to a temporary taking of

property without just compensation. In this case, the Church

should be required to pursue an action demanding invalidation of

the ordinance prior to seeking this Court’s review of California's

procedures.

First English, 482 U.S. at 338 (Stevens, J., dissenting).

sation.” Jd. at 318. First English thus made clear that the

plaintiff had a case for compensation under the Fifth Amend-

ment at the time the ordinance was passed, in addition to the

state court remedy for invalidation cited in Williamson

County as the reason for requiring suit in state court (the

second prong of the ripeness requirement). See also Lucas v.

South Carolina Coastal Council, 505 U.S. __112 S. Ct. at

2901 (““When, however, a regulation that declares ‘off-limits’

all economically productive or beneficial uses of land goes

beyond what the relevant background principles would

dictate, compensation must be paid to sustain it.’’).

Similarly, in Nollan v. California Coastal Commission,

483 U.S. 825 (1987), this Court found that a cause of action

under the Fifth Amendment’s Takings Clause arises at the

time a permit condition becomes final where there is no

nexus between the condition and the stated governmental

purpose.> This Court clarified the rule this past term, in

Dolan y. City of Tigard, 114 S. Ct. 2309 (1994), by requiring

that the burden imposed be roughly proportional to the public

burdens created by the proposed use of the property. In none

of these cases did this Court suggest that the Fifth Amend-

ment cause of action did not arise until after the plaintiff had

litigated his claims under state law in order to demonstrate

that he had, in fact, suffered injury.

As this Court has held on numerous occasions, the obli-

gation for just compensation attaches whenever government

action works a taking of private property rights. Armstrong v.

United States, 364 U.S. 40, 49 (1960). This constitutional

obligation is so evident that this Court has held that an

aggrieved property owner need not look to a statute or other

legislative authorization in order to obtain the remedy of just

compensation to which he is entitled. First English , 482

> {t should be noted that although not raised as a legal issue, no such

nexus was present in this Case.

U.S. 304 (1987); United States v. Clarke, 445 U.S. 253. 257

(1980).

In short, subsequent decisions of this Court have deter-

mined that the Fifth Amendment cause of action arises at the

time the administrative decision becomes final as a matter of

fact. Nothing in those decisions suggests that the cause of

action is incomplete until after the plaintiff had litigated his

case in state court, nor do they stand for the proposition that a

plaintiff whose state court case is removed to federal court is

thereby defeated because the federal court lacks junsdiction.

Although Williamson County may have been a good guess at

what was to come in Fifth Amendment jurisprudence in

1985, subsequent decisions of this Court require that

Williamson County be revisited in light of current Fifth

Amendment jurisprudence. Accordingly, Petitioners urge

this Court to grant this Petition for review and declare that

their case — which was removed by the Respondent to the

federal court for resolution and which has now been tried

twice — has satisfied the prudential concerns of the state

exhaustion ripeness requirement set forth by this Court in

Williamson County, or, alternatively, to reverse summarily the

opinion below as inconsistent with this Court’s subsequent

holdings in First English and Lucas.

FACTUAL BACKGROUND

Petitioners, Richard and Ann Reahard, own approxi-

mately forty acres of land located in Lee C ounty, Flonda.

From the advent of zoning in 1962, until December 1984. the

property was zoned for a single family home subdivision

with an allowable density of up to 126 homes. All of the land

Surrounding Petitioners’ property had already been developed

into single family residences.

In December 1984, Lee County re-zoned the forty acres

as a “resource protection area,” limiting development on the

property to only one house and designating the remainder of

the land as “recreational, open-space or conservation” use.

The Reahards’ property is the only land in Lee County so

designated.

Between 1984 and 1989, the Reahards exhausted every

available option for obtaining administrative relief from this

draconian classification, finally filing suit as a last resort.

Now, after ten years — during which they obtained two

favorable judgments in federal district court — the Reahards

face having to go back to square one and start all over again

in state court.

PROCEEDINGS BELOW

Prior to filing this suit, the Reahards pursued all available

administrative remedies. The Reahards filed an Application

for an Administrative Determination of Error, a Request for

Plan Amendment, and an Application for Determination of

Minimum Use. During the administrative process, the

Reahards filed a site development plan aiming to develop

thirty-five of the forty acres contained in the parcel. The Lee

County Commission rejected the Reahard application, despite

the positive recommendation of the County Planning and

Zoning Commission. The Reahards also sought an adminis-

trative interpretation of their development rights pursuant to

the Lee Plan, which requires that “interpretations which

would be confiscatory, arbitrary, capricious, unreasonable, or

which would deny all economically viable use of property

shall be avoided. Lee Plan, Admin. Interp. Chapter XIV-

6B(1). In July 1990, the Lee County Attorney’s Office

determined that the Reahards could construct four homes on

the lot. The Reahards appealed, but the Board of Commis-

sioners upheld the administrative determination, but modified

it to allow only one home on the lot.

On September 1, 1989, the Reahards filed a complaint in

the Twentieth Judicial Circuit Court of the State of Florida.

alleging that application of the Lee County Comprehensive

Land Use Plan constituted a taking of his property under the

Florida Constitution and the Fifth and Fourteenth Amend-

ments to the United States Constitution, and requested just

compensation for the taking. Petitioners conceded that the

Lee Plan was a valid exercise of the police power of Lee

County. On October 4, 1989, Lee County responded by

removing the case from state court to United States District

Court for the Middle District of Florida.

The case was heard by a magistrate judge, and issues of

damages and liability were bifurcated. On January 16, 1991,

the judge found that the claim was not barred by the statute

of limitations, that the Reahards had exhausted all of the

administrative remedies and that the claim was ripe for

adjudication. The magistrate judge found that Lee County

took the Reahards’ land when it passed the Lee Plan because

the plan deprived the Reahards of substantially all of the

value of their property.

Lee County appealed this decision to the United States

Court of Appeals for the Eleventh Circuit: the Eleventh

Circuit dismissed the appeal because there had been no

decision on damages yet. The jury trial on damages ended

with a verdict for the Reahards on May 21, 1991 for

$700,000 and 6.07% interest accrued from December 21.

1984. This sum represented a determination that the Lee

Plan caused a ninety-six percent reduction in value in the

Reahards’ property. Appellee’s Brief to the United States

Court of Appeals for the Eleventh Circuit, at 3. The final

judgment, issued June 6, 1991, was amended to award inter-

est at twelve percent, and require the Reahards to execute and

deliver a fee simple deed to Lee County.

Lee County again appealed to the United States Court of

Appeals for the Eleventh Circuit. The Eleventh Circuit

issued an order that it would wait for the Supreme Court

opinion in Lucas v. South Carolina Coastal Council, 505

U.S. ___, 112 S. Ct. 2886 (1992). In its decision, the Elev-

enth Circuit noted that the question presented in Reahard v.

Lee County was not answered in Lucas. See Reahard v. Lee

County, 968 F.2d 1131, 1134, n.5 (11th Cir. 1992), repro-

duced at Appendix D, infra (“Although we awaited the

release of Lucas, the Court left open how the categorical

takings rule set forth in its opinion applies to situations in

which a part of a landowner’s property is rendered unusable

by a regulation.”). On the second appeal, the Eleventh

Circuit Court of Appeals remanded, suggesting that there

may be ample evidence to support the decision but finding

that the order misapplied the law on partial takings and failed

to make adequate factual findings on which to base a dec1-

sion. The remand occurred on August 14, 1992. On Decem-

ber 8, 1991, the Court of Appeals sua sponte issued an

addendum opinion requesting the magistrate judge to con-

sider the ripeness issue again to ensure that the court had

jurisdiction. Reahard v. Lee County, 978 F.2d 1212 (11th Cir.

1992), reproduced at Appendix C, infra.

Pursuant to the direction of the appellate court, the trial

court carefully reviewd the evidence and made detailed

factual findings that were applied to the standards XX in the

remand decision. The magistrate judge found that the case

was ripe because the Reahards had exhausted all administra-

tive remedies and because no state remedy existed at the time

the Reahards filed suit and reinstated the jury verdict of

$700,000. The court cited Lee County v. Morales, 557 So.2d

652, 656 (Fla. Dist. Ct. App. 1990) which held that no in-

verse condemnation remedy existed for a landowner ag-

grieved by zoning changes. Again, Lee County appealed to

the United States Court of Appeals for the Eleventh Circuit,

which held that the case was not ripe for review, and that the

trial court had no subject matter jurisdiction over the claim.

Therefore, the Eleventh Circuit reversed the district court

decision and remanded the cause to the state court from

which it was removed by the defendant in 1989.

REASONS FOR GRANTING THE WRIT

I. THIS CASE INVOLVES AN IMPORTANT CONSTI-

TUTIONAL QUESTION THAT SHOULD BE RE-

SOLVED BY THIS COURT — WHETHER THE TAK-

INGS CLAUSE INCLUDES THE ABSOLUTE RE-

QUIREMENT THAT THE PLAINTIFF IN AN ACTION

FOR JUST COMPENSATION FIRST FILE SUIT IN

STATE COURT EVEN WHERE IT IS CLEAR THAT

THE HAD NO REMEDY UNDER STATE LAW?

In Williamson County, this Court decided that a claim

brought to invalidate a local zoning decision brought under

42 U.S.C. § 1983 was not “ripe” for federal court review

because (1) the property owner had not obtained a “final

decision” from the administrative agency and (2) the property

owner had not first filed in state court to challenge the denial

of the permit. Williamson County, 473 U.S. at 186. The

policy underlying this Court’s opinion was that federal courts

should not intervene in reviewing a local zoning decision

“until a final decision is made as to how the regulations will

be applied to respondent’s property.” Jd. at 200. Accord-

ingly, this Court held that the case was not ripe for review

because “we held that we could not review a taking claim as

long as the property owner had an Opportunity to obtain a

variance or some other form of relief from the zoning au-

thorities that would permit the development of the property to

g0 forward.” First English, 482 U.S. at 333 (Stevens, J.,

dissenting). Additionally, this Court was concerned about

“evaluat[ing] [a] taking claim when the long term economic

effects were uncertain because it was not clear that restric-

tions would remain in effect permanently.” /d. at 331, citing

Williamson County, 473 U.S. at 190-91.

The court below has extended the holding of Williamson

County to bar absolutely Petitioners from prosecuting a Fifth

Amendment claim for just compensation unless the state

claims have first been litigated in state court:

As we have noted above, the Lee County Board

of Commissioners decision issued on September

19, 1990 fulfilled the “final decision” requirement

of Williamson. Several months earlier, however,

the Florida Supreme Court recognized an inverse

condemnation remedy. Thus, by the time that the

“final decision” obstacle was removed from the

path of the Reahards’ federal claim, a second

obstacle to that claim had been erected in the form

of a newly-recognized state remedy for inverse

condemnation. The Reahards’ claim therefore

never has become ripe while on the federal court

docket; until they have pursued their state remedy,

the federal courts are without subject matter

jurisdiction.

Reahard v. Lee County, 30 F.3d at 1417-18 (citations omit-

ted), reproduced at Appendix A, infra.

Yet this Court has never held, much less suggested, that

the Takings Clause includes a requirement that a claim for

just compensation, which satisfies Article III “case or contro-

versy” and causes injury-in-fact, is to be dismissed from

federal court as “unripe” — after having been tried twice and

reviewed by the court below twice — simply because the

plaintiff was prevented from filing a futile lawsuit in state

court.

A. THE LOWER COURT’S DECISION CONFLICTS

WITH PRECEDENT SET BY THIS COURT IN FIRST

ENGLISH AND LUCAS, AND OTHER DECISIONS OF

THIS COURT REGARDING RIPENESS.

The Williamson County Court stated that the second

prong of its ripeness requirement was based on the Takin gs

Clause itself: “The nature of the constitutional right therefore

requires that a property owner utilize procedures for obtain-

ing compensation before bringing a § 1983 action.”

Williamson County, 473 U.S. at 195, n.13.

Yet, when Williamson County was decided in 1985. there

were many open issues in takings law. Chief among these

were the questions (1) whether a temporary taking was

compensable under the Fifth Amendment and (2) whether

invalidation was the only remedy for a regulatory taking.

Thus, the requirement that a plaintiff first litigate his case in

state court before filing it in federal court reflected, in part,

these uncertainties in the law. In 1987, however, this Court

answered both of these questions making clear that the

plaintiff had a case for just compensation under the Fifth

Amendment at the time the ordinance was passed in addition

to the state court remedy for invalidation. First English, 482

U.S. 304 (1987).

Moreover, the decision below, which would bar the door

of the federal courthouse for plaintiffs seeking compensation

under the Fifth and Fourteenth Amendments, is based on a

draconian theory of ripeness not countenanced in any other

area of law. In the landmark case of Abbott Labs v. Gardner.

387 U.S. 136 (1967), this Court explained that the purpose of

the ripeness doctrine

is to prevent the courts, through avoidance of

premature adjudication, from entangling them-

Selves in abstract disagreements over administra-

tive policies, and also to protect the agencies from

judicial interference until an administrative

decision has been formalized and its effects felt in

a concrete way by the challenging parties.

Id. at 148-49.

The Abbott Labs Court added: “The problem is best seen

in a twofold aspect, requiring us to evaluate both the fitness

of the issues for judicial decision and the hardship to the

parties of withholding court consideration.” /d. Thus, the

ripeness doctrine has not generally been treated by this Court

as a jurisdictional or strict procedural and mechanistic re-

quirement mandating the trial and retrial of issues in multiple

courts as a prelude to vindicating constitutionally-protected

rights. Professor Marla E. Mansfield states, quoting Joint

Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123,

156 (1951) (Frankfurter, J., concurring):

Justice Frankfurter’s concurrence is telling.

Despite his many opinions closing the courthouse

door, he emphasized that ‘[fJinality is not...a

principle inflexibly applied.’ Crucial elements to

consider include the probability that the plaintiff

will be impacted and the burden created by proce-

dures that exist for challenging the ultimate

action.

Marla E. Mansfield, Standing and Ripeness Revisited: The

Supreme Court's “Hypothetical” Barriers, 68 N.D. L. Rev. 1,

21-22 (1992).

The Abbott Labs ripeness doctrine is reflected in the

recent decision of Lucas v. South Carolina Coastal Council,

505 U.S. __, 112 S. Ct. 2886 (1992). In Lucas, this Court

explained why it rejected the Williamson County argument

pressed by government counsel that the case be remanded to

state court for another hearing to determine if the court below

would alter its ruling in light of the recent amendments to the

SS RNS MAPS * lent Tig Es om ‘

Beachfront Management Act. Those amendments specifically

set up a variance process that would, if applied to the peti-

tioner in that action, require him to start all over again by

submitting a variance to the state. This Court rejected that

argument, however, and concluded that the case as it was

then presented to the Court was ripe for review and that

“neither ‘prudence’ nor any other principle of judicial re-

straint requires that we remand...” Jd. at 2892, n.5.

