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

Supreme Court, U.S.

FILED

97.293 AUG 1-5 1997,

Neer i6e_ OF THE CLERK ;

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

HERMAN CORN, Trustee

Petitioner,

Vv.

CITY OF LAUDERDALE LAKES, et al.

Respondents.

On Petition For Writ of Certiorari

To The United States Court of Appeals

For the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

ANDREW T. LAVIN

Counsel of Record

ROMANIK LAVIN HUSS & PAOLI

1901 Harrison Street

Hollywood, Florida 33020

(954) 922-4656

Attorneys for Petitioner

-i-

QUESTIONS PRESENTED

ie Does a landowner have a constitutionally

protected property interest in a vested right to build a

specific project on land, which pursuant to state law the city

is estopped from thwarting, so that the landowner is entitled

to just compensation pursuant to the Fifth Amendment for

the city’s confiscation of his vested right?

2(a). Does a landowner who has vested rights to

develop a specific project suffer the loss of all use of his

land during the pendency of state litigation through which

the landowner establishes his vested rights and the city’s

obligation to approve the project?

2(b). Even if the land can be developed for alternate

uses, must the landowner develop his land for any such use

during the pendency of the state litigation and thereby moot

his state claim, abandon his vested right and forfeit his

constitutional right to obtain just compensation for the

confiscation of his project?

3(a). Does a city commit a compensable taking of

property pursuant to the Fifth Amendment when it

wrongfully prevents development of land through invalid

regulation comprised of the enforcement of invalid

ordinances and the administrative rejection of a site plan it

lacks discretion to deny, since the city’s invalid action can

never substantially advance any legitimate state interest?

3(b). Does the rough proportionality analysis of

Dolan v. City of Tigard, 512 U.S. 374 (1994), apply to a

city’s administrative exaction of a landowner’s

constitutionally protected vested right to build a specific

project as a condition to the landowner’s development of his

land?

Ee

=Te

PARTIES TO THE PROCEEDING

Plaintiff, Appellant and Petitioner is Herman Corn,

Trustee ("Corn").

Defendants and Respondents are the City of

Lauderdale Lakes, a Florida municipal corporation (the

"City"), Howard Craft ("Mayor"), Alfonso Gereffi, Jerome

J. Cohan, Morris Klein, Lyman L. Allen, Louis Greenwald

and Harry Kaufman (collectively the "City Councilmen").

-iii-

TABLE OF CONTENTS

Page

eG i

PARIiCo 10 The PROCEEDING ............. li

os Ps vi

TABLE OF CITED AUTHORITIES ............ Vill

SPO 8 tt ee ee we ]

eS. yg es po 6 4 os 9 0 ea oe 8s 2

CONSTITUTIONAL AND STATUTORY PROVISIONS 3

STATEMENT OF THE CASE ................ 4

Ge vs ko pe ces se es we 4

B. Pre-Litigation Background................. 5

C. The State Court Litigation - Corn Has

Vested Rights in the Project and the

City Must Approve the Site Plan. ............ 8

D. Hederal Court Litigation .................. 10

REASONS WHY THE WRIT SHOULD ISSUE ..... 13

A. Corn's Vested Right to Build the Project

Was a Constitutionally Protected Property

Interest Which Was Confiscated for Which

past Compensation 16 Due.................. 13

-ive

1. This Court Has Identified,

Without Resolving, the Issue

of What Property Interests

in Realty are Protected by

Gi aD IG a os ows em OK nw Sv ws 14

2. Florida Law Creates a Constitutionally

Protected Property Interest in Vested

0 ee re eee eS are ere a 15

3. The Eleventh Circuit Recognizes that

Vested Rights are Constitutionally

Protected Property Interests Under

PRN Ee Vee ek een a cee 18

4. Recognizing Vested Rights as

Constitutionally Protected Property

Interests is Consistent with Supreme

Court Takings Jurisprudence ............ 19

5. Corn IV Failed to Protect Corn's

ee ee ee 21

The Confiscation of Corn's Constitutionally

Protected Property Interest in the Project

Effected a Taking of the Property Throughout

the Pendency of the State Court Litigation ...... 22

Corn Established That the City's Actions

Failed to Substantially Advance Any

Fo ee 25

aan

-Ve-

1. The City's Enforcement of Invalid

Ordinances and Wrongful Rejection

of the Site Plan Was an Abuse of

Power Which Could Not Advance

Any Legitimate State Interest ............ 25

2. The Dolan Rough Proportionality

Standard Applies and Was Not Met

2 a ree 2a reer ae 27

CAA <a Se eee ee 5 2 ee See 30

-vi-

LIST OF APPENDICES

APPENDIX A

OPINION, U.S. COURT OF APPEALS

ELEVENTH CIRCUIT, DATED SEPTEMBER

23, 1996

AND

PETITION FOR REHEARING DENIED,

Pana meres 20, 1997... ww ee es Al1-A23

APPENDIX B

FINAL JUDGMENT, FINDINGS OF FACT

AND CONCLUSIONS OF LAW UPON

REMAND, U.S. DISTRICT COURT,

S.D. FLORIDA, DATED JUNE 13, 1994 .. B1-B19

APPENDIX C

OPINION, U.S. COURT OF APPEALS

ELEVENTH CIRCUIT, DATED AUGUST

13, 1993

AND

PETITION FOR REHEARING DENIED,

FILED GCTOBER 14, 1993 ........... C1-C60

APPENDIX D

FINDINGS OF FACT AND CONCLUSIONS OF

LAW, UNITED STATES DISTRICT COURT,

S.D. FLORIDA, DATED

oo) D1-D49

APPENDIX E

ORDER AWARDING ATTORNEYS' FEES

AND COSTS, U.S. DISTRICT COURT,

S.D. FLORIDA, DATED MAY 20, 1992 .. EI1-E16

APPENDIX F

DECISION, DISTRICT COURT OF

APPEAL OF FLORIDA, DATED

PEmmnwARY 16,1963 ......7....066% F1-F11

APPENDIX G

CORN V. CITY OF LAUDERDALE

LAKES, CASE NO. 77-12955,

BROWARD COUNTY CIRCUIT COURT,

FINAL JUDGMENT DATED OCTOBER

LE eas ee eae OL eee oe G1-G18

APPENDIX H

~~

ORDERS, CIRCUIT COURT IN AND

FOR BROWARD COUNTY, FLORIDA

DATED JANUARY 28, 1970 AND

EE eda ca 6 ea ek we dees H1-H6

APPENDIX I

CITY OF LAUDERDALE LAKES

ORDINANCES NOS. 103, 104,

ee A | 11-128

-viii-

TABLE OF CITED AUTHORITIES

Cases Pages

AA Profiles v. City of Fort Lauderdale,

850 F.2d 1483, 1488 (11th Cir. 1988),

cert. denied, 490 U.S. 1020 (1989) ........... 18

Allen v. McCurry,

er ah, Se I a OES ee ee ee 5,27

Babbit v. Toupee,

SEY OA: Fels CoO ee COU ob oc ee eee ees 20

Board of Regents v. Roth,

Oe Whe, SPE i viv ee eee cee 16

Central and Southern Florida Flood

Control District v. Duquis,

162 So.2d 289, 291 (Fla. 3d DCA 1964) ....... 23

Corn v. City of Lauderdale Lakes,

371 So.2d 1111 (Fla. 4th DCA 1975) ......... 2

Corn v. City of Lauderdale Lakes,

GD BOie Cs POE 6 het eee ees 1

Corn v. City of Lauderdale Lakes,

427 So.2d 239 (Fla. 4th DCA 1983)

wg?) Pee 2,6,7,8,9,16,26,28

Corn v. City of Lauderdale Lakes,

816 F.2d 1514 (11th Cir. 1987)

CORE gcc ere ee ace Ra a eee l

|

eesti

-ix-

Cases Pages

Corn v. City of Lauderdale Lakes,

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

eg a i es ee oer an har arr 1

Corn v. City of Lauderdale Lakes,

3 F.3d 442 (11th Cir. 1993)

("Corn IIT") .... 1,2,7,8,9,11,12,13,16,25,26,27,30

Corn v. City of Lauderdale Lakes,

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

cert. denied, 511 U.S. 1018 (1994)

‘ie? Fs a) eee 1,2,5,6,12,13,16,21,22,30

Corn v. City of Lauderdale Lakes,

So F.a0 1060 (11 Cir. 1996) ..... 2... 20a 1

Dolan v. City of Tigard,

512 U.S. 374, 383 (1994) ...... 19,24,26,27,28,29

First English Evangelical Lutheran

Church v. Los Angeles County,

462 U.S. O64, S17 (1967) 2. ce 24

Glisson v. Alachua County,

558 So.2d 1030, 1037 (Fla. lst DCA 1990) ..... 23

Hernando County Board of Commissioners

v. S.A. Williams Corporation,

630 So.2d 1155, 1156 (Fla. 5th

oe eR On ae re 17,26

Cases Pages

Cases __ ; ithe Pages-

Hollywood Beach Hotel v. City of Hollywood,

329 So.2d 10, 15-16 (Fla. 1976) ........ 17,18,20

Kremer v. Chemical Constr. Corp.,

OD WB. SOR, Gi Gee 6 in vc ec cccensss 26

Landgraf v. USI Film Products,

Dil U.S. BOG, BOO CGPS) . www cee 21

Loretto v. Teleprompter Manhattan CATV Corp.,

i er rere ee eee 20

Louisville Joint Stock Land Bank v. Radford,

y. - Bis Ge. ee as, 20

Lucas v. South Carolina Coastal Council,

505 U.S. 1003, 1016, 1030 (1992) ...... 14,16,18

Mercer v. Theriot,

Bae Ge es Ce ee se ak ex 25

Nollan v. California Coastal Commission,

gle Re 2h. : ) ner 19,20,25

Pennsylvania Coal Company v. Mahon,

ee So os Ra ee ls ee we Oe 19

Reserve Ltd. v. Town of Long Boat Key,

17 F.3d 1374, 1380 (11th Cir. 1994),

cert. denied, 115 S.Ct. 729 (1995) ........... 18

a — A ee -_-_ eee

Cases

Ruckelshaus v. Monsanto Company,

467 U.S. 1001 (1984) ...............

Sakolsky v. City of Coral Gables,

151 So.2d 433, 436 (Fla. 1963) ........

Spence v. Zimmerman,

873 F.2d 256, 257-58 (11th Cir. 1989) ...

Texaco v. Short,

Oe a + ee

The Florida Companies v. Orange County,

411 So.2d 1008, 1011 (Sth Cir. DCA 1982)

Town of Largo v. Imperial Homes Corporation,

309 So.2d 571, 573 (Fla. 2d DCA 1975) ..

United States v. General Motors Corp..,

323 U.S. 359, 378 (1945) ............

Wheeler v. City of Pleasant Grove,

896 F.2d 1347, 1351 (11th Cir. 1990) ....

Williamson County Planning Commission

v. Hamilton Bank,

OTS Ui. EFa, TPE CEPR) 6 ok ce cee

17,18,21

-xii-

7 Constitution _ 7 —_

United States Constitution

Fifth Amendment....... 2,3,10,13,14,16,19,20,21

Fourteenth Amendment .............. 2,3,10,28

Federal Statutes

ee Oe sc ss ic kt ene Oh ee 3

te ae a are ere aha ge 10

i nea s ee ae eee 10

CM I Sh eg i A a a an aia y

State Statutes and Ordinances

City of Lauderdale Lakes

Ordinance “soll pn ll 3,5

Se oS ee x bcewecveeses 3,5

Ordinance No. 105 ................... 3,5,6

ee 3,7,8

SS gw kk we ewe wc eeese 3,7,8

I ne DO eo oe 3,7,8

re Pe 3,8

D. Mandelker, Land Use Law, The Zoning Process

re

Hanes and Minchew, On Vested Rights For Land

Use and Development, 46 Washington Law

Review 373, 376 (1989) .....................

nse

OPINIONS BELOW

This Petition seeks review of the following opinions —

issued by the United States Court of Appeals for the

Eleventh Circuit:

1. Corn v. City of Lauderdale Lakes, 95 F.3d

1066 (11th Cir. 1996) ("Corn IV"), and the Order Denying

Rehearing and a Suggestion for Rehearing En Banc, included

as Petitioner’s Appendix A.

Corn IV affirmed in part, vacated and remanded in

part the Findings of Fact and Conclusions of Law Upon

Remand of the United States District Court for the Southern

District of Florida, ("Second Final Judgment"), included as

Petitioner’s Appendix B.

y Corn v. City of Lauderdale Lakes, 997 F.2d

1369 (11th Cir. 1993), cert. denied, 511 U.S. 1018 (1994)

(“Corn III"), and the subsequent Order Denying Rehearing

and a Suggestion for Rehearing En Banc, included as

Petitioner’s Appendix C.

Corn III affirmed in part and reversed in part the

August 30, 1991 decision of the United States District Court

for the Southern District of Florida, published at 771

F.Supp. 1557 (S.D. Fla. 1991) (the “First Final Judgment"),

included as Petitioner’s Appendix D.

In addition to the opinions identified above, this

controversy has generated the following relevant published

opinions and unpublished decisions, by state and federal

courts:

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

585 (11th Cir. 1990) ("Corn II").

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

1514 (11th Cir. 1987) ("Corn I").

c. Corn v. City of Lauderdale Lakes, 3 F.3d 442

(11th Cir. 1993).

d. Corn v. City of Lauderdale Lakes, 415 So.2d

1270 (Fla. 1982).

-2-

e. ‘Corn V- City Of Latiderdale Lakes; 427-So:2¢

239 (Fla. 4th DCA 1983) ("State Corn I”), included as

Petitioner’s Appendix G.

f. Corn v. City of Lauderdale Lakes, 371 So.2d

1111 (Fla. 4th DCA 1975).

g. Corn v. City of Lauderdale Lakes, Case No.

77-12955, Broward County Circuit Court, Final Judgment

("State Court Final Judgment"), included as Petitioner’s

Appendix G.

h. Corn v. City of Lauderdale Lakes, Case No.

69-6229, Broward County Circuit Court, Orders on

Summary Judgment, included as Petitioner’s Appendix H.

JURISDICTION

This is an action for just compensation for the

administrative taking of real property and the vested right to

build a specific project without due process of law in

violation of the Fifth and Fourteenth Amendments to the

United States Constitution and the Civil Rights Act (42

U.S.C. §1983). The judgments of the Eleventh Circuit were

entered as follows:

1. Corn IV was entered on September 23, 1996.

Corn’s Petition for Rehearing and Suggestion for Rehearing

En Banc was denied on March 20, 1997.

| Corn III was entered on August 13, 1993.

Corn’s Petition for Rehearing and Suggestion for Rehearing

En Banc was denied on October 14, 1993.

An extension of time within which to file this Petition

for Writ of Certiorari to August 15, 1997, was granted by

order of Justice Anthony M. Kennedy, Circuit Justice for the

Eleventh Circuit, on June 6, 1997.

ne

r ~~ + >-"Fhts-€ourt-has-jurisdiction—pursuantto28 U.S.C. a

§1254(1).

CONSTITUTIONAL

AND STATUTORY PROVISIONS

Fifth Amendment, United States Constitution:

". .. nor shall private property be taken for

public use, without just compensation."

Fourteenth Amendment, United States Constitution:

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

person of life, liberty, or property without

due process of law. . ."

42 U.S.C. §1983:

"Every person who, under color of any

Statute, ordinances, regulation, custom or

usage, of any State or Territory or the

District of Columbia, subjects, or causes to be

subjected, any citizen of the United States or

other person within the jurisdiction thereof to

the deprivation of any rights, privileges, or

immunities secured by the Constitution and

laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper

proceeding for redress. . ."

City of Lauderdale Lakes ordinances nos. 103, 104,

105, 548, 549, 552, and 568 are reproduced as Petitioner’s

Appendix I.

’

-4<

STATEMENT OF THE CASE

A. Introduction

This case presents takings issues which this Court has

identified without resolving, which important questions have

been incorrectly decided by the Eleventh Circuit.

Through this litigation Corn is seeking just

compensation for the City’s administrative confiscation of his

vested right to develop a mini-warehouse/self-storage facility

with an attendant strip shopping center (the "Project"), on an

8'4 acre parcel of property (the “Property"). The City

wrongfully prevented Corn from developing the Project by

rejecting Corn’s preliminary site plan (the "Site Plan"), after

illegally enacting ordinances rezoning and placing a

moratorium on development of the Property and eliminating

warehouses as an authorized use of land in the City. Before

seeking just compensation in federal court Corn had

successfully sued the City in state court, establishing that the

offending ordinances were improperly enacted and that the

City was estopped from enforcing the ordinances against the

Property because Corn had a vested right to develop the

Project. The state court found that the City lacked discretion

and was required to approve the Site Plan and issue a

building permit for the Project.

