Opposition Brief — Corn v. City of Lauderdale Lakes
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Sup ep
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“ No. 97-293 ~ ——T
In The
Supreme Court of the United States
October Term, 1997
o- en
HERMAN CORN, Trustee,
Petitioner,
THE CITY OF LAUDERDALE LAKES, et al.,
Responden ts.
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Eleventh Circuit
e
BRIEF OF RESPONDENTS IN OPPOSITION
—_—___—__——- ©
MicHaet C. Mattson
Counsel of Record
Cooney, MATTSON, LANCE,
BLACKBURN, RICHARDS &
O’Connor, P.A.
301 East Las Olas Boulevard
Fort Lauderdale, FL 33301
(954) 779-1900
Attorneys for Respondents
CKLE LAW BRIEF PRINTING Ct 800) 225-6964
ALL COLLECT (402 7231
Page
Fg gg ft PPP TTT TTT EET CTT ETT ITT ieee iii
TAR SAE PPE CWR RO A 6 ocho c ea cescvecwenscens iv
SAAR OMEwE COP EEE CARB. occ cs cecicccscncceses. 1
ee TT ree ee 1
i Re SD MUNI 65 vc es cncvccsesescccnsdanes 6
ac SE EE NI soo end encaekeceeantoeous's 8
1. The District Court Litigation............... 8
2. The Eleventh Circuit Appeal (Corn III) ..... 9
3. District Court Upon Remand............... 10
4. The Eleventh Circuit Appeal (Corn IV)..... 12
REASONS WHY THE WRIT SHOULD NOT ISSUE... 13
a
II.
THE ELEVENTH CIRCUIT CORRECTLY
FOUND THAT IN ORDER TO ESTABLISH A
FIFTH AMENDMENT JUST COMPENSATION
CLAIM, CORN WAS REQUIRED TO SHOW
THAT HE WAS DENIED ALL ECONOMICALLY
VIABLE USE OF HIS PROPERTY.............. 13
THE ELEVENTH CIRCUIT PROPERLY
REJECTED, FOR THE SECOND TIME, CORN’S
SUBSTANTIVE DUE PROCESS CLAIM........ 20
A. CORN AGAIN ARGUES THE PRECLUSIVE
EFFECT OF THE STATE COURT’S JUDG-
MENT ON A SUBSTANTIVE DUE PRO-
SEY SR EINEEEDS 56 5504s 5s ceasaraueseaseks 20
—_ i
Oe a
TABLE OF CONTENTS - Continued
Page
B. THE “ROUGH PROPORTIONALITY” STAN-
DARD OF DOLAN V. CITY OF TIGARD DOES
NOT CONTROL CORN’S SUBSTANTIVE DUE
PROCESS CLAIM AND CORN III IS THE
FoR 2 Ge PP er ee 22
COLLARS 6 or cccensecncnesesesseneee eee 25
-_— —
——_—_—_-
ili on
a
LIST OF APPENDICES
APPENDIX J
Final Judgment, Findings of Fact and Conclusions
of Law Upon Remand, U.S. District Court, S.D.
Florida, Dated Me amy OPT... ks... J-1
APPENDIX K
Notice of Appeal to the United States Court of
Appeals for the Eleventh Circuit, Dated July 29,
Sn L-1
APPENDIX L
Petition for Writ of Certiorari to the United States
Court of Appeals for the Eleventh Circuit,
Dated February 11, 1994..............000 K-1
iv
——— —_— -—- o
TABLE OF AUTHORITIES
Page
CASES
A.A. Profiles, Inc. v. City of Fort Lauderdale, 850 F.2d
1483 (11th Cir. 1988), cert. denied, 490 U.S. 1020
0 RE Cr ee es ef eh nies NER Ee 19
Antrus @.. Allard, 464 UD. Si CITE) oc vnnccccentccses 15
City of Lauderdale Lakes v. Corn, 427 So. 2d 239 (Fla.
ee Be. Ra ge. gg Sere eee 7
Constant v. United States, 929 F.2d 654 (Fed. Cir.
1991) cert. denied, 501 U.S. 1206 (1991) ............ 21
Corn v. City of Lauderdale Lakes, 771 F.Supp. 1557
(S.D. Fla. 1991), aff'd in part, rev'd in part, 997
F.2d 1309 (11th Cir. 1992) (“District Corn I”) ..... 8, 9
Corn v. City of Lauderdale Lakes, 997 F.2d 1369 (11th
Cir. 1993), cert. denied, 114 S.Ct. 1400 (1994)
ev 8 gf Mer eerer errr, ort rry errr Tr passim
Corn v. City of Lauderdale Lakes, 95 F.3d 1066 (11th
at Bee ee FD hac aa sen cca seek enee eas passim
Dolan v. City of Tigard, 512 U.S. 374 (1994)....... 22, 23
Kaiser Aetna v. United States, 444 U.S. 164 (1979). .15, 23
Loretto v. Teleprompter Manhattan CATV Corp., 458
OD .. GP GER 6 4 kip cwetcneccacnnsavauaseaciseesees 15
Maher v. City of New Orleans, 516 F.2d 1051 (5th
Cir. 1975) cert. denied, 426 U.S. 905 (1976)......... 19
Martin v. District of Columbia, 205 U.S. 135 (1907) .... 19
Nollan v. California Coastal Comm'n, 483 U.S. 825
bs Oreo rr Teer errr ey Prey er errs 15, 23
— ee eee a eee
— —-<--
Vv
TABLE OF AUTHORITIES - Continued
Page
Penn Central Transp. Co. v. New York City, 438 U.S.
satan sdetathes AO OO NEL Mil ak 12, 14, 15
Penn Central Transp. Co. v. New York City, 438 U.S.
POP PON 55 4s kde sardavevgeaie ie 11
Rymer v. Douglas County, 764 F.2d 796 (11th Cir.
iets eR Ee OT Tits 10
Scott v. Greenville County, 716 F.2d 1409 (4th Cir.
RUUD + bon bine oleg Sue cdbe se Laeeen eee ee 2 18, 19
Town of Largo v. Imperial Homes Corp., 309 So.2d
POR CUR. SO OCA BOFB po aio onc cc ccccosss....5.. 21
Westbrook v. Zant, 743 F.2d 764 (11th Cir. 1984)...... 22
Wheeler v. City of Pleasant Grove, 896 F.2d 1347
(11th Cir. 1990) (“Wheeler gilt Pe Pee a! 9, 19
FEDERAL RULES AND STATUTES
We Ps Ah rads Ssoens ny nV xwcdved aad eneacevue: 8
Unitep States ConstITUTION
Fifth Amendment............................... passim
Fourteenth Amendment........................ 8, 9, 22
STATE STATUTES AND ORDINANCES
City of Lauderdale Lakes
Ordinance No. 548............................ aS & 7
Ordinance No. 549............................ » & 7
Oa | a ee 6, 7
preemie Pap. T08.. .. occ cek es. 5
-— =
BRIEF OF RESPONDENTS IN OPPOSITION
The City of Lauderdale Lakes respectfully requests
that this Court deny the petition for writ of certiorari
seeking review of the Eleventh Circuit’s judgment and
opinion in this case. That opinion is reported at 95 F.3d
1066 (11th Cir. 1993).
STATEMENT OF THE CASE
A. The Property In Dispute
In 1966, 261 acres owned by CORN were annexed
into the CITY by Ordinance No. 104. (TR 44-45).1 The
land had been acquired by CORN at a cost of less than
$5,000 per acre. (TR 57, 194). The property which is the
subject matter of this dispute (subject property) consists
of an 8.5 acre parcel of land in the southeast corner of
CORN’s property. (TR 84).
At the time when CORN’s land was annexed into the
CITY, there were discussions between CORN and the City
Council regarding the zoning classification which would
attach to various portions of CORN’s property. (TR
64-67). All of CORN’s property, with the exception of the
subject property, was rezoned from “A” (agricultural) to
either “R” (residential) or “B” (business) by Ordinance
105 upon annexation.
References to the transcript of the trial proceedings before
Judge Paine in the United States District Court for the Southern
District of Florida (August 12-15, 1991) shall be designated “TR”
followed by the appropriate page number.
2
With regard to the subject property, CORN requested
a “C” (commercial) designation. In response to CORN’s
request and in light of the CITY’s concerns about how
CORN would use the property, the CITY created a new
zoning category, C-1A, specifically for the subject prop-
erty. (Corn v. City of Lauderdale Lakes, 997 F.2d 1369, 1376
(11th Cir. 1993), cert. denied, 114 S.Ct. 1400 (1994), here-
inafter “Corn III”; App. C). The “A” which was added to
CORN’s requested zoning classification of C-1 designated
that the CITY was going to retain input into and control
of the subject property’s usage in light of its juxtaposition
to the proposed residential development. (Id.; TR
461-462).
CORN expended funds in preparatory work on the
C-1A property in conjunction with preparatory work
done on the larger 261l-acre parcel; no monies were
expended on the C-1A property subsequent to the initial
preparatory work for the ten-year period which preceded
the submission of CORN’s preliminary site plan. (TR
80-85).
By 1975, most of CORN’s 261 acres had been devel-
oped by CORN and his affiliated companies. No develop-
ment had yet been proposed for the subject property. (TR
71-72). During 1975, the CITY retained the services of a
planner to create a land use plan and certify its compli-
ance with Broward County’s Master Land Use Plan. (TR
526-527). By law, all municipalities within Broward
County had to be in compliance with Broward County’s
Master Plan by November of 1977. (TR 466, 526-527).
Throughout 1976 and early 1977, there were discus-
sions at the City Council level regarding the propriety of
serene wanmmuieieiiamcniia nits
465-468). The land use planner retained by the CITY,
Michael Shiff, had indicated that the juxtaposition of
these two types of zoning was not consistent with good
land use planning principles. (TR 527-528). Additionally,
Mr. Scheingarten, Chairman of the CITY’s Planning and
Zoning Board, had independently recommended that the
property which is the subject matter of this dispute be
rezoned from commercial to business usage. (Corn III at
1376-77; TR 466, 566).
In April of 1977, prior to the City Council’s initiating
any definitive action to rezone the subject property based
upon the recommendations of Shiff and Scheingarten,
CORN submitted a preliminary site plan which called for
the construction of a 67,000 square foot strip shopping
center on the front portion of the property and a 900-unit,
103,000 square foot mini-warehouse storage facility on
the rear portion of the subject property. (Corn III at
1376-1377).
The preliminary site plans submitted by CORN were
reviewed by the CITY in the ordinary course of govern-
ment. The plans were routinely forwarded to the CITY’s
consulting engineer for review to determine their compli-
ance with applicable ordinances. (TR 551).
There were various meetings of the Planning and
Zoning Committee wherein CORN’s plans for develop-
ment were discussed. (TR 98). A number of changes were
requested. (Id.). CORN complied with some of the
requests and declined to comply with others, citing dis-
agreements with the CITY’s interpretation. (TR 211-218;
Corn III at 1377). The Planning and Zoning Board eventu-
ally recommended on a 2-1 vote that CORN’s preliminary
site plan, as amended, be approved. (Corn III at 1377; TR
571).
The matter then came before the City Council for
approval of the preliminary site plan. Approval of the
preliminary site plan by the City Council was a prerequi-
site to the issuance of a building permit. A building
permit could be obtained only after final site plan
approval and after the submittal of a set of construction
drawings which complied with all applicable require-
ments. (TR 209-210).
The question of preliminary site plan approval for
CORN’s project was discussed at several City Council
meetings. (Corn III at 1377-1385; TR 471-478). Members of
the Council and members of the community expressed
concerns with the proposed development. (Corn III at
1377-1385; TR 473-478). The specific concerns voiced were
that this mini-warehouse development would adversely
affect the property values of the residences across the
canal, that it would destroy the residential character of
the neighborhood, that it would adversely affect traffic in
their neighborhood, that the peace and quiet of the neigh-
borhood would be destroyed by trucks and vehicles com-
ing to the warehouses in the early morning and late
evening, and that it would represent a significant fire
hazard. (Id.).
—_—
On July 12, 1977, approval of CORN’s preliminary
site plan again came up for vote after having been tabled
on several prior occasions. (Corn III at 1380-1384; TR 479).
i
¥
;
At that meeting, the CITY passed on first reading Ordi-
nance No. 548 which eliminated, among other things,
mini-warehouses as a permissible use under a C-1 zoning
classification. (Corn III at 1380; TR 483-484). The CITY
also passed on first reading Ordinance No. 549 which
rezoned CORN’s land from C-1A to B-3. (Id.). The ordi-
nances were not enacted at that time. Public hearings
were held on Ordinances Nos. 548 and 549; they actually
became law in September of 1977. (TR 485; Corn III at
1371, 1380). During the July 12, 1977 meeting, the Council
voted to deny CORN’s preliminary site plan because the
plans he had submitted were deficient as to parking, fire
protection and landscaping. (TR 488-489, 555-558). CORN
never applied for a building permit and one was never
issued. (TR 226).
On July 19, 1977, the CITY passed Ordinance No. 552
which called for a 150-day moratorium on all construc-
tion on all C-1 property within the CITY boundaries.
(Corn III at 1381, 1384; TR 489). At the expiration of the
150-day period, the moratorium was extended by an
additional 180-days by Ordinance No. 568 at which time
it expired by its own terms. (TR 498). During the pen-
dency of the moratorium, land use planning experts
retained by the CITY as well as departments within the
CITY rendered reports recommending against allowing
commercial development on properties zoned C-1 within
the CITY. (TR 490; Corn III at 1384-85).
The effect of the legislation enacted by the CITY was
to prevent construction on the subject property until July
4, 1978. Thereafter, CORN was free to develop the prop-
erty in any manner consistent with the business zoning.
(Corn v. City of Lauderdale Lakes, 95 F.3d 1066, 1072 (11th
Cir. 1996) (hereinafter “Corn IV”); App. A-12 and A-13).
The strip shopping center which made up the front por-
tion of CORN’s proposed development was a permitted
use under the business zoning classification. There was
no opposition to the construction of the shopping center
which was the front portion of the project; the contro-
versy concerned the mini-warehouse complex planned
for the rear. (TR 233-234). Despite this, CORN never
submitted any plans for the development of the shopping
center subsequent to the expiration of the moratorium in
July of 1978. (TR 227, 236).