Thus, contrary to this Court’s treatment of ripeness in

Lucas, which is consistent with this Court’s other rulings on

ripeness, the decision below sets a dangerous and far-reach-

ing precedent that sanctions the whipsawing of Fifth Amend-

ment plaintiffs from court to court, requiring that both public

and private resources be wasted on futile and pointless

litigation in order to “ripen” the case for federal court review.

This turns the whole purpose behind the ripeness doctrine on

its head. See, e.g., Taylor Inv., Ltd. v. Upper Darby Town-

ship, 983 F.2d 1285, 1289-90 (3d Cir.), cert. denied, 114 S.

Ct. 304 (1993) (recognized that the ripeness doctrine is

grounded in both prudential considerations and the case or

controversy requirement). See also Eide v. Sarasota County,

908 F.2d 716, 720-24 (11th Cir. 1991).

That the ripeness standard sanctioned by the court below

disregards the prudential concerns of the ripeness doctrine,

and instead leads to gamesmanship and protracted litigation

has not escaped the notice of other federal judges. In Sinaloa

Lake Owners Ass’n v. City of Simi Valley, 882 F.2d 1398 (9th

Cir. 1989), the Ninth Circuit Court of Appeals dismissed a

lawsuit from federal court as unripe under Williamson County

after six years of litigation because the property owner had

not first prosecuted his case in state court. Expressing dis-

may over the use of Williamson County as a delay tactic by

the governmental defendant, Judge Alex Kozinski, writing

for the Sinaloa court, observed: “Plaintiffs filed this lawsuit

in December 1983, yet it was not until May 1986, one month

before trial was to begin, that defendants first raised a ripe-

ness challenge. It is clear they knew from the beginning that

plaintiffs had not exhausted their state compensation rem-

edies.” Jd. at 1403, n.3. The court there concluded that an

appropriate solution to avoid any further delay resulted from

the need to comply with Williamson County was to allow the

plaintiff to amend its federal complaint on remand to include

a pendent state law takings claim. The federal district judge

could then ascertain whether the state would afford the

plaintiff just compensation as a pendant state claim. Jd. at

1404, n.4.

Other federal judges have allowed plaintiffs to plead their

claims as something other than a takings claim so as to avoid

the technical trap which Williamson County has now become.

For example, a federal judge in Colorado recently refused to

dismiss a lawsuit, concluding that the second prong of

Williamson County did not bar property owners from going

forward with their claim for money damages because the

plaintiffs had alleged a “conspiracy” to take their property,

not the actual “taking” of their property. Oberndorf v. City of

Denver, 653 F. Supp. 304 (D. Colo. 1986). The judge noted

that “if plaintiffs seek just compensation through inverse

condemnation proceedings, then the objective, which defen-

dants’ conspiracy was designed to achieve, would be real-

ized.” Id. at 308. The Oberndorf court continued:

This last point is key. If plaintiffs now execute

their state court remedy, as defendants suggest,

then they would be playing right into the scheme

defendants have allegedly constructed. There are

no further steps available to plaintiffs which might

relieve them of the burdens created by the Urban

Renewal Plan.

Id.

Grant.

<n ae ee ae ee

Likewise, requiring Petitioners to start all over again by

forcing them to file their lawsuit in state court plays right into

the governmental defendant’s gamesmanship. The Petition-

ers did originally file their lawsuit in the Twentieth Judicial

Circuit Court of Florida in September of 1989. After that, the

Respondent voluntarily and intentionally removed the case

from state to federal court, asserting that a federal question

existed — i.e., whether a Fifth Amendment taking requiring

just compensation had occurred. It was not until after the

case had been tried twice and appealed twice that the govern-

mental defendants asserted that the case should have been

tried first in state court.

The court below has never explained why the Petitioners’

initial filing of their lawsuit in state court did not Satisfy the

second prong of Williamson County. By holding the case as

not ripe at this time, the court below not only encourages

further gamesmanship by governmental defendants in other

cases but eradicates the results of two trials on the merits in

this case® (one before a jury) and two appeals, spanning five

years of litigation. Now, ten years after passage of the

ordinance in question, Petitioners face the prospect of be gin-

ning the process all over again by attempting to file in state

court a second time (facing the additional hurdles imposed by

the statutes of limitations and the passage of time).

tive remedies and that the Lee Plan had destroyed their investment-

backed expectations to such an extent as to constitute a taking.

B. THIS IS AN ISSUE OF CRITICAL IMPORTANCE

TO FIFTH AMENDMENT PLAINTIFFS BECAUSE A

RIGID APPLICATION OF WILLIAMSON COUNTY

NOW BARS COUNTLESS PROPERTY OWNERS

FROM VINDICATING THEIR CONSTITUTIONAL

RIGHTS TO JUST COMPENSATION IN FEDERAL

COURT.

An even more perverse result occurs when the

Williamson County ripeness doctrine combines with res

judicata principles, barring a plaintiff from “‘relitigating”’ the

takings claim which he filed in state court in obedience to the

second ripeness hurdle. Under this “catch-22”, a plaintiff

must first file in state court (Williamson County) and, having

litigated his claim to judgment, will be dismissed from

federal court precisely because he did so. Thus, a plaintiff

may be barred from bringing his constitutional claim to

federal court — either because he has not yet litigated it in

state court first, or because he has done so. See generally

Michael M. Berger, The “Ripeness” Mess in Federal Land

Use Cases or How the Supreme Court Converted Federal

Judges into Fruit Peddlers, in Institute on Planning, Zoning,

and Eminent Domain § 7 (Matthew Bender 1991) and Dou-

glas W. Kmiec, Disentangling Substantive Due Process and

Taking Claims, 13 Zoning & Planning Law Report 57 (1990).

For example, in Palomar Mobilehome Park Ass'n v. City of

San Marcos, 989 F.2d 362 (9th Cir. 1993), a property owner

filed suit in state court to challenge a mobile home rent

control ordinance as an unconstitutional taking. He lost. The

plaintiffs then filed in federal court, where the case was

dismissed on the grounds of res judicata:

Palomar’s first argument, that its takings claim can-

not be barred because it was not ripe until the state

court ruled on its claim, lacks merit. Palomar cor-

rectly interprets Williamson County, to require that

“tS mate He tte

a plaintiff take its takings claim to state court be-

fore the case will be ripe for federal adjudication.

However, this requirement does not prevent the doc-

trine of res judicata from barring subsequent fed-

eral action. . . . “Appellants have exhausted their

State claims, which, under Williamson, is a neces-

Sary predicate to their federal cause of action: but in

doing so, they received a full and fair adjudication

of their constitutional claims against the City in state

court. Due process guarantees them no less. but

entitles them to no more.” . . . We are compelled to

conclude that res judicata bars Palomar’s claims in

federal court, despite the requirements of

Williamson.

Id. at 364-65 (citations omitted), quoting Peduto v. City of

North Wildwood, 878 F.2d 725, 729 (3d Cir. 1989) (subse-

quent federal claim for just compensation was also barred by

the doctrine of res judicata). Accord Mission Oaks Mobile

Home Park vy. City of Hollister. 989 F.2d 359 (9th Cir. 1993).

In Fields v. Sarasota Manatee Airport Authority, 953

F.2d 1299 (11th Cir. 1992) the neighbors of the Tampa

Airport sought compensation in state court for the taking of

noise and avigation easements over their properties. They

restricted their state lawsuit to Florida law, and raised no

claims under the federal constitution. Having lost their suit at

the state level, they filed their lawsuit in federal court. raising

their federal claims. The case was dismissed as bein g barred

by res judicata and collateral estoppel. The Fie/ds court

correctly framed the issue which must be resolved by this

Court:

This case presents a jurisdictional problem created

by the interplay between 28 U.S.C.A. § 1738 and

the Supreme Court’s holding in Williamson C. ounty.

On the one hand, Williamson County requires po-

tential federal court plaintiffs to pursue any avail-

able state court remedies that might lead to just com-

pensation before bringing suit in federal court un-

der section 1983 for claims arising under the Four-

teenth and Fifth Amendments for the taking of prop-

erty without just compensation. On the other hand,

if a litigant brings a takings claim under the relevant

state procedure, he runs the risk of being barred from

returning to federal court; most state courts recog-

nize res judicata and collateral estoppel doctrines

that would require a state court litigant to raise his

federal law claims with the state claims, on pain of

merger and bar of such federal claims in any at-

tempted future proceeding.

Id. at 1302-03 (citations omitted). Cf New Port Largo, Inc.,

v. Monroe County, 985 F.2d 1488 (11th Cir. 1993) (case was

not time-barred because it was premature to file in federal

court until state litigation was complete).

Thus, a broad application of the second prong of the

Williamson County ripeness requirement is not only a time-

wasting hurdle for the courts and litigants, but may, in fact,

bar altogether federal court adjudication of their Fifth

Amendment claim for just compensation. While Williamson

County may have been originally intended to require the

litigation of state issues in state court, leaving the federal

forum available in those instances where the state failed to

provide compensation for a violation of the takings clause,

the ripeness requirement was never intended to bar altogether

Fifth Amendment litigants from federal court. Indeed, it

would be anomalous to suggest that a right guaranteed by the

United States Constitution could not be litigated in federal

court. See Jacobs v. United States, 290 U.S. 13 (1933)

(inverse condemnation suit rests on the Fifth Amendment and

, ;

is therefore based on the Constitution).

In order to avoid such a result, some circuits have inter-

preted Williamson County narrowly, holding that it only

applies in claims for just compensation. See, e.g.,

Nasierowski Bros. Inv. Co. v. City of Sterling Heights, 949

F.2d 890 (6th Cir. 1991) (aggrieved landowner asserted

deprivation of procedural due process so his action was ripe

even though he did not exhaust administrative remedies).

C. THERE IS A SERIOUS SPLIT AMONG THE CIR-

CUITS AS TO WHETHER WILLIAMSON COUNTY

BARS FEDERAL COURT ACCESS FOR A CASE

BROUGHT DIRECTLY UNDER THE FIFTH AMEND-

MENT.

Petitioners brought their claim for just compensation

directly under the Fifth and Fourteenth Amendments to the

under the Constitution, they need not look to any statute -

such as 42 U.S.C. § 1983 — to state a claim for relief in

federal court.’ Federal courts have subject matter jurisdiction

7 The Solicitor General urges that the prohibitory nature of the Fifth

Amendment, combined with principles of soy ereign ummunity estab-

lishes that the Amendment itself is only a limitation on the power of the

sovernment to act, not a remedial provision. The cases cited in the text.

we think, refute the argument of the United States that “the Constitunon

does not, of its own force, furnish a basis for a court to award money

damages against the government.” Brief for United States as Amicus

Curiae 14. Though arising in various factual and junsdictional settings,

these cases make clear that it is the Constitution that dictates the remedy

for interference with property rights amounting to a taking. See Sun

Diego Gas & Electric Co. « San Diego, 450 U.S. 621, 655, n.21 (98h)

(Brennan, J., dissenting), quoting United States « Dickinson, 331 U.S.

745, 748 (1947).

First English, 315 U.S. at 316, 0.9.

for actions brought directly under the Fifth and Fourteenth

Amendments pursuant to 28 U.S.C. § 1331. The court

below’s conclusion that it lacked “‘subject matter”

jurisidiction over the Petitioners’ claim is extraordinary,

particularly since this Court so recently that a cause of action

for a violation of the Fifth Amendment arises at the time the

governmental act destroys or infringes upon private property

rights. First English, 315 U.S. at 320, n.10.

Unlike the Petitioners’ action which is founded on the

Fifth Amendment, the claim barred as unripe for federal court

review in Williamson County was a takings claim brought

pursuant to Section 1983. The Williamson County Court held

that the Parratt doctrine — an exception to the normal rule

that plaintiffs need not exhaust administrative remedies

before bringing a Section 1983 action — barred the Petition-

ers’ claim for just compensation because the state had not yet

fully determined that compensation would not be paid to the

property owner. Williamson County, 437 U.S. at 195. See

Parratt v. Taylor, 451 U.S. 527 (1981) (plaintiff’s Section

1983 action deemed not ripe because the state provided a

post-deprivation process for the alleged denial of due pro-

cess).

Prior to Williamson County, lower courts followed this

Court’s rule in Patsy v. Florida Board of Regents, 457 U.S.

496 (1982), which held that there is no requirement that a

plaintiff exhaust administrative remedies before bringing a

Section 1983 action. Since Williamson County was decided,

lower courts have been split as to whether Williamson County

applies only to takings cases brought under Section 1983,

whether it applies broadly to takings claims brought directly

under the Fifth Amendment, and even whether Williamson

County applies to claims beyond the Fifth Amendment. The

court below applied Williamson County broadly, to bar the

Reahards’ Fifth Amendment takings claim. Compare

Nasierowski Bros., 949 F.2d at 894 (“a procedural due pro-

4 \

_ as é .

0s dbs Pte aie Mar tata

A ci PARAM AR ci! Ne Ri

cess Claim is instantly cognizable in federal court “) with

Christopher Lake Dev. Co. v. St. Louis County, 35 F.3d 1269

(8th Cir. 1994) (applying Williamson County to non-taking

claim involving zoning).

The better interpretation of Williamson County is re-

flected in the Sixth Circuit’s recent decision in Bannum, Inc.

v. City of Louisville, 958 F.2d 1354 (6th Cir. 1992), in which

the court held the filing of an equal protection action (chal-

lenging a zoning action) in federal court was ripe because:

We believe that finality, not the requirement of ex-

haustion of remedies, is the appropriate determinant

of when litigation may begin. By finality we mean

that the actions of the city were such that further

administrative action by Bannum would not be pro-

ductive. This test, of course, can be met by the ex-

haustion of remedies. It can also be met by other

evidence and can be satisfied prior to compliance

with all the required procedures. This analysis sug-

gests that Williamson does not require a finding of

lack of finality in this case.

Id. at 1362-63.

Just last term this Court made plain that “the Takings

Clause of the Fifth Amendment, as much a part of the Bill of

Rights as the First Amendment or Fourth Amendment, should

[not] be relegated to the status of a poor relation in these

comparable circumstances.” Dolan vy. City of Tigard, 114 S.

Ct. 2309, 1994 U.S. LEXIS 4826, *31 (1994). This Court

has also made clear that the protection of private property is

essential to maintaining all other civil rights protected by the

Constitution. Lynch v. Household Finance Corp., 405 U.S.