The state court litigation lasted almost eight years.

Throughout this time the wrongful rejection of the Site Plan

remained in effect, preventing Corn from developing the

Project, thereby depriving him of all economically viable use

of both his vested right to develop the Project and the

Property.

Through the federal litigation Corn has unsuccessfully

sought the recovery of just compensation for the confiscation

-5-

of his constitutionally protected property interest in the _

Project and the loss of his use of his Property.

B. Pre-Litigation Background

The Property was part of a 261 acre tract (the

“Tract"), acquired by Corn in 1966, when the Tract was

located in unincorporated Broward County, and zoned for

agricultural use. (App. G-2, State Court Final Judgment';

App. D-1, First Final Judgment). Corn agreed to the

annexation of the Tract into the City in return for which the

City approved Corn’s development plan for the Tract. (App.

A-2, Corn IV). Accordingly, ordinances were

simultaneously enacted annexing the Tract into the City

(Ordinance 104), zoning the property comprising the Tract

for residential, commercial and industrial use, in accordance

with Corn’s development plan (Ordinance 105), and creating

zoning category C-1A, an industrial zone which allowed

warehouses, to apply to the Property (Ordinance 103).

(App. D-2, First Final Judgment; App. A-2, Corn IV).

Corn expended in excess of $100,000 in reliance

upon the City’s annexation and zoning of the Property,

developing the Property for C-1A use. (App. G-3, State

Court Final Judgment; App. D-2, First Final Judgment).

The Property fronted on a main thoroughfare on the east and

was bounded by a canal on the south. (App. D-2, First

Final Judgment). Corn constructed canals on the western

'The parties were collaterally estopped from relitigating the

facts conclusively established in the State Court Final Judgment. Allen

v. McCurry, 449 U.S. 90, 96 (1980).

*Without Com’s consent the City would have had to hold a

formal referendum or secure an act of the Florida legislature to annex

the Tract. Fla.Stat., Ch. 171, et seq.

-6-

and northern borders of the Property to create a buffer

between the Property and the proposed residential areas,

thereby fixing the dimensions of the Property at 370 feet

wide, and 1,030 feet deep. (Jd.).

Corn thereafter proceeded to develop the Tract in

accordance with his original development plans and the

zoning established by Ordinance 105, first building single

family homes and condominiums. (App. G-2, State Court

Final Judgment; App. D-2, First Final Judgment; App. A-2,

Corn IV). In 1969 the City attempted to change the zoning

of a portion of the Tract. (App. G-2-3, State Court Final

Judgment). Litigation ensued resulting in a judgment

holding that the City was estopped from changing the

zoning. (App. F-2, State Corn Il). The ruling of estoppel to

change zoning was applicable to the entire Tract. (App. H-

2, Order Granting Summary Judgment).

On April 1, 1977, Corn submitted the Site Plan to the

City. (App. D-23, First Final Judgment). The Site Plan

depicted the construction of the Project, including an

approximate 103,000 square foot mini-warehouse situated in

the rear of the Property, and an approximate 67,000 square

foot shopping center across the front of the Property,

between the main road and the mini-warehouse facility.

(Id.)

The Site Plan was approved by the City’s Planning

and Zoning Board on two separate occasions. (App. G-9,

State Court Final Judgment; App. D-3, First Final

Judgment). The City Council tabled consideration of the

Site Plan on three occasions, at which meetings residents

living adjacent to the Property actively opposed the Project.

(App. G-9-10, State Court Final Judgment). While residents

raised “concerns” regarding the Project, no resident or

member of the City presented any evidence supporting any

-J=-

of the expressed _concems. (App. D-3, 21, First Final -

Judgment). Indeed, each of the concerns had been

considered by the City’s Planning and Zoning Board, which

determined that the Site Plan complied with all of the City’s

regulations and ordinances regarding such matters. (App. G-

7-9, State Court Final Judgment).

Ultimately, on July 12, 1977, the City acceded to the

residents’ vocal opposition to the Project. (App. F-4, State

Corn I; App. D-22, First Final Judgment; App. C-2, Corn

Ill). Without having conducted any investigation of mini-

warehouses or study of whether there was any reason to

rezone the Property, (App. D-4, 21, First Final Judgment),

the City enacted Ordinance 549, which rezoned the Property

from C-1A to B-3, a more restrictive category which did not

permit warehouses, and Ordinance 548, which eliminated

only storage warehouses as a permitted use in the C-1A

zone. (App. D-3, First Final Judgment). This was the first

time the City had considered rezoning the Property or

changing the uses permitted within the C-1A zoning

category. (Jd.). The City did not afford Com or anyone

notice of its intention to enact these Ordinances. (App. F-4,

State Corn I).

After enacting the Ordinances and based thereon, the

City Council denied approval of the Site Plan. (App. G-12,

State Court Final Judgment; App. D-3, First Final

Judgment).

The City soon thereafter enacted Ordinance 552,

which imposed a 150 day building moratorium, prohibiting

the issuance of building permits for the two parcels of C-1

property in the City, one of which was the Property. (App.

G-11, State Court Final Judgment; App. D-3, First Final

Judgment). The moratorium was ostensibly enacted to

-8-

evaluate dretmpact of C-1 zone uses on adjacent residential

property. (App. I-22-25, Ordinance 552). The Planning and

Zoning Board’s report was not submitted until December,

1977, months after the Property had already been rezoned B-

3. (App. C-35, Corn III). The moratorium was extended by

Ordinance 568, until July 4, 1978. (App. I-26, 27,

Ordinance 568; App. D-4, First Final Judgment).

(Ordinances 548, 549, 552, and 568 shall collectively be

referred to as the "Ordinances").

The City’s “purposeful action" prevented Corn from

developing the Project. (App. C-13, Corn III).

ind The State Court Litigation - Corn Has Vested

Rights in the Project and the City Must Approve

the Site Plan.

Corn sued the City in state court, challenging the

validity of the Ordinances and seeking to compel the City to

approve the Site Plan. (App. D-4, First Final Judgment).°

On October 20, 1978, the State Court Final Judgment was

entered, ruling in favor of Corn. (App. G, State Court Final

Judgment).

The trial court found that because Corn had both

expended money and made substantial physical changes in

the land in reliance upon the City’s undertaking in adopting

the original zoning ordinances, it was grossly unfair to

permit the City to change the zoning of the Property. (App.

G-14-15, State Court Final Judgment; App. F-5, State Corn

I). The City’s annexation and zoning of the Property and

*At the time Corn instituted the state court litigation Florida

law did not afford a landowner the entitlement to recover money

damages for the unconstitutional taking of property. Corn J at 1517.

-9-

- --—--Corn’s—reliance thereon in preparing the—Property for

development conferred upon Corn vested rights in the zoning

of the Property, and in the Project. (App. G-17, State Court

Final Judgment; App. C-3, Corn Hil). As a result, the City

was estopped from rezoning the Property and from denying

approval of the Site Plan. Jd. Further, the Ordinances were

declared invalid for the City’s failure to follow its own

notice and procedural requirements for their passage. Id.

The City had no discretion and was obligated to approve the

Site Plan and issue a building permit for the Project upon

Corn’s correction of three technical deficiencies which the

City had never afforded Corn the Opportunity to correct.

(App. G-12, State Court Final Judgment; App. F-5, State

Corn I).

The City appealed the State Court Final Judgment.

(App. F, State Corn 1). The City’s appeal served to stay

enforcement of the State Court Final Judgment, so that the

Ordinances and denial of the Site Plan remained in effect

during the pendency of the appeal. (App. D-5, First Final

Judgment). The State Court Final Judgment was affirmed.

(App. F, State Corn I). The Florida appellate court issued

its mandate on March 4, 1983, at which time the decision

became final. (App. D-5, First Final Judgment).

Thereafter, Corn submitted a revised Site Plan to the

City for approval, which the City refused to approve unless

Corn complied with platting requirements that came into

existence after July, 1977. (App. D-5, First Final Judgment).

On March 26, 1985, the state court ordered the City to issue

Com a building permit without platting. (App. D-6, First

Final Judgment).

Between June, 1977 and March, 1985, Corn was

wrongfully prevented from developing the Project while he

-10-

successfully litigated with the City in state court and

established his vested right to build the Project. During the

pendency of the litigation Corn did not develop the Property

for any other use because he remained intent on developing

the Property in accordance with his vested right to build the

Project. By the time Corn succeeded in establishing his

vested right to develop the Project changes in the area and

the growth of competition in the intervening eight years had

rendered development of the Project economically

unfeasible.

Corn has unsuccessfully attempted to sell the Property

since 1985. The Property is still owned by Corn and cannot

be developed for any economically viable use.

D. Federal Court Litigation

On January 17, 1984, Corn filed the underlying

action, seeking damages for violation of the just

compensation, due process and equal protection clauses of

the Fifth and Fourteenth Amendments and the Civil Rights

Act. (App. D-5,6, First Final Judgment). The jurisdiction

of the district court was invoked under 28 U.S.C. §§1331

and 1343. The action was dismissed as unripe under

Williamson County Planning Commission v. Hamilton Bank,

473 U.S. 172 (1985). (App. D-7, First Final Judgment).

The Eleventh Circuit reversed. (Corn I). The Eleventh

Circuit later confirmed that Corn’s claims were not barred

by the statute of limitations or res judicata. (Corn II).

On August 30, 1991, following a four day non-jury

trial, the district court issued the First Final Judgment,

ruling in favor of Corn on his "substantive due process

-ll-

takings claim.‘ The trial court concluded that the City

Council’s enactment of the Ordinances and rejection of the

Site Plan was motivated solely by an irrational desire to

thwart Corn’s Project. (App. D-22, First Final Judgment).

Specifically, the trial court made the following

findings:

1. Corn had a vested right to build the Project.

(App. D-15, First Final Judgment).

2. Corn’s vested right in the Project was a

constitutionally protected property interest created by Florida

law. (App. D-20, First Final Judgment).

3. The City acted arbitrarily and capriciously in

denying approval of the Project, failing to independently

evaluate the merits of the Project, and instead blindly

following the will of the residents. (App. D-21, 22, First

Final Judgment).

The district court awarded damages as just

compensation to Corn. (App. D-32, First Final Judgment).

Corn appealed the First Final Judgment, claiming that

the compensation awarded by the district court was not just.

(App. C-5, Corn Ill). The City cross-appealed. (Id.). The

Eleventh Circuit reversed the First Final Judgment,

determining that certain findings of fact of the district court

were clearly erroneous. (App. C-38, 39, Corn Ill). The

Eleventh Circuit ruled that the proper standard to be applied

to Corn’s substantive due process claim was whether a

rational basis existed for the City’s action, and reviewed the

‘Through his substantive due process takings claim Corn

maintained that the City’s wrongful rejection of the Site Plan was

arbitrary and capricious. (App. C-4-5, Corn III).

-12=

evidence and found that a rational basis existed for enacting

the Ordinances and rejecting the Site Plan. (App. C-44,

Corn Ill).

The Eleventh Circuit remanded the case to the district

court for a consideration of Corn’s just compensation claim,°

which had not been ruled upon. (App. C-56, Corn III). The

Eleventh Circuit also reversed the district court’s dismissal

of the City Councilmen, determining that the denial of the

Site Plan was an administrative act, for which the City

Councilmen only had qualified, rather than absolute

immunity. (/d.).

On remand, the district court issued the Second Final

Judgment, ruling in favor of the City and against Corn on

Corn’s just compensation claim (App. B, Second Final

Judgment). Corn appealed the Second Final Judgment to the

Eleventh Circuit, which affirmed the judgment in part and

remanded the cause to the district court solely for a

determination of whether Corn was deprived of all use of the

Property during the moratorium. (App. A, Corn IV). The

‘Through Corn’s just compensation claim Corn maintained

that the City’s wrongful rejection of the Site Plan deprived him of

economically viable use of his constitutionally protected property

interest in the Project and the Property. (App. A-6-7, Corn IV).

*The district court has entered an order concluding that Corn

was not deprived of all use of the Property during the moratorium,

finding that the moratorium did not apply to the Property, since the

moratorium applied to C-1 property and the Property was already

rezoned to B-3. Corn has recently appealed this ruling to the Eleventh

Circuit. The pendency of this appeal does not have any impact

whatever on the issues raised herein. Even if the Eleventh Circuit

concludes that the moratorium applied to and deprived Corn of all use

of the Property from June, 1977, through July, 1978, such a holding

will not entitle Corn to compensation for the taking of the Project and

|

- 1 3 -

Eleventh Circuit concluded as follows:

1. While Corn was deprived of a use of the

Property, he was not deprived of all uses of the Property

from 1977 through 1985, while he successfully established

in state court his vested rights and entitlement to build the

Project. During the pendency of the state court litigation

Corn could have and was obligated to develop the Property

for some alternative use. (App. A-13, 14, Corn IV).

ya Even if Corn had vested rights in the Project,

the City’s denial of permission to build the Project does not

state a claim for just compensation because Corn was not

deprived of all uses of the Property. (App. A-19, Corn IV).

A denial of the right to develop a particular project may give

rise to a claim for just compensation for the taking of the

project only if the government action in issue fails to

advance a legitimate state interest. (App. A-21, Corn IV).

8 A party can have a constitutionally protected

property right under the due process clause of the Fifth

Amendment which does not qualify as property under the

takings clause of the Fifth Amendment, so that just

compensation is not due for the taking of the “property”.

(App. A-19, Corn IV).

Through this Petition Corn seeks review of certain

legal issues determined in Corn III and Corn IV.

REASONS WHY THE WRIT SHOULD ISSUE

A. Corn’s Vested Right to Build the Project Was a

Constitutionally Protected Property Interest Which

Was Confiscated For Which Just Compensation is

Due.

the Property after July, 1978.

-14-

i This Court Has Identified, Without Resolving, the

Issue of What Property Interests in Realty are

Protected by the Takings Clause.

It is well settled that a landowner who is deprived of

economically viable use of his property has suffered a taking

for which compensation is due pursuant to the Fifth

Amendment. E.g. Lucas v. South Carolina Coastal Council,

505 U.S. 1003, 1016 (1992). In Lucas, this court identified

and did not answer an issue which is squarely raised by this

Petition:

If a landowner has a constitutionally protected

property interest in an incident of land

ownership less than fee simple title and is

deprived of all economically viable use of that

property interest, is the landowner entitled to

just compensation pursuant to the Fifth

Amendment, regardless of whether he is

deprived of all use of his land?

In Lucas, this court explained:

Regrettably, the rhetorical force of our

“deprivation of all economically feasible use"

rule is greater than its precision, since the

l l “pr

1 " against whi fv

be ___ measured.***Unsurprisingly, this

uncertainty regarding the composition of the

denominator in our “deprivation” fraction has

produced inconsistent pronouncements by the

Court. ***The answer to this difficult question

m i : ]

expectations have been shaped by the State’s

law_of property-i.e., whether and to what

-15-

degree the State’s law has accorded legal

recognition and protection to the particular

interest in land with respect to which the

takings claimant alleges a diminution in (or

elimination of) value. (emphasis added). Jd.

at 1016, n.7.

In this case, the “denominator in the deprivation

fraction” is Corn’s constitutionally protected property interest

in his vested right’ to build the Project. Corn was deprived

of all use of this property interest from June, 1977, through

March, 1985, thereby effecting a compensable taking of his

vested right to develop the Project, irrespective of whether

there were other uses to which the Property could be put.*

2. Florida Law Creates a Constitutionally Protected

Property Interest in Vested Rights.

This Court has clearly explained that property

"Indeed, the specific question raised in this Petition of

whether a state created vested right to develop land for a specific use

or project is a constitutionally protected property interest for which

compensation is due if the vested right is taken even if economically

viable uses of the land remain was identified without being answered

in Williamson County:

We express no view of applying the “economic

viability” test when the taking claim is based on such

a theory of “vested rights" or “expectation interest".

473 U.S. at 191 n.12.

‘Corn maintains that he was deprived of all economically

viable use of the Property while he successfully pursued the state court

litigation and established his right to build the Project because he was

not obligated to develop the Property for any other use during the

pendency of the litigation. See discussion §B, infra, at 22-24.

-16-

interests protected by the Fifth Amendment’s takings clause

are not created by the Constitution, and instead, they are

created and their dimensions are defined by existing rules or

understandings that stem from an independent source such as

state law. E.g. Lucas, 505 U.S. at 1016, n.7; Ruckelshaus

v. Monsanto Company, 467 U.S. 986, 1001 (1984).°

It was conclusively established through the state court

litigation that Corn had a vested right to build the Project so

that the City was estopped from rezoning the Property and

was compelled to approve the Site Plan and issue a building

permit. (App. G, State Court Final Judgment; App. F-9,

State Corn I; App. C-3, Corn III). Florida law creates a

constitutionally protected property interest in Corn’s vested

right to develop the Project.