B. The State Litigation
Subsequent to the adoption of the referenced legisla-
tion, CORN instituted state court litigation on August 11,
1977, challenging both the validity of Ordinances Nos.
548, 549 and 552 and the CITY’s refusal to approve his
preliminary site plans. (Corn III at 1371).
CORN set forth five causes of action in his state court
complaint: Petition for Writ of Mandamus (Count J);
Declaratory Judgment (Count II); Inverse Condemnation
(Count III); Prior Determination (Count IV); and Injunc-
tive Relief (Count V). The claim for inverse condemnation
(Count III) was dismissed prior to the state court trial.
(TR 306-307). The matter was tried in 1978 and final
judgment (“state court final judgment”) was rendered by
the state trial court in October of that year. (App. G). The
holding of the state trial court was that the CITY was
equitably estopped to change the zoning because CORN
had established vested rights in the subject property.
(App. G-17). Moreover, pursuant to the state court final
ieee inh niki Many J
i i lat
judgment, CORN’s preliminary site plans were found to
contain three deficiencies violative of codified regulations
concerning the adequacy of parking, fire protection and
landscaping. (App. G-12 and G-13). However, Ordinances
Nos. 548, 549 and 552 were ruled invalid-as applied to
CORN and his property and the CITY was directed to
approve CORN’s preliminary site plans upon their resub-
mission in proper form. (App. G-17).
The judgment of the state trial court was affirmed by
Florida’s Fourth District Court of Appeal in February
1983. (City of Lauderdale Lakes v. Corn, 427 So. 2d 239, 244,
hereinafter “State Corn”; App. F). The state appellate
court found that although an owner of property generally
acquires no vested rights in the continuation of existing
zoning under Florida law, the lower court’s determina-
tion that CORN had detrimentally relied in good faith on
the existing zoning so as to estop the city from enforcing
the changes against him was supported by competent
substantial evidence. (State Corn at 243-44; App. F-9).
After the Fourth District Court of Appeal had issued
its mandate, CORN did not resubmit a preliminary site
plan which complied with the directives of the state court
final judgment until October 1983, seven months later.
(TR 241). At that time, CORN was advised that it would
be necessary for him to plat the property in order to
comply with County, not CITY, requirements. (TR 595).
CORN then did nothing for a period of another year until
he filed suit in Broward County Circuit Court seeking a
judicial decree that he did not have to comply with any
County ordinances which were not in existence in 1977.
(TR 596-597). The action was unopposed by the CITY. (TR
597). CORN obtained the relief he requested but chose
not to build the project and instead proceeded with a
federal court action. (Corn III at 1372; TR 181, 183).
C. The Federal Litigation
1. The District Court Litigation
CORN filed his federal action against the CITY in
1984. Although the complaint originally included equal
protection and procedural due process claims under the
Fourteenth Amendment, those claims were abandoned by
CORN prior to trial. (Corn III at 1372; App. C-4). The case
proceeded to trial as a §1983 action on CORN’s claims
that the CITY had “taken” his property without just com-
pensation in violation of his Fifth Amendment rights and
that the CITY had deprived him of his substantive due
process rights in violation of the Fourteenth Amendment.
(Id.). CORN took the position at the federal court trial
that the violation of his substantive due process rights
had been established by the 1977 state court litigation.
(Corn v. City of Lauderdale Lakes, 771 F.Supp. 1557 (S.D.
Fla. 1991), aff'd in part, rev'd in part, 997 F.2d 1309 (11th
Cir. 1993), hereinafter “District Corn I”; App. D). The
district court analyzed what had been tried in the state
court litigation and determined that the state court final
judgment would have no preclusive effect on the issue of
whether the CITY’s actions were arbitrary and capricious.
(Id. at 1569; App. D-21).
The district court went on to find that the CITY had
acted arbitrarily and capriciously and had deprived
CORN of a constitutionally protected property interest
and, therefore, had violated his substantive due process
rights. (Id.; App. D-23). The court did not make a deter-
mination of whether CORN’s Fifth Amendment rights
had been violated. (Id.).?
On the question of damages, the court reviewed the
evidence presented by CORN and the CITY in light of the
parameters set forth in Wheeler v. City of Pleasant Grove,
896 F.2d 1347 (11th Cir. 1990) (“Wheeler IV”). The court
entered judgment in favor of CORN in the amount of
$727,875.02. CORN, not satisfied with this amount,
appealed the judgment as inadequate. (Corn III; App. C).
The CITY cross-appealed the determination that it had
violated CORN’s Fourteenth Amendment substantive
due process rights. (Id.).
2. The Eleventh Circuit Appeal (Corn III)
The Eleventh Circuit held that the trial court erred as
a matter of law in its determination that the CITY had
violated CORN’s Fourteenth Amendment substantive
due process rights and, consequently, reversed the find-
ing of liability (Corn III at 1371; App. C-5). CORN’s claim
that the trial court had erred in its damage determina-
tions was rendered moot by the reversal. (Id.; App. C-1).
Initially, the court found that the trial court had
properly analyzed CORN’s substantive due process claim
2 The district court reasoned that because the measure of
damages was the same for either a violation of CORN’s Fifth or
Fourteenth Amendment rights, it did not need to decide the
Fifth Amendment claim having already decided the case
favorably to CORN on the Fourteenth Amendment claim.
(District Corn I at 1569-70).
10
in light of the holding of Rymer v. Douglas County, 764
F.2d 796 (11th Cir. 1985). (Corn III at 1374). The court
noted that the two componenis of the substantive due
process test are conjunctive and a reviewing court finding
an absence of one component need not decide whether
the other exists. (Corn III at 1374; App. C-9 and C-10). The
decision of the district court was reviewed in light of
these principles.
The court then reviewed the district court’s factual
findings and found that the evidence introduced at trial
established that the CITY’s actions had a rational rela-
tionship to a legitimate general welfare concern and to
the extent the district court found otherwise, those find-
ings were “clearly erroneous.” (Corn III at 1386; App.
C-40).
In light of its holding, the court reversed the decision
of the trial court and remanded the action to the district
court with directions to consider CORN’s Fifth Amend-
ment claim upon which the trial court had previously
declined to rule.
3. District Court Upon Remand
Upon remand, the district court addressed CORN’s
Fifth Amendment “just compensation” claim for the first
time. The district court received additional legal argu-
ment from the parties in the form of written status
reports, but received no additional evidence beyond that
3 CORN ’s Petition for Writ of Certiorari to the United States
Supreme Court seeking review of Corn III was denied.
11
which was presented in the August 1991 bench trial.
(App. B-10).
The district court defined the legal issue presented as
follows:
CORN asserts through his just compensation
claim that the impact of the CITY’s invalid regu-
lations effected a taking of his property interest
in either the Subject Property or his proposed
development. 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 ordinances and action affecting each.
(App. B-10).
In analyzing the issue, the district court conducted an
ad hoc inquiry, applying to the facts this Court’s criteria,
as enumerated in Penn Central Transp. Co. v. New York
City, 438 U.S. 916 (1978), for determining whether gov-
ernmental regulation is so intrusive as to constitute a
taking, that is: (1) interference with reasonable invest-
ment-backed expectations, and (2) economic impact on
the landowner. (App. B-13).
Ultimately, the district court rejected CORN ’s just
compensation claim with respect to both the project and
the property. With respect to the former, the court found
that CORN did not have a vested right to the develop-
ment of his mini-warehouse project because the CITY had
not issued a permit to CORN upon which he relied to his
detriment, nor did CORN have a reasonable expectation
in the unfettered development of the property. (App.
B-17). The court further found that the ordinances did not
effect a taking of the property because CORN was never
12
deprived of all “economically viable use” of the parcel.
(App. B-15).
4. The Eleventh Circuit Appeal (Corn IV)
In the most recent appeal (Corn IV), the Eleventh
Circuit disapproved of that portion of the district court’s
opinion finding that CORN did not have a vested right in
the development of his project, noting that “the district
court failed to consider the state court’s holding that,
under Florida law, Corn had acquired certain vested
rights in the Project.” (Corn IV at 1074; App. A-16).
Despite this, the court affirmed the district court’s
rejection of CORN’s just compensation claim, because
regardless of CORN’s vested rights in the project, the
“ “private property’ ” subject to the Fifth Amendment’s
prohibition . . . does not include every single property
interest recognized by law.” (App. A-16, at 1074). The
court explained that in Penn Central Transp. Co. v. City of
- New York, 438 U.S. 104 (1978), this Court rejected the type
of narrow focus on particular rights in property “charac-
terizing 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 prop-
erty interest.” (Id.). Thus, based on this precedent, the
Eleventh Circuit found that the dispositive question was
whether “the denial of [CORN’s] rights in the project
denied him all or substantially all economically viable
use of the Parcel. . . . ” (Corn IV at 1074; App. A-16).
a
From this standpoint, the court determined that,
CORN could use the Parcel for any use permitted in a B-3
i
a
F
s
d
'
9
13
zoning category, including the proposed shopping center.
(Corn IV at 1072; App. A-12 and A-13). Because CORN
was not denied all economically viable use of the prop-
erty, the takings claim for the period after the moratorium
failed. Accordingly, the Eleventh Circuit remanded the
case back to the district court for further factual findings
as to CORN’s just compensation claim during the mor-
atorium period, and affirmed the district court’s judg-
ment in all other respects. (Id. at 1076; App. A-21).‘
+
REASONS WHY THE WRIT SHOULD NOT ISSUE
I. THE ELEVENTH CIRCUIT CORRECTLY FOUND
THAT IN ORDER TO ESTABLISH A FIFTH
AMENDMENT JUST COMPENSATION CLAIM,
CORN WAS REQUIRED TO SHOW THAT HE WAS
DENIED ALL ECONOMICALLY VIABLE USE OF
HIS PROPERTY.
CORN claims that the state court final judgment
which estopped the CITY from enforcing its new zoning
regulations against his property automatically transfers
into a property interest under the Fifth Amendment for
4 On remand, the district court concluded that CORN was
not denied all economically viable use of the Property because
there existed economically viable uses of CORN’s B3 zoning
classification. (App. J-3). A final judgment was entered in favor
of the CITY and the individual defendants and against CORN
on the just compensation claim premised upon a temporary
taking of the Property during the moratorium. (App. J-13).
CORN filed a notice of appeal of the district court’s Order on
Remand which is pending before the Eleventh Circuit. (App.
K-1).
14
which he may receive just compensation. The Eleventh
Circuit properly denied this claim, reasoning as follows:
Corn correctly notes that the property rights
protected by the Fifth Amendment are created
and defined by state law. . . . He errs, however,
in suggesting that the Fifth Amendment
requires the payment of just compensation for
every deprivation of a right recognized by state
law. “Property” as used in the Just Compensa-
tion Clause is defined much more narrowly than
in the due process clauses. . . . Thus, while
certain property interests may not be taken
without due process, they may be taken without
paying just compensation. (Citations omitted).
(Corn IV at 1075; App. A-19).
In fact, compensable rights under the Fifth Amend-
ment have repeatedly been defined by whether their
deprivation denies the owner of all, or substantially all,
economically viable use of the property as a whole. As
this Court noted in Penn Central Transp. Co. v. City of New
York, 438 U.S. 104 (1978), a “taking” may not be estab-
lished simply by showing that a party is denied the
ability to exploit a particular property interest that the
owner believed was available, calling such a suggestion
“quite simply untenable.” The same reasoning is applica-
ble to this case:
“Taking” jurisprudence does not divide a single
parcel into discrete segments and attempt to
determine whether rights in a particular seg-
ment have been entirely abrogated. 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
15
and extent of the interference with the rights in
the parcel as a whole. . . .
Id. at 130-31. Insofar as CORN has alleged the same type
of segmented interest as was rejected in Penn Central, he
cannot look to the deprivation of the Project alone to
support his just compensation claim.
In fact, the limited number of cases in which the
deprivation of a right has automatically transferred into a
deprivation of the property itself involve those rights so
inherent in property ownership that their deprivation
alone constitutes a taking of the whole property. See, ¢.g.,
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419
(1982); Nollan v. California Coastal Comm'n, 483 U.S. 825
(1987) (right to exclude others); Kaiser Aetna v. United
States, 444 U.S. 164 (1979) (same). In other words, they
have involved “traditional” property rights, as opposed
to the more peripheral interests asserted by CORN.
Even in such cases, however, there is no automatic
right to just compensation, as the relevant inquiry still
requires the court to balance the effect of that deprivation
on the value of the property. The factors to be considered
were clearly enumerated by this Court in Andrus v. Allard,
444 U.S. 51, 65 (1979):
The Takings Clause . . . preserves governmental
power to regulate, subject only to the dictates of
“ 4ustice and fairness.’ ” There is no abstract or
fixed point at which judicial intervention under
the Takings Clause becomes appropriate . . .
Resolution of each case... . ultimately calls as
much for the exercise of judgment as for the
application of logic. (Citations omitted). —
16
The regulations challenged here do not compel
the surrender of the artifacts, and there is no
physical invasion or restraint upon them.
Rather, a significant restriction, has been
imposed on one means of disposing of the arti-
facts. But the denial of one traditional property
right does not always amount to a taking. At
least where an owner possesses a full “bundle”
of property rights, the destruction of one
“strand” of the bundle is not a taking, because
the aggregate must be viewed in its entirety.
Id. at 65-66 (citations omitted). Thus, cases in which the
deprivation of a right has supported a just compensation
claim do not turn, as suggested by CORN, on some
tangible definition of “property” under the Fifth Amend-
ment. Even if CORN was deprived of something constitu-
ting a traditional Fifth Amendment “property” right, he
would not recover unless he could show that the depriva-
tion of that right affected his interest in the property as a
whole.
As such, the Eleventh Circuit properly found 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 compensa-
tion claim. To recover just compensation, Corn
must show that the denial of his rights in the
Project denied him all or substantially all eco-
nomically viable use of the Parcel, not simply
economically viable use of whatever property
rights he has in the Project.