538, 552 (1972). Yet lower courts cannot provide the vigor-

ous protection to private property rights envisioned by the

founding fathers if their ability to hear takings claims is

precluded by a rigid jurisdictional standard.

Indeed, the ripeness standard applied by some lower

courts in Fifth Amendment cases is unlike that faced by

plaintiffs in any other area of constitutional law. See, e.g.,

Kelly v. Nordberg, 1993 U.S. App. LEXIS 20719 (ist. Cir.

Aug. 17, 1993) (upholding right of plaintiff to file action

alleging unconstitutional infringement of right to travel

directly in federal court). The ripeness standard adopted by

the court below would not survive constitutional scrutiny

were it applied to bar federal court review of an equal protec-

tion, First Amendment or other constitutional cause of action.

Fifth Amendment plaintiffs are a notable exception to the

general rule that exhaustion of state remedies is not necessary

before federal courts can hear a case.® See, e.g., Planned

Parenthood of Southeastern Pennsylvania v. Casey, 112 S.

Ct. 2791 (1992) (challenge to Pennsylvania abortion statute

on due process grounds ripe when first brought in federal

court); FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 223

(1990) (challenge to zoning ordinance restricting adult

businesses on First Amendment grounds ripe when brought

first in federal court); Healy v. Beer Inst., Inc., 491 U.S. 324

(1989) (commerce clause challenge to Connecticut statute

requiring out of state beer shippers to affirm that products

sold to Connecticut dealers be priced no higher than in

neighboring states considered ripe when first brought in

federal court); Kentucky Dep't of Corrections v. Thompson,

8 In cases involving a writ of habeas corpus, prisoners are required to

exhaust their state remedies before they can bring suit in federal court, in

large part because this is required by the habeas corpus statute. 28 U.S.C.

§ 2254. In Preiser v. Rodriguez, 411 U.S. 475 (1973), state prisoners

sued in federal court under both § 1983 and the habeas corpus statute

because their good-time credits were cancelled after disciplinary prob-

lems. The Court held that their case was not ripe, even though there was

no state exhaustion requirement in § 1983, noting considerations of

federal-state comity, respect for state functions, and the habeas corpus

exhaustion requirement.

490 U.S. 454 (1989) (suspension of visitation rights for

inmates in Kentucky prisons without hearing challenged on

Fourteenth Amendment Due Process grounds, and ripe when

first brought in federal court); Board of Airport Comm'rs of

Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569 (1987)

(challenge to airport restriction on handing out literature on

First Amendment grounds ripe when brought first in federal

court); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432

(1985) (challenge to city zoning ordinance requiring special

use permit for group home for mentally retarded on Equal

Protection grounds ripe when first brought in federal court).

Indeed, even in actions brought under Section 1983, courts

have not uniformly required plaintiffs to exhaust their state

court remedies when constitutional rights — other than Fifth

Amendment rights — are at stake.

For example, in National Gay Task Force v. Board of

Education of Oklahoma City, 729 F.2d 1270 (10th Cir. 1984),

plaintiffs who challenged a state statute that provided for

dismissal or suspension of teachers who engaged in public

homosexual conduct on the ground that it violated the Four-

teenth Amendment were allowed to file their action directly

in federal court. They were not required to file first in state

court to ascertain whether the state would afford them a

remedy. See also Barry v. Barachi, 443 U.S. 55 (1979). In

Railroad and Warehouse Commission of Minnesota v. Duluth

Street Railway Co., 273 U.S. 625 (1927), plaintiffs brought

an action under the Fourteenth Amendment alleging that the

passenger rates set by the defendant were confiscatory. This

Court held that requiring plaintiffs to exhaust state remedies

is not a “fundamental principle of substantive law but [is]

merely a requirement of convenience or comity.” /d. at 628.

As the Duluth Street Railway Court further explained:

Where as here a constitutional law right is insisted

on, we think it would be unjust to put the plaintiff

to the chances of possibly reaching the desired

result by an appeal to the State Court when at

least it is possible that as we have said it would

find itself too late if afterwards went to the Dis-

trict Court of the United States.

Id.

In Committee for GI Rights v. Callaway, 518 F.2d 466

(D.C. Cir. 1975), the court held that “[t]he exhaustion doc-

trine is not inflexible and when the reasons supporting the

doctrine are found inapplicable, the doctrine should not be

blindly applied.” Jd. at 474. Accordingly, the court held that

the plaintiff could pursue his Fourth Amendment cause of

action in federal court without exhausting his military court

remedies.

Nor has this Court rigidly required state court exhaustion

under the First Amendment. In Keyishian v. Board of Re-

gents, 385 U.S. 589 (1967), a group of professors attacked a

State university requirement that they sign a statement that

they were not communists. Failure to sign the statement

would lead to dismissal. The plaintiffs would not sign the

statement, and sued directly in federal court. There was no

mention of the issue of state exhaustion. See also Lasco v.

Koch, 428 F. Supp. 468 (S.D. Ill. 1977) (state civil service

employee brought a Section 1983 action in federal court on

the grounds that he had been unlawfully discharged for

exercising his First Amendment nights not required to exhaust

state remedies).

Finally, this Court has also rejected the notion that a

plaintiff must always first file in state court before seeking

relief in federal court for an alleged violation of the Fifteenth

Amendment. Lane v. Wilson, 307 U.S. 268 (1939). In Lane,

the plaintiff had sued for damages resulting from discrimina-

tory treatment arising out of voter registration requirements

intended to prevent blacks from voting. The state argued that

the piaintiff must first use established state procedures for

determining claims of discrimination. This Court, however,

rejected that argument stating: “Barring only exceptional

circumstances, or explicit statutory requirements, resort to a

federal court may be had without first exhausting the judicial

remedies of state courts.” /d. at 274 (citations omitted).

CONCLUSION

In order for lower courts to ensure that the Fifth Amend-

ment claims for just compensation are vindicated, it is critical

that the issue of whether ripeness is an absolute jurisdictional

bar, or is instead a doctrine with prudential considerations to

be resolved by this Court. Otherwise, and without this

Court’s intervention, the Fifth Amendment will remain the

“poor relation” of other constitutional rights.

Accorcdingly, the Petitioners hereby urge this Court to

grant this Petition for Writ of Certiorari to review the deci-

sion of the court below, or alternatively, to reverse summarily

the decision below.

Respectfully submitted,

Nancie G. Marzulla

Counsel of Record

Defenders of Property Rights

6235 33rd Street N.W.

Washington, D.C. 20015

(202) 686-4197

February 16, 1995

APPENDIX A

Richard Reahard; Ann P. Reahard, Plaintiffs-Appellees, v.

Lee County, Defendant- Appellant.

REAHARD v. LEE COUNTY

No. 93-2743.

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

30 F.3d 1412; 1994 U.S. App. LEXIS 23881;

8 Fla. Law W. Fed.

C 573

September 2, 1994, Decided

SUBSEQUENT HISTORY: [**1] As Amended.

PRIOR HISTORY: Appeal from the United States District

Court for the Middle District of Florida. (No. 89-227-Civ-

FTM-10C). George T. Swartz, Magistrate.

DISPOSITION: Reversed and Remanded.

COUNSEL: For Defendant-Appellant: JOHN JOSEPH

RENNER, Lee County Attorney’s Office, Meyers, FL. For

Defendant-Appellant: BRUCE R. CONROY, City Attorney’s

Office, Cape Coral, FL. ROBERT N. REYNOLDS, Winter

Park, Florida.

For Plaintiff-Appellee: THEODORE L. TRIPP, JR., Garvin

& Tripp, Ft. Myers, Florida. For FL Dairy Farmers, etc,

Plaintiffs-Appellees: MARTY SMITH, Simmons & Hart,

Ocala, FL. For Southeastern Legal Foundation, Plaintiffs-

Appellees: G. STEPHEN PARKER, Atlanta, GA. For Plain-

tiffs- Appellees: Robert M. Rhodes, STEEL HECTOR &

DAVIS, Tallahassee, FL.

For Nat’! Assoc. of Home Blders, Amicus: WILLIAM H.

ETHIER, Cohn & Birnhaum, Hartford, CT. ROBIN L.

RIVETT, Sacramento, CA. For 1000 Friends of Florida,

Amicus: RICHARD GROSSO, Tallahassee, Florida. For FL

DEPT OF COMM. AFFAIRS, Amicus: DAVID J. RUSS,

Asst. General Counsel, Tallahassee, Florida.

JUDGES: Before TJOFLAT, Chief Judge, KRAVITCH,

Circuit Judge, and CLARK, Senior

Circuit Judge.

OPINIONBY: KRAVITCH

OPINION: [*1413] KRAVITCH, Circuit Judge:

At issue in this case is the constitutionality of the devel-

opmental regulations placed on an approximately 40 acre

tract of waterfront land in Lee County, Florida. Because we

hold that the federal courts lack jurisdiction on ripeness

grounds, we REVERSE the judgment of the district court,

and REMAND this case to the district court with instructions

to remand the cause to the state court from which it was

removed.

In 1944, appellee Richard Reahard’s parents purchased a

540 acre tract of land in Lee County, Florida. Over the next

three decades, his parents made use and profit from the 540

acre tract, subdividing, filling, developing and selling many

single lots. By 1975, they retained only a 40 acre tract of

undeveloped wetlands, which is the subject of this action.

Upon the death of Richard Reahard’s mother on Novem-

ber 30, 1984, he inherited the 40 acre site and sought to

develop it as either a 41 or 126 unit lot subdivision for [**2]

single-family residences. This plan was thwarted when the

Lee County Board of Commissioners passed the Lee County

Comprehensive Land Use Plan (“Lee Plan’’) on November

16, 1984. The Lee Plan took effect in December 1984.

The Lee Plan classified the Reahards’ n1 property as a

Resource Protection Area (“RPA”), limiting development

either to a single residence, or for use of a “recreational, open

space or conservation nature.” n2 The Reahards opposed this

classification by pursuing several available administrative

procedures. On January 27, 1988 they sought an amendment

to the Lee Plan which would have upzoned the property. The

Lee County Board of Commissioners denied this request.

The Reahards then sought an “administrative interpretation”

of their development rights, pursuant to Section XIV of the

Lee Plan. That section requires, inter alia, that ““interpreta-

tions [of the Lee Plan] which would be confiscatory, arbi-

trary, capricious, [*1414] unreasonable, or which would

deny all economically viable use of property shall be

avoided.” Lee Plan, Admin.Interp. Chapter XIV-6B(1). It also

provides an exception to the Lee Plan where “vested rights”

exist, and sets forth standards for determining [**3] when

an applicant may claim this exception. Id., Chapter XIV-7(6).

nl Richard Reahard’s wife, Ann P. Reahard, was added as a

party after this action was filed.

n2 Under the Lee Plan, RPA wetlands are considered “areas

in which it is necessary to protect, conserve, restore or pre-

serve water resource systems and the biological functions

attendant thereto.”’ Lee Plan, Policy 1.5.1, p. II-7. Deemed

“unsuitable for all but extremely low density development,”

their preservation prevents degradation of natural resources,

including water quality, freshwater storage capabilities,

biological productivity, and viability of plants and animals.

Id. Their preservation also prevents flooding. Id. Lee County

has prohibited the construction of ditches, canals, dikes,

roads above grade, and additional drainage on RPA wetlands.

Id. at Il-7-8. Maximum density on RPA sites is one dwelling

unit per forty acres. Id. at II-8. It is undisputed that the site in

this case is a pristine wetland, and is inundated with water

during high fall and spring tides, and during any powerful

storm.

In July 1990, the Lee County Attorney’s Office, the

administrative designee under the Lee Plan, ruled that the

Reahards were entitled to construct four single-family resi-

dences on the parcel. The Reahards appealed this determina-

tion to the Board of County Commissioners, on the ground

that it was based on mistakes in deeding and land boundaries.

On September 19, 1990, the Board issued a final decision,

upholding the administrative determination rejecting the

Reahards’ proposal, but “modif[ying it] to reflect approval

for one single family residence on the 35 acre parcel.”

Over one year previous to the Board’s decision, on

September 1, 1989, the Reahards had filed the instant com-

plaint in Florida state court. They alleged that although the

classification of their land as an RPA was a valid exercise of

the County’s police power, it constituted a taking under state

and federal law entitling them to just compensation. n3 On

October 5, 1989, Lee County removed to federal court. n4

. SEE. PEPPY as - Le e

n3 Specifically, the Reahards invoked sections

163.3194(4)(b) and 380.08 of the Florida Statutes, Article X,

Section 6 of the Florida Constitution, and the Fifth and

Fourteenth Amendments to the United States Constitution.

[**5]

n4 For a complete description of this case’s prior proce-

dural history and the evidence presented below, see Reahard

v. Lee County, 968 F.2d 1131, 1133-34

(11th Cir. 1992).

The case was heard before a magistrate judge, pursuant to

28 U.S.C. @ 636(c)(1), n5 and was limited to the issue of

whether a taking had occurred. The magistrate judge held that

a taking had occurred because but for the Lee Plan “some of

the property” could have been developed and, moreover,

because the Lee Plan had caused a “substantial deprivation of

the value” of the parcel. The magistrate judge further held

that the Reahards had exhausted their administrative state

remedies. A jury awarded them $ 700,000.00, plus interest

accrued, as just compensation.

n5 Parties may consent to have a United States magistrate

judge “conduct any or all proceedings in a jury or non-jury

civil matter and order the entry of judgment in the case, when

specially designated to exercise such jurisdiction by the

district court or courts he serves.” 28 U.S.C. @ 636(c)(1).

wren e ee eee eee End Footnotes- - - - - -----------

Lee County appealed directly to this court, pursuant to 28

U.S.C. @ 636(c)(3). n6 We reversed the magistrate judge’s

order, Reahard v. Lee County, 968 F.2d 1131, 1136 (11th

Cir.1992), and held that the magistrate judge had misapplied

the test for regulatory takings. Subsequently, we issued an

addendum opinion instructing the magistrate judge to address

the question of ripeness and determine whether the district

court had jurisdiction over this matter. Reahard v. Lee

County, 978 F.2d 1212, 1213 (11th Cir. 1992). As to jurisdic-

tion, we noted not only that there was a “question regarding

the Reahards’ efforts to secure appropriate administrative

remedies,” but also that there was “nothing in the record

regarding the judicial remedies available in Florida state

courts.” Id. Specifically, we recognized that “assuming that

these claims could be satisfied through adequate state judi-

cial procedures, the Reahards have not stated a ripe federal

claim under Williamson County Regional Planning Comm’n

v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d

126 (1985), [**7] and there is no subject matter jurisdic-

tion.” Id.

n6 Title 28 U.S.C. @ 636(c)(3) provides that “an aggrieved

party may appeal directly to the appropriate United States

court of appeals from the judgment of the magistrate in the

same manner as an appeal from any other judgment of a

district court.”