%In Corn IV, the Eleventh Circuit erroneously stated that

“property” as used in the just compensation clause of the Fifth

Amendment is defined much more narrowly than in the Fifth and

Fourteenth Amendments due process clauses, so that while certain

property interests may not be taken without due process, they may be

taken without paying just compensation. (App. A-18, 19, Corn IV).

The Eleventh Circuit is clearly wrong.

This Court has employed the identical standard of looking to

existing rules or understandings that stem from an independent source

such as state law to determine whether a party has a property interest

for both takings cases, e.g. Lucas, SOS U.S. at 1030, and due process

cases E.g. Board of Regents v. Roth, 408 U.S. 564, 577 (1972).

Since resort is made to the same legal standard, an interest is either a

property interest for both the takings clause and due process clause, or

it is not a protected property interest for either clause. See Texaco v.

Short, 454 U.S. 516, 525 (1982) (evaluation of whether Indiana state

law created property interest in mineral rights for both claims of

violation of due process and taking of property).

-17-

A vested right under Florida law is a property right

which is created as a matter of fairness to protect the

property owner from the loss of an interest in property

which he has enjoyed. Hollywood Beach Hotel v. City of

Hollywood, 329 So.2d 10, 15-16 (Fla. 1976). A city is

equitably estopped from depriving a property owner of a

particular property right as a result of conduct of the city

upon which the landowner has relied to his detriment. Jd.,;

Sakolsky v. City of Coral Gables, 151 So.2d 433, 436 (Fla.

1963). The city is estopped from exercising its police power

to prohibit a particular use of land when the landowner’s

change of position in reliance on the city’s actions would

render it inequitable and unjust to destroy the right to use the

land the landowner has acquired. Hernando County Board

of Commissioners v. S.A. Williams Corporation, 630 So.2d

1155, 1156 (Fla. Sth DCA 1993). Under such circumstances

the landowner’s right to develop the property for a particular

use becomes vested, and is not subject to revocation.

Hollywood Beach Hotel, 329 So.2d at 16.

Vested rights are based upon the recognition that a

landowner’s reliance upon a city’s conduct creates an

expectancy or an entitlement to certain rights which it would

be inequitable to allow a city to revoke. Town of Largo v.

Imperial Homes Corporation, 309 So.2d 571, 573 (Fla. 2d

DCA 1975). Vested rights thus protect a landowner against

even otherwise valid zoning ordinances because, as a matter

of faimess, a city cannot deprive a landowner of a property

interest created under such equitable circumstances. Jd.

Florida courts have recognized that a property owner

can have a vested right in a particular zoning classification,

which prohibits a city from rezoning property. Hollywood

Beach Hotel, 329 So.2d at 16; Town of Largo, 309 So.2d at

574. Florida courts have also recognized that a property

-18-

owner can have a vested right in a building permit, or to the

issuance thereof, thereby stopping the city from

withdrawing or refusing to issue a permit. Hollywood Beach

Hotel, 329 So.2d at 16; The Florida Companies v. Orange

County, 411 So.2d 1008, 1011 (Sth Cir. DCA 1982); Town

of Largo, 309 So.2d at 573.

Having accorded vested rights such legal recognition

and protection, Florida law has conferred the status of

constitutionally protected property interests upon vested

rights. See Lucas, 505 U.S. at 1016, n.7, 1030.

> The Eleventh Circuit Recognizes that Vested

Rights are Constitutie--lly Protected Property

Interests Under Florida aw.

The Eleventh Circuit has confirmed that as a matter

of constitutional law Florida law creates a constitutionally

protected property interest in the vested right in a particular

project or a building permit. Reserve Lid. v. Town of Long

Boat Key, 17 F.3d 1374, 1380 (11th Cir. 1994), cert.

denied, 115 S.Ct. 729 (1995) (Florida law creates

constitutionally protected property interest in a building

permit); Spence v. Zimmerman, 873 F.2d 256, 257-58 (11th

Cir. 1989) (constitutionally protected property interest in a

permit or certificate of occupancy if the city lacks discretion

and must issue the permit or certificate); AA Profiles v. City

of Fort Lauderdale, 850 F.2d 1483, 1488 (11th Cir. 1988),

cert. denied, 490 U.S. 1020 (1989), (property interest in

woodchipping development); Wheeler v. City of Pleasant

Grove, 896 F.2d 1347, 1351 (11th Cir. 1990) (property

interest in apartment project).

.

-19-

4. Recognizing Vested Rights as Constitutionally

Protected Property Interests is Consistent with

Supreme Court Takings Jurisprudence.

Recognizing that a vested property right is a

constitutionally protected property interest for which

compensation is due under the Fifth Amendment for its

wrongful taking is consistent with takings jurisprudence. '°

This Court has held that a property interest in real

estate which is less than fee simple title ownership can be a

constitutionally protected property interest for which

compensation is due for its taking under the Fifth

Amendment. In Nollan v. California Coastal Commission,

483 U.S. 825 (1987), this court recognized that the right to

exclude others from one’s property is a constitutionally

protected property interest. Jd. at 834; see also Dolan v.

City of Tigard, 512 U.S. 374, 384. In Pennsylvania Coal

Company v. Mahon, 260 U.S. 393 (1922), this court held

that the reservation of the right to mine underground coal

was a constitutionally protected property interest. Jd. at 413.

Invasion of a landowner’s airspace by planes whose noise

diminished but did not destroy all viable use of the land was

recognized as effecting a taking. United States v. Causby,

Scholars have recognized that vested rights have a

constitutional base, conferring constitutional protection on property

rights a landowner has acquired in the use of his land. D. Mandelker,

Land Use Law, The Zoning Process §6.12, at 214 (1988). Vested

rights have been recognized as a “super property right", being immune

from exercise of the police power, and as such possessing more

constitutional propriety weight than a mere property right. Hanes and

Minchew, On Vested Rights To Land Use and Development, 46

Washington Law Review 373, 376 (1989). The exercise of regulatory

police power that causes the diminishment of a vested right is one that

goes “too far".” Id.

-20-

328 U.S. 256, 262 (1946). A tenant’s leasehold interest in

property, has been held to be a constitutionally protected

property interest. E.g. United States v. General Motors

Corp. , 323 U.S. 359, 378, 1945). Indeed, a real estate lien

to secure a mortgage has been held to be a constitutionally

protected property interest. Louisville Joint Stock Land Bank

v. Radford, 295 U.S. 555, 596-602 (1935). The taking of

the right to devise a fractional interest in land has been held

to effect a compensable taking. Babbit v. Toupee, 117 S.Ct.

727, 731-32 (1997).

In each of these cases the landowner had an

expectation created by state law that the particular incident

of ownership in land would not be interfered with or taken,

thereby conferring constitutional protection upon each such

property interest. Each interest in land in issue was an

“essential stick in the bundle of rights that are commonly

characterized as property", see Nollan at 831, because of the

protection afforded the property interest by state law and the

landowner’s expectation of retaining the particular interest as

a result thereof. Such state law legal recognition and

protection creates a constitutionally protected property

interest in the incident of land ownership in issue for which

just compensation is due pursuant to the Fifth Amendment if

the property interest is taken.

In this regard, a factor “of particular significance"

which is evaluated in determining whether a taking has

occurred is the government’s "interference with reasonable

investment backed expectations". Loretto v. Teleprompter

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

rights are based upon the notion of the fairness of protecting

and preserving a landowner’s reasonable investment backed

expectations created as a result of his detrimental reliance on

governmental action. See Hollywood Beach Hotel, 329

ns CT een See ee ee

-21-

So.2d at 15-16. Accordingly, by definition, one always has

reasonable investment backed expectations in a vested

property right. See Town of Largo, 309 So.2d at 573.

Vested rights are thus appropriate property interests to be

recognized as having been afforded constitutional protection

pursuant to Florida law."

S. Corn IV Failed to Protect Corn’s Vested Rights.

The Eleventh Circuit erred as a matter of law in

holding that the City’s confiscation of Corn’s vested right to

build the Project did not give rise to a just compensation

claim because Corn was not deprived of all use of his

Property. The Eleventh Circuit erred by placing the

Property in the denominator of the takings equation, rather

than placing the Project in the denominator.

As a matter of law, Corn had a constitutionally

protected property interest in the Project. The City’s

enactment of invalid Ordinances and wrongful denial of the

Site Plan confiscated Corn’s vested right to build the Project,

entitling him to just compensation pursuant to the Fifth

Amendment therefor, irrespective of whether Corn retained

other economically viable uses of the Property.

"'This Court has protected vested rights from interference or

confiscation by retroactive legislation. Landgraf v. USI Film Products,

511 U.S. 244, 266 (1994). Indeed, in Landgraf this Court explained

that the anti-retroactivity principle finds expression in several

provisions of the Constitution, including the Fifth Amendment, which

prevents government "from depriving private persons of vested rights

except for a “public use" and upon payment of "just compensation" ."

(emphasis added). Id.

-22-

B. The Confiscation of Corn’s Constitutionally

Protected Property Interest in the Project Effected

a Taking of the Property Throughout the

Pendency of the State Court Litigation.

Corn was indeed deprived of all economically viable

use of the Property during the pendency of the state court

litigation. Corn acknowledges that between July, 1978,”

and March, 1985 there were alternative uses for which the

Property “could” have been developed.’? Nonetheless, Corn

was not obligated to waive his constitutional rights and moot

his state court litigation by developing the Property for any

alternative use while successfully establishing his vested right

to build the Project. As such, Corn was deprived of all use

of his Property.

The Eleventh Circuit held that Corn was not deprived

of all economically viable use of the Property during the

pendency of the state court litigation, explaining:

The standard is not whether the landowner

has been denied those uses to which he wants

to put his land; it is whether the landowner

has been denied all or substantially all

economically viable use of his land.

(emphasis added). (App. A-13, Corn IV).

"Between June, 1977 and July, 1978, Corn was prevented

from developing the Property for any use pursuant to the moratorium

ordinances. This is the sole issue currently on appeal to the Eleventh

Circuit.

By March, 1985, due to changes in demographics and

overbuilding in the area, there was no economically feasible use to

which the Property could be put, so that the temporary taking matured

into a permanent taking.

-scatlatcotanmeaiaalll

-23-

The error in the Eleventh Circuit’s reasoning is that

Corn’s right to build the Project was not a use to which he

simply wanted to put the Property; instead, Corn had a

vested right to build the Project, with which right the City

could not lawfully interfere. While Corn successfully

participated in the state court litigation and established that

he was wrongfully prevented by the City from building the

Project he was not legally obligated to develop the Property

for any alternative use.

As a practical matter, if Corn developed the Property

for an alternate use, he would not have been able to build

the Project. As a legal matter, development of an alternate

use would have rendered moot the controversy regarding the

City’s duty to approve the Site Plan. See Glisson v. Alachua

County, 558 So.2d 1030, 1037 (Fla. 1st DCA 1990) (issue

of whether land use regulation effected taking of property

rendered moot when regulation amended); Central and

Southern Florida Flood Control District v. Duquis, 162

So.2d 289, 291 (Fla. 3d DCA 1964) (conveyance of property

to flood control district rendered moot issue of validity of

reservation of rights to flood control district). Corn could

not put the Property to any use during the pendency of the

state court litigation without forfeiting his vested right to

build the Project, and his constitutional right to be

compensated for the City’s confiscation of the Project. Corn

would have forfeited his constitutional right to seek just

compensation for the confiscation of the Project by mooting

his state court claim because Corn’s takings claim could

never ripen without a resolution of the state court litigation.

Williamson County, 473 U.S. at 194-95. The well settled

doctrine of “unconstitutional conditions" prevents the City

from forcing Corn to choose between developing the

Property for an alternate use and Corn’s right to develop the

Project or to receive just compensation for the City’s

-24-

confiscation of the Project. See Dolan, 512 U.S. at 2317.

Since Com could not be lawfully compelled to

develop the Property for an alternate use during the

pendency of the state court litigation, he was indeed deprived

of all use of his Property during that time. Accordingly,

Corn is entitled to just compensation for the taking of his

Property.

The City always had the option of abandoning its

confiscation of the Project at any time during the pendency

of the state court litigation. See First English Evangelical

Lutheran Church v. Los Angeles County, 482 U.S. 304, 317

(1987)."* Instead, the City elected to appeal rather than

accept the State Court Final Judgment, and thereafter

improperly condition approval of the Site Plan on platting the

Property, thereby perpetuating the confiscation of the

Project. Denying Corn just compensation because he could

have developed the Property for an alternate use during the

pendency of the state court litigation only serves to allow the

City to accomplish that to which it did not have any legal or

constitutional right--to prevent Corn from developing the

Project without compensating him for confiscating his vested

night to do so.

The Constitution and policy considerations dictate that

Corn receive just compensation for his loss of all use of his

Property during the pendency of the state court litigation.

‘The pendency of the state court litigation for over seven

years is clearly the type of abnormal delay in obtaining permits for

which a taking claim arises. See First English, 482 U.S. at 321.

-25-

C. Corn Established That the City’s Actions Failed to

Substantially Advance any Legitimate State

Interest.

In Corn Ill, the Eleventh Circuit reviewed Corn’s

substantive due process claim." The court held that a

substantive due process claim requires the landowner to

show that the City abused power and that the regulation in

issue does not bear a substantial relation to the public health,

safety, morals, or general welfare. (App. C-10, Corn Ill).

The court held that the burden is on the developer to prove

that the governmental body acted arbitrarily and capriciously

in refusing permission for the development, (App. C-10,

Corn III), explaining that the inquiry is limited to whether

the city’s action had a rational relationship to a legitimate

general welfare concern. (App. C-11, Corn Ill). The

Eleventh Circuit reversed the First Final Judgment entered

in favor of Corn, determining the district court had erred by

applying the strict scrutiny standard of review instead of the

deferential standard of the rational basis test. (App. C-38,

Corn Ill).

1. The City’s Enforcement of Invalid Ordinances and

Wrongful Rejection of the Site Plan Was an Abuse

of Power Which Could Not Advance Any

Legitimate State Interest.

Preliminarily, in the typical takings case in which the

issue is whether governmental regulation substantially

advances a legitimate state interest, the regulation in issue is

'SThis Court can consider questions raised in earlier appeals in

a case in which there have been multiple appeals. Mercer v. Theriot,

377 U.S. 152, 153 (1964). Further, Corn raised these issues and they

were considered in Corn IV. (App. A-9-10, Corn IV).

-26-

valid; accordingly, the analysis is whether the otherwise

valid governmental regulation is invalid because the

regulation fails to substantially advance a legitimate state

interest. E.g. Nollan, 483 U.S. at 834. The inquiry focuses

on the nexus between the governmental action and the

professed legitimate state interest. Dolan, 512 U.S. at 386.

In this case it was conclusively established in state

court that the Ordinances were invalidly enacted and that the

City was estopped from denying approval of the Site Plan.

(App. G-15-17, State Court Final Judgment; App. F-5, 9,

State Corn I). The City lacked discretion and was obligated

to perform the ministerial act of approving the Site Plan

which it had wrongfully rejected. (App. F-10, State Corn I).

Accordingly, the “governmental regulation" in issue was

invalid, irrespective of whether the requisite nexus between

the City’s actions and any legitimate state interest existed.

Under these circumstances it is not necessary to examine the

nexus between the City’s conduct and its claimed legitimate

State interest; invalid, prohibited regulation can never

advance any legitimate state interest.

The City was estopped from exercising its police

power and denying approval of the Site Plan. See Hernando

County, 630 So.2d at 1156. It does not matter what

motivated the City to wrongfully deny the Site Plan. It does

not matter if the denial of the Site Plan would have served

any legitimate state interest. The level of scrutiny between

the City’s wrongful actions and any putative legitimate state

interest is irrelevant. Any attempted exercise of police

power by the City was per se invalid and, accordingly, could

not and did not advance any legitimate state interest.

Inexplicably, notwithstanding the State Court Final

Judgment, the Eleventh Circuit engaged in a lengthy analysis

-27-

of whether the City’s invalid Ordinances and wrongful

rejection of the Site Plan served the general welfare. (App.

C-14-52, Corn Ill). Such analysis improperly disregards the

conclusive effect which a state court judgment is-to be

afforded in federal court. See Kremer v. Chemical Constr.