(Corn FV at 1074; App. A-16). This he cannot do. It is
undisputed that CORN could use the Parcel for any use
17
permitted by the B-3 zoning category, including the pro-
posed shopping center. (Corn IV at 1072; App. A-12 and
A-13; App. J-3, J-4). Although the B-3 zoning category
was a more restrictive classification, it did permit CORN
to use the Property for any economically viable use ner-
mitted by the business classification. (App. J-3, J-4). It is
upon these facts that the Eleventh Circuit correctly held
that CORN’s taking claim failed because he clearly had
other economically viable uses for the Property aside
from mini-warehouse.5
> It should be noted that CORN presented no evidence that
the construction of mini-warehouses was the primary
expectation for the Property. (Corn IV at 1070.) Quite to the
contrary, CORN owned the property for eleven years prior to
presenting preliminary site plan for the mini-warehouse Project.
(/d.). During those eleven years, CORN constructed and sold
residential homes to resident of the CITY on a large portion of
the property. (Id.) It was not until after reaping the profits from
his residential development that CORN sought to build the
mini-warehouses, literally, in the backyard of his buyers,
potentially decreasing the resident’s property values, and
subjecting them to the problems of congestion, noise, traffic,
aesthetics and safety issues which accompany such a Project.
(Id.).
CORN also claims that he “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.” (Petition for
Writ of Certiorari at 5). CORN expended these funds in
preparatory work done on the 261-acre parcel, however, most of
which was developed into homes and condominiums that were
sold by CORN and for which he presumably received profits.
(Corn IV at 1070). CORN presented no evidence at trial that
these funds were expended directly towards the Project. (App.
D-3).
18
The Eleventh Circuit’s decision in this case is consis-
tent with the opinions of other circuits addressing the
same or substantially similar issues. For instance, in Scott
v. Greenville County, 716 F.2d 1409 (4th Cir. 1983), the
court addressed the following, almost identical, set of
facts:
When plaintiff Scott, a real estate developer,
sought a building permit to construct low
income apartments in an area of Greenville
County, South Carolina, zoned for the density of
the project that he wished to build, the County
Council halted issuance of the permit pending
consideration of a rezoning of the proposed
building site. Plaintiff obtained a state trial court
ruling declaring the Council’s action illegal and
ordering immediate issuance of the permit. .. .
716 F.2d at 1411. In determining that Scott had failed to
allege the deprivation of a property interest under the
Fifth Amendment, the court reasoned that:
Although we view Scott as having held an enti-
tlement to permit issuance which was suffi-
ciently a ‘species of property’ to require
constitutional protection, the permit, until it is
at least actually in hand, is not in the nature of
interests the deprivation of which is encom-
passed by the Fifth Amendment “takings” doc-
trine. While Scott’s right to the permit prior to
issuance is entitled to protection under the due
process clause, non-issuance of the permit did
not effectively destroy the value of the building
site, the rights to which Scott eventually sold.
716 F.2d at 1421-22.
19
The court delineated the deprivation in Scott from
that in Wheeler v. City of Pleasant Grove, 664 F.2d 99 (Sth
Cir. 1981), cert. denied, 456 U.S. 973 (1982), and A.A.
Profiles, Inc. v. City of Fort Lauderdale, 850 F.2d 1483 (11th
Cir. 1988), cert. denied, 490 U.S. 1020 (1989), both of which
have been cited by CORN in support of his position. In
those cases, the regulations were found SO Onerous as to
be confiscatory measures; that is, they were so invasive as
to affect the property as a whole. See Maher v. City of New
Orleans, 516 F.2d 1051 (Sth Cir. 1975), cert. denied, 426 U.S.
905 (1976).
As between these cases, the difference is in the first
part of the balancing test; that is, the degree of the
regulation itself. This concept, in the context of a Fifth
Amendment takings analysis, has been explained by Jus-
tice Holmes as follows:
Constitutional rights like others are matters of
degrees. To illustrate: Under the police power, in
its strict sense, a certain limit might be set to the
height of buildings without compensation; but
to make that limit five feet would require com-
pensation and a taking by eminent domain.
Martin v. District of Columbia, 205 U.S. 135, 139 (1907). As
in Scott, the degree of deprivation in this case was not so
Significant as to effect a taking of the property itself.
The claim that CORN is attempting to advance is a
very dangerous one. As noted by the Eleventh Circuit in
Corn IV:
Corn’s position would require the government
“to regulate by purchase.” Government would
be required to pay just compensation whenever
it deprived someone of a property interest,
20
regardless of whether the deprivation violated
due process or any other constitutional rights
.... No longer would plaintiffs have to show
that the government’s action were arbitrary and
capricious or procedurally deficient; showing
deprivation of property alone would suffice to
recover just compensation.
(Corn IV at 1075 n.6; and App. A-19, (citations omitted)).
Thus, the court distinguished between the broad interests
protected as property by the Due Process Clause, versus
the more narrow property interests for which compensa-
tion may be available under the Fifth Amendment. Were
all interests so compensable, CORN-like claims would
quickly cripple local governments because a just compen-
sation claim could be brought by any property owner
who was denied a building permit or had any type of
minute zoning restriction place upon him, regardless of
the validity of the municipal law. CORN’s suggestion
would ultimately undermine the power and purpose of
local governments to guard the health, safety, and welfare
of its residents.
Il. THE ELEVENTH CIRCUIT PROPERLY REJECTED,
FOR THE SECOND TIME, CORN’S SUBSTAN-
TIVE DUE PROCESS CLAIM.
A. CORN AGAIN ARGUES THE PRECLUSIVE
EFFECT OF THE STATE COURT’S JUDG-
MENT ON A SUBSTANTIVE DUE PROCESS
ANALYSIS.
The Eleventh Circuit, in Corn III, conclusively deter-
mined that CORN failed to establish a violation of his
substantive due process rights. (App. C; Corn III at 1392).
21
From that decision, CORN unsuccessfully filed a Petition
for Writ of Certiorari in this Court. See Corn v. City of
Lauderdale Lakes, 511 US. 1018 (1994). The denial of
CORN’s petition for writ of certiorari made the legal
conclusions of the Eleventh Circuit in Corn III final and
law of the case, thereby barring relitigation. Constant v.
United States, 929 F.2d 654 (Fed. Cir. 1991), cert. denied, 501
U.S. 1206 (1991).
As he did in his previous Petition, however, CORN
again argues that because the outcome of the state court
litigation was to find that CORN had a vested right in the
continuation of the previously existing zoning regula-
tions governing his parcel, the Eleventh Circuit was
required to find that his substantive due process rights
were violated as a mater of law. As this Court has already
implicitly found by denying the prior Petition, this argu-
ment is still without merit.
Under Florida law, the concept of vested rights is a
theory of estoppel amounting to nothing more than the
application of the rules of fair play. An owner of property
will acquire a vested right in the continuation of existing
zoning or land use regulations when he (1) relies in good
faith upon (2) some act or Omission of the government
and (3) has made such a substantial change in position or
incurred such expenses that it would be inequitable and
unjust to destroy the rights he acquired. Town of Largo v.
Imperial Homes Corp., 309 So. 2d 571, 972 (Fla. 2d DCA
1975). Thus, it is the actions of the Property owner, rather
than the zoning authority, which determine the-applies — --_—
tion of this theory of “vested rights.”
22
To succeed upon a substantive due process claim,
however, a property owner must allege and prove that
the actions of the zoning authority were violative of
rights conferred upon that individual by the Fourteenth
Amendment, rather than the application of an equitable
doctrine. There is absolutely no connection whatsoever
between the state court judgment and a substantive due
process claim.
B. THE “ROUGH PROPORTIONALITY” STAN-
DARD OF DOLAN V. CITY OF TIGARD DOES
NOT CONTROL CORN’S SUBSTANTIVE DUE
PROCESS CLAIM AND CORN III 1S THE
LAW OF THE CASE.
In addition to restating the arguments previously
advanced in favor of his first Petition, CORN also argues
that this Court’s opinion in Dolan v. City of Tigard, 512
U.S. 374 (1994), rendered subsequent to Corn III, repre-
sents controlling authority on the substantive due process
issue by announcing a new standard of law which should
be applied in this case. The Eleventh Circuit rejected
CORN’s arguments in a footnote, simply stating that his
6 Corn’s argument is derived from the Eleventh Circuit's
opinion in Westbrook v. Zant, 743 F.2d 764, 768-69 (11th Cir.
1984), noting the following exceptions to the law of the case
doctrine: (1) when the evidence presented in a second trial is
substantially different from that presented in the first, (2) when
controlling authority has since made a contrary decision of the
law applicable to the issue, or (3) when the previous decision
was Clearly erroneous and would work a manifest injustice.
—— eee ——
23
contention was “meritless”. (Corn IV at 1071; App. A-9
and A-10).
First, Dolan simply does not involve a substantive
due process claim, as this Court noted when it rejected
Justice Stevens’ implication that the case was actually
grounded in substantive due process theory. 512 U.S. at
384. Where the zoning regulation in this case simply
regulated the use to which CORN could put his parcel,
the Dolan regulations required dedication of a portion of
the land in exchange for a permit. Id. The difference is
that “had the city simply required [the property owner]
to dedicate” a portion of her land, “a taking would have
occurred . . . Such public access would deprive [the
property owner] of the right to exclude others, ‘one of the
most essential sticks in the bundle of rights that are
commonly characterized as property.’ ” Id. citing Nollan v.
California Coastal Comm'n, 483 U.S. 825, 831 (1987); and
Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979).
Moreover, even within the realm of takings jurispru-
dence, the Dolan exaction-type case significantly differs
from the typical land use regulation cases:
the sort of land use regulation discussed in the
cases just cited, however, differ in two relevant
particulars from the present case. First, they
involved essentially legislative determinations
classifying entire areas of the city, whereas here
the city made an adjudicative decision to condi-
tion petitioner’s application for a building per-
mit on an individual parcel. Second, the
conditions imposed were not simply a limitation
un the use petitioner might make of her own
24
parcel, but a requirement that she deed portions
of the property to the city.
Id. at 2316.
The ordinances at issue in this case involved all com-
mercially-zoned property abutting residential property in
the City of Lauderdale Lakes. Furthermore, the zoning
ordinances were simply land use restrictions that did not
impose upon CORN the obligation to deed portions of his
land to the CITY or any other affirmative obligations.
Moreover, at all times since the initial annexation of his
property into the CITY, CORN has maintained the
unabridged and unadulterated right to exclude others.
Neither the enactment of the zoning regulations or the
CITY’s denial of his deficient preliminary site plan
altered that essential right. Thus, the proper analysis in
the instant case remains that which has traditionally been
used to evaluate the typical land use regulation. That is,
“the burden properly rests on the party challenging the
regulation to prove that it constitutes an arbitrary regula-
tion of property rights.” Id. at 2320, n.8. As conclusively
determined by Corn IV, CORN has not done so.
¢
y 2
CONCLUSION
For the foregoing reasons, the Petition for Writ of
Certiorari should be denied.
DATED: October 15, 1997.
Respectfully submitted,
MicHaAeEL C. Mattson
Counsel of Record
Cooney, MarTTsoN, LANCE,
BLACKBURN, RICHARDS &
O’Connor, P.A.
301 East Las Olas Boulevard
Fort Lauderdale, FL 33302
(954) 779-1900
Attorneys for Respondents
ay . ‘ ied Si eee he aoe}
J-1
APPENDIX J
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, (Filed
a Florida municipal Apr 25, 1997)
corporation; HOWARD CRAFT;
ALFONSO GEREFFI; JEROME J.
COHAN; MORRIS KLEIN; LYMAN
L. ALLEN; LOUIS GREENWALD:
and HARRY KAUFMAN,
Defendant.
/
FINDINGS OF FACT AND
CONCLUSIONS OF LAW UPON REMAND
This matter is before the court upon remand from the
Eleventh Circuit as set forth in Corn v. City of Lauderdale
Lakes, 95 F.3d 1066 (11th Cir. 1996) upon the very narrow
issue of whether the City’s moratorium effected a tempo-
rary taking of Corn’s Parcel of property. The Court of
Appeals vacated the judgment that was entered upon this
court's finding that the moratorium did not effect a tem-
porary taking of Corn’s property because this court did
not explain the specific factual basis for this conclusion.
The appellate court affirmed this court's prior findings of
fact and conclusions of law in all other respects.
J-2
The court agrees with the parties contentions in the
appellate court that no further evidence need be taken in
this narrow issue. Accordingly, the court enters the fol-
lowing additional findings of fact on the very narrow
issue of whether Corn was deprived all economical viable
use of his property during the Moratorium period, and
conclusions of law on the very narrow issue of whether
Corn suffered a temporary taking of his property as a
result thereof. Because the facts of this case are set forth
in detail in prior orders of this court and also in at least
three published opinions, the court will not restate facts
regarding any other issue save for the temporary taking /
economically viable use issue.
FINDINGS OF FACT
1. During 1975, the CITY retained the services of a
land use planner, who questioned the propriety of C-1A
zoning for the Subject Property (i.e. Corn’s parcel of
property). No formal action, however, was taken with
respect to changing the zoning classification of the Sub-
ject Property until July 12, 1977.
2. 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 read-
ing that were ultimately adopted:
a. Ordinance 548 amended Article XXXVII, Sec-
tion 37.2 of the Broward County Zoning Classification
Restrictions and Regulations, as adopted by reference, to
J-3
eliminate storage warehouses as a permitted use in cate-
gory C-1, the pre-existing category at the time of annexa-
tion, and consequently, category C-1A, the category
created for the Subject Property after annexation; and
b. Ordinance 549 rezoned Corn’s Property from
C-1A (commercial) to B-3 (business), a more restrictive
category.
3. Accordingly, as of July 12, 1977, Corn’s property
was rezoned to the B-3 zoning classification which per-
mitted Corn to develop the property in any way permit-
ted by the category classification. Although this was a
more restrictive classification, it did permit Corn the
opportunity to use the property for any economically
viable use permitted by the business classification.