On remand, the magistrate judge held that all state rem-

edies had been exhausted because no remedy existed under

Florida law, and that no further administrative remedies

existed. Again holding that a taking had occurred, the magis-

trate judge reinstated the jury verdict of $ 700,000.00. We

now revisit our prior rulings, and hold that based on the

analysis required by Williamson, this matter is not ripe for

review and the federal courts therefore lack subject matter

jurisdiction.

(*1415] IL.

The question of ripeness “‘goes to whether the district

court had subject matter jurisdiction.” Greenbriar Ltd. v. City

of Alabaster, 881 F.2d 1570, 1573 (11th Cir.1989). [**8]

As a jurisdictional issue, it is reviewed by this court de novo.

See generally Tamiami Partners v. Miccosukee Tribe, 999

F.2d 503, 507 (11th Cir.1993); United States v. Perez, 956

F.2d 1098, 1101 (11th Cir. 1992); see also Gemtel Corp. v.

Community Redevelopment Agency, 23 F.3d 1542, 1545 (9th

Cir. 1994) (“We review ripeness de novo.’’) (citation omitted).

Lee County argues that the Reahards’ claim did not ripen

until the County Board of Commissioners issued its Septem-

ber 19, 1990 decision denying permission to build anything

but a single-family residence and affirming as modified the

administrative determination. It contends that five months

prior to that date, the Florida Supreme Court recognized a

State compensation remedy for regulatory takings in Joint

Ventures, Inc. v. Department of Transp., 563 So.2d 622

(Fla.1990). The County therefore argues that the federal

courts have never had subject matter jurisdiction, and that

until the Reahards pursue their state remedy this matter is not

ripe for review. For the reasons that follow, we agree.

As we have noted previously, [**9] this is a just com-

pensation action, in which the aggrieved landowners seek

only monetary compensation for the value taken. See

Reahard, 968 F.2d at 1135. n7 “In order for such a claim to

be ripe for adjudication, the landowner must overcome two

hurdles: the final decision hurdle and the just compensation

hurdle.” Id. at 1135 n. 7 (quoting Eide v. Sarasota County,

908 F.2d 716, 720-21 (11th Cir. 1990), cert. denied, 498 U.S.

1120, 111 S.Ct. 1073, 112 L.Ed.2d 1179 (1991)). To satisfy

the “final decision” hurdle, an aggrieved landowner must

demonstrate that the decisionmaker “charged with imple-

menting the regulations has reached a final decision regard-

ing the application of the regulations to the property at issue.”

Williamson, 473 U.S. at 186, 105 S.Ct. at 3116. n8 In other

words, a just compensation claim cannot ripen until the

“local authority has determined the nature and extent of the

development that will be permitted.” Eide, 908 F.2d at 721.

[**10]

n7 In a just compensation claim, as opposed to a due

process takings claim, the aggrieved landowner “does not

seek “an invalidation of the local authority’s application of

the regulation,’ ... but simply monetary compensation for the

value taken.” Reahard, 968 F.2d at 1135 (quoting Eide v.

Sarasota County, 908 F.2d 716, 720-21 (11th Cir. 1990), cert.

denied, 498 U.S. 1120, 111 S.Ct. 1073, 112 L.Ed.2d 1179

(1991)).

n8 In Williamson, 473 U.S. at 191, 105 S.Ct. at 3118-19,

the Court held no “final decision” had been reached until the j

local planning commission “determined that no variances

will be granted,” because only then could a jury determine |

whether respondent would “be unable to derive economic i

benefit” from the land.

~---------------- End Footnotes- - - - - - ---------- :

In most cases, no “final decision” has been reached until iB

an aggrieved landowner has applied for at least one variance

[**11] to.acontested zoning ordinance. See Williamson, 473

U.S. at 186, 105 S.Ct. at 3116 (claim not ripe where respon-

dent did not seek variances from Board of Zoning Appeals);

Resolution Trust Corp. v. Town of Highland Beach, 18 F.3d

1536, 1547 (11th Cir. 1994) (“In most instances a property

Owner must apply for a variance for a

less intrusive use, to determine what use the municipality will

allow....”); Executive 100, Inc. v. Martin County, 922 F.2d

1536, 1540 (11th Cir.) (aggrieved landowner must “have

sought variances or pursued alternative, less ambitious

development plans”), cert. denied, U.S. , 112 S.Ct. 55, 116

L.Ed.2d 32 (1991).

In the present case, the Reahards initially sought what

was in effect a variance from the Lee Plan, by requesting that

the Board’s administrative designee issue an “administrative

interpretation” regarding their proposed 127 unit develop-

ment. n9 The administrative [*1416] designee—in this

case, the Lee County Attorney—determined that the

Reahards had the right to build four single [**12] _ resi-

dences on the parcel. The Reahards appealed this decision

to the Lee County Board of Commissioners, which, acting

pursuant to the appeals process set forth in the Lee Plan,

affirmed as modified the administrative determination on

September 19, 1990. The Board’s rejection of the proposed

development concluded the administrative review process set

forth in the Lee Plan, and therefore represented a “final

decision” on the Lee Plan’s application to the property. See

Greenbriar, 881 F.2d at 1575-76 (final decision reached

when City Council and Planning and Zoning Commission

had rejected property owner’s proposals). n10 Until the

Board’s decision was issued, it had not been conclusively

determined that the Reahards would not be permitted to

exceed the single residence limitation on RPA land set forth

in the Lee Plan. The Reahards’ claim therefore could not

have ripened, if ever, until September 19, 1990, the date of

the Lee County Board of Commissioners’ final decision. n1!

10a

n9 Under the Lee Plan’s administrative guidelines, zoning

designations initially are challenged before the Plan’s admin-

istrative designee—here, the Lee County Attorney’s Office.

That designee determines whether to affirm the classification

or issue a variance. A variance from the Lee Plan designation

may be issued according to the following guidelines:

(1) Interpretations [of the Lee Plan] which would be confis-

catory, arbitrary, capricious, unreasonable, or which would

deny all economically viable use of property shall be

avoided;

(3) All interpretations should weigh the public benefits and

burdens against the private benefits and burdens to be im-

posed.... If the effect of the interpretation would be to relieve

or prevent a substantial public burden, greater weight should

be given to the relief or prevention of that burden;

(4) Interpretations should be consistent with background

data, other policies, and objectives of the Plan[.] Lee Plan,

Admin.Interp. Chapter XIV pp. 6-8. The Lee Plan also

recognizes a “vested rights” remedy, which exists where an

applicant has relied in good faith and to his substantial

detriment on an act or omission of Lee County. /d. Chapter

XIV p. 7.

An aggrieved landowner may appeal the administrative

designee’s determination concerning these remedies to the

full Board of County Commissioners, which then must issue

a final decision within thirty days. Jd. Chapter XIV p. 9.

[**13]

n10 In some cases, an administrative decision might be

sufficiently final without resort to any appeals process. See,

e.g., Weissman v. Fruchtman, 700 F.Supp. 746, 755

lla

(S.D.N.Y.1989) (“An administrative decision may-be a

sufficiently final action to Satisfy the finality requirement

without representing an exhaustion of all available adminis-

trative remedies.”’). But where, as here, the variance process

explicitly provides for an “appeal” to the authoritative local

decisionmaker—such as, in this case, the Board of Commis-

sioners—the appeal must be fully pursued before any defini-

tive “final” decision occurs. Compare, e.g., Milne v. Town-

ship of Oregon, 777 F.Supp. 536, 537-38 (E.D.Mich. 1991)

(appeal from denial of variance a prerequisite to claim

of taking without just compensation) with Patrick Media

Group, Inc. v. City of Clearwater, 836 F.Supp. 833, 836

(M.D.Fla. 1993) (appeal from denial of variance unnecessary

where ordinance did not provide for such appeal).

nl1 The County does not contend that the Reahards’ claim

ripened on a date after the Board’s September 19, 1990

decision rejecting appellees’ proposed 127 unit subdivision.

We therefore need not address whether the submission of

further, more modest proposals might have been acceptable

to the County and might therefore have been a further prereq-

uisite to ripeness. Compare MacDonald, Sommer & Frates y.

Yolo County, 477 U.S. 340, 351-53, 91 L. Ed. 2d 285, 106 S.

Ct. 2561 and n. 9, 106 S.Ct. 2561, 2567-68 and n. 9, 9]

L.Ed.2d 285 (1986) (Planning Commission’s initial rejection

of proposed 159 residence subdivision, based on inadequa-

cies in plan, did not render just compensation claim ripe;

“rejection of exceedingly grandiose development plans does

not logically imply that less ambitious plans will receive

similarly unfavorable reviews”).

This conclusion does not end our ripeness inquiry. The

Reahards’ claim has ripened only if the “just compensation”

12a

hurdle has been met, 1.c. if “all state procedures for just

compensation have been utilized.” Eide, 908 F.2d at 723

(citing Williamson, 473 U.S. 185-86; 105 S.Ct. at 3116); see

also Executive 100, 922 F.2d at 1542 (“If the government has

provided an adequate process for the property owner to

obtain compensation [such as inverse condemnation proceed-

ings], and if resort to that process yields just compensation,

then the owner has no just compensation claim.”) (citing

Williamson, 473 U.S. at 195). The rationale for this require-

ment is that “the 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.’ Williamson, 473 U.S. at 195, 105 S.Ct. at 3121

{**15] (quoting Hudson v.Palmer, 468 U.S. 517, 532 n. 12,

104 S.Ct. 3194, 3203 n. 12, 82 L.Ed.2d 393 (1984)). While

“the finality requirement is concerned with whether the initial

decisionmaker has actual, concrete injury[,] the exhaustion

requirement [*1417] generally refers to administrative and

judicial procedures by which an injured party may seek

review of an adverse decision and obtain a remedy.” /d.

at 193, 105 S.Ct. at 3120. Cf. New Port Largo, Inc. v. Monroe

County, 985 F.2d 1488, 1493 (11th Cir.) (regulatory takings

claim ripens only after “state judicial authorities ... make a

final determination on the status of the subject property”’)

(Tjoflat, C.J., concurring specially) (citing Corn v. City of

Lauderdale Lakes, 904 F.2d 585, 588 (11th Cir. 1990)), cert.

denied, U.S. , 114S.Ct. 439, 126 L.Ed.2d 373 (1993). n12

n12 Two special concurrences in New Port Largo, 985 F.2d

1488 (per curiam) indicate some tension between this

circuit’s precedent in Corn v. City of Lauderdale Lakes, 904

F.2d 585 (11th Cir.1990) and Williamson, as to the accrual

of a claim that property has been taken without just compen-

13a

sation. Compare New Port Largo, 985 F.2d at 1497 (Tjoflat,

C.J. concurring specially) (“under Corn [as opposed to

Williamson | a federal takings claim ripens only after the

property owner has exhausted all legal means of Challenging

the ordinance;” thus, “Corn erred by improperly expanding

Williamson’s final decision requirement until “state review

entities’ —rather than the initial decisionmakers—"have

made a final determination’ “‘) with New Port Largo, 985

F.2d at 1499 (Edmondson, J., concurring specially) (Corn

addressed statute of limitations accrual, but “did not decide

(because it was unnecessary to decide) when Corn’s taking

claim first became ripe ... for federal adjudication’) (citing

Corn, 904 F.2d at 588).

We are mindful of these concerns. Based on the circuit

precedent cited herein, however, and also recognizing that

New Port Largo and Corn involved accrual for purposes of

the statute of limitations, not ripeness, we employ the two-

pronged approach set forth in Williamson. The result is

identical under either approach: until the Reahards pursues

their remedy in Florida’s courts, their claim is not yet ripe.

wort eee ----e- End Foototes- - - - ------------

[**16]

It follows that “as a practical matter, Williamson precludes

litigation of the merits of a just compensation claim in federal

court unless the state declines to provide adequate procedures

through which an aggrieved party might seek compensation.”

New Port Largo, 985 F.2d at 1496 (Tjoflat, C.J., concurring

specially). The dispositive issue in this case therefore is

whether the Reahards had at their disposal an available state

remedy, such as an inverse condemnation action, at any time

before the Board’s final decision was issued in September

1990. If they did not, then this case became ripe on Septem-

ber 19, 1990, upon the final decision by the Board of Com-

missioners. But if they did, then this case has not yet ripened

14a

for purposes of federal review.

Before April 1990, it was not clear whether Florida’s

courts recognized an inverse condemnation remedy based on

zoning Classifications. In Joint Ventures, Inc. v. Department

of Transp., 563 So.2d 622 (Fla.1990), which was decided in

April 1990 and involved a state-imposed development mora-

torium, the Florida Supreme Court for the first time explicitly

recognized such [**17] a cause of action. See /d. at 624

(“The state must pay when it regulates private property

under its police power in such a manner that the regulation

effectively deprives the owner of the economically viable use

of that property.”); Executive 100, 922 F.2d at 1542 (“The

Florida courts have recognized that ... property owners have

the nght to bring reverse condemnation proceedings seeking

compensation for regulatory takings.’’) (citing Joint Ventures,

563 So.2d 622); see also Palm Beach County v. Tessler, 538

So.2d 846 (Fla.1989) (recognizing inverse condemnation

action where county blocked off access to property located

on roadway; reasoning that “there is a nght to be compen-

sated through inverse condemnation when government action

causes a substantial loss of access to one’s property even

though there is no physical appropriation of the property

itself”). This court, in turn, has held that a Florida property

Owner must pursue a reverse condemnation remedy in state

court before his federal takings claim will be ripe, even

where that remedy was recognized after [**18] the

alleged taking occurred. Executive 100, 922 F.2d at 1542

(affirming dismissal of due process takings claim and just

compensation claim).

As we have noted above, the Lee County Board of Com-

missioners decision issued on September 19, 1990 fulfilled

the “final decision” requirement of Williamson. Several

months earlier, however, the Florida Supreme Court recog-

nized an inverse condemnation remedy. Thus, by the time

that the “final decision” obstacle was removed from the path

15a

of the Reahards’ federal claim, a second obstacle to that

claim had been erected [*1418] in the form of a newly-

recognized state remedy for inverse condemnation. The

Reahards’ claim therefore never has become ripe while on

the federal court docket; until they have pursued their state

remedy, the federal courts are without subject matter jurisdic-

tion. n13

n13 The Reahards argue that we should disregard the

holding in Joint Ventures because that Opinion was issued

Subsequent to the removal of the case to federal court in

October 1989, and is therefore not relevant. This might be a

persuasive argument if subject matter jurisdiction had existed

at the time of Lee County’s removal to federal court. See

Grubbs v. General Electric Credit Corp., 405 U.S. 699, 702.