Corp., 456 U.S. 461, 485 (1982); Allen v. McCurry, 449

U.S. 90, 95-96 (comity between state and federal courts the

’bulwark of the federal system’). The Ordinances could not

be invalid under state law yet substantially advance any

legitimate interest as a matter of constitutional law. The

City’s improper rejection of the Site Plan could not be

prohibited under state law yet pass constitutional muster as

advancing a legitimate interest. The full faith and credit

which must be accorded the State Court Final Judgment

mandates the conclusion that the City’s wrongful rejection of

the Site Plan failed to substantially advance any legitimate

state interest.

The consequence of the City’s abuse of power was

the confiscation of Corn’s right to build the Project and loss

of all use of the Property, thereby effecting a compensable

taking.

2. The Dolan Rough Proportionality Standard

Applies and Was Not Met by the City.

Alternatively, even if it is appropriate to analyze the

nexus between the City’s actions and any claimed legitimate

state interests, the Eleventh Circuit identified and applied the

incorrect standard of review. There must be a greater nexus

than a rational basis between the denial of the Site Plan and

the general welfare concerns identified in Corn III.

In Dolan, this Court identified the level of scrutiny to

be applied to a city’s actions io determine whether they are

-28-

substantially related to a legitimate state interest. Dolan,

512 U.S. at 385. This Court identified the “essential nexus"

which must exist between the professed legitimate state

interest and the actions of the city. Jd.

This Court held that when a city makes an

adjudicative decision as distinct from a legislative one, the

burden properly rests on the city to prove that its actions

substantially advance a legitimate state interest. Jd. at 391

n.8. There must be a “rough proportionality" between a

city’s actions and the stated public purpose. Id. at 391.

Rough proportionality requires a reasonable relationship, a

standard more strict than the rational basis level of scrutiny

under the equal protection clause of the Fourteenth

Amendment. Id. While no precise mathematical calculation

is required, a city must make some effort to quantify its

findings in support of its actions, and cannot simply believe

that its actions will accomplish the desired result, to

substantially advance a legitimate state interest. Jd. at 395,

396.

The Dolan rough proportionality standard is

applicable to this case. The City conditioned Com’s right to

develop the Property on his forfeiture of his vested right to

develop the Project, thereby seeking to exact a

constitutionally protected property interest from Corn.

Further, this exaction was effected by an administrative act--

the rejection of the Site Plan--and not a legislative act.

(App. F-10, State Corn Il). Accordingly, under Dolan it was

the City’s burden to establish that the rejection of the Site

Plan bore a reasonable relationship or rough proportionality

to the general health and welfare concerns the City allegedly

sought to achieve.

Dolan establishes that the City indeed had an

obligation to make a formal investigation of the Project

Bee aap!

-29-<

before rejecting the Site Plan. Expression of citizen’s

concerns are not a sufficient basis upon which to take action.

The City had to have actual evidence that the Project would

have a significant negative impact on traffic, parking, noise,

aesthetics and any other matters of public interest before the

City could lawfully reject the Site Plan in reliance thereon.

See Dolan, 512 U.S. at 395-96.

There is no dispute that the City lacked the requisite

findings to sustain its rejection of the Site Plan in the name

of the general welfare. Initially, the Planning and Zoning

Board had recommended approval of the Site Plan twice

after becoming satisfied that the Project complied with City

regulations, including fire safety, traffic and landscaping.

The City Council did not investigate mini-warehouses before

acting. The City did not have the benefit of the report it

directed the Planning and Zoning Board to prepare regarding

the proximity of industrial uses to residences when it rezoned

the Property and rejected the Site Plan. The City did not

eliminate or prohibit other allowable uses of the Property

which arguably cause more traffic, noise and air pollution.

(App. D-21, First Final Judgment). While residents attended

City Council meetings and expressed opposition to and

concerns regarding the Project, the residents did not present

the City with any evidence establishing any nexus between

the Project and their concerns. There simply was no

reasonable relationship between the represented public

interest concerns and the Project to entitle the City to reject

the Site Plan.'®

'6If the Dolan rough proportionality standard does not apply

this Court must identify the standard for analyzing the nexus between

a city’s actions and identified state interests in takings cases. The

record evidence establishes that the invalid Ordinances and wrongful

denial of the Site Plan failed to substantially advance any legitimate

state interest, regardless of which standard applies.

-30-

CONCLUSION

The Eleventh Circuit has acknowledged that the

issues presented through this Petition "reach beyond the fisc

of one Florida community and the merits of one case, and

involve questions about how decision making is allocated

between a democratic institution such as an elected city

council and the federal courts". (App. C-7, Corn III). The

Eleventh Circuit has also acknowledged that the issues

presented herein have not been addressed or decided by this

Court. (App. A-16, n.5, Corn IV).

This case provides this Court with the opportunity to

establish legal guidelines to be applied by the federal courts

and state court in takings claims involving the taking of

vested rights and takings effected through enforcement of

invalid regulation. The issues presented are both significant

and commonplace. All governmental entities and

landowners shall benefit from this Court’s resolution of the

legal issues presented herein.

Corn respectfully requests this Court to grant

Certiorari to consider the issues presented herein.

DATED: August 15, 1997

Respectfully submitted,

ANDREW T. LAVIN

Counsel of Record

RICHARD A. IVERS

ROMANIK LAVIN HUSS & PAOLI

Attorneys for Petitioner

HERMAN CORN, Trustee _— _ ___

APPENDICES

UNITED STATES COURT OF APPEALS,

FOR THE ELEVENTH CIRCUIT.

No. 95-4351.

Herman CORN,

Plaintiff-Appellant,

v.

CITY OF LAUDERDALE LAKES, Howard Craft, Alfonso

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

Louis Greenwald, Harry Kaufman,

Defendants-Appellees.

Sept. 23, 1996.

Appeal from the United States District Court

for the Southern District of Florida.

Before COX and BARKETT, Circuit Judges, and

BRIGHT *, Senior Circuit Judge.

COX, Circuit Judge:

On this appeal, we address for the fourth time a 20-year-

old dispute between Herman Corn and the City of Lauder-

dale Lakes, Florida (the ‘‘City’’) over the City’s refusal to

allow Corn to build a mini-warehouse on his property. Corn

alleges that the City’s actions effected a taking of his proper-

ty entitling him to just compensation. The district court held

that there was no taking of Corn’s property. We affirm in

part, but must vacate and remand in part for the district

court to make further factual findings.

* Honorable Myron H. Bright, Senior U.S. Circuit Judge for the

Eighth Circuit, sitting by designation.

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I. FACTS!

A. The Property and Proposed Development

In 1966, Corn purchased 261 acres of land in an unincor-

porated area of Broward County, Florida. After negotiations

with the City about annexation of the land, Corn submitted a

proposed development plan. Before annexing Corn’s land,

the City created a new C-1A zoning category, incorporating

the permissible uses in the existing C-1 category and requir-

ing that a site development plan be submitted before building

permits would be issued. By ordinance, the City then for-

mally annexed Corn’s land. By separate ordinance, Ordi-

nance No. 105, the City zoned Corn’s land. Approximately

8.5 acres were zoned C-1A, while Corn’s adjacent land was

zoned for residential use.

Between 1966 and 1977, Corn developed much of the

land according to the development plan originally submitted

to the City. His development expenditures exceeded

$100,000. The district court found that Corn did not prove

that these expenditures were aimed at any specific use of the

land, as opposed to general commercial preparation. On the

portion of his land zoned residential, Corn built his first

single family residences and then condominiums. In April,

1977 Corn submitted and preliminary site plan (the ‘‘Site

Plan’’) proposing to construct a 67,000 square foot shopping

center and a 900-unit, 103,00 square foot mini-warehouse

on the land zoned C-1A (the ‘‘Parcel’’). At the time, both

uses were permitted on land zoned C-1 and, hence, on land

zoned C-1A.

Before building his mini-warehouse, Corn had to obtain

the approval of the City Council. The City’s Planning and

' A more detailed description of this litigation appears in our opinion

in Corn v. City of Lauderdale Lakes, 997 F.2d 1369 (11th Cir. 1993),

cert. denied, 511 U.S. 1018, 114 S.Ct. 1400, 128 L.Ed.2d 73 (1994).

Labbe eins _ ala

A-3

Zoning Board twice recommended that the City Council

approve the Site Plan. The City Council heard from Corn as

well as city residents opposing the mini-warehouse project at

three public meetings, tabling consideration of the Site Plan

at each meeting.

B. The Re-Zoning Ordinances and Moratorium

Before voting on the Site Plan, the City Council eliminat-

ed mini-warehouses as a use permitted on C-1A property. At

a public meeting attended by Corn’s attorney, the City

Council passed Ordinance No. 548, eliminating mini- ware-

houses as a permitted use on C-1 (and consequently C-1A)

land. The City Council also passed Ordinance No. 549, re-

zoning the Parcel to category B-3, a more restrictive zoning

category. Then the City Council voted unanimously to deny

approval of the Site Plan.

The City Council also passed Ordinance No. 552, impos-

ing a moratorium on the issuance of building permits for C-1

property to allow the Planning and Zoning Board to conduct

a study of the City’s zoning scheme. In particular, the study

was to address the propriety of situating commercially zoned

property adjacent to residential property. Originally, the

moratorium was to last for 150 days, but eventually was

extended to last almost a year.

The record is ambiguous as to whether the moratorium

applied to Corn’s property for it’s entire duration. By its

terms, Ordinance No. 552 applied to C-1 property; the

Parcel, however, was re-zoned B-3 by Ordinance No. 549

within a month of the moratorium’s inception. The parties

have proceeded on this appeal under the assumption that the

moratorium nevertheless applied to the Parcel for its dura-

tion and prevented Corn from building anything on the

Parcel during that time. It is clear that once the moratorium

expired on July 4, 1978, the Parcel’s B-3 zoning classifica-

|

A-4

tion permitted many uses, including the proposed shopping

center, though not a mini-warehouse.

C. The State Court Litigation

In August 1977, Corn filed suit in state court, challenging

the City’s denial of his Site Plan and the validity of Ordi-

nance No. 548 (prohibiting storage warehouses on C-1

property), Ordinance No. 549 (rezoning Corn’s parcel from

C- 1A to B-3), and Ordinance No. 552 (imposing the mora-

torium). The state circuit court found that Corn had ‘‘certain

vested rights in the zoning classification C-1A . . . as ap-

plied to [the] property by Ordinance # 105’’ and that the

City ‘‘is estopped to deny [Corn’s] rights in such zoning

classification.’’ (R. 1, Ex. O) at 14.) The court held that |

Ordinance No. 548, Ordinance No. 549, and Ordinance No. |

552 were ‘‘void and unenforceable’’ as against Corn or the

property because, in passing the ordinances, the City failed

to follow its own notice and procedural requirements. (Id. at

13.) The court ordered the City to approve Corn’s Site Plan

when three deficiencies were corrected, (id. at 14), and to

issue Corn building permits, (id. at 15).

The state circuit court’s judgment was stayed while the

City pursued an appeal. In February 1983, the state court of

appeals affirmed the circuit court’s judgment, finding that

substantial evidence supported the circuit court’s order equi-

tably estopping the City from denying approval of the Site

Plan. City of Lauderdale Lakes v. Corn, 427 So.2d 239,

243 (Fla.Dist.Ct.App.1983). Seven months after the appel-

late court’s mandate issued, Corn submitted a revised site

plan of the City. The City Council refused to approve the

plan unless Corn platted the property, as required by a

Broward County platting requirement enacted since the

original Site Plan was submitted.

A year later, Corn filed in the state circuit court a

requesting an order

>’?

**Motion to Enforce Final Judgment,

A-5

requiring the City unconditionally to approve the revised site

plan and issue a building permit without Corn platting the

property. The City did not oppose the motion and, in March

1985, the state court granted Corn relief from the platting

requirement. Finally allowed to build his mini-warehouse

project, Corn decided not to do so. Instead, he has prosecut-

ed this § 1983 action in federal court for the last twelve

years.

Il. PROCEDURAL BACKGROUND

In 1984, Corn filed this action under 42 U.S.C. § 1983

against the City, the Mayor, the members of the City Coun-

cil, and the City Building Official. In Count One of his

complaint, Corn alleges a taking of his property without just

compensation in violation of the Fifth and Fourteen

Amendments.? In Count Two, Corn allege that the City’s

refusal to approve the Site Plan and issue building permits

violated his due process rights. Before trial, Corn dismissd

Count Three, alleging procedural due process violations, and

Count Four, alleging an equal protection violation.

The district court dismissed Corn’s complaint on ripeness

grounds under Williamson County Regional Planning

Comm’n v. Hamilton Bank, 473 U.S. 172, 105 S. Ct. 3108,

87 L.Ed.2d 126 (1985). This Court reversed and remanded.

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

1987). On remand, the City moved for summary judgment

based on res judicata and the statute of limitations. The dis-

trict court denied the City’s motion but certified its order for

interlocutory appeal under 28 U.S.C. § 1292(b). We granted

2 The Fifth Amendment’s protections apply to the states through the

Fourteenth Amendment. See Chicago, B. & Q.R. Co. v. City of Chica-

go, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 (1897). For ease of refer-

ence, we refer to Corn’s claim as a Fifth Amendment claim throughout

this opinion.

A-6

permission to appeal and affirmed the denial of summary

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

(11th Cir.1990). The case was remanded for trial.

After a bench trial, the district court found that the City

had acted arbitrarily and capriciously in denying approval of

the Site Plan. The held that the denial violated Corn’s

substantive due process rights and awarded Com

$727,875.02 in damages. The court reserved judgment on

the Fifth Amendment just compensation claim (Count One),

finding that damages would be the same as on the substan-

tive due process claim. Not satisfied with the damages award

or the district court’s dismissal of individual members of the

City Council from the suit, Corn appealed. The City cross-

appealed.

We reversed, holding that the district court erred in

concluding that Corn’s substantive due process rights were

violated. Corn v. City of Lauderdale Lakes, 997 F.2d 1369.

Our painstaking review of the record revealed that Corn had

failed to prove that the City had acted arbitrarily and capri-

ciously. Id. at 1373. Indeed, the record affirmatively

showed that the City’s decision to prevent Corn from build-

ing the 900-unit mini-warehouse in a residential area was

substantially related to the general welfare. Id. We did not

address the other component of the substantive due process

claim: Whether Corn was deprived of any constitutionally

protected property interest. Id. at 1374. Because the district

court had not ruled on the just compensation claim, we

remanded for further proceedings. Id. at 1393.

The City and Corn agreed that the district court did not

need to conduct a new trial on the just compensation claim.

After receiving status reports from the parties, the district

court entered its Findings of Fact and Conclusions of Law

Upon Remand. The court framed the issue as ‘‘whether

CORN’s property (either his interest in the land or in the

A-7

development project) has been taken without just compensa-

tion by virtue of the CITY’s ordinances and actions. . .”’

(R. 273 at 10.) As to whether Corn’s interest in the land had

been taken, the court engaged in an ad hoc analysis of

whether the City’s ordinances and actions went ‘‘too far’’

and denied Corn all or substantially all economically viable

use of his land. (Id. at 13-14 (citing Reahard v. Lee County,

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

In analyzing whether the City went too far, the court

made the following findings as to Corn’s reasonable invest-

ment-backed expectations:

In 1977, having attempted no use of the Subject Proper-

ty for 11 years, CORN submitted his first preliminary

site plan for development of the Subject Property and

proposed for the first time, construction of mini-ware-

houses. By that time, he had completed his build-out of

the residential parcels and the Subject Property where

the mini-warehouses were to be constructed was, quite

literally, in the back yard of residents who had pur-

chased their homes from him. By that time the use

CORN proposed to make of the Subject Property (i.e.

construction of a 900 unit mini-warehouse) was con-

trary to the general welfare concerns about congestion,

noise, traffic, aesthetics, safety, and property values.

See Corn 997 F.2d at 1386. There was no evidence

presented that the construction of mini-warehouses was

ever CORN’s primary expectation for the Subject

Property or that he had invested in items specifically

suited for a single development project that were ren-

dered unusable, or render the Subject Property unusa-

ble, for any other purpose for which it could have been

developed. Any expectations CORN may have had

regarding use of the Subject Property are not backed by

any investment other than his original purchase. Fur-

ther, because the property remained suitable for busi-

A-8

ness development it cannot be said on this record that

CORN suffered a diminution in investment-backed

expectations.

(Id. at 15-16.)

