# Petition for Writ of Certiorari — Reahard v. Lee County > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1350%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1995 - **Citation:** 514 U.S. 1064 ## Text CH) Fired 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 i 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? ii 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 oo 8th Begs OF 6g y 6. a errrerenreserrr res ii EE Dnceseiaceveseneevsosncsescnssevsveveseenaceroenenvees iil pr 6 FS ip 61) | een iV 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 iV 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 Vv 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 vi 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 ix 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 X 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 Xl 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. 2 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 A. 2. The decision of the magistrate judge on remand, dated April 22, 1993 but unpublished, is reproduced in Appendix B. 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 E. 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 3 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 4 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 5 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.”). 6 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 7 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). 8 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. 9 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 10 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 1] 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 12 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 i 13 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 14 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 15 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 16 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 ‘ 17 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 18 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. 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 (c) The applicant has acted to his or her substantial 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, V. 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, Vv 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 V. 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1350%3A1. Public record. Not legal advice.