92 S.Ct. 1344, 1347, 31 L.Ed.2d 612 (1972) (“Where after

removal a case is tried on the merits without objection and

the federal court enters judgment, the issue in subsequent

proceedings on appeal is ... whether thefederal district court

would have had original jurisdiction of the case had it

been filed in that court.”); cf. Bor-Son Bldng. Corp. v. Heller.

572 F.2d 174, 181 (8th Cir.1978) (party who removes from

State Court of competent jurisdiction may not later secure

dismissal based upon jurisdictional defects in removal

court). But in this case, neither the federal nor the state courts

ever had jurisdiction until the Board of Commissioners

issued its “final decision” on September 19, 1990, long after

the removal to federal court. See Williamson, 473 US. at

191, 105 S.Ct. at 3118-19; Martinez y. Bolding, 570 So.2d

1369, 1371 (Fla.Dist.Ct.App. 1990), review denied, 581 So.2d

163 (Fla.1991); Glisson v. Alachua County, 558 So.2d 1030,

1035-36 (Fla.Dist.Ct. App.) (adopting Federal ripeness doc-

trine with respect to “final decision” requirement), review

16a

denied, 570 So.2d 1304 (Fla.1990). The date of removal

therefore is not dispositive in determining the date on which

the claim ripened.

[**19]

fil.

For the reasons set forth above, we REVERSE the judg-

ment of the district court, and REMAND this case to the

district court with instructions to remand the cause to the

state court from which it was removed.

17a

APPENDIX B

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

RICHARD REAHARD and ANN P. REAHARD,

Plaintiffs,

VS.

LEE COUNTY, FLORIDA,

Defendant.

CASE NO. 89-227-CIV-FTM-10D

AMENDED ORDER OF TAKING

FOLLOWING REMAND

This Cause was remanded to this Court from the Eleventh

Circuit Court of Appeals for factual findings and a taking

analysis in accord with case precedent pursuant to Reahard v.

Lee County, 968 F.2d 1131 (11th Cir. 1992). The Eleventh

Circuit Court of Appeals also remanded this matter in a

supplemental opinion regarding the question of ripeness to

determine if the District Court has jurisdiction over this

matter. See, Reahard v. Lee County, 978 F.2d 1212, (11th

Cir. 1992).

FACTS

This is an action for inverse condemnation. The property

that is the subject matter of this lititgation is owned by the

18a

plaintiffs, Richard Reahard and Ann Reahard, husband and

wife. (tr.trans. p.58) The property is located a half a mile

from Bonita Beach is south Lee County near the Bonita Bay

Development (tr.trans. p.69, 93) From the Reahards’ prop-

erty there is direct access to the Gulf of Mexico which is

approximately one to one and a half miles from the property.

(tr.trans. p.93, 94)

Richard Reahard’s parents acquired the property from

Peninsula Land Company in 1944. Mr. Reahard’s parents

owned the land until his father’s death when the land passed

to his mother who owned it until her death at which time

Richard Reahard inherited it. (tr.trans. p.60) Richard

Reahard then proceeded to give his wife a half interest in the

property. (tr.trans. p.59, Pl.exh. 1A, 1B) Richard Reahard’s

parents paid $1250.00 cash for 540 acres of land (hereinafter

“larger tract”) in 1944 of which the subject property is a

small part, approximately 38 to 42 acres. (tr.trans. p.96, 181)

Richard Reahard or his family have paid the taxes on the

property since the time they acquired it. (tr.trans. 0.70)

A plat was drawn for the larger tract of property including

the subject property in the late 1950’s and it was recorded in

the public records of Lee County, Florida in 1961. (tr.trans.

p.61, 198, see Pl.exh. 3) Richard Reahard became involved

in the property development in 1955. (tr.trans. p.61) On the

larger tract of land, at first the Reahards did all of the engi-

neering work themselves but later hired Carl Johnson’s

engineering firm to do the engineering work and develop the

plat. (tr.trans. p.62) Johnson engineering staked the lots and

laid out the streets and the Reahards proceeded with the

digging of the canals and the constructing of the streets.

(tr.trans. p.62) The Reahards obtained fill for the property

from the canals that were dug from the larger tract. (tr.trans.

p.72) Prior to the Lee County Comprehensive Plan of 1984

(hereinafter “Lee Plan’’), the Department of Environmental

Regulation and the Army Corp of Engineers never denied

Ee ae ee ee a as

19a

permits to the Reahards on the merits of the permits.

(tr.trans. p.86, 87) The Reahards developed a brochure

regarding the property and advertised the property throughout

the country. (tr.trans. p.62, Pl.exh.8) Various Surveys were

done of the property by Carl Johnson’s firms and by Tn-

County Engineering (tr.trans. p.63) When Richard Reahard

inherited the property, he planned on developing it according

to the recorded plat. (tr.trans. p.112, 113, 134)

The individual lots in the larger tract were sold by both a

metes and bounds description and by a lot and block descrip-

tion which was taken from the recorded plat. (tr.trans. p.73)

The County also used the lot and block description in some

of its documents. (tr.trans. p. 73) The subdivision delineated

in the plat was never formally accepted by Lee County,

however, roads were accepted. (tr.trans. p. 73-4) The County

maintains the roads on the larger plat except for one private

road. (tr.trans. p. 74) Richard Reahard’s parents never fully

developed the property prior to the Lee Plan due to their lack

of finances to pay for the development. (tr.trans. p.86)

The property is located in a single-family residential area.

(tr.trans. p. 601) The type of homes are single-family de-

tached residential dwelling units. (tr.trans. p.601) The older

Structures were constructed in the late 1950’s and early

1960's and are slab on grade construction. (tr.trans. p.601)

The newer construction is more oriented to wood frames, stilt

construction at elevation of 12 feet above sea level. (trtrans.

p. 601). It is a well maintained area. (tr.trans. p. 605)

The subject property was first formally zoned in 1964 and

was zoned RS-1, RM-1, RM-2 and indvstrial, IL. (tr. trans.

p.68, 151 Pl.exh.5A, 5B) RS-1 is single family, RM-1| and

RM-2 are multifamily zoning categories and IL which is a

light industrial category. (tr.trans. p. 167) Under IL, Mr.

Reahard would have been permitted commercial uses, multi-

family uses, hote/motel uses, commercial marina uses, and

other types of water uses. (tr.trans. p. 168) The Lee Plan

20a

then changed the zoning to RPA, Resource Protection Area.

(tr.trans. p.75, 89, 151) Richard Reahard contacted the

County after the zoning change to determine his development

choices. (tr.trans. p. 87) According to letters he received

from the County he could build one unit per 40 acres.

(tr.trans. p. 87, Pl. exh. 10, 11, 15) In addition, the property

could be used for passive recreational activities, such as

nature trails, canoe trails, and boardwalks (tr.trans. p. 151)

Prior to the zoning change, Richard Reahard planned to

develop 126 units on the property. (tr.trans. p.75)

The subject property is primarily dominated by man-

groves. (tr.trans. p. 292,562) The subject property is com-

prised of wetlands which function normally. (tr.trans., p.

562) There is a partially constructed roadway along the

northern perimeter that runs from east to west. (tr.trans. p.

292) There is a partially constructed canal along the east side

of the property. (/d.) There appears to be some mosquito

ditching on the property. (/d.) There is encroachment of

exotic vegetation along the impacted areas (meaning areas

with some type of construction which alters the normal

hydrology of a site to be different and not supportive of the

natural vegetation [tr.trans. p.297, see also p. 483]), primarily

along the road and the canal. The exotic species are Austra-

lian pines, and Brazilian pepper trees. (/d.) There are depos-

its of fill on the north and west and some on the south side

along the existing road. There are some berms that are

scattered. (/d.) The subject land is partially submerged

during high spring tide, during the fall, during the equinox

period and during heavy storms (tr.trans. p. 67) Spoils were

deposited on the property from finger canals that had been

cut into the larger tract disturbing the wetlands ares. (tr.trans.

p. 272) There is only one to two areas of land on the subject

property that is impacted. (tr.trans. p.572)

The Reahards received two offers for purchase of the

property (tr.trans. p. 84) There was an offer to purchase the

2la

property by Andrew Messick for $1.2 millions dollars.

(tr.trans 84-85, Pl.exh. 25) Carmen Reahard rejected the

offer due to the buyers not paying her any money up front.

Essentially the deal was compromised of the potential buyers

speculating with her property. (tr.trans. p.85) There was a

second offer but none of the details were given. (tr.trans. p.

85) Richard Reahard attempted to sell the property after the

Lee Plan was enacted by advertising in the News-Press but

was unsuccessful. (tr.trans. p.85) No offers were ever made

on these advertisements. (tr.trans. p. 85) In addition, in

1984 Richard Reahard claimed that the property was valued

at $30,000 for estate tax purposes which was the value that

the tax accessor gave the property. (tr.trans. p.108)

The plaintiff’s engineer testified that the property could

be developed from 41 to 126 lots. (tr.trans. 298) The ap-

praiser for the plaintiff found that based on comparable sales

if the Reahards developed 41 to 43 lots on their property, the

value of the property would be $615,000 to $645,000.

(tr.trans. 255) If the Reahards were able to develop 126

units on their property, the value of the property would be

$2,268,000. (tr.trans. 256). These figures represent the net

amount for the property meaning that the costs of develop-

ment had already been deducted. (tr.trans. p. 254) The

plaintiff’s expert engineer believed that he could obtain

permits from both DER and the Army Corps of Engineers for

both the 41 lot or the 126 lot developments. (tr.trans. p.

303) He would use either a sewer plant or septic system for

these developments. (tr.trans. p. 308) After the enactment

of the Lee Plan, the plaintiff’s appraiser estimated the value

of the property if one single-family residence was built to be

$25,000. (tr.trans. p.274) The plaintiff's environmental

consultant, Rayann Boylan testified that once lands are filled

they become uplands and then one obtains a permit for the

septic tank for an agency other than the Department of

Environmental Regulation. (tr.trans. p.696, 706-7) Ms.

22a

Boylan opined that the 43 unit development would be

permitable with septic tanks. (tr.trans. p. 707) In addition,

Ms. Boylan stated that with the 43 unit development, the

property that was not developed could be used as mitigation

property and the Reahards would not have to purchase

additional lands to mitigate. (tr.trans. p.708)

The defendant’s biological expert, Mr. Beever, testified

that Department of Environmental Regulation would have

taken jurisdiction over this property due to the type of plants

that were present. (tr.trans. p. 419) The Department of

Environmental Regulation principal function is to be a

permitting agency for the State of Florida for development

involving environmental impacts such as dredge and fill

permits and waste water treatment systems. (tr.trans. p.413)

In Mr. Beever’s opinion, septic tank permits would have been

denied for the 126 unit development. (tr.trans. p.429) Mr.

Beever opined that the 43 unit development would more

likely be permitted with modification and a possible down-

sizing but would not be permitable as was drawn due to the

waste water treatment problems. (tr.trans. p. 429, 454) He

felt more comfortable that at most 24 units could be devel-

oped on the property. (tr.trans. p. 438) Mr. Beever stated

that Mr. Reahard could develop houses on his property along

the south side of the parcel and along the west side of the

canal if he donated the rest of the land for a conservancy-type

use and had an off-site sewage system. (tr.trans. p. 465)

The defendant’s expert engineer, Mr. Hole stated that for the

both the 43 units development and the 126 unit development

without off-site mitigation, the developments would not have

been permitted. (trtrans. p.481,483) Mr. Hole testified that

he did not believe that the Reahards could obtain permits to

build houses along the existing roadway with septic tanks.

(tr.trans. p.485) The defendant’s expert ecologist stated that

neither the Army Corps of Engineers nor the Department of

Environmental Regulation would have issued permits for the

23a

126 unit design. (tr.trans. p. 565) He also stated that the 43

unit development was better environmentally than the 126

unit development, however, the 43 unit development would

also not be permitted. (tr.trans. p.569) The defendant’s

appraiser, Mr. Woodward Hanson stated that the highest and

best use of the property would be low density residential

development which would be one unit on the property.

(trtrans. p. 643,646) The defendant’s second real estate

appraiser, Micheal Maxwell stated that in opinion, the value

of the subject property of 42 acres prior to Decemebr 21,

1984 (the date of the Lee Plan) was $4,000 per acre fora

total of $168,000. (tr.trans. p.659-60) The value of the

property after December 21, 1984 is $70,000 for the homesite

and $98,000 for the 41 acres of wetiands surrounding the

home. (tr.trans. p.664) Therefore, Mr. Maxwell opines that

the property’s values remained the same before and after the

Lee Plan took effect. (tr.trans. p. 670) However, Mr.

Maxwell’s opinion did not consider the possibility that a 4]

unit development could have occurred prior to the Compre-

hensive Plan but not after. (tr.trans. p.666) Mr. Maxwell

was unable to find any comparable property where the

homeowner was able to place one homesite on a property and

have a 41 acre backyard that is undevelopable. (tr.trans.

p.675)

In 1984, Mr. Reahard had two adjacent lots that were

north of the subject property and already had fill that could

have been used for a swage treatment plant. (trtrans. p. 692)

Mr. Reahard owns other lands that could also be made avail-

able for use of a sewage treatment plant. (tr.trans. p. 694)

TAKING

In the case of Eide v. Sarasota County, 908 F.2d 716 (11th

Cir. 1990) the Court identified four types of taking chal-

lenges that a land owner may bring: “(1) just compensation

24a

claims; (2) due process takings claims; (3) arbitrary and

Capricious due process claims; (4) equal protection claims.”

Id. at 720. The Court determined that under a just compensa-

tion claim, the plaintiff is not seeking to invalidate the local

authority’s application of the regulation but simply is request-

ing monetary compensation for the value of the property

taken. Jd. at 721. Mr. Reahard in his Complaint states that

the RPA designation interfered with his reasonable invest-

ment-backed expectations and therefore, requested monetary

compensation. (Doc. 1) The only issue in this case is

‘whether an owner has been denied all or substantially all

economically viable use of his property. Eide v. Sarasota

County, 908 F.2d 716, 721 (11th Cir. 1990), See also Reahard

v. Lee County, 968 F.2d. 1131 (11th Cir. 1992) The Eleventh

Circuit stated that this Court must now aplv the above facts to

the Penn Central multifactor inquiry. Penn Central Transp.

Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57

L.Ed.2d 631 (1978)

What constitutes a taking is a problem of “considerable

difficulty.” Penn Central 438 U.S. at 123. The Supreme

Court has been unable to determine any set formula for

determining when “‘justice and fairness’ require that eco-

nomic injuries caused by public action be compensated by

the government, rather than remain disproportionately con-

centrated on a few persons.” Jd. at 124. The Supreme Court

has identified “several factors that have particular signifi-

cance” to the question of whether a taking has occurred. /d.

“The economic impact of the regulation on the claimant and

particularly, the extent to which the regulation has interfered

with distinct investment-backed expectations are, of course,

relevant consideration. /d. (citations omitted)

The Court has carefully considered all of the testimony

and exhibits of the parties. There is no question in the

Court’s mind that the subject property is a pristine wetlands

area with few environmental impacts on it. Nonetheless,

25a

according to the plat that was recorded, the Reahards in-

tended to build a 126 unit development prior to the Lee Plan.

The property had the proper zoning for such a development

namely, RS-1, RM-1, RM-2 and IL which would have per-

mitted the 126 unit density. The only question then becomes

whether the Reahards would have been able to obtain permits

for this development. Taking all the experts information

regarding permitting prior to 1984, it appears very question-

able whether the Reahards would have been able to obtain

proper permits from the Department of Environmental

Regulation and the Army Corps of Engineers for the 126 unit

development. It appears that the main problem would have

been the sewage or septic tank system needed for this devel-

opment. However, it is obvious to the Court that the

Reahards would then have modified their plans so that

permitting would have been available and a plan such as the

41 unit development would have surfaced. According to

experts from both parties this development modified with

fewer units would have been permitable especially if the

Reahards used other uplands tracks of land for the septic or

Sewage system and donated the remaining land to the State or

maintained the remaining land in a pristine wetlands manner.

After the Lee Plan was enacted, the Reahards could build

only one unit on the entire tract. The Court does not find

credible the defendant’s appraiser who stated that the area

outside of the homesite would be worth $98,000 to a buyer.

Although this property may be pristine, if it is not income

producing or usable for some purpose other than recreation it

has little or no market value, certainly not $98,000. The only

value the land would have is the $25,000 - $70,000 depend-

ing on which expert you believe. Therefore, the property

with one homesite has very little value. However, if the

property were to have a 24 - 41 unit development on it, the

property value would be greatly increased possibly to be

valued to a net value of including development costs

26a

$645,000 as plaintiff’s expert testified. (It is not for the

Court to determine at this time the actual value of the prop-

erty as this case is bifurcated and a jury will decide the

amount of loss if any to the Reahards). The Reahards’

investment-backed expectations were greatly diminished by

the enactment of the Lee Plan and the subsequent change in

zoning.

RIPENESS

The Eleventh Circuit Ordered this Court to revisit the

issue of ripeness regarding whether the Reahards had pursued

all of their state judicial remedies prior to this action as well

as their administrative remedies prior to this action.

STATE JUDICIAL REMEDIES

This action was originally filed by the Reahards in the

Twentieth Judicial Circuit in and for Lee County, Florida.

The defendant petitioned for removal of this action. (Doc.1)

Pursuant to the Petition for Removal (Doc. 1), the matter was

removed on October 5, 1989. On October 12, 1989, the

plaintiffs! consented to the removal. (Doc.3)

In the Complaint (Doc.1), the plaintiffs state, “This is an

action for inverse condemnation and damages in excess of

$5,000.” (Complaint, Doc.1, para.1) Clearly from the Com-

plaint, the plaintiffs were requesting money damages and not

an invalidation of the zoning ordinance.

The question of whether the Reahards could have brought

this action in state court is a question of Florida law. Ac-

cording to the case of Lee County v. Morales, 557 So.2d 652,

656 (2nd DCA, 1990), ~

a zoning change cannot give rise to a cause of action

for inverse condemnantion. [Citations Omitted]

27a

Thus, even if the zoning ordinance were appropriately

found to be confiscatory, appellees would not be

entitled to a damage remedy. Where a zoning ordi-

nance is held confiscatory, the only remedy available

is to obtain a judicial determination that the ordinance

is unenforceable and must be stricken.

The case of Lee County v. Morales, was decided on Febuary

28, 1990 which is after the date, October 5, 1989, that the

Reahards’ case was removed to Federal Court and after the

plaintiffs consented to the removal on October 12, 1989. The

Eleventh Circuit case of Corn v. City of Lauderdale Lakes.

816 F.2d 1514 (11th Cir. 1987) contains a history of Florida

law regarding the lack of damage remedies in Florida for

inverse condemnation cases particularly involving zoning

changes. The Court in Corn states:

we conclude that Florida does not avail a property

Owner an action to recover just compensation through

inverse condemnation for injuries sustained as a result

of an unreasonable zoning ordinance later declared

invalid... As discussed above, the cited authorities are

persuasive that the remedy of invalidation is an exclu-

sive one pursuant to Florida law, because zoning is a

function of the police power rather than the exercise

of eminent domain.

Id. at 1519

Therefore, at the time of removal, the Reahards had no

remedy in State Court for inverse condemnation.2

ADMINISTRATIVE REMEDIES

According to the Order of Remand, pursuant to the case

of Williamson County Regional Comission v. Hamilton Bank,

28a

473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), the

Reahards must have exhausted their administrative remedies

prior to bringing this law suit.> Lee County raises three areas

in which they claim the Reahards have failed to exhaust their

administrative remedies, namely in the areas of vested rights,

equitable estoppel and failure to revuest a development order.

Vested Rights

Under Chapter XIV, Administrative Interpretations of the

1984 Lee Plan, Section B.(6) (Def. exh. 1A), it provides:

[VJested rights shall be deemed to exist where it is

clearly shown by the applicant that:

(a) The applicant has relied on an official affirmative

act or omission of a required act of Lee County,

within the scope of the County’s authority; and

(b) The applicant has acted in good faith and without

knowledge that existing or pending regulations might

prohibit or prevent the development expectations

claimed to be vested; and

detriment in reliance upon the County’s act or ap-

proval, and, such that it would be highly inequitable

and unjust to destroy the rights he or she has acquired.

(Pl. exh. 9A)

This provision also provides that the property owner must

have applied for a vested rights administrative determination

within six months from the effective date of the Plan. The

Lee Plan was enacted on December 21, 1984. The testimony

is undisputed that the Reahards failed to apply for a vested

rights determination under this provision of the act. (See,

Doc. 60, tr.trans. p. 194)

The first question the Court must consider is whether this

29a

Vested ee pn provision applied to the Reahards and their

property.” Under the Vested Rights Provision, the Reahards

must have relied on an official affirmative act or omission,

acted in good faith and acted to their substantial detriment in

reliance upon the County’s act or approval and “such reliance

would make it highly, inequitable and unjust to destroy the

rights” they required.

First, the County must have done an official affirmative

act or omission. Lee County’s expert, Dr. Gottschalk ap-

peared to have little knowledge of the actual property when

he testified that Lee County’s affirmative acts were to con-

tinue the issue of building permit in the Reahard’s subdivi-

sion. (Doc. 60, trtrans. p. 404). These building permits

were not done on the subject property which was zoned RPA

and the subject matter of the litigation, but rather on a larger

tract that the Reahards owned previously. Other than that

action by Lee County, Dr. Gottschalk mentioned no other

affirmative acts by Lee County other than zoning. Ms. Keyes

testified that she was aware of no affirmative acts done by

Lee County which would have allowed the Reahards to

prevail in an application for Vested Rights. (Doc. 60,

tr.trans. p. 194) Mr. Reahard testified that the reason that

development was stopped on the property was not that

governmental agencies would not give him a permit but

rather that his family ran out of money. (tr.trans. p.138)

Therefore, there was no testimony to support that the C ounty

had done any affirmative acts to the property under the vested

rights provision except for the changing of the zoning.

Assuming that the change of zoning was considered an

affirmative act. then the question becomes did the Reahards

act to their “substantial detriment” in reliance upon the

County’s act. The Reahards expended considerable amounts

of money on the larger tract when developing it. On the

Subject property, however, it appears that the Reahards put in

a partial road and a few other minor changes but did not

30a

expend a great deal of money on the property mainly because

Mrs. Reahard lacked the funds to improve the property.

According to plaintiff’s expert, Ms. Stephanie Keyes who is a

land use planner, “the vesting requirements were very strict

and related to the amount of money spent on a piece of

property and whether or not the county — I believe you had

vested rights or vested interest in the property in that you

expended considerable sums of money and relied on previous

approval of the County.” (Doc. 60, tr.trans. p. 165-66) Ms.

Keyes interpretation of the Lee County Plan is consistent

with the language of the plan in that the Reahards must have

relied to their “substantial detriment” under the Lee Plan.

Ms. Keyes further stated that it would have been futile for the

Reahards to apply under the Vested Rights provision as she

knew of other cases where the property owners “had zoning

on the property and had not expended large sums of money in

bringing forward construction plans and that type of thing,

and those application were denied. (Doc. 60, tr.trans. p. 194)

Lee County’s expert, Dr. Gottschalk testified that the

Reahards could have applied under the Vested Rights provi-

sion and that “their opportunity was the same as every other

property owner in the County.” (Doc. 60, tr.trans.379) Dr.

Gottschalk, however, had no opinion regarding whether the

Reahards would have prevailed on a vested rights applica-

tion. (doc. 60,m tr.trans. p. 382)

From the testimony of the experts, it is clear to the Court

that the Reahards had not expended sufficient money, nor

commenced sufficient development to have prevailed under

the Vested Rights provision of the statute had they applied.

The Supreme Court does not require that the plaintiffs apply

for administrative action that would be futile which would

have been true in this case. See, Eide v. Sarasota County,

895 F.2d 1326, (11th Cir. 1990).

31a

Equitable Estoppel

Chapter XIII, Procedures and Administration of the 1989

Lee Plan, (Gov. Exhibit 1(B) p.3) provides:

In other circumstances where development expecta-

tions may conflict with the Lee Plan but judicially

defined principles of equitable estoppel may override

the otherwise valid limitations imposed by the Lee

Plan, such expectations may be recognized by Lee

County, acting by resolution of its Board of County

Commisssioners, on a case-by-case basis.

The Plan sets forth no specific procedures to apply under the

“Equitable Estoppel” clause. Although both Lee County and

the Reahards articulate reasons why this provision is either

applicable or not to the Reahards’ property, these arguments

are moot in that the Reahards applied under this “Equitable

Estoppel” provision. (See, Pl. exh. 21). Although their

application was brief, the Lee Plan sets forth no application

process and the Court can only assume that the application

was valid. In addition, Lee County never responded to the

Reahards’ application either by denying it for lack of evi-

dence or by denying it on the merits. (tr. trans. p. 187)

Therefore, the Reahards exhausted their administrative

remedies under the “Equitable Estoppel” clause of the 1989

Lee Plan.

Development Order

Under both Florida Statutes and the Development Stan-

dards Ordinance, a development plan for property must be

consistent with the comprehensive plan of the county.>

According to the Lee Plan, the Reahards were restricted to

building one unit on their approximate 35 acres. (tr. trans. p.

32a

151) Therefore, to exhaust their administrative remedies, the

Reahards had to obtain an amendment to the Lee Plan to

develop more than one unit. (tr.trans. p. 159)

Section XIV of the Lee Plan provides for applications for

amendments to the Lee Plan for property owners that the Lee

Plan affects or affected. (Pl. exh. 1A) The Reahards did

apply for a Plan Amendment on January 27, 1988. (Pl. exh.

30). The Plan Amendment then went for a vote before the

Lee County Board of County Commisioners who denied the

Reahards’ request. (tr.trans. p.153) There is no other rem-

edy in which the Reahards could have changed the Lee Plan

property designation. (tr.trans. p. 158) In addition, the

Reahards obtained a Development Order that was consistent

with the Lee Plan and permitted them to construct one single

family dwelling on their property. (tr.trans p. 185) The Court

then concludes that since Lee County denied any amendment

other than one single family unit of the subject property, and

that the statutory law requires that any development be

consistent with the Lee Plan, that the Reahards have indeed

exhausted their administrative remedies for a Developmental

Order.

Therefore, it is hereby ORDERED:

1. That the plaintiffs have exhausted both their adminis-

trative and judicial remedies prior to filing this action.

2.That a taking of the subject property occurred when the

Lee County Comprehensive Plan was enacted causing a great

diminution in the plaintiffs’ investment-backed expectations.

DONE and ORDERED in Chambers, Fort Myers,

Florida, this 22nd day of April, 1993.

George T. Swartz

United States Magistrate Judge

33a

ENDNOTES

l Although, the plaintiff, Ann Reahard was added after the

Petition for Removal was filed (Doc.9), for ease this Court

will refer to both plaintiffs throughout as the addition of Ann

Reahard did not impact the issue of ripeness.

2The Florida Supreme Court in April of 1990, subse-

quently ruled that “the state must pay when it regulates

private property under its police power in such a manner that

the regulation effectively deprives the owner of the economi-

cally viable use of that property, thereby unfairly imposing

the burden of providing for the public welfare upon the

affected owner.” Joint Ventures, Inc. v. Department of Trans-

portation, 563 So.2d 622 (Fla. 1990). However, this

decision was subsequent to the removal in the case at bar.

In its Reply to Reahard’s Memorandum on Subject

Matter Jurisdiction (Doc. 129), Lee County argues that the

Supreme Court in the case of First English Evangelical

Lutheran Church of Glendale v. County of Los Angeles, 482

U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987), held that

the just compensation clause of the Fifth Amendment man-

dates that a state provide just compensation for confiscatory

zoning regulation. This decision was decided prior to ihe

instant case being removed to federal court. In the First

English case, however, the Supreme Court Clearly states,

“[W]e limit our holding to the facts presented, and of course

do not deal with the quite different questions that would arise

in the case of normal delays in obtaining building permits,

changes in zoning ordinances, variances, and the like which

are not before us.” Jd. at 321, 2389. Therefore, the holding

was limited to the facts in the First English case. In addition,

for all practical purposes, the Reahards could not have

brought the case in Florida Courts due to the ruling in Lee

34a

County v. Morales, 557 So.2d 652, 656 (2nd DCA, 1990).

3The Reahards did apply for a determination of error

which would permitted the County to re-examine the subject

property to determine if the RPA classification was wrong.