4. After passing Ordinances 548 and 549, the City
Council voted unanimously to deny approval of CORN’s
site plan which included construction of a shopping cen-
ter on the front portion and a mini-warehouse on the rear
portion. The City’s actions in both passing the ordinances
and denying CORN’s site plan in accordance therewith
were motivated by and substantially related to general
welfare concerns about congestion, noise, traffic, aes-
thetics, safety and property values.
5. Ordinance 552, which imposed a 150 day build-
ing 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 residential property
should be rezoned, to review the CITY’s commercial zon-
ing scheme. Because of the passing of ordinance 549__
J-4
which rezoned Corn’s property from C-1A property to
B-3 property, even during the moratorium on C-1 prop-
erty, Corn could have used the Parcel for any use permit-
ted by the B-3 zoning classification.
5. [sic] Through Ordinance 568, the City Council
extended the building moratorium on commercial prop-
erty through July 4, 1978.
6. Despite the ability to pursue development on his
Parcel in accordance with any use permitted by the B-3
zoning classification, Corn chose not to pursue develop-
ment of the Subject Property which he still owns and has
never developed. Development of the originally pro-
posed shopping center on the front portion of the Subject
Property was possible at any time after July 13, 1977,
when the Subject property was rezoned to a B-3 classi-
fication. Additionally, at any time after the July 12, 1977
rezoning, CORN could have developed the rear portion
of the Subject Property originally planned for mini-ware-
houses, in any other way permitted by the business zon-
ing category.
THE LEGAL ISSUE DEFINED
CORN asserts that he suffered a temporary taking of
the Subject Property if he was denied all or substantially
all economically viable use of the Parcel during the mor-
atorium period. The issue remaining on remand is
whether Corn was denied all or substantially all economi-
cally viable uses of the subject property during the mor-
atorium and, if so, whether such deprivation rises to the
level of a temporary taking.
J-5
CONCLUSIONS OF LAW AND
APPLICATIONS TO THE FACTS
1. 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. Lee County,
968 F.2d at 1131. Generally, the landowner in a just com-
pensation takings case must demonstrate that his prop-
erty was “taken,” that the regulation “goes too far” and
that there is no provision to award him just compensa-
tion. Eide, 908 F.2d at 720. Therefore, the essential ques-
tion inherent in a just compensation claim is whether the
valid regulation goes so far as to be a taking. See Pennsyl-
vania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922) (“The
general rule at least is, that while property may be regu-
lated 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 circum-
stances in each case, each case is to be decided ad 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 land-
owners under state common law; (8) what was the dimi-
nution in the investment-backed expectations of the
landowner, if any, after passage of the regulation. Id. at
J-6
1136. Each of the factual issues has been addressed in the
Findings of Fact! and the legal issues are addressed
below.
2. In this Circuit, the first test as set forth in Nolan
[sic] 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 (11th Cir. 1992). Therefore, because
just compensation claims admit and assume that the sub-
ject regulation substantially advances a legitimate gov-
ernment interest, the only issue in just compensation
claims is whether an owner has been denied all or sub-
stantially 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).
3. The next question presented then is how far is too
far? Using ad hoc factual inquiries, the courts have identi-
fied 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 sub-
stantially all economically viable use of his property: 1)
interference with reasonable investment-backed expecta-
tions, and 2) economic impact to the landowner. Penn
1 The court’s prior Findings of Fact are incorporated herein
by reference to the extent that they are necessary to support
these additional findings.
a i i a
J-7
Central, 438 U.S. at 124; Reahard v. Lee County, 968 F.2d at
1136. This analysis must be explored in light of develop-
ing case law that has shaped and defined the meaning of
these factors. Reahard v. Lee County, 968 F.2d at 1136.
4. Regarding the deprivation of reasonable invest-
ment-backed expectations, the Supreme Court has tradi-
tionally looked at the existing use of the property as a
basis for ascertaining the owner’s “primary expectation
concerning the use of his parcel.” Penn Central, 438 U.S. at
136. In Andrus v. Allard, 444 U.S. 51, 66 (1979), the Court
specifically rejected the court’s giving serious consider-
ation of future profits and anticipated gains when it said
that “Prediction of profitability is essentially a matter of
reasoned speculation that courts are not especially com-
petent to perform.” Id. CORN made no use of the Subject
Property since purchasing it in 1966. He did, however,
construct and sell residential structures on the land sur-
rounding the Subject Property. In 1977, having attempted
no use of the Subject Property for 11 years, CORN sub-
mitted his first preliminary site plan for development of
the Subject Property and proposed for the first time,
construction of mini-warehouses. By that time, he had
completed his build-out of the residential parcelsand the
Subject Property where the mini-warehouses were to be
constructed was, quite literally, in the back yard of resi-
dents who had purchased 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 contrary to the general welfare concerns about con-
gestion, 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
J-8
ever CORN’s primary expectation for the Subject Prop-
erty or that he had invested in items specifically suited
for a single development project that were rendered
unusable, or rendered the Subject Property unusable, for
any other purpose for which it could have been devel-
oped. Any expectations CORN may have had regarding
use of the Subject Property are not backed by any invest-
ment other than his original purchase. Further, because
the property remained suitable for business development
it cannot be said on this record that CORN suffered a
diminution in investment-backed expectations.
5. Turning to the economic impact of the town’s
ordinances and activities on CORN’s property, the thresh-
old for finding a taking is the denial of “economically
viable use.” Agins, 447 U.S. at 260. Compensation is ordi-
narily required if the challenged restriction made the
property “wholly useless” so that “the rights of proper-
ty .. . prevail over the other public interest.” Penn Central,
438 U.S. at 128 (citations omitted). To examine this factor,
the courts require a “final authoritative determination of
the type and intensity 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.” Id.
6. The Nollan test that the challenged statute “sub-
stantially advance a legitimate state interest” is not to be
determined in the context of this just compensation anal-
ysis. However, the fact that the stated purpose of Ordi-
nance 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
}-9
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 property lay dormant before
the enactment of it, that the duration of the moratorium
was unreasonable.
7. The moratorium ordinance went far enough to
serve its stated purposes but not so far as to justify
CORN’s just compensation claim. Under the new zoning
Ordinance 549, which the City passed on first reading on
July 12, 1977, Corn’s property was rezoned from C-1A
(commercial) to B-3 (business). Accordingly, even during
the moratorium on C-1A development, Corn could have
developed his property in any economically viable way
permitted by the B-3 business-zoning classification. Corn
did not present any evidence to prove that, as a matter of
fact, his newly zoned B-3 property was rendered wholly
useless by the imposition of a moratorium on C-1A prop-
erty. There is no evidence in this record that during the
moratorium period Corn desired to and/or attempted to
use his property for any use other than the shopping
plaza/mini warehouse development project. There is no
evidence in this record that, after 7-12-77 or during the
moratorium period on C-1A property, Corn was denied
or prohibited the right to develop his property in any
way permissible by the B-3 zoning classification. Accord-
ingly, because there existed economically viable uses of
J-10
Corn’s B-3 property during the moratorium on develop-
ment of C-1A property, the court finds that Corn was not
deprived of all economically viable use of the Subject
Property. The fact that before, during, and, it appears,
after? the moratorium ended, Corn never desired,
attempted or was refused permission to develop the Sub-
ject Property in any of the many permissible, lawful and
profitable ways permitted by the B-3 zoning classifica-
tion, weighs heavily in the determination that he was
never denied all economically viable uses of the property.
The evidence established that at all relevant times, Corn
persisted in the pursuit of a single development —- the
mini-warehouses — to the exclusion of all other permiss-
ible uses. It was Corn’s decision not to pursue the permis-
sible B-3 classification uses and not the City’s moratorium
on development of C-1A property, which resulted in the
failure of the Subject Property to be put to profitable use.
Corn simply did not prove that during the moratorium
period on C-1A property, he was wholly prohibited from
developing his B-3 Subject Property.
Accordingly, Corn has failed to carry his burden of
proof on the issue of the unavailability of economically
viable uses of the subject property. Therefore, because
Corn, the landowner, has failed to prove that there was a
“taking” or that the regulation “went too far” as this
2 Even after the state court judge entered an order
enforcing the final judgment therein, Corn chose not to pursue
development of the Subject Property in any permissible way,
which, at the time of the trial in this court, he still owned and
had never developed in any way.
J-11
court previously ruled in its Findings of Fact and Conclu-
sions of Law, he is not entitled to just compensation from
the Defendant City.
In view of the foregoing Supplemental 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 defen-
dants and against the Plaintiff CORN, on Count I, the just
compensation claim premised upon a temporary taking of
the Subject Property during the moratorium.
DONE and ORDERED at West Palm Beach, Florida,
this 25th day of April, 1997.
/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
K-1
APPENDIX K
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
HERMAN CORN, Trustee,
Plaintiff, CASE NO.
VS. 84-6034-CIV-PAINE
CITY OF LAUDERDALE FBN: 260827
LAKES, a Florida
municipal corporation;
HOWARD CRAFT;
ALFONSO GEREFFI;
JEROME J. COHAN;
MORRIS KLEIN; LYMAN
L. ALLEN; LOUIS
GREENWALD; and
HARRY KAUFMAN,
Defendants
/
NOTICE OF APPEAL
Notice is hereby given that Plaintiff, HERMAN
CORN, Trustee, hereby appeals to the United States court
of Appeals for the Eleventh Circuit from the Final Judg-
ment and Findings of Fact and Conclusions of Law Upon
Remand entered in this action on April 25, 1997, and the
Order Denying Plaintiff's Motion to Set Aside Findings of
Fact and Conclusions of Law and For New Trial entered
in this action on the 30th day of June, 1997.
I HEREBY CERTIFY that a copy of the foregoing has
been furnished to MICHAEL C. MATTSON, ESQ.,
Cooney, Haliczer, Mattson, Lance, Blackborn, Pettis &
K-2
Richards, P.A., 301 East Las Olas Boulevard, Fort Lauder-
dale, Florida 33302 and JAMES C. BRADY, ESQ., Brady &
Coker, 1318 S.E. 2nd Avenue, Fort Lauderdale, Florida
33316 this 29th day of July, 1997.
ROMANIK LAVIN HUSS &
PAOLI
Attorneys for Plaintiff
P. O. Box 1040 /
1901 Harrison Street
Hollywood, FL 33022-1040
(954) 922-4656
(fax: 925-2856)
By: /s/ Andrew Lavin
ANDREW T. LAVIN
L-1
APPENDIX L
No. 93-1308
In The
Supreme Court of the United States
Octroser TERM, 1993
¢
HERMAN CORN, Trustee,
Petitioner,
vs.
THE CITY OF LAUDERDALE LAKES,
Respondents.
*
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
¢
PETITION FOR WRIT OF CERTIORARI
.
GIDEON KANNER
Counsel of Record
M. REED HUNTER
CROSBY, KEAFEY, ROACH & MAY
Professional Corporation
700 South Flower Street, Suite 2200
Los Angeles, California 90017
(213) 896-8000
E-2
ANDREW T. LAVIN
RICHARD A. IVERS
ROMANIK, LAVIN, HUSS & PAOLI
1901 Harrison Street
Hollywood, Florida 33020
Attorneys for Petitioner
Lawyers Brief Services ¢ Appellate Brief Printers ¢
(213) 613-1013 (714) 720-1510
QUESTIONS PRESENTED
1. (a) When a land owner, consistent with the direc-
tive of this Court in Williamson County Regional Planning
Commission v. Hamilton Bank, 473 U.S. 172 (1985), defers
pursuing his federal constitutional and civil rights claims
in a land use regulation controversy until a final adjudi-
cation of his state law-defined rights in property in the
appropriate state court is reached, may a Federal Circuit
Court of appeals ignore and override final factual find-
ings and legal determinations made in the earlier state
court proceedings (as well as the findings of the United
States District Court consistent with the earlier final state
court judgment) and purport to adjudicate that owner’s
rights to use his land as if a court of first instance?
(b) When such Circuit Court adjudication con-
flicts with the state court final judgment and the District
Court factual findings, does that adjudication (1) defy
this Court’s holding in Williamson County, (2) violate the
rights of that land owner to due process of the law, (3)
contravene the constitutional doctrine of comity; (4)
ignore federal law relating to full faith and credit (as well
L-3
as collateral estoppel and other doctrines of preclusion),
and (5) improperly divest the District Court of its func-
tion as finder of fact?
2. (a) Where a landowner enjoys a fully vested right
to build on his land in a City according to present zoning,
confirmed by a final judgment of a state court of compe-
tent jurisdiction, which judgment also expressly estops
the City from changing the zoning, may the City constitu-
tionally deprive him of that right by a purported change
in Zoning?
(b) In this situation, when the City — in ostensible
review of a site plan consistent with a development plan
it has already approved (by state law, a nondiscretionary
ministerial review limited to insuring technical site plan
compliance) - nonetheless changes the zoning without
notice, prehearing investigation or competent supporting
evidence, thus depriving the landowner of his vested
rights and preventing him from building, does that City
deny the landowner due process of law and just compen-
sation?
3. In Eide v. Sarasota County, 908 F.2d 716, 720 (9th
Cir. 1990), cert. denied 498 U.S. 1120 (1991), the Eleventh
Circuit first articulated a conceptual construct that there
are precisely “four types of challenges [based on
allegedly unconstitutional land use regulation] a plaintiff
may bring . . . [1] just compensation, [2] due process
takings, [3] arbitrary and capricious due process and [4]
equal protection claims.” This construct was the template
of the Circuit Court’s opinion below. Is this construct
consistent with this Court’s rule that challenges to the
L-4
constitutionality of land use regulations are to be deter-
mined on an ad hoc basis?
4. Does the Eleventh Circuit’s explication of sub-
stantive due process rights in this case (and other land
use cases) correctly explicate the law of this court, or are
conflicting interpretations from other Circuit Courts of
Appeal, and other state courts, correct?
5. What is the proper measure of damages for a
temporary taking of property set aside for a particular
authorized and appropriate development if, when devel-
opment is unlawfully delayed and then finally permitted,
the economic window of opportunity for that develop-
ment has vanished?
PARTIES TO THE PROCEEDINGS
Plaintiff, appellant and cross-appellee, and petitioner
is Herman Corn, Trustee, 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 (City Councilmen).