As to the economic impact of the City’s ordinances and

actions on Corn’s property, court found:

the fact that the stated purpose of Ordinance 552 was to

permit the planning and Zoning Board to review the

CITY’s commercial zoning scheme in light of its previ-

ous suggestion that all C-1 Property abutting residential

property should be rezoned, is relevant to this court’s

finding that Ordinance 552 did not go too far. The

ordinance initially effected a reasonable 150 day build-

ing moratorium on development of all commercial

property in the CITY. While the duration of the mora-

torium was later extended, it cannot be said, in light of

the need to satisfy the reasonable purpose of the ordi-

nance and the length of time that CORN’s property lay

dormant before the enactment of it, that the duration of

the moratorium was unreasonable. It further cannot be

said that either the moratorium ordinance or the rezon-

ing ordinances which limited CORN’s use of the Sub-

ject Property to business, a more restrictive use than

commercial, rendered CORN’s property ‘‘wholly use-

less.’’ It further cannot be said CORN was deprived of

all ‘‘economically viable use,’’ thereby requiring that

he be compensated by the CITY. The ordinances went

far enough to serve their stated purposes but not so far

as to justify CORN’s just compensation claim.

(Id. at 17.) Thus, the court held that the ordinances did not

effect a taking of CORN’s property interest in the Parcel.

(Id. at 17-18.)

A-9

Turning to whether there was a taking of Corn’s property

with respect to the proposed development project (the

‘“Project’’), the court first analyzed whether Corn had any

property interest in the Project. (Id. at 18.) The court held

that Corn had no property interest in the Project:

[Especially considering the fact that even the pre-exist-

ing zoning category C-1 required CORN to obtain

approval of the CITY before developing his land, the

undersigned concludes that the ordinances in question

never created a reasonable expectation in CORN which

rose to the level of a property interest in the develop-

ment of his commercial project. It simply cannot be

said on this set of fact, that the CITY’s application of

the ordinances and other actions deprived CORN of a

legitimate claim of entitlement. CORN never had an

unbridled right to develop his property in any way he

so chose so long as it was merely consistent with the

zoning requirement. Because the CITY had never

granted to CORN an entitlement to freely develop the

property without its prior approval, CORN does not

have a protected property interest in the commercial

development project.

(Id. at 20-21.) Thus, the court entered judgment for the City

on Corn’s just compensation claim. Corn appeals.

Ill. ISSUES ON APPEAL

We address two issues on this appeal: (1) whether the dis-

trict court erred in finding that there was no taking of Corn’s

property interest in the Parcel; and (2) whether the district

court erred in finding that Corn had no property interest in

the Project.

* Corn also contends that, in light of subsequent Supreme Court

precedent, we should revisit our holding on Corn’s last appeal. Accord-

A-10

IV. CONTENTIONS OF THE PARTIES

Corn argues that because the state circuit court held that

the City could not validly apply the ordinances to the Parcel,

the ordinances necessarily went ‘‘too far’’ and thus effected

a taking. Alternately, Corn contends that the City deprived

him of all economically viable use of the Parcel by rejecting

the Site Plan, imposing the moratorium, appealing the state

court judgment, and insisting that Corn plat the property.

During the moratorium, he argues, all building or develop-

ment on the Parcel was prohibited. Corn concedes that, after

the moratorium, he could develop the Parcel for many other

purposes, but contends that he had no legal obligation to do

so. Since he could not build the Project until March 1985,

and had no obligation to use the Parcel in any other way,

Corn argues that he was deprived of all economically viable

use of the Parcel until March 1985. By that time, Corn

argues, the Project no longer was commercially practicable,

and the alleged taking thus matured into a permanent taking.

The City responds that the district court correctly deter-

mined that Corn was not deprived of all economically viable

use of the Parcel. The City notes that Corn does not dispute

that the Parcel could be used for many purposes other than

building a mini-warehouse. The City argues that the district

court correctly found that the moratorium did not effect a

taking because it lasted only as long as necessary to study

the commercial zoning scheme.

Corn also contends that the City’s denial of permission to

build the Project constituted a taking of the Project. Com

ing to Corn, under the Supreme Court’s decision in Dolan v. City of

Tigard, 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994), we

applied the wrong standard in rejecting Corn’s substantive due process

claim. Corn’s contention is meritless. Dolan did not address the type of

substantive due process claim asserted by Corn.

A-11

grounds this argument on the state circuit court’s holding

that he had certain vested rights in the C-1A zoning Classifi-

cation and that the City was estopped from denying Corn

permission to build the Project. Corn argues that the state

court judgment conclusively establishes his just compensa-

tion claim as to the Project; in effect, he argues, the state

court judgment is a coupon entitling him to a just compensa-

tion award when presented to a federal court. All the federal

court has to do is determine the amount of compensation

due.

The City contends that whether Corn had a property inter-

est in a particular development project is irrelevant to a Fifth

Amendment just compensation claim. According to the City,

Corn’s alleged property interest in the Project properly was

the subject of Corn’s substantive due process claim, but has

no place in a just compensation claim. Even if an interest in

a particular project is a cognizable source of a just compen-

sation claim, the City argues, Corn had no property interest

in the Project because the district court correctly found that

Corn had no legitimate claim of entitlement to build the

mini-warehouse.

V. DISCUSSION

A. Whether the City Effected a Taking of the Parcel

To establish a just compensation claim, a landowner must

show that the challenged regulation (1) does not substantially

advance legitimate state interests, or (2) denies him econom-

ically viable use of his land. Agins v. City of Tiburon, 447

U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106

(1980); Reahard v. Lee County, 968 F.2d 1131, 1135 (11th

Cir. 1992). On the last appeal in this case, we held that the

ordinances substantially advanced legitimate government

interests. Corn, 997 F.2d at 1373. Thus, to establish his just

compensation claim with respect to the Parcel, Corn must

A-12

show that the ordinances denied him economically viable use

of the Parcel.

When a landowner temporarily is deprived of all econom-

ically viable use of his land, he is entitled to just compensa-

tion for the temporary taking of his property. First English

Evangelical Lutheran Church of Glendale v. Los Angeles

County, Cal., 482 U.S. 304, 321, 107 S.Ct. 2378, 2389, 96

L.Ed.2d 250 (1987). Corn divides his claim into several

times periods, arguing that there was a temporary taking

during the moratorium and until the state court judgment

was affirmed and that the temporary taking ultimately

matuied into a permanent taking. We follow a similar

approach, analyzing whether there was a temporary taking

separately from Corn’s permanent taking claim.

Whether a landowner has been deprived of all or substan-

tially all economically viable use of his property, either

permanently or temporarily, is an essentially ad hoc inquiry

into whether the regulation goes ‘“‘too far.’’ MacDonald,

Sommer & Frates v. Yolo County, 477 U.S. 340, 349, 106

S.Ct. 2561, 2566, 91 L.Ed.2d 285 (1986). The factfinder

must consider (1) the economic impact of the regulation; (2)

its interference with the landowner’s reasonable investment-

backed expectations, and (3) the character of the governmen-

tal action. Id. See also Reahard, 968 F.2d at 1136 (listing

factors to be considered in analyzing just compensation

claim). The district court correctly engaged in an ad hoc

analysis of the relevant factors. The court concluded that

Corn suffered no diminution in his reasonable investment-

backed expectations and that many economically viable uses

of the Parcel were permitted.

Except with respect to the moratorium period, the district

court’s factual findings are not clearly erroneous. Indeed, it

is undisputed that, except during the moratorium, Com

could use the Parcel for any use permitted in a B-3 zoning

SE a So he

n A-13

category, including to build the proposed shopping center.

We hold, therefore, that there was no taking of the Parcel

after the moratorium expired.

Corn contends that his case is special and not subject to

traditional takings analysis. According to Corn, the econom-

ic impact of the ordinances and their effect on his reasonable

investment-backed expectations are irrelevant because he has

obtained a state court judgment holding that the ordinances

could not validly be applied to the Parcel. Corn fails,

however, to cite any authority for his suggestion that a

government automatically is liable to pay just compensation

under the Fifth Amendment whenever a zoning authority

subsequently is held to be estopped from enforcing a change

in zoning. We know of no such rule. The standard for

whether regulation effects a taking is whether the landowner

has been denied all or substantially all economically viable

use of his land. Reahard, 968 F.2d at 1136.

Corn’s only argument as to how he has been denied all

economically viable use of the Parcel is that he was not

legally obligated to use the Parcel for any of the permissible

economically viable uses. Because he could not build the

mini- warehouse, and was not legally required to build

anything else, the argument goes, Corn was left with no

economically viable use for the Parcel. Again, Corn cites no

authority for his proposition, and we have found none. The

Standard is not whether the landowner has been denied those

uses to which he wants to put his land; it is whether the

landowner has been denied all or substantially all economi-

cally viable use of his land. See Baytree of Inverrary Realty

Partners v. City of Lauderhill, 873 F.2d 1407, 1410 (11th

Cir. 1989) (holding that neither inability to develop exactly

what developer wanted, deprivation of most beneficial use of

land, nor severe decrease in value of property amounts to

taking). Because Corn as not denied economically viable use

of the Parcel after the expiration of the moratorium, his

A-14

claim that there was a taking of the Parcel after the morato-

rium expired fails.

As to the moratorium period, however, we must remand

to the district court for further factual findings. The district

court found that the moratorium: (1) served a reasonable

purpose; (2) was reasonable in duration, in light of the

length of time that the Parcel lay dormant before the morato-

rium; and (3) did not deprive Corn of all economically

viable use of the Parcel. The court then held that the mora-

2torium did not effect a temporary taking of the Parcel. The

court did not explain, however, whether its holding was

based on the reasonableness of the moratorium, the existence

of economically viable uses of the Parcel during the morato-

rium, or both. Nor did the court make any explicit factual

findings as to what, if any, economically viable uses of the

Parcel were available to Corn during the moratorium.

The district court’s factual findings are insufficient for

effective appellate review. We are unable to determine from

the record whether the district court’s conclusion that the

Parcel could be put to economically viable use during the

moratorium is clearly erroneous. The parties proceed on the

assumption that the moratorium prohibited Corn from build-

ing anything on the Parcel. However, our review of the

ordinances reveals that the Parcel was re- zoned B-3 within a

month after the moratorium began, suggesting that the

Parcel thereafter may not have been subject to the moratori-

um. It may be that the district court based its conclusion on

a finding that, during the moratorium, Corn could use the

Parcel for any use permitted by the B-3 zoning classifica-

tion, but any such finding was not explicit. Hence, we

remand for the court to make findings as to the economically

viable uses of the Parcel during the moratorium.

In light of our decision to remand, we need not address

Corn’s contention that the district court erred in considering

A-15

the reasonableness of the moratorium. According to Corn,

there was a temporary taking of the Parcel if he was denied

all or substantially all economically viable use of the Parcel

during the moratorium, regardless of the moratorium’s

reasonableness. The City responds that there was no taking

because the moratorium lasted just long enough to study the

City’s commercial zoning scheme. We need not address this

significant constitutional question of first impression‘ at this

juncture, as it may turn out that the moratorium did not

deprive Corn of all economically viable use of the Parcel.

B. Whether the City Effected a Taking of the Project

Corn argues that the state court judgment conclusively

establishes that he had a property right in the Project which

was taken by the City when it denied him permission to

build the mini-warehouse. He contends that the City’s

actions denied him of all economically viable use of the

Project, entitling him to just compensation. The City

responds that, even if Corn had a property interest in the

Project, it is not the type of property interest cognizable in a

just compensation claim. According to the City, any proper-

* Neither the Supreme Court not the circuit has addressed whether a

temporary moratorium on development necessarily effects a temporary

taking. In First English, the Supreme Court assumed that a county ordi-

nance denied the landowner all use of its property for a considerable

period of years. 482 U.S. at 322, 107 S.Ct. at 2389. The Court held that

the ordinance effected a temporary taking, requiring the county to pay

fair market value for the use of the property during that time period. Id.

The Court took pains, however, to limit its holding: ‘‘We 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 ob-

taining building permits, changes in zoning ordinances, variances, and

the like which are not before us.’’ Id. at 321, 107 S.Ct. at 2389 (empha-

sis added). Unlike the moratorium in this case, which had a set expira-

tion date, the ordinance in First English by its terms was indefinite; it

would expire only if declared unconstitutional or repealed.

A-16

ty interest in the Project properly was the subject of Corn’s

substantive due process claim and may not be relitigated in

the guise of a just compensation claim.

The district court held that Corn had no property interest

in developing the Project. In so holding, however, the dis-

trict court failed to consider the state court’s holding that,

under Florida law, Corn had acquired certain vested rights

in the Project. Nevertheless, we need not decide what

preclusive effect, if any, the state court finding of vested

rights under state law has in this federal action for just

compensation under the Fifth Amendment. We hold that,

regardless of what vested rights Corn may have had in the

Project under Florida law, a denial of permission to build a

particular development project does not, by itself, state a

just compensation claim. To recover just compensation,

Corn must show that the denial of his rights in the Project

denied him all or substantially all economically viable use of

the Parcel, not simply economically viable use of whatever

property rights he had in the Project.*

The Fifth Amendment prohibits the government from

taking private property for public use without paying just

compensation. The “‘private property’’ subject to the Fifth

Amendment’s prohibition, however, does not include every

single property interest recognized by the law. Corn correct-

ly notes that the Supreme Court has recognized that the Just

Compensation Clause protects property interests other than

just fee simple ownership of land. See, e.g., Dolan v. City

of Tigard, 512 U.S. 374, _, 114 S.Ct. 2309, 2316, 129

L.Ed.2d 304 (1994) (Fifth Amendment protects right to ex-

5 The Supreme Court has expressed no view on the proper test to be

applied to a takings claim based on a vested rights theory. Williamson

County Regional Planning Comm’n, 473 U.S. at 191 n. 12, 105 S.Ct. at

3119 n. 12.

A-17

clude others), Nollan v. California Coastal Comm’n, 483

U.S. 825, 831, 107 S.Ct. 3141, 3145, 97 L.Ed.2d 677

(1987) (same). But Corn cites no authority holding that a

denial of rights in a particular development project requires

just compensation when, as here, the denial substantially

advances legitimate governmental interests and does not

deny the landowner all or substantially all economically

viable use of his land.

The Supreme Court’s decisions suggest that a just

compensation claim turns on the remaining economically

viable uses of the land itself rather than on the ability to take

advantage of a particular right relative to the land. In Penn

Central Transp. Co. v. City of New York, 438 U.S. 104, 98

S.Ct. 2646, 57 L.Ed.2d 631 (1978), for example, the Court

rejected the type of narrow focus on particular rights urged

by Corn, characterizing as ‘‘quite simply untenable’’ the

Suggestion that a taking is established simply by showing

that a landowner has been denied the ability to exploit a

particular property interest. Id. at 130, 98 S.Ct. at 2662.

The landowner in Penn Central argued that New York City

had deprived it of any gainful use of the valuable air rights

above Grand Central Station and that, regardless of the value

of the remainder of the parcel, the city had taken its right to

the airspace, entitling it to just compensation measured by

the fair market value of the air rights. Rejecting this argu-

ment, the Court noted:

‘“Taking’’ jurisprudence does not divide a single parcel

into discrete segments and attempt to determine whether

rights in a particular segment have been entirely abro-

gated. In deciding whether a particular governmental

action has effected a taking, this Court focuses rather

both on the character of the action and on the nature

and extent of the interference with rights in the parcel

as a whole... .

A-18

Id. (emphasis added). See also Andrus v. Allard, 444

U.S. 51, 65-66, 100 S.Ct. 318, 327, 62 L.Ed.2d 210 (1979)

(‘‘But the denial of one traditional property right does not

always amount to a taking. At least where an owner possess-

es a full ‘“bundle’’ of property rights, the destruction of one

**strand’’ of the bundle is not a taking, because the aggre-

gate must be viewed in its entirety.””)

It is true that the Supreme Court has found a taking when

economically viable uses of the land itself remain. Those

cases, however, generally have involved either a physical

invasion of the land, see, e.g., Loretto v. Teleprompter

Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73

L.Ed.2d 868 (1982); Kaiser Aetna v. United States, 444

U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979), or de-

struction of a fundamental attribute of ownership, see, e.g.,

Nollan, 483 U.S. 825, 107 S.Ct. 3141 (right to exclude

others), Kaiser Aetna, 444 U.S. 164, 100 S.Ct. 383 (same).

Here, of course, Corn’s land has not been physically invad-

ed, and Corn does not contend that the right to build a mini-

warehouse is a fundamental attribute of ownership or ‘‘one

of the most essential sticks in the bundle of rights that are

commonly characterized as property.’’ Dolan, 512 U.S. at

____, 114. S.Ct. at 2316 (quoting Kaiser Aetna, 444 U.S. at

176, 100 S.Ct. at 391).

Corn correctly notes that the property rights protected by

the Fifth Amendment are created and defined by state law.

See Lucas v. South Carolina Coastal Council, 505 U.S.