(tr.trans. p. 88, pl. exh. 12)) The County determined there

was no error in their classification. (tr.trans. p.89)

4 Although the plaintiffs allege that Lee County did not

raise the exhaustion of the vested nights provision in an

affirmative defense and have therefore waived it, the Court

must consider the merits of the vested nghts provision as it

applies to the plaintiffs. The question of exhaustion of

remedies lies within the parameters of subject matter jurisdic-

tion and the Eleventh Circuit stated that the question of

subject matter jurisdiction must be investigated whether or

not it is raised by the parties.

SDevelopment Standards Ordinance provides in part “in

no case may the density (of a parcel of property) exceed the

allowable density as set forth in the comprehensive plan or

the zoning ordinance.” Development Regulations (Doc. 53,

exh. 5).

Florida Statute §163.3194(1) (a) provides:

After a comprehensive plan, or element or

portion thereof, has been adopted in conformity

with this act, all development undertaken by,

and all actions taken in regard to development

orders by, governmental agencies in regard to land cov-

ered by such pan or element shall be consistent

with such plan or element as adopted.

35a

United States District Court

Middle District of Florida

Fort Myers Division

RICHARD REAHARD and

ANN P. REAHARD,

Plaintiffs,

VS.

LEE COUNTY, FLORIDA,

Defendent.

Case No. 89-227 Civ-FTM-10C

ORDER

THIS CAUSE being heard on the Motion of the Plaintiffs

to reinstate the Final Judgement, and the Court being fully

advised in the premises, and having received memoranda of

law from the parties, it is hereby

ORDERED AND ADJUDGED that the previous Final

Judgement of this Court dated June 6, 1991, a copy of which

is attached hereto, is hereby reinstated nunc pro tunc.

DONE AND ORDERED in Chambers at Fort Myers, Lee

County, Florida, this 3rd day of May, 1993.

GEORGE T. SWARTZ

U. S. Magistrate

36a

APPENDIX C

Richard REAHARD; Ann P. Reahard, Plaintiffs- Appellees,

LEE COUNTY, Defendant- Appellant.

REAHARD v. LEE CTY.

No. 91-3593.

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

978 F.2d 1212; 1992 U.S. App.

LEXIS 32107; 23 ELR 20369; 6

Fla. Law W. Fed. C 1371

December 8, 1992, Decided

PRIOR HISTORY: [**1] Appeal from the United States

District Court for the Middle District of Florida. Addendum

to Opinion Dated August 14, 1992, Reported at 1992 U.S.

App. LEXIS 18629. DISTRICT BANKRUPTCY COURT

DOCKET NO. 89-227-Civ-FTM-10C. D/C Judge SWARTZ

COUNSEL: For Plaintiffs- Appellees: Garvin & Tripp, P.A.,

Jeffrey Richard Garvin, Theodore L. Tripp, P.O. Drawer

2040, Ft. Myers, FL 33903, (813)334-1824.

For Defendant-Appellant: John J. Renner, Asst. Lee County

Attorney, P.O. Box 398, Fort Myers, FL 33902, (813)335-

2236. Robert N. Reynolds, Suite 1000, One Datran Center,

37a

9100 So. Blvd., Miami, FL 33156. Helena Schwartz, AG,

Jonathan A. Glogau, Special Projects Div., 111-36 South

Magnolia Drive, Tallahassee, FL 32301, (904)488-5899.

For AMICUS: of BROWARD COUNTY: Melissa P Ander-

son, Governmental Center, Suite 423, 115 So. Andrews Ave.,

Ft. Lauderdale, FL 33301, (305)357-7600. For 1000

Friends of Florida, Inc.): Gibson & Lilly, Robin Gibson, P.O.

Box 1199, Lake Wales, FL 33859. For RGMC and COTI:

Thomas W. Reese, 123 Eighth Street North, St. Petersburg,

FL 33701, (813)822-4084. For FLORIDA LEAGUE OF

CITIES: Harris Morrison, Jr., 201 W. Park Ave., Tallahassee,

FL 32302, 904-222-9684. For FLORIDA ASSOC. OF

COUNTIES & FLORIDA ASSOC. OF COUNTY ATTYS:

John J. Dingfelder, P.O. Box 1110, Tampa, FL 33601. For

National Assn. of Home Builders - Amicus for Appellee:

William H. Ethier, 15th & M. Streets, NW, Washington, DC

20005, 202/822-0359. For Florida Citrus Mutual - Amicus

for Appellee: Joseph J. Gleason, V-P Staff Legal Counsel,

P.O. Box 89, Lakeland, FL 33802, 813/682-1111. For South-

eastern Legal Foundation, Inc. - Amicus for Appellees: G.

Stephen Parker, President, Deborah A. Ausburn, The South-

eastern Legal Foundation, Inc., 2900 Chamblee-Tucker Road,

Building 4, Atlanta, GA 30341, 404/458-8313. For Florida

Dairy Farmers, Inc., Fla. Land Council, Fl. Farm Bureau

Federation & FL Cattlemen’s Association - Amicus for

Appellees, Hart, Fuller & Smith, PA, Marty Smith, P.O. Box

2120, Ocala, FL 32678, 904/732-9253. For Pacific Legal

Foundation - Amicus for Appellees: Robin L. Rivett, Pacific

Legal Foundation, 2700 Gateway Oaks Drive, Suite 200,

Sacramento, CA 95833-3501, 916/641-8888. For Defenders

of Property Rights - Amicus for Appellees: Leonard A. Leo,

Nancie G. Marzulla, Defenders of Property Rights, 6235 33rd

St., NW Washington, DC 20015, 202/686-4197.

38a

JUDGES: Before FAY and BIRCH, Circuit Judges, and

DYER, Senior Circuit Judge.

OPINIONBY: FAY

OPINION: [*1213] FAY, Circuit Judge:

The original opinion in this case is published at 968 F.2d

1131 (11th Cir. 1992). However, upon further review of this

matter, the court is concerned about the question of subject

matter jurisdiction. We are aware that the United States

magistrate judge denied Lee County’s motion to dismiss for

lack of ripeness, and the parties did not raise the issue on

appeal. However, ripeness is a question of subject matter

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

1570, 1573 n. 7 (11th Cir.1989). We always must investigate

questions of subject matter jurisdiction, whether or not they

are raised by the parties to the case. Fitzgerald v. Seaboard

System R.R., 760 F.2d 1249, 1251 (11th Cir.1985).

Therefore, we supplement our original opinion to instruct

the magistrate judge to revisit the question of ripeness on

remand and determine [**2] whether the district court has

jurisdiction over this matter. We recognize that in this case,

the question of subject matter jurisdiction is quite fact

specific. There is some question regarding the Reahards’

efforts to secure appropriate administrative remedies. This

was touched upon but not developed. Moreover, there is

nothing in the record regarding the judicial remedies avail-

able in Florida state courts, or the Reahards’ pursuit of those

remedies. Assuming that these claims could be satisfied

through adequate state judicial procedures, the Reahards have

not stated a ripe federal claim under Williamson County

Regional Planning Commission v. Hamilton Bank, 473 U.S.

172, 105 S. Ct. 3108, 87 L. Ed. 2d 126 (1985), and there is no

subject matter jurisdiction.

We instruct the magistrate judge, on remand, to develop

39a

these factual issues fully, make relevant factual findings, and

determine [*1214] whether the district court has jurisdic-

tion over this matter.

40a

APPENDIX D

Richard REAHARD; Ann P. Reahard,

Plaintiffs- Appellees,

LEE COUNTY, Defendant- Appellant.

REAHARD v. LEE CTY.

No. 91-3593.

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

968 F.2d 1131; 1992 U.S. App.

LEXIS 18629; 22 ELR 21455; 6

Fla. Law W. Fed. C 991

August 14, 1992, Decided

SUBSEQUENT HISTORY: Addendum Opinion of Decem-

ber 8, 1992, Reported at 1992 U.S. App. LEXIS 32107.

PRIOR HISTORY: [**1] Appeal from the United States

District Court for the Middle District of Florida. DISTRICT/

BANKRUPTCY COURT DOCKET NO.

89-227-Civ-FTM-10C 10-5-89. D/C Judge SWARTZ

DISPOSITION: We VACATE the judgment and REMAND

this case for new proceedings consistent with this opinion.

4la

COUNSEL: For Defendant-Appellant: John J. Renner, Asst.

Lee County Attorney, P.O. Box 398, Fort Myers, FL 33902,

(813) 335-2236. Robert N. Reynolds, Suite 1000, One

Datran Center, 9100 So. Blvd., Miami, FL 33156. Helena

Schwartz, AG, Jonathan A. Glogau, Special Projects Div.,

111-36 South Magnolia Drive, Tallahassee, FL 32301, (904)

488-5899.

For AMICUS of BROWARD COUNTY: Melissa P. Ander-

son, Governmental Center, Suite 423, 115 So. Andrews Ave.,

Ft. Lauderdale, FL 33301, (305) 357-7600. For 1000 Friends

of Florida, Inc.: Gibson & Lilly, Robin Gibson, P.O. Box

1199, Lake Wales, FL 33859. For RGMC and COTI: Thomas

W. Reese, 123 Eighth Street North, St. Petersburg, FL 33701,

(813) 822-4084. For Florida Association of Counties and

Florida Association of County Attorneys: John J. Dingfelder,

P.O. Box 1110, Tampa, FL 33601. For National Assn. of

Home Builders - Amicus for Appellee: William H. Ethier,

15th & M Streets, NW, Washington, DC 20005, 202/822-

0359. For Florida Citrus Mutual - Amicus for Appellee:

Joseph J. Gleason, V-P, Staff Legal Counsel, P.O. Box 89,

Lakeland, FL 33802, 813/682-1111. For Southeastern

Legal Foundation, Inc. - Amicus for Appellees: G. Stephen

Parker, President, Deborah A. Ausbum, The Southeastern

Legal Foundation, Inc., 2900 Chamblee-Tucker Road, Build-

ing 4, Atlanta, GA 30341, 404/458-8313. For Florida

Dairy Farmers, Inc., Fla. Land Councuil, Fl. Farm Bureau

Federation & FL Cattlemen's Association - Amicus for

Appellees: Hart, Fuller & Smith, PA, Marty Smith, P.O. Box

2120, Ocala, FL 32678, 904/732-9253. For Pacific Legal

Foundation - Amicus for Appellees: Robin L. Rivett, Pacific

Legal Fondation, 2700 Gateway Oaks Drive, Suite 200,

Sacramento, CA 95833-3501, 916/641-8888. For Defenders

of Property Rights - Amicus for Appellees: Leonard A. Leo,

Nancie G. Marzulla, Defenders of Property Rights, 6235 33rd

42a

St., NW, Washington, DC 20015, 202/686-4197. For Plain-

tiffs- Appellees: Garvin & Tripp, P.A., Jeffrey Richard

Garvin, Theodore L. Tripp, P.O. Drawer 2040, Ft. Myers, FL

33903, (813) 334-1824.

JUDGES: Before FAY and BIRCH, Circuit Judges, and

DYER, Senior Circuit Judge.

OPINIONBY: FAY

OPINION: [*1132]

FAY, Circuit Judge:

Appellant Lee County, a political subdivision of the State

of Florida, appeals a magistrate judge’s order finding that the

adoption of the Lee County Comprehensive Land Use Plan

resulted in a taking of Appellees Richard and Ann Reahard’s

property under the Fifth and Fourteenth Amendments to the

United States Constitution. Because the magistrate judge

misapplied the legal standard for partial takings and failed to

make adequate factual findings, we VACATE the order and

REMAND for new proceedings consistent with this opinion.

[*1133]

1. BACKGROUND

This case concerns roughly forty acres of waterfront land

located in Lee County, Florida, with direct river access to the

Gulf of Mexico. These forty acres were once part of a larger

parcel of approximately 540 acres that were purchased in

1944 by the parents of the plaintiff, Richard Reahard.

Through the mid-1970’s, the Reahard family subdivided,

developed, and sold tracts of the 540 acre parcel, retaining

the approximately forty acres at issue. Richard Reahard,

43a

who inherited [ **2] the site in November of 1984, sought

to continue development of the site as a single-family subdi-

vision. In December of 1984, however, the Lee County

Comprehensive Land Use Plan (“Lee Plan”) went into

effect and classified the Reahard’s property as a Resource

Protection Area (“R.P.A.”). This designation limited develop-

ment of the parcel to a single residence, or for uses of a

“recreational, open Space, or Conservation nature.” (P].Ex. 9-

A).

On September 1, 1989, Reahard nl filed a complaint in

the Twentieth Judicial Circuit Court of the State of Florida

alleging that Lee County’s designation of his property as an

R.P.A. in the Lee Plan was a valid exercise of Lee County’s

police power but constituted a taking under sections

163.3194(4)(b) and 380.08 of the Florida Statutes, under

Article X, Section 6 of the Florida Constitution, and under

the Fifth and Fourteenth Amendments to the United States

Constitution. Lee County answered the complaint and affir-

matively alleged that Reahard failed to exhaust administra-

tive remedies, that the claim was not ripe for adjudication,

and that the claim was barred by the statute of limitations.

Following the filing of a petition for removal by Lee f°" 3}

County, the case was removed from state court to federal

court.

nl Richard Reahard’s wife, Ann Reahard. was added asa

party after the filing

of this action.

The parties agreed to have the matter heard before a

United States magistrate judge. n2 The issues of liability and

damages were bifurcated. The non-jury trial on liability, or on

44a

whether a taking had occurred, began on November 26,

1990 and concluded on November 28, 1990.

n2 Parties may consent to have a United States magistrate

judge “conduct any or all proceedings in a jury or non-jury

civil matter and order the entry of judgment in the case, when

specially designated to exercise such jurisdiction by

the district court or courts he serves,” pursuant to 28 U.S.C.

@ 636(c)(1).

During the trial numerous witnesses were called, includ-

ing Richard Reahard, representatives of Lee County, the

Florida Department [**4] of Environmental Regulation

(“DER”), and the Army Corps of Engineers, land use plan-

ners and consultants, and property appraisers. Evidence was

introduced concerning the initial title acquisition of the

subject property, e.g., (R16:60, 95-96), the property’s history

of subdivision, sale, and development, e.g., (R10:96-98, 117,

120-23), the record of permitting, e.g., (R10:82, 102, 125-26;

Pl.Ex. 17, 22), how and when Reahard inherited the land,

e.g., (R10:60, 82), the topography and extent of the property,

e.g., (R10:65-67), the site’s history of zoning and regulation,

e.g., (PILEx. 9-A; Def.Ex. 1-A), value appraisals after the

enactment of the Lee Plan, e.g., (R11:274), development of

similarly designated “wetland” areas, (R11:215-16), and the

Reahard’s investment expectations, e.g., (R10:87).