TABLE OF CONTENTS
Page
CAPR GRINS PROVE EES occ caccnscaveccbassenenss i
FARFIOS 10 THIE PROCEEDING 2... ccsscveccccess iii
Fk ey | A reer ere errr ere rer ix
L-5
py. Pew ive, 8 207. a rr. x
ee I sew bi oves bite a 1
PE FI 6 4:5 k's ison eee eed ee eames as 2
CONSTITUTIONAL AND STATUTORY PROVI-
EN ida Se REESE RIKER EA Ok eRe 2
wee a ee. a. rr arr 3
Ti TS & ioe a coe ee ae bce ces 3
B. In 1966, Mr. Corn And The City Enter Into An
Annexation Agreement That Included Approval
Of A Development Plan And Site-Specific Zoning
Consistent With That Development Plan ....... 4
C. A 1969 State Court Final Judgment Confirms Mr.
Corn’s Right To Build And Estops The City From
Changing The Zoning On The Property........
D. Defying The State Court Estoppel Order And
Reneging On Its Own Agreement, In 1977 The
City Council Purports To Deny The Development
It Had Approved At The Time Of Annexation
And To Rezone The Property.................. 6
1. The Mini-Warehouse Presents Mr. Corn With
An Extraordinary Economic Opportunity... 6
2. City Council Actions, Which Overruled Plan-
ning And Zoning Board Recommendations,
Were Taken Without Advance Notice, Inves-
tigations As To Their Appropriateness, Or
a ee ee re 6
3. City Council Actions Were Taken In
Response To Pressure From Neighborhood
CRUETE F PRIIUUNE cs ck coe sce cee ck cade s ae cas 8
E. Mr. Corn In The State Courts: Vested Rights, Lack
Of Discretion, And Illegality of City Acts Are
Confirmed In A Final Judgment
F.
G.
L-6
Mr. Corn In The Federal Courts: Damages
Awarded Based On Constitutional Violations ...
Twenty-Four Years After The Annexation Agree-
ment And Thirteen Years After Commencement
Of Litigation Which Generated Seven Prior
Reported Decisions, The Eleventh Circuit Goes
Back To Square One, Ignores Prior Factual Deter-
minations By Both State And Federal Courts As
Well As Final And Preclusive Legal Findings,
And Proceeds As If It Were Writing On A Clean
Slate As A Court Of First Instance ............
REASONS WHY THE WRIT SHOULD ISSUE ......
A.
The Startling August 13, 1993 Eleventh Circuit
Opinion Runs Counter To Monolithic Constitu-
tional, Statutory And Case Law And Threatens
To Destabilize The Clearly Defined Mode Of
Interaction Between Federal And State Trial And
Appellate Courts .........-.0s eee e cece eee ees
1. Striking At The Very Heart Of Federalism,
The Eleventh Circuit Ignored Guiding Princi-
ples Of Full Faith And Credit, Comity, Pre-
clusion And Due Process Of Law..........
2. The Eleventh Circuit Opinion Penalizes Land
Owners Seeking Due Process And Just Com-
pensation For Unconstitutional Land Regula-
tion Who Follow The Procedural Dictates Of
(gk Pe eeeerre errr ere ret T reer
3. The Eleventh Circuit Rode Roughshod Over
District Court Factual Findings (Including
Findings As To Motive And Intent) In Con-
travention Of The Well-Defined Allocation
Of Power And Duties Between Federal Trial
And Appellate Courts ..........-++++-+e0+:
10
12
13
13
14
15
L-7
B. In Contravention Of Mr. Corn’s Vested Rights
And An Established Body Of Constitutional Law,
The 1977 City Council Made Decisions It Was
Not Empowered To Make, Violating Its Own
Required Procedures, And Made Them On
Runpeneentnee GOURD. <c 5 oss 050k caccescssecess 18
1. By 1977, Mr. Corn’s Rights To Build The Mall
And Mini-Warehouse Were Vested; The City
Was Bound By A State Court Final Judgment
Estopping It From Changing The Zoning And
Divesting It Of Discretion To Deny The Site
FUR 5 oo 6 nc sedt ansehen thedeaeseadcebeawiee 18
2. Mr. Corn Was Ambushed By The No-Investi-
gation, No-Notice, No-Due Process Extrale-
gal Purported Zoning Change.............. 19
3. Inappropriate Deference To Neighborhood
(NIMBY) Activists At The Expense Of Consti-
tutional Rights - The Basis Of The City’s 1977
Actions Here - Is An Increasing And Critical
Problem Needing Address By This Court... 20
C. The Eleventh Circuit Eide Construct, Central To
the Disposition Of This Case Below, Is Inconsis-
tent With The Teachings Of This Court, And
Requires Litigants Challenging Land Use Regula-
tions To Operate Under A Set Of Rules Different
From Those In Other Circuits.................. 24
D. This Case Presents A Vehicle For Resolving The
Significant Conflict Which Exists Between The
Several Circuits (And Between Federal And State
Courts) As To The Breadth Of Substantive Due
Process Guarantees In Land Use Cases ........ 26
E. This Court’s Guidance Is Needed In Resolution
Of The Recurring Questions Of The Proper Mea-
sure Of Damages In A Land Use Case Where An
Economic Opportunity Is Lost Because Of A Tem-
DOGGNG THEE oo sees ccccucecowe Vane nnesaneccs 28-
CR ES 6 bende edenwaveeee bubetanes edececaine 29
L-8
LIST OF APPENDICES
APPENDIX A
OPINION, U.S. COURT OF APPEALS ELEV-
ENTH CIRCUIT, DATED AUGUST 13, 1993.....
AND
PETITION FOR REHEARING DENIED, FILED
SE 2h Ca vvacestcceetvececevesteberes
APPENDIX B
FINDINGS OF FACT AND CONCLUSIONS OF
LAW, UNITED STATES DISTRICT COURT, S.D.
FLORIDA, DATED AUGUST 30, 1991...........
APPENDIX C
ORDER AWARDING ATTORNEYS* FEES AND
COSTS, U.S. DISTRICT COURT, S.D. FLORIDA,
SEE GE PUNE 0-0 bac aeswensccceeveenecess
APPENDIX D
DECISION, DISTRICT COURT OF APPEAL OF
FLORIDA, DATED FEBRUARY 16, 1983.........
APPENDIX E
ORDERS, CIRCUIT COURT IN AND FOR
BROWARD COUNTY, FLORIDA, DATED JAN-
UARY 28, 1970 AND MAY 18, 1971.............
APPENDIX F
CITY OF LAUDERDALE LAKES ORDI-
NANCES NOS. 103, 104, 105, 548, 548, 549, 552 ....
Fl
L-9
TABLE OF AUTHORITIES
Page
Cases
A.A. Profiles, Inc. v. City of Ft. Lauderdale 850
F.2d 1483 (11th Cir. 1988), cert. denied, 490 U.S.
EN GR sv cer eneens shevevwsnsceeetitasss 20, 21, 26
Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411 (1980)
PEE TE Oe ere La 14, 15, 16
Bailey v. City of St. Augustine Beach, 538 So.2d 50
Cie. App. WG) occ ccscsecosccesenccssscctccesess
Benenson v. United States, 548 F.2d 939 (Ct. Cl.
SPs. ad pnédpdedackciapesdacdsenenseateuhisinncr ses
BML Investments Inc. v. City of Casselberry, 476
SODE TID Hee. AMD: WAGs 0 cssccessccvsessnccscee
Church of Jesus Christ of Latter-Day Saints v.
Jefferson County, 721 F.Supp. 1212 (N.D. Ala.
Mi cktsnktacee sageebeshnenss bheseninweRetminess
City of Cleburne v. Cleburne Living Center, 473
EE. GP I ov tik tas ccianndcsteesddgsiiesevicess
City of Margate v. Amoco Oil Co., 546 So.2d 1091
RR. BD. TOGO cc csecccncneccsoccctcnenteessevecs
Commercial Bank of Cincinnati v. Buckingham’s
Executors, 46 U.S. 5 How. 317 (1847) .............
Concrete Pipe & Prods., Inc. v. Construction
Laborers Pension Trust, 113 S.Ct. 2264 (1993) .....
Coniston Corp. v. Village of Hoffman Estates, 844
eae Oe oe Gh Ss 6 bak st Sv eercasvisceses es
Connolly v. Pension Benefit Guaranty Corp., 475
SR Se SD sous tedhtsedhetrnnstes Cadencees ies
Dalehite v. United States, 346 U.S. 15 (1952).........
L-10
Eide v. Sarasota County, 908 F.2d 716 (9th Cir.
1990) cert denied, 498 U.S. 120 (1991) ii, 11, 13, 24, 25
First English Evangelical Lutheran Church v.
County of Los Angeles, 482 U.S. 304 (1987)........8
Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570
ade dcoedkvnennenaeabthenaagawsns 20, 21
Hollywood Beach Hotel Co. v. City of Hollywood,
ee ee SD oc croccccccsuscnancesssere 18
Hudson v. Palmer, 468 U.S. 517 (1984) .............. 15
Kaiser Aetna v. United States, 444 U.S. 164 (1979) .... 26
Kremer v. Chemical Constr. Corp., 456 U.S. 461
RAE I A RCE a ey ee 14, 15
tied en rhb sabescedecnehasskhnensans 18
Loretto v. Teleprompter Manhattan CATV Corp.,
NTE ee ee ce nencesesaaee 25
Lucas v. South Carolina Coastal Comm'n, 505 U.S.
os Se A Se GED oe > pereercbecscdcens 17, 25
Lynch v. Household Fin. Corp., 405 U.S. 538 (1972) .... 29
MacDonald, Sommer & Frats v. Yolo County, 477
EE TTT eee Se 25
Marks v. City of Chesapeake, 883 F.2d 308 (4th Cir.
initia eeeE Ate cesedband ahadonenax+ess erence 23
Migra v. Warren City Sch. Dist. Bd. of Educ., 465
| | a aa 16
Mobil Oil Corp. v. Shevin, 354 So.2d 372 (Fla.
(a age nil a at IE 16
L-11
Nemmers v. City of Dubuque, 716 F.2d 1194 (8th
CD BI 6 ncninwe'gonchaeseeve beet eNOS eb cciuaie hs
Pearson v. City of Grand Blanc, 756 F.Supp. 314
CREA. BR. BEER s a a nh chins aehaeadusbagebee eases
Pearson v. City of Grand Blanc, 961 F.2d 1211 (6th
CB SOE Sv dee bs ssteteencescee¥scneeeeueteen 24,
Penn Central Trans. Co. v. City of New York, 438
SA. De GRU vn. 404 bec 0005s cndeaneeeataena anes
Pennell v. City of San Jose, 485 U.S. 1 (1988)........
Preseault v. I.C.C., 494 U.S. 1 (1990) ................
R.D.J. Enters., Inc. v. Media Bank, 600 So.2d 1229
Gras BA. | ED a 6:5 650 sh hhWasne dkeebatenkensceds
Reardon v. San Francisco, 66 Cal. 492 (1885) ........
Rearhard v. Lee County, 968 F.2d 1131 (11th Cir.
| PTET re er eee TE ETO eee
Rogers v. Lodge, 458 U.S. 613 (1982)................
Sierra Lake Reserve v. City of Rocklis, 938 F.2d 951
(9th Cir. 1991), cert. granted and judgment
vacated, 113 S.Ct. 31 (1992), on remand 987 F.2d
GE Ses + +: cal bi ss cwavedscueecdtearieiuaneeeess*
Southern Co-Op Development Fund v. Driggers,
696 F.2d 1347 (11th Cir. 1983), cert. denied, 463
Gi Feet I 600.600 0c kuncandbeguseidevetesecds
Texaco, Inc. v. Short, 454 U.S. 516 (1982)............
Twining v. New Jersey, 211 U.S. 78 (1908)...........
United States v. James Daniel Good Real Property,
oe) eee 8 errr
Washington ex rel. Seattle Trust Title & Trust Co.
vw. Raperge, 276 US. 196 (IGRGp «0... ccc ccccceccewe
L-12
Wheeler v. City of Pleasant Grove (Wheeler I)
664F.2d 99 (5th Cir. Unit B 1981) cert. denied, 456
Se PD CE Fo hehe beac ch eRNE ASE Sks 6b 600 068 18, 21
Wheeler v. City of Pleasant Grove (Wheeler III),
Boe got. Be a.) errr re 26
Wheeler v. City of Pleasant Grove (Wheeler IV),
O56 F.2G 1567 (hit Cie. BORG. ww cs cc ccc cescces. 11, 12
Williamson County Regional Planning Commis-
sion v. Hamilton Bank, 473 U.S. 172 (1985)
iAd hae bee S RTT O) 40 oO RRS EAE CR i, 10, 15, 17, 18, 20, 30
Younger v. Harris, 401 U.S. 37 (1971) ............... 15
Constitution
United States Constitution
gg REAPER ery Cee ae er Gre an 2, 10
Fourteenth Amendment................00eeeeeeee: 2, 10
Federal Statutes
NN ea acn vies anigbieenmes 2
I a oi is ccek sc cccwsdiaccenackas 14, 16
Ee en a eee 2, 10
State Statutes and Ordinances
Lauderdale Lakes City Code § 25.5.5...............-. 7
City of Lauderdale Lakes
a a oe ite a aeceee eran 3, 4
re Mr ne ween eek ramenen 3, 4
esGinenes Ge. BGD. accevisnsiidesicestetieeeee 3, 4
OS TH 6 6 bo be bn bee dane 2, 3, 7, 9, 16
CHER Gi, De «+ x o0n0eeseeeeeasaaens 2, 3, 7, 9, 16
OUND Gi. Tile « i.cccdkacdeucsedsuwman ea |
Pan. Get. Seetion 073 © OG 5 x. scekssovssassedsaes 4
Text
Carroll, Alice in Wonderland, Ch. 12................ 20
Miscellaneous
1990 presidential report by the Advisory Commit-
tee on Regulatory Barriers to Affordable Hous-
ing, “Not In My Back Yard” Removing Barriers to
SOG TEI 6 0 6 6000 8ctnencensetanianniinn 22
L-14
PETITION FOR WRIT OF CERTIORARI
Herman Corn, Trustee, respectfully seeks Certiorari
to review the judgment of the United States Court of
Appeals for the Eleventh Circuit.