1003, 1030, 112 S.Ct. 2886, 2901, 120 L.Ed.2d 798. He

errs, however, in suggesting that the Fifth Amendment

requires the payment of just compensation for every depriva-

tion of a right recognized by state law. ‘‘Property’’ as used

in the Just Compensation Clause is defined much more

narrowly than in the due process clauses. Pittman v. Chica-

go Bd. of Educ., 64 F.3d 1098, 1104 (7th Cir. 1995), cert.

denied, US. __, 116 S.Ct. 2497, 135 L.Ed.2d 189

—— ee

A-19

(1996); Pro-Eco, Inc. v. Board of Comm'rs of Jay County,

Ind., 57 F.3d 505, 511 n. 6 (7th Cir.), cert. denied, a

U.S. __, 116 S.Ct. 672, 133 L.Ed.2d 522 (1995). See also

Scott v. Greenville County, 716 F.2d 1409, 1421-22 & n.

20 (4th Cir. 1983) (entitlement to building permit is proper-

ty protected by due process clause but not by Fifth Amend-

ment takings doctrine). Thus, while certain property inter-

ests may mot be taken without due process, they may be

taken without paying just compensation. We think that

Corn’s right in the Project is such an interest.¢

Corn contents that this circuit has held that a denial of

vested rights in a development project may entitle a develop-

er to just compensation under the Fifth Amendment. Accord-

ing to Corn, Ax*--Profiles, Inc. v. City of Fort Lauderdale,

850 F.2d 1483 (llth Cir.1988), cert. denied, 490 U.S.

1020, 109 S.Ct. 1743, 104 L.Ed.2d 180 (1989), and Wheel-

er v. City of Pleasant Grove, 664 F.2d 99 (Sth Cir.1981),

* Our showing that, to recover just compensation, Corn must show

that he was denied economically viable use of the Parcel, as opposed to

the Project, is compelled by practical considerations as well. Corm’s

position would require the government “‘to regulate by purchase.”’

Andrus, 444 U.S. at 65, 100 S.Ct. at 326. Government would be re-

quired to pay just compensation whenever it deprived someone of a

property interest, regardless of whether the deprivation violated due

process or any other constitutional rights. Indeed, the due process clause

would become superfluous with respect to government deprivations of

property interests. No longer would plaintiffs have to show that the

government's actions were arbitrary and capricious or procedurally defi-

cient; showing deprivation of the property right alone would suffice to

In this case, we need not identify the line between property rights

protected by the Just Compensation Clause and those protected only by

due process and other constitutional guarantees. We hold only that a

denial of Corn’s rights in the Project does not require just compensation

because economically viable uses of the Parcel remain.

A-20

cert. denied, 456 U.S. 973, 102 S.Ct. 2236, 72 L.Ed.2d

847 (1982), establish that a landowner is entitled to just

compensation when denied a property interest in a project,

regardless of whether the land itself may be put to other

economically viable uses. The City contends that A.A.

Profiles and Wheeler are better viewed as due process cases

rather than as just compensation cases.

Plaintiff in A.A. Profiles planned to operate a wood-

chipping business on its land. Plaintiff received the

necessary approvals from the city commission, completed

the purchase of the land, obtained building permits, and

commenced construction on the land. Id. at 1485.

Subsequently, the city withdrew its approval, issued a stop

work order, and re-zoned the land. Id. Plaintiff alleged that

the city’s actions violated the prohibition against taking

private property without just compensation and procedural

due process. Id. We framed the issue as whether the city’s

actions substantially advanced a legitimate state interest. Id.

at 1478. In finding that they did not, we relied heavily on

our ‘‘indistinguishable’’ decision in Wheeler. In Wheeler,

we held that a city ordinance prohibiting the plaintiff from

building an apartment complex for which it had already

received a building permit was arbitrary and capricious and

therefore violated due process. Id. at 100. We also

characterized the city ordinance in Wheeler as a ‘‘confisca-

tory measure,”’ and noted that a regulatory undertaking that

is “‘confiscatory’’ is a taking. Id.

Though the City correctly notes that the government

action in both A.A. Profiles and Wheeler violated due

process, we agree with Corn that both cases hold that a

denial of rights in a development project may give rise to a

just compensation claim as well as to a due process claim.

But we cannot agree with Corn’s suggestion that, under

A.A. Profiles and Wheeler, a developer establishes a just

compensation claim simply by showing denial of a vested

A-21

right in a particular development project. We based our

holding in both cases on the first prong of a just compensa-

tion claim, holding that the government action failed to

advance a legitimate state interest. A.A. Profiles, 850 F.2d

at 1487-88; Wheeler, 664 F. 2d at 100. We did not mention

the “‘economically viable use’’ prong of a just compensation

claim. Neither A.A. Profiles nor Wheeler address the issue

in this case: whether government actions substantially

advancing legitimate state interests effect a taking when they

deny economically viable use of a particular development

right but allow the land itself to be used for many economi-

Cally viable uses.

For the reasons discussed above, we hold that the gov-

ernment does not effect a taking when its actions substantial-

ly advance legitimate state interests and leave economically

viable uses of the land itself. Thus, Corn may recover just

compensation only to the extent that he was denied economi-

cally viable use of the Parcel; he may not recover just

compensation for any denial of his rights in the Project that

did not also deny him economically viable use of the Parcel.

VI. CONCLUSION

We vacate the district court’s judgment on Corn’s claim

that the moratorium effected a temporary taking of the

Parcel because the district court’s findings are not sufficient

for effective appellate review. We remand for the district

court to make further factual findings on that claim. In all

other respects, the district court’s judgment is affirmed.

AFFIRMED IN PART; VACATED AND REMANDED

IN PART.

A-22

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 95-4351

HERMAN CORN,

Plaintiff-Appellant,

versus

CITY OF LAUDERDALE LAKES, HOWARD CRAFT,

ALFONSO GEREFFI, JEROME COHAN, MORRIS

KLEIN, LYMAN L. ALLEN, LOUIS GREENWALD,

HARRY KAUFMAN,,

Defendants-Appellees.

{stamp—Filed, U.S. Court of Appeals, Eleventh Circuit,

MAR 20 1997, Miguel J. Cortez, Clerk]

On Appeal from the United States District Court for the

Southern District of Florida

ON PETITION(S) FOR REHEARING AND SUGGESTION(S) OF

REHEARING EN BANC

(Opinion , 11th Cir., 19 __, F.2d ___).

Before: COX and BARKETT, Circuit Judges, and

BRIGHT *, Senior Circuit Judge.

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no member

of this panel nor other Judge in regular active service on the

* Honorable Myron H. Bright, Senior U.S. Circuit Judge for the

Eighth Circuit, sitting by designation.

A-23

Court having requested that the Court be polled on

rehearing en banc (Rule 35, Federal Rules of Appellate

Procedure; Eleventh Circuit Rule 35-5), the Suggestion(s)

of Rehearing En Banc are DENIED.

ENTERED FOR THE COURT:

/s/ E. R. Cox

UNITED STATES CIRCUIT JUDGE

Appendix

B-1

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

CASE NO. 84-6034-CIV-PAINE

HERMAN CORN, Trustee

Plaintiff,

VS.

CITY OF LAUDERDALE LAKES, a Florida municipal

corporation; HOWARD CRAFT; ALFONSO GEREFFI;

JEROME J. COHAN; MORRIS KLEIN; LYMAN L.

ALLEN; LOUIS GREENWALD; and HARRY KAUF-

MAN,

Defendant.

[Filed by , JUN 13 1994, T. G. Cheleotis,

Clerk U.S. Dist. Ct., S.D. of Fla.-W.P.B.]

FINAL JUDGMENT

This matter came on for consideration before the court,

the Honorable Judge James C. Paine, presiding, upon a

bench trial which was held on August 12-15, 1991, and

upon remand from the Eleventh Circuit as set forth in Corn

v. City of Lauderdale Lakes, 997 F.2d 1369 (11th Cir.

1993). The evidence having been duly presented and the

issues having been duly heard, on June 3, 1994, the court

rendered Findings of Fact and Conclusions of Law. In ac-

cordance with the court’s findings and conclusions, it is

hereby

ORDERED and ADJUDGED that final judgment is en-

tered in favor of the CITY and the individual defendants and

against the Plaintiff CORN, on Count I, the just compensa-

tion claim. Further, in view of the Eleventh Circuit man-

date, it is

B-2

ORDERED and ADJUDGED that final judgment is en-

tered in favor of the CITY and the individual defendants and

against the Plaintiff CORN, on Count II, the substantive due

process claim.

Dated at West Palm Beach, Florida, this 10th day of June,

1994.

T.G. CHELEOTIS

Clerk of Court

By: /s/ Svava Ringheim

Svava Ringheim, Deputy Clerk

Copies furnished to:

Andrew T. Lavin, Esq.

Romanik, Lavin, Huss, & Paoli

1901 Harrison Street

Hollywood, Florida 33022

Michael C. Mattson

Cooney, Haliczer, Mattson, Lance

Blackburn, Pettis & Richards, P.A.

301 East Las Olas Blvd.

Fort Lauderdale, Florida 33302

James C. Brady, Esq.

Brady & Coker

1318 S.E. 2nd Ave.

Fort Lauderdale, Florida 33316

B-3

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

CASE NO. 84-6034-CIV-PAINE

HERMAN CORN, Trustee

Plaintiff,

vs.

CITY OF LAUDERDALE LAKES, a Florida municipal

corporation; HOWARD CRAFT: ALFONSO GEREFFI;

JEROME J. COHAN; MORRIS KLEIN; LYMAN L.

ALLEN; LOUIS GREENWALD; and HARRY KAUF-

MAN,

Defendant.

[Filed by » JUN 13 1994, T. G. Cheleotis,

Clerk U.S. Dist. Ct., $.D. of Fla.-W.P.B]

FINDINGS OF FACT AND CONCLUSIONS OF LAW

UPON REMAND

This matter is before the court upon a bench trial which

was held on August 12-15, 1991, and upon remand from the

Eleventh Circuit as set forth in Corn v. City of Lauderdale

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

FINDINGS OF FACT

1. Prior to June 1966, Plaintiff, HERMAN CORN,

TRUSTEE (‘‘CORN’’), acquired 261 acres of real property

located in the unincorporated area of Broward County which

was then zoned for agricultural uses.

2. After preliminary negotiations with the Defendant

CITY OF LAUDERDALE LAKES (the ‘‘CITY’’) concern-

ing possible annexation of his land, CORN presented a

proposed development plan.

B4

3. On July 12, 1966, the CITY adopted three ordinances

as follows:

a. Ordinance 103 created a C-1A zoning category

within the CITY, incorporating the permissible uses of the

pre-existing category and requiring the submission of a site

development plan before issuance of a building permit;

b. Ordinance 104 formally annexed CORN’s land; and

c. Ordinance 105 designated various zoning classifica-

tions for different portions of CORN’s land, including a C-

1A designation for an approximately 8.5 acre portion

bounded to the south by Canal C-13 and to the east by U.S.

441 (the ‘‘Subject Property’’). The land immediately north

and west of the Subject Property was concurrently zoned for

4. The uses permitted in the pre-existing zoning category

included fertilizer sales, animal boarding kennel, automobile

paint shop, storage warehouse, railroad freight or passenger

station, and sheet metal shop.

5. Between 1966 and 1977, CORN developed much of his

land in accordance with the plan originally submitted to the

CITY. This included construction and sale of residential

units on the land surrounding the Subject Property. As part

of this plan, CORN constructed waterways along the north

and west boundaries of the Subject Property, to form a

buffer between it and the adjacent residential area on which

he was building and selling residences.

6. CORN spent in excess of $100,000.00 preparing the

Subject Property to be developed but CORN did not prove

whether this money was directed toward general commer-

cial/business preparation or for the single specific use which

the CITY later banned. Corn did not prove that the money

he spent was spent with the expectation that he would con-

struct mini-warehouses on the Subject Property.

B-5

7. During 1975, the CITY retained the services of a land

use planner, who questioned the propriety of C-1A zoning

for the Subject Property. No formal action, however, was

taken with respect to changing the zoning classification of

the Subject Property until July 12, 1977.

8. On April 1, 1977, CORN submitted a preliminary site

plan for development of the Subject Property. The site plan

depicted the construction of an approximately 67,000 square

foot shopping center on the eastern portion of the Subject

Property, which would front U.S. 441, and an approximate-

ly 103,000 square foot, 900 unit mini-warehouse on the

western, Or rear portion.

9. Many CITY residents who had purchased residences

which were constructed and developed by CORN around the

Subject Property, publicly opposed CORN’s proposed

commercial project on the Subject Property.

10. On May 12, 1977, the CITY’s Planning and Zoning

Board recommended that the City Council, the body author-

ized the make a final decision regarding the site plan, issue

approval of CORN’s site plan. At the request of the City

Council, the Planning and Zoning Board again considered

CORN’s site plan at a public meeting held May 26, 1977.

By letter dated May 27, 1977, the Planning and Zoning

Board re-affirmed its May 12 recommendation of approval.

11. At public meetings held May 31, June 14, and June

21, 1977, the City Council heard from the surrounding

home owners who complained about the likelihood of nega-

tive effects such as congestion, noise, traffic, aesthetics,

safety and property values. The homeowners, who had

purchased homes on the surrounding property which was

developed by CORN, had reasonable expectations that the

Subject Property would be developed in the manner repre-

sented to them by CORN at the time they purchased it and

not in any manner that was contrary to their general welfare

B-6

concerns such as congestion, noise, traffic, aesthetics, safety

and maintenance of property values. At each meeting, the

City Council tabled consideration of CORN’s site plan.

12. On July 12, 1977, the City Council discussed changes

in both the uses permitted within C-1A property and the

zoning classification of CORN’s property. The City Council

in fact passed two ordinances on first reading that were

ultimately adopted:

a. Ordinance 548 amended Article XXXVII, Section

37.2 of the Broward County Zoning Classification Restric-

tions and Regulations, as adopted by reference, to eliminate

storage warehouses as a permitted use in category C-1, the

pre-existing category at the time of annexation, and conse-

quently, category C-1A, the category created for the Subject

Property after annexation; and

b. Ordinance 549 rezoned the Property from C-1A

(commercial) to B-3 (business), a more restrictive category.

13. After passing Ordinances 548 and 549, the City

Council voted unanimously to deny approval of CORN’s site

plan. The City’s actions in both passing the ordinances and

denying CORN’s site plan were motivated by and substan-

tially related to general welfare concerns about congestion,

noise, traffic, aesthetics, safety and property values.

14. Ordinance 552, which imposed a 150 day building

moratorium on all C-1 property in the CITY, was proposed

at the July 12, 1977 meeting and later adopted. The stated

purpose of the moratorium was to permit the Planning and

Zoning Board, which had purportedly advised that C-1

property abutting residentia! property should be rezoned, to

review the CITY’s commercial zoning scheme.

15. Corn sued these same Defendants in the Circuit Court

of the Seventeenth Judicial Circuit in and for Broward

County, Florida, seeking, inter alia, a writ of mandamus

B-7

directing the City Council to approve CORN’s site plan, 4

declaration that Ordinances 548, 549 and 552 ware invalid,

and monetary damages for inverse condemnation. The in-

16. Through Ordinance 568, the City Council extended

the building moratorium through July 4, 1978.

17. On October 20, 1978, ing a three-day non-jury

19. On February 16, 1983, the state court of appeal

upheld the trial court’s application of the doctrine of equita-

ble estoppel and the propriety of mandamus, thereby affirm-

a@ mandate on March 4, 1983, at which time its opinion

became final.

20. In October, 1983, seven months after the appellate

mandate, CORN submitted a revised site pian whict ad-

B-8

22. On January 17, 1984, CORN filed this action seeking

damages under 42 U.S.C. §1983 for violation of civil rights

granted under the takings clause of the Fifth Amendment,

the due process clause of the Fourteenth Amendment, and

the equal protection clause of the Fourteenth Amendment.

23. On October 26, 1984, Corn filed a motion to enforce

the state court final judgment asserting that the City Council

erroneously applied the platting requirement to him because

it was enacted after he should have been granted approval

for his original site plan.

24. The state court judge entered an order enforcing the

state court final judgment, and concluded that CORN was

entitled to issuance of the building permit without platting

the Subject Property.

25. However, Corn chose not to pursue development of

the Subject Property which he still owns and has never

developed. Development of the originally proposed shopping

center on the front portion of the Subject Property was

possible at any time after July 4, 1978, when the moratori-

um on development of commercial property in the CITY

ended. Further, at any time thereafter, CORN could have

developed the rear portion of the Subject Property originally

planned for mini-warehouses, in any other way permitted by

the business category.