Much of this evidence was in dispute n3 and nearly all of

it relevant to whether a taking had occurred. Despite the

complexity of the evidence, however, the magistrate judge, in

an order issued on January 16, 1991, limited his factual

findings to the following:

45a

n3 For example, the parties disputed whether DER would

have issued permits for development, the extent to which the

R.P.A. classification affected the reasonable economic use of

the land, and the value of the property after the enactment of

the Lee Plan.

1. No cause of action arose in the case until January 31,

1989, when Lee County finally denied Plaintiff’s application

for plan amendment, and therefore, the four year Statute of

Limitations did not begin running until that date.

[*1134]

2. There was no vesting of any property nghts due to any

official affirmative act or omission on the part of Defendant,

Lee County, or its agents, such as would have entitied Plain-

tiffs to exemption from the Operation of the Lee County

Comprehensive Land Use Plan, hereinafter referred to as the

“Lee Plan.” Because there was no official affirmative acts or

omissions on the part of Lee County, any application under

the vested rights provision of the Lee Plan would have been

futile.

3. Plaintiffs have filed an application for amendment to

the Lee Plan, an application for administrative determination

of error, and an application under the minimum use or single

family residence provision of the Lee Plan and. as a result,

have exhausted all administrative remedies.

4. Defendant, Lee County, upon application by the Plain-

tiffs, has entered a development order permitting the Plain-

tiffs to place one (1) single family unit on the approximately

46a

40-acre tract which is [**6] the subject of this litigation.

Development of some of the property could have occurred

were it not for the enactment of the Lee Plan and subsequent

development order.

5. As a result of the adoption of the Lee Plan, there was a

substantial deprivation of the value of Plaintiffs’ property

resulting in a taking of Plaintiffs’ property with the loss of

use to Plaintiffs dating back to the effective date of the

County’s adoption of the Lee Plan on December 21, 1984.

(R5:56-1-3).

Immediately after entry of these findings, Lee County

appealed directly to this court. n4 The appeal was dismissed

as premature pending determination of damages, which

subsequently went to trial before a jury on May 7, 1991. Two

weeks later, on May 21, 1991, the jury returned a verdict in

favor of the Reahards for $ 700,000, plus interest at 6.07%

accrued from December 21, 1984. The final judgment was

amended on June 6, 1991 to award interest at 12% and to

require the Reahards to execute and deliver to Lee County a

fee simple deed conveying their interest in the subject prop-

erty to Lee County.

n4 Under 18 U.S.C. @ 636(c)(3), “an aggrieved party may

appeal directly to the appropriate United States court of

appeals from the judgment of the magistrate in the same

manner as an appeal from any other judgment of a district

”

47a

Lee County once again appealed directly to this court. We

issued an order advising the parties that we would await the

Supreme Court’s review of Lucas v. South Carolina Coastal

Council, 304 S.C. 376, 404 S.E.2d 895, cert. granted, U.S.

» 112 S. Ct. 436, 116 L. Ed. 2d 455 (1991), before

deciding this appeal. As the Supreme Court has recently ruled

in Lucas v. South Carolina Coastal Council, U.S. —.,

112 S. Ct. 2886, L. Ed. 2d (1992), reversing, 304

S.C. 376, 404 S.E.2d 895 (1991), we address the present

appeal. n5

n5 Although we awaited the release of Lucas, the Court left

open how the categorical takings rule set forth in its opinion

applies to situations in which a part of a landowner’s prop-

erty is rendered unusable by a regulation. See U.S. at ——

n. 8, 112 S. Ct. at 2895 n. 8 (“Such an owner [whose land

diminishes in value by 95%] might not be able to claim the

benefit of our categorical formulation, but, as we have ac-

knowledged time and again, ‘the economic impact of the

regulation on the claimant and ... the extent to which

the regulation has interfered with distinct investment-backed

expectations’ are keenly relevant to takings analysis gener-

ally. It is true that in at least some cases the landowner with

95% loss will get nothing, while the landowner with total loss

will recover in full.” (quoting Penn Central Transp. Co. v.

New York City, 438 U.S. 104, 124, 98 S. Ct. 2646, 2659, 57

L. Ed. 2d 631 (1978)).

II. DISCUSSION

The magistrate judge’s order of January 16, 1991 cannot

48a

stand because it misapplies the legal standard regarding

partial takings and wholly fails to set forward factual findings

necessary to support a decision that a taking has occurred.

Recently, in Eide v. Sarasota County, 908 F.2d 716 (11th

Cir.1990), cert. denied, U-S. , 111 S. Ct. 1073, 112 L.

Ed. 2d 1179 (1991), we identified four types of taking chal-

lenges that aland owner [*1135] may bring: (1) just

compensation claims; (2) due process takings claims; (3)

arbitrary and capricious due process claims; and (4) equal

protection claims. Id. at 720. This challenge falls within the

first category: a claim for just compensation. In Eide, we

noted that a just compensation claim, as opposed to the other

types of claims, does not seek “an invalidation of the local

authority’s application of the regulation,” id. at 721, but

simply monetary compensation for the value taken. In his

complaint, Reahard conceded that “the action of Lee County

in classifying Plaintiff’s land as Resource Protection Area is a

valid exercise of the [**9] police power of Lee County.” n6

(R1:1 “Complaint and Demand for Jury Trial” at 3). He

asserts, however, that the R.P.A. designation sufficiently

interfered with his reasonable investment-backed expecta-

tions that monetary compensation is warranted.

n6 The Reahards now argue that “there is no evidence that

the proposed development of this property by Mr. and Mrs.

Reahard would cause any substantial harm [sic] the public,

generally, or the environment, in specific,” Brief for .

Appellees at 15, thus raising the factual issue of whether the

R.P.A.’s application substantially advanced legitimate state

interests. We will not consider this issue as it is raised for the

first time on appeal. Pierre v. United States, 525 F.2d 933,

936 (Sth Cir. 1976).

49a

The question inherent in a “Just compensation” claim is

whether the regulation g0€s so far as to be a taking. n7 See

Pennsylvania Coal Co. y, Mahon, 260 U.S. 393, 415, 43S.

Ct. 158, 160, 67, 67 L. Ed. 322 L. Ed. 322 (1922) (“The

general [**10] rule at least is, that while property may be

regulated to a certain extent, if regulation goes too far it will

be recognized as a taking.”). Admittedly, there has been

much confusion as to when a regulation goes too far in a

partial takings case. In Penn Central Transp. Co. v. New York

City, 438 U.S. 104, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1978 ),

the Supreme Court recognized that it has been “unable to

develop any ‘set formula’ for determining when ‘justice and

fairness’ require that ecoromic injuries caused by public

action be compensated by the government, rather than remain

disproportionately concentrated on a few persons.” /d. at 124.

98 S. Ct. at 2659. Instead, the Court held that takings deci-

sions depend largely upon the particular circumstances in

each case and that each case is to be decided on an ad hoc.

factual basis. Jd.

n7 The threshold question, of course, is whether the just

compensation claim is ripe for review. As we made clear in

Eide,

in order for such a claim to be ripe for adjudication,

the landowner must overcome two hurdles: the final

decision hurdle and the just compensation hurdle. The

landowner must obtain a final decision regarding the

application of the zoning ordinance or regulation to

his or her property and utilize state procedures which

provide for obtaining just compensation. The final

decision requirement includes a requirement that the

Property owner seek variances from the applicable

50a

regulations. The reason for the final decision require-

ment is that one of the factors significant to the

adjudication of a just compensation claim is “the

economic impact of the challenged action and the

extent to which it interferes with reasonable invest-

ment-backed expectations.” This impact and interfer-

ence cannot be ascertained until the local authority

has determined the nature and extent of the develop-

ment that will be permitted. In addition to the final

decision requirement, a Fifth Amendment just com-

pensation claim is not ripe until the landowner has

pursued the available state procedures to obtain

just compensation.

908 F.2d at 720-21 (citations omitted).

Here, the magistrate judge found that the Reahards ex-

hausted all administrative remedies prior to their just com-

pensation claim. (R5:56 at 2).

[**11]

The ad hoc inquiry requires no more than an application

of the law to the peculiar facts. In Nollan v. California

Coastal Comm’n, 483 U.S. 825, 107 S. Ct. 3141, 97 L. Ed.

2d 677 (1987), the Supreme Court restated two tests to be

used in analyzing takings claims. The first test is whether a

particular regulation substantially advances a legitimate state

interest. 483 U.S. at 834, 107 S. Ct. at 3147; Agins v. City of

Tiburon, 447 U.S. 255, 260, 100 S. Ct. 2138, 2141, 65

L. Ed. 2d 106 (1980). If the regulation does not substantially

advance a legitimate state interest, it can be declared invalid.

The second test is whether a regulation denies an owner

economically viable use of his property. 483 U.S. at 834, 107

S. Ct. at 3147; 447 US. at 260, 100 [*1136] S.Ct. at

Sla

2141. In Nollan, the Court found that the California Coastal

Commission’s imposition of an access-easement condition

failed the first test and thus violated the takings clause. 483

U.S. at 835-39, 107 S. Ct. at 3147-50. [**12] The Court did

not reach the second test.

Here, the first test set forth in Nollan is bypassed because

a claim for “just compensation” (the first type of claim

identified in Eide) necessarily involves a regulation that

substantially advances a legitimate government interest. Just

compensation claims admit and assume that the subject

regulation substantially advances a legitimate government

interest; the validity of the regulation is not at issue. Thus,

given no claim that state common law would permit particu-

lar use restrictions without compensation, the only issue in

just compensation claims is whether an owner has been

denied all or substantially all economically viable use of his

property. See Eide, 922 F.2d at 721; see also Ruckelshaus v.

Monsanto Co., 467 U.S. 986, 1005, 104 S. Ct. 2862, 2874, 81

L. Ed. 2d 815 (1984) (recognizing that governmental action

“so complete as to deprive the owner of all or most of his

interest” can amount to a taking) (quoting United States v.

General Motors Corp., 323 U.S. 373, 378, 65 S. Ct. 357, 359,

89, 89 L. Ed. 311 L. Ed. 311 (1945)).

In order to resolve [**13] the question of whether the

landowner has been denied all or substantially all economi-

cally viable use of his property, the factfinder must analyze,

at the very least: (1) the economic impact of the regulation on

the claimant; and (2) the extent to which the regulation has

interfered with investment-backed expectations. Bowen v.

Gilliard, 483 U.S. 587, 606, 107 S. Ct. 3008, 3019, 97 L. Ed.

2d 485 (1986); Hodel v. Irving, 481 U.S. 704, 713-14, 107 S.

Ct. 2076, 2081-82, 95 L. Ed. 2d 668 (1986); Keystone Bitu-

minous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 516, 107

S. Ct. 1232, 1258, 94 L. Ed. 2d 472 (1986); MacDonald,

Sommer & Frates v. County of Yolo, 477 U.S. 340, 348-49,

52a

106 S. Ct. 2561, 2565-66, 91 L. Ed. 2d 285 (1986); Loretto v.

Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426,

102 S. Ct. 3164, 3171, 73 L. Ed. 2d 868 (1981); Kaiser Aetna

v. United States, 444 U.S. 164, 174-75, 100 S. Ct. 383, 389-

390, 62 L. Ed. 2d 332 (1979); Penn Central, 438 U.S. at 124,

98 S. Ct. at 2659; [**14] see Baytree of Inverrary Realty

Partners v. City of Lauderhill, 873 F.2d 1407, 1410 (11th

Cir. 1989). This analysis must be explored in light of develop-

ing case law that has shaped and defined the meaning of

these factors.

In the instant case, the magistrate judge, serving as

factfinder, n8 did not analyze the factors noted above, nor did

he set forth factual findings necessary for such an analysis. In

this context, a proper takings analysis would address a num-

ber of questions. In this case, those questions are: (1) the

history of the property — when was it purchased? How much

land was purchased? Where was the land located? What was

the nature of title? What was the composition of the land and

how was it initially used?; (2) the history of development —

what was built on the property and by whom? How was it

subdivided and to whom was it sold? What plats were filed?

What roads were dedicated?; (3) the history of zoning and

regulation — how and when was the land classified? How

was use proscribed? What changes in classifications oc-

curred?; (4) how did development change when title passed?;

(5) what is the present nature and extent of the property?; (6)

what were [**15] the reasonable expectations of the land-

owner under state common law?; (7) what were the reason-

able expectations of the neighboring landowners under state

common law?; and (8) perhaps most importantly, what was

the diminution in the investment-backed expectations of the

landowner, if any, after passage of the regulation? Once such

facts are determined, an application of these facts under the

Penn Central multifactor inquiry would follow. Here, the

magistrate judge simply concluded, without any findings or

53a

analysis, that “as a result of the adoption of the Lee Plan,

there was a substantial [*1137] deprivation of the value of

Plaintiffs’ property resulting in a taking.” (R5:56 at 2).

n8 We note, of course, that had this matter been before a

jury, the relevant inquiry would have concerned whether the

instructions properly charged the jury.

Given the lack of both factual findings and a takings analy-

sis in accord with case precedent, we VACATE the judgment

and REMAND this case for new proceedings consistent with

this opinion. [**16] n9

n9 During the pendency of this appeal, Lee County filed a

motion to dismiss based upon mootness noting that it had

filed a condemnation case in state court. Our inquiry resulted

in being advised that the condemnation case was “pending.”

We suggest that the magistrate judge make appropriate

inquiry regarding such litigation. If such an action has been

completed, this case would be moot.

54a

APPENDIX E

United States District Court

MIDDLE DISTRICT OF FLORIDA

AMENDED JUDGEMENT IN ACIVIL CASE

RICHARD REAHARD and ANN REAHARD

LEE COUNTY, a political

subdivision of the State of Florida

CASE NUMBER: 89-227-CIV-FTM-10(C)

X Jury Verdict. This action came before the Court for a

trial by jury: The issues have been tried and the jury has

rendered its verdict.

__ Decision by Court. This action came to trial or hearing

before the Court. The issues have been tried or heard and a

decision has been rendered.

IT IS ORDERED AND ADJUDGED the amount to be

paid by the defendant, LEE COUNTY, to the plaintiffs,

RICHARD REAHARD and ANN REAHARD, as full com-

pensation for the property taken is $700,000.00 plus interest

accrued from 12/21/84 until 5/13/91, at the rate of 12%.

Plaintiffs, upon tender of the amount of this judgement shall

execute and deliver to Defendant, LEE COUNTY, a fee

55a

simple deed conveying their interest in the subject property to

the Defendant.

June 6, 199]

DAVID L. EDWARDS

Clerk

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.