OPINIONS BELOW
The August 13, 1993 opinion of the United States
Court of Appeals for the Eleventh Circuit is published at
997 F.2d 1369 (11th Cir. 1993), and is reproduced herein -
with the subsequent order denying rehearing and a sug-
gestion for hearing en banc - as Petitioner’s Appendix
A1-60.
That opinion affirmed in part and reversed in part
the August 30, 1991 decision of United States District
Court for the Southern District of Florida, published at
771 F.Supp. 1557 (S.D. Fla. 1991) and reproduced herein
as Petitioner’s Appendix B1-32. The subsequent District
Court order awarding attorney’s fees is at 794 F.Supp. 364
(S.D. Fla. 1992), and reproduced herein as Petitioner’s
Appendix C1-16.
Since the late 1960’s the extended controversy to
which these opinions speak has generated eight pub-
lished opinions and a number of unpublished decisions,
by state and federal courts. The remaining published
opinions are: 371 So.2d 1111 (Fla. 4th Dist.Ct.App. 1975);
415 So.2d 1270 (Fla. 1982); 427 So.2d 239 (Fla. 4th
Dist.Ct.App. 1983), reproduced herein as Petitioner’s
Appendix D1-11; 816 F.2d 1514 (11th Cir. 1987); and 904
F.2d 585 (11th Cir. 1990). A further order of the Eleventh
L-15
Circuit, reversing an award of attorney’s fees to peti-
tioner, is at 3 F.3d 442 (11th Cir. 1993). Orders of the
Florida Circuit Court in and for Broward County dated
January 28, 1970 and May 18, 1971 (with accompanying
stipulation) are reproduced herein as Petitioner’s Appen-
dix E1-6.
JURISDICTION
This is an action for deprivation of property without
due process of law or just compensation in violation of
the Fifth and Fourteenth Amendments to the United
States Constitution and the Civil Rights Act (42 U.S.C.
§ 1983). The judgment of the Eleventh Circuit was entered
on August 13, 1993. Mr. Corn’s petition for rehearing and
suggestion for a hearing en banc was denied on October
14, 1993. The federal court action for damages followed a
state action culminating in a final judgment invalidating
City ordinances 548, 549 and 552 and holding that the
City had no discretion to act as it did - holdings recog-
nized by the District Court, yet ignored by the Eleventh
Circuit, which found the City’s actions valid.
An extension of time within which to file this petition
for a writ of certiorari to February 11, 1994, was granted
by order of Justice Anthony M. Kennedy, Circuit Justice
for the Eleventh Circuit, on December 29, 1993.. _
This court has jurisdiction pursuant to 28 U.S.C.
§ 1254(1).
_-
CONSTITUTIONAL AND STATUTORY PROVISIONS
Fifth Amendment, United States Constitution:
L-16
4/
. 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,
ordinance, 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, and 552 are reproduced herein as Peti-
tioner’s Appendix F1-25.
STATEMENT OF THE CASE
A. Introduction
Twenty-eight years ago, in 1966, the subject 261 acres
was annexed to the City of Lauderdale Lakes, to which it
was contiguous, by means of an annexation agreement
between the City and the property owner, Mr. Corn. The
agreement, which included a development plan and site-
specific zoning, was memorialized and implemented
through City ordinances nos. 103, 104 and 105, enacted at
the time of annexation.
L-17
Since 1969, controversies having their genesis in the
City’s efforts to thwart Mr. Corn’s rights under the 1966
agreement (notably — but not exclusively - improvement
of 8.5 acres of commercial development) have generated
eight reported state and federal court decisions (identi-
fied ante), as well as several unreported decisions. Until
the August 13, 1993 Eleventh Circuit Court of Appeals
opinion inexplicably returned to square one to decide de
novo issues previously and finally adjudicated in Florida
state courts (as a matter of state law) and reaffirmed
repeatedly in federal courts, the decisions have invariably
required the City to adhere to its commitments and held
(a) that Mr. Corn’s rights to build on his land had vested
under state law thus becoming protected property rights,
(b) that the City lacked discretion to deny approval of the
site plan, and (c) that the City was estopped from chang-
ing the existing zoning.
B. In 1966, Mr. Corn And The City Enter Into An
Annexation Agreement That Included Approval Of
A Development Plan And Site-Specific Zoning Con-
sistent With That Development Plan
In 1966, the City and Mr. Corn agreed - after
extended negotiations — to the annexation of his 261 acres
(the Larger Site) located in an unincorporated area in
Broward County, Florida, contiguous to the City. (771
F.Supp. at 1559-60; App. B1-2)! As is often the case, an
intrinsic part of the annexation agreement was the City’s
Without the cooperation of Mr. Corn, it would have taken
an act of the Florida legislature or a formal referendum to enable
the City to annex this land. Fla. Stat. Section 171 et seq.
L-18
approval of a proposed development plan - the raison
d'etre for the annexation. All this was memorialized in
ordinances adopted by the City on July 12, 1966. As the
Eleventh Circuit put it in its earlier 1987 Opinion: “The
ordinances, respectively, annexed Corn’s property [No.
104]; applied a variety of zoning classifications to his land
[No. 105]; and allowed Corn to construct mini-ware-
houses in a portion of his property zoned C-1A [No.
105].” (816 F.2d at 1515)? (Ordinance 103 created zoning
category C-1A from pre-existing category C-1.)
C.. A 1969 State Court Final Judgment Confirms Mr.
Corn’s Right To Build And Estops The City From
Changing The Zoning On The Property
The next event of significance was thus recounted in
a subsequent state court opinion:
In 1969 the city attempted to change the
zoning of a portion of appellee’s property to
prohibit a contemplated project [condominium
housing] permitted by the original zoning. Liti-
gation ensued resulting in a judgment holding
that the city was estopped from changing the
zoning. No appeal was taken from that judg-
ment.
City of Lauderdale Lakes v. Corn, 427 So.2d at 240-41; App.
D2. An examination of the January 28, 1970 order and
2 The 1966 ordinances did not identify “mini-warehouse”
as the precise eventual use, but (in typical zoning terminology)
expressly allowed any of several specified commercial and
industrial uses, one of which was warehouse. (See 997 F.2d at
1371; App. A2-3)
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May 18, 1971 final judgment (App. E2, 5), in context,
demonstrates that the estoppel reference was to the entire
Larger Site, including the 370 foot by 1030 foot 8.5 acres
zoned C-1A (the Property) (TR 84).
Between 1966 and 1977, Mr. Corn developed much of
the Larger Site consistent with the approved develop-
ment plan, logically developing the housing first. (771
F.Supp. at 1560; App. B2; TR 81) In reasonable reliance on
the earlier approved development plan, he spent in
excess of $100,000 toward development of the Property;
improvements included waterways which formed a bar-
rier between the Property and the residential parts of the
Larger Site. (771 F.Supp. at 1560; App. B2)
D. Defying The State Court Estoppel Order And
Reneging On Its Own Agreement, In 1977 The City
Council Purports To Deny The Development It Had
Approved At The Time Of Annexation And To
Rezone The Property
1. The Mini-Warehouse Presents Mr. Corn With
An Extraordinary Economic Opportunity
On April 1, 1977, Mr. Corn submitted a preliminary
site plan for a 67,000 square foot shopping mall which
would front the main adjoining thoroughfare (U.S. 411),
and a 103,000 square foot mini-warehouse, separated
from the thoroughfare by the mall and from surrounding
3 Another effort to renege on its 1966 commitments was
launched by the City in 1976 (Circuit Court for the 17th Judicial
District of Broward County, Florida case No. 76-7105). This, too,
was resolved in Mr. Corn’s favor.
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residences by the waterways. (771 F.Supp. at 1560; App.
B2-3) This site plan was (in the words of the final state
court opinion) “in accordance with the development plan
submitted to and approved by the City .. . ” (427 So.2d at
241; App. D3)
At that time, small warehouses in which individuals
might store personal property were just coming into
vogue; there was no such facility in Lauderdale Lakes.
(TR 3:500) Had the proposal been approved, this develop-
ment — as subsequent experience of other entrepreneurs
demonstrated — would have provided an exceptional
business opportunity for Mr. Corn, and also provided a
significant convenience for local residents.
2. City Council Actions, Which Overruled Plan-
ning And Zoning Board Recommendations,
Were Taken Without Advance Notice, Investiga-
tions As To Their Appropriateness, Or Support-
ing Evidence
On May 12, 1977, the City’s Planning and Zoning
Board recommended approval of Mr. Corn’s site plan; on
May 27, 1977, it reaffirmed that recommendation. (771
F.Supp. at 1560; App. B3)
When it finally acted on the Corn site plan on July 12,
1977 (having tabled consideration of the matter three
times), the City Council introduced and at the same meet-
ing formally enacted two ordinances: Ordinance 548 elim-
inated warehouses as a permitted C-1A use, and
Ordinance 549 rezoned the Property (and no other land)
to B-3. (771 ESupp. at 1560; App. B3, F12-21) These ordi-
nances were passed without any advance notice to Mr.
L-21
Corn or to the public that any act beyond passing on the
pending site plan would be considered. This ambush
manifestly violated not only constitutional due process
protections and basic fairness, but also the City’s own
duly enacted procedural standards: Lauderdale Lakes
City Code § 25.5.5 requires a ten-day notice and a Plan-
ning and Zoning Board hearing on any proposed zoning
change before the City Council may act.* The Council
then denied approval of the Corn site plan as inconsistent
with the (newly) created zoning, with no suggestion that
the site plan might be modified to make it acceptable.
(771 F.Supp. at 1560; App. B3)
Prior to the July 12 hearing, the City had made no
effort to investigate mini-warehouses to determine empir-
ically their impact on traffic, noise, etc. (771 F.Supp. at
1560; App. B4; TR 3:500-02) At the hearing, the City
Council proposed a moratorium (later formally adopted
as Ordinance 552 and extended), ostensibly to study and
evaluate the impact of C-1 zone uses, and particularly
mini-warehouses. (771 F.Supp. at 1560; App. B3-4, F22-25)
The study thus post-dated the zoning change it was sup-
posed to justify.
* At the federal district court trial, former City Mayor
Howard Craft conceded that there was no notice, that there was
netnvestigation prior to the hearing (“we never heard of mini-
warehouses”), that the City did not consider its 1966
agreements, that this was the only time of which he was aware
that the City Council did not follow a Planning and Zoning
Board recommendation, and that the rezoning and use deletion
was unprecedented in City history. (TR 3:470-71, 494-500,
507-09)
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3. City Council Actions Were Taken In Response
To Pressure From Neighborhood (NIMBY)
Activists
It is undisputed that all of these 1977 City Council
acts taken to frustrate Mr. Corn’s vested rights were a
response to political pressure by neighborhood NIMBY
(the often-used acronym for “Not In My Back Yard”)
activists — ironically for the most part living in the hous-
ing. Mr. Corn had developed. (See, e.g., 997 F.2d 1378-84;
App. A19-34) These activists appeared in significant
number, but — like the City itself - offered no sworn
testimony or other cognizable evidence which could sup-
port the City’s illegal rezoning (which, of course, would
have been impermissible anyway in view of the state
court judgment).
E. Mr. Corn In The State Courts: Vested Rights, Lack
Of Discretion, And Illegality Of City Acts Are Con-
firmed In A Final Judgment
After these City acts, Mr. Corn sued the City and the
City officials identified ante in the Circuit Court of the
Seventeenth Judicial District in and for Broward County
(Case No. 77-12955). (771 F.Supp. at 1561; App. B4) At
that time (prior to this Court’s decision in First English
Evangelical Lutheran Church 0. County of Los Angeles, 482
U.S. 304 (1987)), Florida categorically forbade money
damages as a remedy for unconstitutional land use regu-
lation, no matter how severe the consequences to the
landowner. See Corn, 816 F.2d ai 1517.
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Following a trial, the trial court entered its final
judgment on October 20, 1978, holding that the water-
ways and other improvements were made by Mr. Corn in
express reliance on the approved development plan, that
the City’s July 12 actions were taken without notice, and
that “Ordinances #548, #549 and #552 were enacted by
the City improperly and not in accordance with the
requirements of the City Charter.” (427 So.2d 241; App.
D4) The court specifically held that the City failed “to
follow its own notice and procedure requirements (and
did not make the requisite showing of compelling health,
safety or welfare considerations. (427 So.2d at 242, App.
D4) The City Council’s action was found to be in direct
response to the “demands” of the neighborhood activists
“without consideration of the rights of the Plaintiff herein
pursuant to the Ordinances of the City of Lauderdale
Lakes.” And finally, the court expressly held that the City
was “estopped to deny Plaintiff's rights in [the original]
zoning classification.” (427 So.2d at 242; App. D5) and
that ordinances 548, 549 and 552 were void and
unenforceable. (App. D5) The Court’s writ of mandamus
directed the City to approve the site plan (upon the
making of minor technical adjustments), and to issue the
building permit. (427 So.2d 242; App. D5)
The trial court judgment was affirmed in all relevant
particulars by the Florida Fourth District Court of Appeal
on February 16, 1983.5 City of Lauderdale Lakes v. Corn, 427
5 Along the way, a dispute arose as to whether the City
would be required to post bond on appeal. This controversy was
resolved in a published decision at 415 So.2d 1270 (Fla. 1982).
The bonding controversy has no significance in this matter.
L-24
So.2d 239 (Fla. 1983) (App. D1-11). The court of appeal
held that the City was estopped from changing the zon-
ing (to do so would be “grossly unfair’), and that “no
element of discretion remains” in the City to deny the site
plan and the approval of the plat on the basis of control-
ling standards is described as “an administrative act” and
“ministerial” (427 So.2d at 243-44; App. D9-10), that
under Florida law the City’s legislative powers were in
no sense impinged (427 So.2d at 244; App. D10), that Mr.