26. On October 22, 1985, United States District Court

Judge Jose A.Gonzalez, Jr. dismissed this federal court

__action as not ripe. The Eleventh Circuit Court of appeals

reversed the dismissal and remanded the matter back to the

27. Upon remand, this court entered an order concluding

that CORN’s cause of action was not barred by the statute of

limitations or by the doctrine of res judicata. The Eleventh

Circuit affirmed this holding in Corn v. City of Lauderdale

reer)

B-9

Lakes, 904 F.2d 585 (11th Cir. 1990), and the matter was

again sent back to this court.

28. Once again in district court, CORN dismissed De-

fendant BEN EIGNER from the action and also dismissed

Counts III, and IV.

29. By order dated July 1, 1988, this court granted a

motion to dismiss the individual defendants and dismissed

them on legislative immunity grounds.

30. On August 12-15, 1991, this court held a bench trial

at which the parties presented evidence on Counts I (a just

compensation taking claim), and II (a substantive due proc-

ess claim).

31. Finding that the CITY had acted arbitrarily and capri-

ciously in denying approval of Corn’s site plan, this court

same

claim made CORN

address the merits of CORN’s Fifth Amendment just

compensation claim, as set forth in Count I.

33. On appeal, the Eleventh Circuit held that (1) the

CITY’s refusal to permit developer to proceed with con-

B-10

of due process, and (2) council members were not entitled to

legislative immunity with regard to CORN’s just compensa-

tion claim. Corn v. City of Lauderdale Lakes, 997 F.2d

1369 (11th Cir. 1993).

34. As noted by the appellate court, what began as four

claims has been whittled over the years to one, a just

compensation claim. The parties agree that there is no need

for additional proceedings before the court on Plaintiff's

remaining claim because this issue was fully briefed and

presented to this court during the August 12-15, 1991 bench

trial.

THE LEGAL ISSUE DEFINED

CORN asserts through his just compensation claim that

the impact of the CITY’s invalid regulations effected a

taking of his property interest in either the Subject Property

or his proposed development project. Therefore, the issue in

this case is whether CORN’s property (either his interest in

the land or in the development project) has been taken

without just compensation by virtue of the CITY’s ordi-

CONCLUSIONS OF LAW

1. There are four distinct types of constitutional chal-

lenges to zoning ordinances. Eide v. Sarasota County, 908

F.2d 716, 720-22 (llth Cir. 1990), cert. den., 498 U.S.

1120 (1991). Im the present case, the plaintiff has asserted

that the CITY, through its ordinances and actions has taken

his property without just compensation, in contravention of

the Fifth Amendment (a just compensation claim).

2. The Constitution provides that * ‘Private property [shall

not] be taken for public use, without just compensation.”’

U.S. Const. amend. V.

B-11

3. The takings clause applies to states and their political

Subdivisions through the Fourteenth Amendment. See

Wheeler v. Pleasant Grove, 833 F.2d 267, 270 n. 3 (11th

Cir. 1987), reh. den. 844 F.2d 794 (1988) (en banc).

4. Resolution of a takings issue generally depends on

whether the CITY’s actions bear a substantial relationship to

a valid public purpose. Nollan v. California Coastal Com-

mission, 483 U.S. 825 (1987). Even so, its actions could go

too far. Penn Central Transportation Co. v. N.Y.C., 438

U.S, 916 (1978).

5. In Nollan the Court employed strict scrutiny to examine

the fit between the challenged regulation and the claimed

state interest. Nollan generally requires that the regulation at

issue in takings case ‘‘substantially advance a legitimate state

interest.’’ Nollan, 483 U.S. at 834. Addressing the neces-

Sary nexus between the regulation and the state interest, the

Nollan court recognized that a ‘‘broad range of governmen-

tal purposes and regulations satisfies these requirements.”’

Id. at 835. These include open spaces, scenic zoning,

landmark preservation, and residential zoning. Jd. A restric-

tion or condition on development that furthered these ends,

therefore, would be constitutionai, even if it required a

concession of property rights by the landowner. Jd. at 835-

37.

6. The City’s ordinances and actions as applied to

CORN’s property also must pass the three factor Penn

Central test to insure that they do not go too far and thereby

affect a taking. Penn Central, 438 U.S. 104. The Court

““has been unable to develop any ‘set formula’ for determin-

caused by public action be compensated by government

rather than remain disproportionately concentrated on a few

persons.’’ Penn Central, 438 U.S. at 1240.

B-12

7. A just compensation claim, as opposed to other types

of takings claims, does not seek ‘‘an invalidation of the local

authority’s application of the regulation,’’ Eide v. Sarasota

County, 908 F.2d at 721, but simply monetary compensation

for the value taken. Reahard v. Lea County, 968 F.2d at

1131. Generally, the landowner in a just compensation

takings case must demonstrate that his property was

*‘taken,””’ that the regulation ‘‘goes too far’’ and that there is

no provision to award him just compensation. Eide, 908

F.2d at 720. Therefore, the essential question inherent in a

just compensation claim is whether the valid regulation goes

so far as to be a taking. See Pennsylvania Coal Co. v.

Mahon, 260 U.S. 393, 415 (1922) (‘‘The general 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.””) Further, because takings decisions depend largely

upon the particular circumstances in each case, each case is

to be decided as hoc by applying the law to the particular

facts. Reahard 968 F.2d at 1135. A proper takings analysis

should address the following questions: (1) the history of the

property; (2) the history of development; (3) the history of

zoning regulation; (4) how development changed when title

passed; (5) what is the present nature and extent of the

property; (6) what were the reasonable expectations of the

landowner under state common law; (7) what were the

reasonable expectations of the neighboring landowners under

state common law; (8) what was the diminution in the in-

vestment-backed expectations of the landowner, if any, after

passage of the regulation. Jd. at 1136. Each of the factual

issues has been addressed below.

8. In this Circuit, the first test as set forth in Nolan is

bypassed because a claim for just compensation necessarily

involves a regulation that substantially advances a legitimate

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

(llth Cir. 1992). Therefore, because just compensation

B-13

Claims admit and assume that the subject regulation substan-

tially advances a legitimate government interest, the only

issue in just compensation claims is whether an owner has

been denied all or substantially all economically viable use

of his property. Id.; see also Eide, 908 F.2d at 721; First

English Evangelical Lutheran Church of Glendale v. County

of Los Angeles, 482 U.S. 304, 317 (1987); Ruckelshaus v.

Monsanto Co., 467 U.S. 986 (1984) (recognizing that

governmental action ‘‘so complete as to deprive the owner

of all or most of his interest’ can amount to a taking); Agins

v. Tiburon, 447 U.S. 255, 260 (1980).

9. The next question presented then is how far is too far?

Using ad hoc factual inquiries, the courts have identified

several significant factors in determining whether a taking

has occurred because a government’s actions have gone too

far and have denied the landowner all or substantially all

economically viable use of his property: 1.) interference

with reasonable investment-backed expectations, and 2)

economic impact to the landowner. Penn Central, 438 U.S.

at 124; Reahard v. Lea County, 968 F.2d at 1136. This

analysis must be explored in light of developing case law

that has shaped and defined the meaning of theses factors.

Reahard v. Lee County, 968 F.2d at 1136. -

10. Regarding the deprivation of reasonable investment-

backed expectations, the Supreme Court has traditionally

form.’’ Id. CORN made no use of the Subject Property

since purchasing it in 1966. He did, however, construct and

B-14

sell residential structures on the land surrounding the Subject

Property. In 1977. having attempted no use of the Subject

Property for 11 years, CORN submitted his first preliminary

site plan for development of the Subject Property and pro-

posed for the first time, construction of mini-warehouses. By

that time, he had completed his build-out of the residential

parcels and the Subject Property wiere the mini-warehouses

were to be constructed was, quite literally, in the back yard

of residents who had purchased thir homes from him. By

that time, the use CORN proposed to make of the Subject

Property (i.e. construction of a 900 unit mini-warehouse)

was contrary to the general welfar> concerns about conges-

tion, noise, traffic, aesthetics, safety, and property values.

See Corn 997 F.2d at 1386. There was no evidence present-

ed that the construction of mimi-warehouses was ever

CORN’s primary expectation for the Subject Property or

that he had invested in items specfically suited for a single

development project that were reidered unusable, or ren-

dered the Subject Property unusabe, for any other purpose

for which it could have been devloped. Any expectations

CORN may have had regarding ue of the Subject Property

are not backed by any investmert other than his original

purchase. Further, because the poperty remained suitable

for business development it cannet be said on this record

that CORN suffered a diminutpn in investment-backed

expectations.

11. Turning to the economic inpact of the town’s ordi-

nances and activities on CORN’s jroperty, the threshold for

finding a taking is the denial of “‘:conomically viable use.’’

Agins, 447 U.S. at 250. Compensition is ordinarily required

if the challenged restriction maie the property ‘‘wholly

useless’’ so that “‘the rights of prmerty . . . prevail over the

other public interest.’’ Penn Centnl, 438 U.S. at 128 (cita-

tions omitted). To examine this fictor, the courts require a

**final authoritative determinationof the type and intensity

a anesiliienliiaeaiaaniitl

B-15

of development legally permitted.’’ MacDonald, Sommer &

Frates v. County of Yolo, 477 U.S. 340, 348 (1986). “‘A

court cannot determine whether a regulation has gone ‘‘too

far’’ unless it knows how far the regulation goes.’’ Jd.

12. The Nollan test that the challenged statute ‘‘substan-

tially advance a legitimate state interest’’ is not to be deter-

mined in the context of this just compensation analysis.

However, the fact that the stated purpose of Ordinance 552

was to permit the Planning and Zoning Board to review the

CITY’s commercial zoning scheme in light of its previous

suggestion that all C-1 property abutting residential property

Should be rezoned, is relevant to this court’s finding that

Ordinance 552 did not go too far. The ordinance initially

effected a reasonable 150 day building moratorium on

development of all commercial property in the CITY. While

the duration of the moratorium was later extended, it cannot

be said, in light of the need to Satisfy the reasonable purpose

of the ordinance and the length of time that CORN’s proper-

ty lay dormant before the enactment of it, that the duration

of the moratorium was unreasonable. It further cannot be

Said that either the moratorium ordinance or the rezoning

ordinances which limited CORN’s use of the Subject Proper-

ty to business, a more restrictive use than commercial,

rendered CORN’s property “wholly useless.’’ It further

cannot be said CORN was deprived of all ““economically ~

viable use,’* thereby requiring that he be compensated by

the CITY. The ordinances went far enough to serve their

Stated purposes but not so far as to justify CORN’s just

compensation claim.

13. Having applied the applicable authority to the perti-

nent facts, this court finds as a matter of law that the impact

of the CITY’s invalid regulations did not effect an unconsti-

tutional taking of CORN’s property interest in the Subject

Property. Under the present set of facts as set forth in the

Findings of Fact, this court holds as a matter of law that

OE

B-16

justice and fairness do not require that any economic injury

suffered by CORN as a result of the CITY’s public action be

‘compensated by the CITY. To permit the concentration of

economic injury, if any, on CORN, the individual who

developed the residential-areas of the CITY which would

otherwise suffer certain economic injury and negative gener-

al welfare problems if CORN’s commercial proposal were

implemented, is consistent with justice and fairness. Accord-

ingly, CORN is not entitled to an award of just compensa-

tion and his claim as stated in Count I must fail on these

grounds.

14. Having found that the impact of the CITY’s invalid

regulations did not effect a taking of CORN’s property

interest in the Subject Property, this court must determine if

the CITY’s actions effected a taking of CORN’s proposed

development project. The threshold issue in this determina-

tion is whether CORN had a property interest in the pro-

posed development of the commercial project. The Fifth and

Fourteenth Amendments protect all property interests created

and defined by state law. Paul v. David, 424 U.S. 693, 709

(1976), reh. den. 425 U.S. 985. A property interest is

generally defined as a ‘“‘legitimate claim of entitlement.’’

Perry v. Sindermann, 408 U.S. 593, 602 (1972). Thus,

reasonable expectations in a particular status of property

may attain protected property status based upon a state law,

regulation, or policy, or a mutually explicit understanding a

governmental body puts forth. Resolution Trust Corp. v.

Town of Highland Beach, 18 F.3d 1536 (11th Cir. 1994) (a

joint venture has a vested property right in the beneficial use

of property granted under a zoning ordinance).

Since there is no factual allegation in the present case

which would constitute a mutually explicit understanding

between the CITY and CORN, this court must examine

Florida law to determine if it created in CORN a reasonable

expectation in the commercial status of the land. /d., see

B-17

also, Reahard, 968 F.2d at 1136 (the court must evaluate

the reasonable expectations of the landowner under state

common law). While Florida case law does not recognize a

vested property right in the mere possession of a building

permit, it does recognize a Property owner’s vested property

right where the property owner, with a permit in hand, in

good faith makes a substantial change in position or incurs

such extensive obligations and expenses that it would be

highly inequitable and unjust to destroy the right he ac-

quired. Hollywood y. Hollywood Beach Hotel Co., 283

So.2d 867 (Fla. 4th Dist. Ct. App. 1973), citing Sakalsky v.

City of Coral Gables, 151 So.2d 433 (Fla. 1963). Because

the CITY had never issued a permit to CORN and CORN

did not prove that he in good faith made a substantial change

in position or incurred extensive obligations and expenses in

relation to the development of his commercial project, it

cannot be said that Florida law created in him a reasonable

expectation that his commercial mini-warehouse project-

would be permitted by the CITY.

16. While, like Florida law, this Circuit does not recog-

nize a property right in possession of a building permit, it

has acknowledged that property interests and vested rights

may arise in some cases from zoning and permit approvals.

Wheeler v. City of Pleasant Grove, 896 F.2d 1347, 1351

(11th Cir. 1990) (vested rights in plan approvals and build-

ing permits); A.A. Profiles, Inc. v. Fort Lauderdale, 850

F.2d 1483 (11th Cir. 1988) (vested rights in zoning), cert.

denied, 490 U.S. 1020 (1989). Applying these principles to

the facts of this case, and especially considering the fact that

even the pre-existing zoning category C-1 required CORN to

obtain approval of the CITY before developing his land, the

undersigned concludes that the ordinances in question never

created a reasonable expectation in CORN which rose to the

level of a property interest in the development of his

commercial project. It simply cannot be said on this set of

B-18

fact, that the CITY’s application of the ordinances and other

actions deprived CORN of a legitimate claim of entitlement.

CORN never had an unbridled right to develop his property

in any way he so chose so long as it was merely consistent

with the zoning requirement. Because the CITY had never

granted to CORN an entitlement to freely develop the

property without its prior approval, CORN does not have a

protected property interest in the commercial development

project.

17. The court concludes and the parties agree that the

Plaintiff's failure to establish liability against the defendants

on the just compensation claim, obviates the need to take

evidence regarding the individual defendants’ defenses of

qualified immunity.

In view of the foregoing Findings of Fact and Conclusions

of Law, it is hereby

ORDERED and ADJUDGED that final judgment be

entered in favor of the CITY and the individual defendants

and against the Plaintiff CORN, on Count I, the just com-

pensation claim. Further, in view of the Eleventh Circuit

mandate, it is

ORDERED and ADJUDGED that final judgment be

entered in favor of the CITY and the individual defendants

and against the Plaintiff CORN, on Count II, the substantive

due process claim.

DONE and ORDERED at West Palm Beach, Florida, this

13th day of June, 1994.

/s/ James C. Paine

UNITED STATES DISTRICT JUDGE

Copies furnished to:

Andrew T. Lavin, Esq.

Romanik, Lavin, Huss, & Paoli

1901 Harrison Street

Hollywood, Florida 33022

Michael C. Mattson

Cooney, Haliczer, Mattson, Lance

Blackburn, Pettis & Richards, P.A.

301 East Las Olas Blvd.

Fort Lauderdale, Florida 33302

James C. Brady, Esq.

Brady & Coker

1318 S.E. 2nd Ave.

Fort Lauderdale, Florida 33316

Appendix

.

C-]

_ UNITED STATES COURT OF APPEALS

ELEVENTH CIRCUIT

No. 91-6011.

HERMAN CORN,

Plaintiff-Appellant, Cross-Appellee,

ov.

CITY OF LAUDERDALE LAKES,

Defendant-Appellee, Cross-Appellant.

Aug. 13, 1993.

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

Appeals from the United States District Court for the

Southern District of Florida.

Before HATCHETT, DUBINA and CARNES, Circuit

Judges.

CARNES, Circuit J udge:

This case involves a zoning dispute between the City

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

that has generated a large volume of litigation in state

and federal courts during the past sixteen years. In this

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

zoning actions violated the developer’s substantive due

process rights and, after dismissing the claims against

individual City Council members, the district court has

awarded damages against the City. The developer has

appealed contending that the district court awarded

insufficient damages and should not have dismissed the

Council members. The City has cross-appealed on the

liability issue. We hold that the district court erred in

concluding that the City’s zoning actions violated

substantive due process, and we reverse on that basis,

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

ages calculations. We also conclude that the district

C-2

court erred in part in dismissing the City Council mem-

bers on legislative immunity grounds and reverse its

judgment on that basis as well.

I. INTRODUCTION

The property involved in this case is an 8.5 acre

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

residential condominium complex, and a neighborhood

of single family dwellings. The property, along with a

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

annexed by the City in 1966 with the support of the

developer, Herman Corn, who sought to increase the ©

value of his holdings. The City originally zoned the

property to permit commercial use subject to approval of

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

oped the adjacent land by selling condominium units and

single-family dwellings to the citizens of Lauderdale

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

proposing to develop the property into a 67,000 square

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

103,000 square foot mini-warehouse facility.

The City’s Planning and Zoning Board reviewed the

site plan for compliance with technical requirements,

and after requesting several changes, recommended

approval to the City Council. The City Council returned

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

Board again recommended approval. Before voting on

the site plan, the City Council and the City Building

Committee held public hearings at which residents of the

neighborhoods adjoining the proposed development

voiced strong opposition to the plan, primarily to the

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

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

July 12, 1977 meeting adopted on first reading two

ordinances which affected the property. The first

C-3

ordinance eliminated mini-warehouses as a permitted use

within the relevant zoning classification, and the second

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

Strictive business classification. Under Council proce-

dures, those two ordinances were not finally enacted and

did not become effective until September of 1977. At

the same July 12 meeting, and before the two ordinances

took effect, the Council voted unanimously to deny

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

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

day city-wide moratorium against construction on

property in the applicable zoning classification in order

to permit completion of a study on the propriety of

commercial zoning in residential areas. These actions

Spawned the litigation that continues to this day.

Herman Corn filed a lawsuit in a Florida state court in

August of 1977 challenging the validity of the three

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

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

reliance on the zoning classification of the property in

preparing it for development established Corn’s vested

right to the development and equitably estopped the City

from denying approval of the site plan. The court

declared the ordinances invalid, directed the City to

approve the site plan, and ordered a building permit to

be issued after the correction of some technical defects

in the plan. That judgment was affirmed by a Florida

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

insistence that Corn comply with a subsequently enacted

platting ordinance. After additional litigation, the state

court ordered the City to approve the site plan despite

Corn’s failure to comply with the platting ordinance.

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

begin development of the property in the fashion he

originally intended. Instead of developing the property,

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

C-4

seeking damages for the City’s delay in approving

development of his property.

Corn’s complaint stated four causes of action: an

equal protection claim; a Fifth Amendment just compen-

sation claim; a substantive due process claim; and a

procedural due process claim. Named as defendants

were the City and its Council members in their individ-

ual capacities. Corn later voluntarily dismissed his

equal protection and procedural due process claims, and

was left with a just compensation claim and a substan-

tive due process claim.

The district court first dismissed Corn’s action on

ripeness grounds. This Court reversed that determina-

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

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

motions to dismiss for failure to state a claim and for

summary judgment claiming that the action was barred

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

the individual City Council members, by legislative

immunity. The district court granted the motion to

dismiss the individual City Council members on legisla-

tive immunity grounds. The court refused to grant

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

based on the statute of limitations and res judicata, but

certified its denial as aa appealable interlocutory order.

This Court affirmed the denial, holding that the action

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

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

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

court again, this time for trial.

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

which it entered findings of fact and conclusions of law.

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

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

Corn on the substantive due process claim, finding that

the City had acted arbitrarily and capriciously in denying

C-5

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

ment on the Fifth Amendment just compensation claim,

because it considered the calculation of damages under

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

substantive due process claim served to make Corn

whole. The court set damages in the amount of

$727,875.02.

Corn filed a motion to amend the findings of fact and

conclusions of law. The court granted the motion, in

part, to make clear that the individual Council members

had been dismissed on legislative immunity grounds

earlier. The district court denied the motion in all other

material respects and reaffirmed its findings, noting that

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

“second bite at the apple.”

Com, seeking the entire apple, filed this appeal

challenging the district court’s calculation of damages as

well as the dismissal of the individual Council members.

The City cross-appealed, arguing that the trial court

erred in concluding that the City acted arbitrarily and

capriciously thereby violating Corn’s substantive due

process rights. The City also asks us to revisit our

earlier determination that Corn’s substantive due process

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

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

case. We need not address that contention, because our

holding that the district court erred in finding a violation

of substantive due process renders the City’s statute of

limitations attack superfluous. Because Corn’s just

‘compensation claim remains to be adjudicated on

remand, his contention that the district court erred in

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

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

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

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

C-6

dismissing the Council members on legislative immunity

grounds must be addressed. We decide that the district

court erred in dismissing on that ground, but only insofar

as denial of the site plan is concerned.

Il. STANDARD OF REVIEW

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

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

mined by the court. Although subsidiary facts are

properly for the factfinder, the ultimate issue is for the

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

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

the district court are to be respected unless they are

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

application of law to those facts, including the ultimate

determination of whether an action is arbitrary and

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

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

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

(11th Cir.), cert. denied, 498 U.S. 998, 111 S.Ct. 555,

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

tive immunity issue.

III. DISCUSSION OF THE LIABILITY ISSUE

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

permit Corn to proceed with construction of a 900-unit

mini-warehouse development in a residential area vio-

lated the Due Process Clause of the United States Con-

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

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

is on a developer seeking to establish a substantive due

process claim to prove that the governmental body acted

arbitrarily and capriciously in refusing permission for

the development. The record shows that Corn failed to

C-7

- Carry that burden, and it also affirmatively Shows that

the City did not act arbitrarily and Capriciously.

The district court’s error reaches beyond the fisc of

one Florida community and the merits of one case.

Faithfulness to the teachings of prior decisions of this

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

More broadly, this case involves questions about how

decisionmaking is allocated between a democratic

institution, such as an elected city council, and the

federal courts. It involves fundamental issues about the

allocation of rights and powers within our constitutional

System. Those issues and questions have all been

answered by controlling precedent, but contrary to the

way the district court answered them in this case.

A. THE GENERAL LAW APPLICA-

BLE TO LAND USE RESTRIC-

TIONS

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

reciprocal relationship to other rights. In land use

matters, for example, the rights of a developer are

defined in relation to the rights of the constituents of the

municipal government to regulate and contro] the devel-

opment of land in the community for the greater good as

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

case the developer, is not wholly dependent upon the

tender mercies of the majority for the definition and

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

minority’s rights are protected from majority encroach-

ment by state law enforced through the state court

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

those courts to claim his state law protection. Having

secured an enforceable state law judgment requiring the

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

developer has decided not to utilize that judgment and

C-8

pursue the development. Instead, he has pursued a

money judgment for the alleged infringement of his

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

under the Constitution.

The Constitution’s allocation or adjustment of the

reciprocal right of developers and the community’s

majority has been settled to a considerable extent in a

number of court decisions. Insofar as the Constitution is

concerned, a municipal government may control the use

of land within its jurisdiction for what it perceives to be

the common good, subject only to four restrictions.

These four restrictions define the limits of constitutional

rights a developer has and thus the constitutional claims

he may make against the governmental entity that has

restricted his use of land:

1. the Fifth Amendment right not to have his land

taken without just compensation (a “just compensa-

tion” claim);

2. the Due Process Clause right not to have the

use and value of his land infringed upon to such an

extent that it is tantamount to having been taken by

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

3. the Due Process Clause right not to have his

use of the land restricted arbitrarily and capri-

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

land restricted for reasons having no substantial

relation to the public health, safety, morals, or

general welfare (a “substantive due process” or

“arbitrary and capricious due process” claim);

4. the Equal Protection Clause right not be treated

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

tion” claim).

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

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

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

C-9

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

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

to those four limitations, the Constitution does not

prevent a local government from restricting, controlling,

or limiting the development of land to promote what it

perceives to be the general welfare interests of the

community as a whole.

B. SUBSTANTIVE DUE PROCESS

LAW APPLICABLE TO LAND

USE RESTRICTIONS

In the district court Corn pressed two claims, a just

compensation claim and also a substantive due process

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

court granted judgment in favor of Corn on the Substan-

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

pensation claim. We have before us for review the

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

the City violated Corn’s substantive due process rights.

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

not disagree, that there are two components to such a

claim. As this Court has said:

The current test in this Circuit as to whether

there has been a violation of substantive due

process in the context of § 1983 is twofold.

First, it must be determined whether there has

been a deprivation of federal constitutionally

protected interest, and secondly, whether the

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

governmental power sufficient to raise an

ordinary tort to the stature of a constitutional

violation.

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

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

- C-10

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

ing this test, the district court found that Corn had

established both the constitutionally protected interest

component and the sufficient abuse of government

power component. The two components of the substan-

tive due process test are conjunctive, and a reviewing

court finding an absence of one component need not

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

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

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

address the first prong.” (footnote omitted).

We need not address questions about the first com-

ponent, because the district court erred in finding that

Corn had carried his burden of proving the second

component of a substantive due process claim. The

reason a substantive due process claim is also called an

“arbitrary and capricious due process claim” is because a

showing that the government has acted arbitrarily and

capriciously is a prerequisite for such a claim. That is

what the second component requires: The plaintiff

developer must show that the defendant government or

government officials abused power by acting arbitrarily

and capriciously, which means that the action “does not

bear a substantial relation to the public health, safety,

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

particular requirement, which is dispositive of the

present case, was discussed by this Court less than four

years ago in the closely analogous Greenbriar case:

It has long been established that zoning

regulations will not be declared unconstitu-

tional as violative of substantive due process

unless they “are clearly arbitrary and un-

reasonable, having no substantial relation to the

public health, safety, morals, or general wel-

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

C-11._ —

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

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

-- + [CJourts have held that a deprivation of a ©

property interest is of constitutional stature if it

is undertaken “ ‘for an improper motive and by

means that were pretextual, arbitrary and

Capricious, and ... without any rational

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

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

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

Cir.1982)).

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

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

The law is also settled that certain interests will

provide a rational basis for governmental action restrict-

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

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

youth values, and the blessings of quiet seclusion.”

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

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

interests also include protection from the “ill effects of

urbanization,” Agins v. City of Tiburon, 447 U.S. 255,

261, 100 S.Ct. 2138, 2142, 65 L.Ed.24 106 (1980), the

exclusion of industry from residential areas, Village of

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

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

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

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

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

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

power in this area is not narrowly constrained, because

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

inclusive. The values it represents are spiritual

as well as physical, aesthetic as well as mone-

tary. It is within the power of the legislature to

rig C12. . ~

determine that the community should be beauti-

ful as well as healthy, spacious as well as

clean, well-balanced as well as_ carefully

patrolled.

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

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

This Court has held that permissible basis for land use

restrictions include concern about the effect of the

proposed development on traffic, on congestion, on

surrounding property values, on demand for city ser-

vices, and on other aspects of the general welfare.

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

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

(Protection of surrounding neighborhoods from eco-

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

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

Cir.1983) (Restriction on organized religious gatherings

in residential areas serves zoning interests of reduced

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

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

also recognized the breadth of the “public welfare”

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

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

traffic and the deterioration of the neighborhood [as a

result of a proposed zoning change to permit a fast food

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

The Pearson opinion contains an excellent circuit-by

Circuit summary of substantive due process zoning

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

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

township had “a legitimate interest in controlling popula-

tion growth and density and the zoning amendments [at

issue were] a rational and reasonable means to accom-

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

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

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

tia prints ss ae,

C-13

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

serve small town character and avoid problems associ-

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

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

Although it is broad, the power of government to

control land use and development is not without limita-

tion. The four constitutional doctrines that limit govern-

ment power in the land use area already have been

mentioned. This case concerns the fourth limitation,

Substantive due process doctrine, which prevents a

government from restricting land use for no reason, or

for an illegitimate reason such as corruption, racial or

ethnic prejudice, or any other illegitimate motivation.

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

a government imposes on land use must be substantially

related to the general welfare. If not, the governmental

action is arbitrary and capricious in violation of substan-

tive due process.

The question posed by the facts of this case is

whether the City Council’s purposeful action to prevent

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

residential area was rationally based upon, i.é€., was

substantially related to, general we!fare interests such as

the effect that development would have on congestion,

traffic, noise, city services, aesthetics, and surrounding

property values. The record facts permit only one

correct answer to that question. Because the facts

determine this appeal, and because the district court

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

considerable detail. Virtually all of them are undisputed

and are drawn from official records admitted into

evidence.

C-14

C. THE FACTS RELEVANT TO THE

SUBSTANTIVE DUE PROCESS

ISSUE

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

give it a permissive zoning classification, the City was

concerned about how Corn would use the property, and

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

that property. The new zoning category reserved for the

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

Herman Corn himself admitted that under his agreement

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

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

of land approximately 8.5 acres in area and bounded by a

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

a complex of single family homes separated from the

property by a canal. A condominium complex lies to the

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

Corn was the developer for these residential complexes

which border his proposed warehouse site.

Even with the right of prior approval reserved to the

City, there were early concerns about the zoning of

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

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

1975, while the City Council was considering such a

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

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

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

would permit warehouses that close to a residential

development. Shiff recommended that Corn’s property

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

development (light industrial usage), should not be

permitted next to residential areas. He specifically

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

where you have existing residential development.” The

City incorporated Shiff’s position into the interim land

ante anenenn ome

C-15

ust” plan it adoptea ana wanSmittea to county officials,

who in turn incorporated it into the interim county plan.

The City did not move to rezone the property at that

_time, because no development was pending, and it was

assumed the problem would be taken care of in the final

master land use plan that would eventually be developed.

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

until 1979.

Corn submitted his first site plan for the development

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

from the record. Although the Planning and Zoning

Board recommended approval of the plan to the City

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

consider the plan caused Corn to withdraw it.

In January of 1977, the City Council and the Planning

and Zoning Board conducted a joint meeting to discuss

the master land use plan that was still being developed

for the City. Milton Scheingarten, an architect on the

Planning and Zoning Board, had discovered that Corn’s

property was improperly zoned, because elementary

principles of land use planning require a buffer between

residential areas and an_ industrial use, such as

warehouses. The Planning and Zoning Board officially

recommended to the City Council in that January 1977

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

restrictive classification, which would not permit

warehouses. Some discussion concerning Corn’s prop-

erty and whether it should be rezoned to prohibit mini-

warehouses ensued, but the issue was deferred until a

later time.

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

the City Council which included a mini-warehouse

development as well as a shopping center. The City

Council referred the site plan to the Planning and Zoning

Board for a review for compliance with the requirements

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

C-16

of the changes recommended by vanous City agencies,

the Board on May 12, 1977 recommended to the City

Council that it approve the site plan. The Council

requested the Board to consider the plan again, appar-

ently because of concern about fire truck access to the

proposed mini-warehouse buildings and property, and

the Board reconsidered the plan in a meeting held on

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

mended approval of the site plan. The Board had five

members but only three members voted; the vote was

split two to one in favor of recommending approval.

Documents in the record establish, and it is undis-

puted, that under local law the three-member Planning

and Zoning Board has no authority to make the ultimate

decision concerning zoning or adoption of site plans.

Instead, the authority to make such decisions is vested in

the City Council. The Board makes recommendations,

but those are merely advisory. The final decision about

how land should be zoned and whether a particular

development comports with the general welfare of the

community is the decision of the City Council. The

power to restrict the use of property involves an exercise

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

authority to determine whether the general welfare of the

community warrants exercise of that power.

In order to investigate whether Corn’s proposed

development was compatible with the general welfare of

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

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

involved in the proposed development, attended these

meetings and represented Corn’s interests. Concerned

citizens also attended these meetings and were permitted

to speak for or against the proposed development. Most

of the citizens who spoke were from the neighborhood

adjoining the property, and they spoke against the plan,

especially the mini-warehouse aspect of it. Various City

—

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a

C-17

Officials were also questioned at these meetings about

the planned development and the problems it would

create. The subjects discussed by Stephen Corn, various

citizens, and City officials included problems of conges-

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

character of the Surrounding neighborhood, and property

values.

1. The May 31, 1977 City Council

Meeting

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

up the Planning and Zoning Board’s recommendation

that Corn’s site plan be approved. Council member

Gereffi asked what would protect the residents of the

adjacent condominiums from the mini-warehouses. He

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

Questions were also raised about fire hazards and about

whether the mini-warehouses could later be turned into

things such as s

This text is long and has been trimmed here. Open the source document for the complete record.