Corn’s vested rights equitably estopped the City from
changing the zoning, and that the City should be “held to
the same standards of fair dealing tha! are applied to
other entities.” (427 So.2d at 244; App. D‘-10) The Florida
Court of Appeal issued its mandate on March 4, 1983, at
which time the decision became final (771 F.Supp. at 1561;
App. B5)*
FE Mr. Corn In The Federal Courts: Damages Awarded
Based On Constitutional Violations
By the time the illegality of the City’s acts of frustra-
tion had been definitively adjudicated 1985), Mr. Corn
had been deprived of the use of the Poperty for eight
years. The window of economic opporturity for the mini-
warehouse project had been lost; other varehouse facili-
ties in the area had preempted Mr. Con's opportunity.
6 In spite of the mandate, the City refued to approve the
site plan unless Mr. Corn complied with plaming requirements
(property platting) that came into existence ater July 1977. (771
F.Supp. at 1561; App. BS) On March 26, 1985 the 17th Judicial
Circuit Court ordered the City to issue th building permit
without platting. (771 F.Supp. at 1562; App. 6)
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The market was saturated. the Property remains vacant
today.
On January 17, 1984, Mr. Corn filed the underlying
case below in the United States District Court for the
Southern District of Florida No. 84-6034-CIV, seeking
damages for violation of the just compensation, due pro-
cess and equal protection clauses of the Fifth and Four-
teenth Amendments and the Civil Rights Act (42 U.S.C.
§ 1983). (771 F.Supp. at 1561; App. B5-6)
On October 22, 1985, the district court (Gonzalez, J.)
dismissed the action believing it to be unripe under the
Williamson County test. (771 F.Supp. at 1562; App. B7) In
Corn v. City of Lauderdale Lakes, 816 F.2d 1514 (11th Cir.
1987), the Eleventh Circuit reversed, and (significantly)
acknowledged the final state court ruling: “A final judg-
ment rendered in Corn’s favor estopped the City from
rezoning the property during the pendency of Corn’s
ownership of it.” Id. at 1515. The “property” thus referred
to was, again, the entire Larger Site including the Prop-
erty.”
On August 30, 1991, following a four-day nonjury
trial, the District Court (Paine, J.) issued its opinion con-
sisting of findings of fact, conclusions of law and
extended damages calculations purportedly pursuant to
the Eleventh Circuit standard expressed in Wheeler v. City
of Pleasant Grove, 896 F.2d 1347 (11th Cir. 1990) (Wheeler
7 Having failed to demonstrate that Mr. Corn’s action was
unripe, the City flip-flopped and argued that it was overripe.
But the district court held that the action was not barred by
limitations or res judicata, and the Eleventh Circuit affirmed.
Corn v. City of Lauderdale Lakes, 904 F.2d 585 (11th Cir. 1990).
L-26
IV). The district court’s substantive factual findings
echoed the state court final judgment, e.g., the passage of
critical ordinances on the first reading was without notice
and without even an attempt at investigation of the
appropriateness of the mini-warehouse use; “the City
Council was motivated solely by an irrational desire to
thwart CORN’s plans.” Corn v. City of Lauderdale Lakes,
771 FSupp. at 1569; App. B22.
The District Court presented its conclusions of law in
the frame of reference of the Eide v. Sarasota County con-
struct. Significant conclusions include: (1) Corn enjoyed
vested rights in the pre-July 12, 1977 zoning, and “[tJhis
issue, having been presented, fully litigated, and resolved
in a prior suit between these parties, cannot be reliti-
gated” (771 F.Supp. at 1566; App. B15); (2) Corn enjoyed a
protected property interest under Florida law (771
F.Supp. at 1566; App. B15-16); (3) the City acted arbi-
trarily and capriciously in its actions in July 1977 and
thereafter, including its so-called moratorium and report
which “seems nothing more than an attempt at post hoc
rationalization.” (771 F.Supp. at 1569; App. B21-22).
G. Twenty-Four Years After The Annexation Agree-
ment And Thirteen Years After Commencement Of
Litigation Which Generated Seven Prior Reported
Decisions, The Eleventh Circuit Goes Back To
Square One, Ignores Prior Factual Determinations
By Both State And Federal Courts As Well As Final
And Preclusive Legal Findings, And Proceeds As If
It Were Writing On A Clean Slate As A Court Of
First Instance
This case reached the Eleventh Circuit for the third
time following an appeal by Mr. Corn and a cross-appeal
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by the City from the District Court’s decision. Mr. Corn
asserted error in the computation of damages under
Wheeler IV and in the holding that the individual defen-
dants enjoyed absolute immunity. The City sought to
relitigate issues previously and finally decided by the
Florida state courts (vested rights) and the Eleventh Cir-
cuit (statute of limitations).
The Eleventh Circuit panel, consisting of three judges
who had participated in neither of the prior Circuit deci-
sions, wrote as if it were a court of first impression, as if
the state court proceedings had never happened or at
least as if they had no legal effect, and usurped the
District Court’s function as trier of fact as well. The
Opinion recites the basic state court determinations, but
never attempts to reconcile them with its own squarely
contrary conclusions, which include a finding that the
— July 17, 1977 rezoning was proper (no mention is made of
the state court estoppel interdiction). (997 F.2d at 1371-72;
App. A3-4)® Using as its conceptual framework the Eide v.
8 The Eleventh Circuit apparently saw its mission as not
just resolving the discrete controversy presented to it, but also
delivering a grand pronunciamento with broad impact:
The district court’s error reaches beyond the fisc
of one Florida community and the merits of one
case . . . More broadly, this case involves questions
about how decision-making is allocated between a
democratic institution, such as an elected city council,
and the federal courts. It involves fundamental issues
about the allocation of rights and powers within our
constitutional system. (997 F.2d at 1373; App. A7)
The problem with this grandiose language is that the
opinion does violence to the precise value it purports to
espouse: the proper “allocation of rights and powers within our
constitutional system.”
L-28
Sarasota County template and focusing on substantive due
process, the court found that the City had not abused its
discretion on July 12, 1977 (997 F.2d at 1373-74, 1386;
App. A8, 40) (in contrast to the state court ruling that the
City had no discretion as a matter of state law), and that
what the City Council did was legislative (997 F.2d
1392-93; App. A54) (in contrast to the state court ruling
that it was administrative and ministerial).
The Opinion goes on at length about the neighbor-
hood activist input, in effect acknowledging that it was
the basis of the City’s decision. (997 F.2d at 1377-87; App.
A17-42)
REASONS WHY THE WRIT SHOULD ISSUE
A. The Startling August 13, 1993 Eleventh Circuit
Opinion Runs Counter To Monolithic Constitu-
tional, Statutory And Case Law And Threatens To
Destabilize The Clearly Defined Mode Of Interac-
tion Between Federal And State Trial And Appel-
late Courts
1. Striking At The Very Heart Of Federalism, The
Eleventh Circuit Ignored Guiding Principles Of
Full Faith And Credit, Comity, Preclusion And
Due Process Of Law
No concept is more fundamental to the system of
federalism than the motion that federal courts must yield
to state court determinations of state law, and give full
faith and credit to the final judgments of state courts. The
City had it exactly right when it wrote in a March 21, 1984
(unsuccessful) Motion to Dismiss:
L-29
In 1980, the Supreme Court of the United States
held that issues actually litigated in a state court
proceeding are entitled to the same preclusive
effect in a subsequent federal § 1983 suit as they
enjoy in the courts of the state where judgment
is rendered. Allen v. McCurry, 449 U.S. 90, 101
S.Ct. 411 (1980).
What the City recognized as obvious, the Eleventh
Circuit - which must have known better - chose not to
recognize at all. Snubbing the Florida court system, the
Eleventh Circuit found that the City’s illegal acts were
valid.
For more than a century, this Court has recognized
that federal courts are bound by construction of state law
by state courts. See, e.g., Commercial Bank of Cincinnati v.
Buckingham’s Executors, 46 U.S. 5 How. 317, 342-43 (1847).
Moreover, under 28 U.S.C. § 1738, judicial proceedings of
a state court “shall have the same full faith and credit in
every court within the United States and its Territories
and Possessions as they have by law or usage in the
courts of such State, Territory or Possession from which
they are taken.” Thus, with a few exceptions not relevant
here, matters finally determined in a state court of com-
petent jurisdiction are not open for reexamination in a
federal court. Kremer v. Chemical Constr. Corp., 456 U.S.
461, 485 (1982).
This bedrock rule not only avoids duplicative litiga-
tion and enhances the stability of the law; it also pro-
motes the comity between state and federal courts that is
the “bulwark of the federal system.” Allen, 449 U.S. at
95-96; see also Kremer, 456 U.S. at 478. The respect to a
L-30
state court final adjudication comity dictates is partic-
ularly important when a federal court reviews a situation,
as here, where a party’s rights are grounded in fully
adjudicated state law. See generally Younger v. Harris, 401
U.S. 37, 44 (1971).
This concept, which speaks to basic due process of
law, controls the relationship of federal and state courts
in every substantive field. However, because of the pro-
cedure prescribed by this Court in Williamson County for
“ripening” a land use regulation case, intellectual detours
by federal courts such as here present have a particular
potential for mischief in this area of the law.
2. The Eleventh Circuit Opinion Penalizes Land
Owners Seeking Due Process And Just Com-
pensation For Unconstitutional Land Regula-
tion Who Follow The Procedural Dictates Of
This Court
Williamson County holds that before a landowner may
seek damages in federal court arising out of unconstitu-
tional land regulation, he must first “seek compensation
through the procedure the state has provided for doing
so... [T]he State’s action is not ‘complete’ in the sense of
causing a constitutional injury ‘unless or until the State
fails to provide an adequate postdeprivation remedy for
the property loss.’” Id. at 194, 195 (quoting Hudson v.
Palmer, 468 U.S. 517, 532 n.12 (1984)). Thus, Williamson
County compels a supplicant to litigate first in state court
to “ripen” his cause before seeking damages in federal
court. This is exactly what Mr. Corn did here. His reward
L-31
at the end of the trial for scrupulously following the
procedure this Court prescribed: a Circuit Court of
Appeal which simply ignored at least these state court
findings:
e that Mr. Corn had acquired vested rights
under Florida law to develop his property
according to the existing zoning and
approved 1966 development plan (427 So.2d
at 243; App. D8-9);
e that the City lacked discretion under Florida
law to change that zoning or to deny
approval of the site plan (427 So.2d at 242-44;
App. D6-10);
e that the City was expressly estopped by a
final judgment from a Florida court of com-
pétent jurisdiction from changing the zoning
(427 So.2d at 243; App. D9); and
e that ordinances nos. 548, 549 and 552 were
void and unenforceable. (427 So.2d at 241-42;
App. D5)
These final determinations of state law would have
manifestly received collateral estoppel effect under Flor-
ida law. Mobil Oil Corp. v. Shevin, 354 So.2d 372, 374 (Fla.
1977); R.D.J. Enters. Inc. v. Media Bank, 600 So.2d 1229
(Fla. App. 1992). Under section 1738, they bind federal
courts as well. Allen, 449 U.S. at 96 (issue preclusion or
collateral estoppel applies in a § 1983 action); Migra v.
Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 80-81
(1984) (claim preclusion or res judicata applies in a § 1983
action).
Had the Eleventh Circuit been faithful to its comity
obligations, it could not have reached the result it did.
L-32
While the District Court understood for the most part the
limitations the prior proceedings placed on it,? the Elev-
enth Circuit did not. In view of the preclusive finding
that Mr. Corn’s rights were vested and the 1977 ordi-
nances which forced the Property into idleness were
invalid, liability for a temporary taking was established.
See Lucas v. South Carolina Coastal Comm‘n, 505 U.S. __,
120 L.Ed.2d 798 (1992). The Eleventh Circuit had but one
legitimate qustion [sic] to decide: how much monetary
damages should be awarded to Mr. Corn. If the August 13
opinion is followed, landowners will be required to liti-
gate liability in state court, only to face the pointless and
duplicative task of doing so all over again in federal
court. The horrendous extra burden this will place on
litigants and the judiciary cannot be what this Court
intended when it promulgated Williamson County.
3. The Eleventh Circuit Rode Roughshod Over
District Court Factual Findings (Including Find-
ings As To Motive And Intent) In Contravention
Of The Well-Defined Allocation Of Power And
Duties Between Federal Trial And Appellate
Courts
This caption needs little elaboration. The Eleventh
Circuit simply ignored findings of fact made by the Dis-
trict Court, which heard the evidence and observed the
9 The District Court made an “independent review of the
evidence” as to whether Mr. Corn’s substantive due process
rights were violated, reaching the same result as the state
courts. (771 F.Supp. at 1569; App. B21)
L-33
witnesses.!° In its result-driven analysis, the Eleventh
Circuit badly overreached, divesting the District Court of
its allocated fact-finding powers.
B. In Contravention Of Mr. Corn’s Vested Rights And
An Established Body Of Constitutional Law, The
1977 City Council Made Decisions It Was Not
Empowered To Make, Violating Its Own Required
Procedures, And Made Them On Impermissible
Grounds
1. By 1977, Mr. Corn’s Rights To Build The Mall
And Mini-Warehouse Were Vested; The City
Was Bound By A State Court Final Judgment
Estopping It From Changing The Zoning And
Divesting It Of Discretion To Deny The Site
Plan
A brief look at the City actions the Eleventh Circuit
upheld demonstrates how far it wandered afield. At the
time he went into the July 12, 1977 hearing, Mr. Corn
enjoyed:
e a development plan approved by the City
pursuant to the agreed annexation which
entitled him to develop the mini-warehouse
project;
10 For example, the District Court found that the City was
“motivated solely by an irrational desire to thwart CORN’s
plans.” (771 F.Supp. at 1569; App. B22) But it is axiomatic that
findings as to motive and intent are factual, and uniquely within
the purview of the trial court. Rogers v. Lodge, 458 U.S. 613,
622-23 (1982). The testimony of Mayor Howard Craft (see n.4,
ante) is alone sufficient to sustain this finding.
L-34
e vested rights under Florida law to so
develop;?!
e a state court final judgment that estopped the
City from changing the zoning on the Prop-
erty; and
e a City Council empowered only to conduct
an administrative-ministerial review.
By all reason this should have made the site plan
hearing a technical review of details. But the reality was
otherwise.
2. Mr. Corn Was Ambushed By The No-Investiga-
tion, No-Notice, No-Due Process Extralegal Pur-
ported Zoning Change
In enacting the 1977 ordinances with no advance
notice, the City not only ignored its own charter require-
ments, but also ignored the standards which “seem to be
universally prescribed in all systems of law established
11 The definition of property interests and the
determination whether a particular interest is a vested property
right to which the protections of the United States Constitution
attach are, of course, quintessentially questions of state law.
Preseault v. I.C.C., 494 U.S. 1 (1990); Williamson County, 473 U.S.
at 184; Logan v. Zimmerman Brush Co., 455 U.S. 422, 430 (1982);
Texaco, Inc. v. Short, 454 U.S. 516, 525 (1982); Wheeler v. City of
Pleasant Grove, 664 F.2d 99, 100 (5th Cir. Unit B 1981), cert. denied,
456 U.S. 973 (1982). As to Florida law, see Hollywood Beach Hotel
Co. v. City of Hollywood, 329 So.2d 10, 16-17 (Fla. 1976). A
particularly insightful explication of the meaning of vested
rights (rights “which cannot be interfered with or taken away
without just comprensation”) is found in Nemmers v. City of
Dubuque, 716 F.2d 1194, 1197 (8th Cir. 1983).
L-35
by civilized countries.”12 Twining v. New Jersey, 211 US.
78, 110-11 (1908). Mr. Corn was blindsided: he had no real
opportunity to prepare to be heard on the subject matter
of any of the ordinances. And the curiously perverse
procedure the City adopted of enacting the ordinance
first and thereafter undertaking a study to justify the
ordinance, not only (again) violated the City charter, but
was disturbingly reminiscent of the command of the
Queen of Hearts: “Sentence first — verdict afterwards.”
Carroll, Alice in Wonderland, Ch. 12.
As Mayor Craft testified (see p. 11 n.4, ante), the 1977
City Council paid no attention whatsoever to the solemn
commitments the City made to Mr. Corn in 1966. The
whole scenario could serve as a textbook prototype of
what this Court has defined as constitutionally impermis-
sible: frustration of “investment-backed profit expecta-
tions.” Williamson County, 473 U.S. at 200.
12 The denial of notice and hearing, and the failure of the
City to follow fair procedures — or even its own procedures — are
matters traditionally considered under the rubric of procedural
due process. But there is no conceptual reason they cannot be
part of a pattern of arbitrary and capricious behavior that
implicates substantive due process as well (the procedural due
process claim for relief in this case was dismissed before the
district court resolution). There is no clear delineation: “[T]he
line between “procedure” and “substance” is hazy in the setting
of the regulation of land uses.” Coniston Corp. v. Village of
Hoffman Estates, 844 F.2d 461, 468 (7th Cir. 1988). “Where, as
here, the plaintiff alleges the denial of the process consists of an
official’s arbitrary action, a claim for violation of substantive
due process is indistinguishable from a claim for violation of
procedural due process.” Sierra Lake Reserve v. City of Rocklis, 938
F.2d 951, 957 (9th Cir. 1991), cert. granted and judgment vacated,
113 S.Ct. 31 (1992), on remand, 987 F.2d 662 (1992).
L-36
The state court holding that the 1977 zoning change
was illegal came as no surprise. Florida law unes*:*.
cally holds that when a city purports to change a zoning
ordinance to defeat a permit application and site plan
that would be approved under existing zoning, that City
acts “arbitrarily, capriciously, discriminatorily and ille-
gally.” City of Margate v. Amoco Oil Co., 546 So.2d 1091,
1093-94 (Fla. App. 1989).
3. Inappropriate Deference To Neighborhood
(NIMBY) Activists At The Expense Of Constitu-
tional Rights - The Basis Of The City’s 1977
Actions Here - Is An Increasing And Critical
Problem Needing Address By This Court
In its 1993 opinion, the Eleventh Circuit called Green-
briar, Ltd. v. City of Alabaster, 881 F.2d 1570 (11th Cir.
1989), a “red cow,” i.e., a precise precedent. (997 F.2d at
1390 & n.2; App. A48) (It is not even close.!5 But the
case at bench has one significant fact in common with
13 In Greenbriar, the landowner sought a change of zoning
to enable a desired project as to which he had no right, vested or
otherwise [id. at 1572, 1581]; here, Mr. Corn sought only to build
according to a vested right under existing zoning. In Greenbriar,
the City won below, thus getting the benefit of a favorable
review standard; that should have inured to Mr. Corn here. The |
real “red cows” are A.A. Profiles, Inc. v. City of Ft. Lauderdale, 850
F.2d 1483 (11th Cir. 1988), cert. denied, 490 U.S. 1020 (1989);
Southern Co-Op Development Fund v. Driggers, 696 F.2d 1347 (11th
Cir. 1983), cert. denied, 463 U.S. 1208 (1983); and Wheeler v. City of
Pleasant Grove, 664 F.2d 99 (5th Cir. Unit B 1981) (Wheeler I). In
each of these comparable vested rights-substantive due process
appeais, the landowner (whose position was not as strong as Mr.
Corn’s here) prevailed.
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Greenbriar: in both cases public officials abdicated their
governmental powers in favor of NIMBY activists.4
14 The August 13 Opinion notes that “[i]n Greenbriar . . . the
City’s decision was based upon “political pressure” from citizen
voters who turned out as a crowd to oppose the development.”
(997 F.2d at 1389; A46). This language from Greenbriar (881 F.2d
at 1579) is quoted with approval:
[NJothing is more common in zoning disputes than
selfish opposition to zoning changes. The
Constitution does not forbid government to yield to
such opposition; it does not outlaw the characteristic
operation of democratic . . . government, operations
which are permeated by pressures from special
interests . . . The fact “that town officials are
motivated by parochial views of local interests which
work against plaintiffs’ plan and which may
contravene state subdivision laws” . . . does not state
a claim of denial of substantive due process.” (997
F.2d at 1389; A47)
This harsh standard has drawn critical comment from
within the Eleventh Circuit. In an acerbic (but finally obedient)
opinion, one district judge wrote that Greenbriar “clearly stands
for the proposition that elected officials who vote on zoning
requests can act for purely political reasons, because partisan,
political decision-making, even by unknowledgeable, close-
minded politicians . . . is automatically deemed rational and,
therefore, cannot be arbitrary and capricious unless it is the
product of corruption . . . The only limitation appears to be that
there be no forty pieces of silver . . . Anything goes! .. . [T]he
Greenbriar answer . . . simply says, “THAT's politics!’.” Church of
Jesus Christ of Latter-Day Saints v. Jefferson County, 721 F.Supp.
1212, 1214-16 (N.D. Ala. 1989) (emphasis in original).
Something is disturbingly amiss in the Southeast United
States: obeisance to NIMBY activists is proliferating like kudzu.
ee
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There is virtually no dispute on this point:15 the only
question is as to the propriety of the abdication.16
This problem may be more severe in the Eleventh
Circuit than elsewhere, but it approaches crisis propor-
tions throughout the country. It is the subject of a 1990
presidential report by the Advisory Committee on Regu-
latory Barriers to Affordable Housing, “Not In My Back
Yard” Removing Barriers to Affordable Housing. Slogans
tend to be highminded; the reality behind the acronyms is
often no more than social or economic self-aggrandize-
ment. There is every incentive in this situation for public
officials — often motivated by nothing more exalted than a
desire to perpetuate themselves in office — to count noses
and pander. If a court overturns a decision (and they
S The concurring opinion of Judge Hatchett (997 F.2d at
1393-94; App. A57-58) is revealing. It makes but one point, and
makes it repeatedly: “nothing in the opinion should be
interpreted as creating a new rule of law that developers will
always be unsuccessful in stating a substantive due process
claim when a large number of citizens oppose a land use
proposal”; “we do not hold that local governments will always
prevail in defending substantive due process claims whenever
their zoning decision follows public meetings where citizens
express general welfare concerns” (997 F.2d at 1393, 1394; App.
AS7-58). Why was this concurrence necessary? Precisely
because the majority opinion, fairly read, seems to do precisely
what the Judge Hatchett said it did not do; make NIMBY
protestation, no matter how self-serving or irrational, a
sufficient basis — in itself, without more — for land use decisions.
'¢ To bolster its conclusion that the NIMBY opposition was
a good and sufficient basis for the 1977 City acts, the Eleventh
Circuit called the unsworn opinions and idiosyncratic concerns
of the activists “evidence” and “facts.” (997 F.2d at 1386; App.
A38-39)
L-39
rarely do), the officials are personally absolved of respon-
sibility. In the process, constitutional safeguards take the
hindmost.
The most instructive precedent of this Court is Wash-
ington ex. rel. Seattle Trust Title & Trust Co. v. Roberge, 278
U.S. 116 (1928). Striking down a zoning ordinance that
made operation of a “philanthropic home for children or
for old people” contingent on approval of two-thirds of
neighbors living within a specified radius as an invalid
delegation of power and a violation of the due process
clause (id. at 118), this Court held (id. at 121):
The right of the trustee to devote its land to
any legitimate use is property within the protec-
tion of the Constitution.
What happened below is uncomfortably close to
Roberge redux, only worse: it lacks Roberge’s statutory
framework.?”
Mr. Corn does not suggest that barriers be placed
before citizens wishing to appear before a governmental
body and thus directly participate in the political process.
This is a cherished American tradition; the right to be
heard —- even when speaking from misinformation or self-
17 Also instructive is City of Cleburne v. Cleburne Living
Center, 473 U.S. 432, 448 (1985) (a city may not avoid the
strictures of the Constitution “by deferring to the wishes or
objections of some fraction of the body politic”). See also Marks v.
City of Chesapeake, 883 F.2d 308, 310-12 (4th Cir. 1989). Florida
state law is consistent that public opposition is not a sufficient
basis for zoning decision. Bailey v. City of St. Augustine Beach,
538 So.2d 50, 52 (Fla. App. 1989); BML Investments Inc. v. City of
Casselberry, 476 So.2d 713 (Fla. App. 1985).
nea ee cane
Pe , |. Sens a a
L-40
interest — must be preserved. But this Court needs to
remind regulators that there is a “sanity check”; officials
must noi yield to public pressure when constitutional
rights are at risk.
C. The Eleventh Circuit Eide Construct, Central To the
[sic] Disposition Of This Case Below, Is Inconsis-
tent With The Teachings Of This Court, And
Requires Litigants Challenging Land Use Regula-
tions To Operate Under A Set Of Rules Different
From Those In Other Circuits
In Eide v. Sarasota County, 908 F.2d 716 (9th Cir. 1990),
the Eleventh Circuit unveiled a construct for resolution of
constitutional challenges to land use regulations. The
Court noted that the required threshold step was “deter-
mining what type of claim Eide is making,” and then
pronounced that there were precisely “four types of chal-
lenges [based on allegedly unconstitutional land use reg-
ulation] a plaintiff may bring . . . [1] just compensation,
[2] due process takings, [3] arbitrary and capricious due
process and [4] equal protection claims.” Id. at 720.
Since Eide, this construct has been used pervasively
in the Eleventh Circuit, at both trial and appellate levels.
See, e.g., Rearhard v. Lee County, 968 F.2d 1131, 1134-35
(11th Cir. 1992). It was the matrix for the decision below;
the construct is repeated at 997 F.2d 1373-74 (App. A
7-9) .18
18 The Eleventh Circuit construct has been referred to, to
Mr. Corn’s knowledge, in only one other circuit: it is mentioned
as unhelpful in a district court opinion (Pearson v. City of Grand
L-41
This Court has, of course, adopted its own quite
different approach:
[W]e have frequently observed that whether a
particular restriction will be rendered invalid by
the government’s failure to pay for any losses
proximately caused by it depends iargely “upon
the particular circumstances [in that] case.”
(citations)
In engaging in these essentially ad hoc, fac-
tual inquiries .
Peri: Central Trans. Co. v. City of New York, 438 U.S.
104, 124 (1978).19
This Court’s ad hoc, fact-focused construct posits an
almost infinite variety of situations; the Eleventh Circuit
posits but four rigid categories. The problem with the
kind of categorization exercise the Eleventh Circuit
attempted, however intellectually nimble in the abstract,
Blanc, 756 F.Supp 314, 318 (E.D. Mich. 1991)), and as helpful in
the Sixth Circuit affirmance of that opinion (Pearson v. City of
Grand Blanc, 961 F.2d 1211, 1215-16 (6th Cir. 1992)).
19 See also Concrete Pipe & Prods., Inc. v. Construction Laborers
Pension Trust, 113 S.Ct. 2264, 2290 (1993); Lucas, 112 S.Ct. at 2893;
MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 349
(1986); Connolly v. Pension Benefit Guaranty Corp., 475 U.S. 211,
224 (1986). As this Court emphasized in Loretto v. Teleprompter
Manhattan CATV Corp., 458 U.S. 419, 426 (1982), while ad hoc
considerations control these cases, “the inquiry is not
standardless. The economic impact of the regulation, especially
the degree of interference with investment-backed expectations,
is of particular significance.”
L-42
is that categorization inevitably means exclusion.?° There
is, for example, no really appropriate place in the Elev-
enth Circuit template for vested rights. This fact worked
adversely to Mr. Corn in this case; the construct had no
capacity to recognize the superior status that state-court
adjudicated vested property rights enjoy in the hierarchy
of protected interests.
The Eide construct does not express the test this
Court has established. It imposed upon Mr. Corn, and
will impose upon future Eleventh Circuit landowner-liti-
gants, a straight-jacket landowners in other circuits will
escape.
D. This Case Presents A Vehicle For Resolving The
Significant Conflict Which Exists Between The Sev-
eral Circuits (And Between Federal And State
Courts) As To The Breadth Of Substantive Due
Process Guarantees In Land Use Cases
The substantive due process analysis in the August
13 opinion (997 F.2d at 1374-76; App. A9-13) did violence
to logic and precedent in a number of ways.?! First, it
ignored Eleventh Circuit precedent that where a City act
20 In Eide, 908 F.2d at 724-25 n.15, the Eleventh Circuit
gently chided this Court for failing to make clear into which of
the four available pigeonholes one of its cases (Pennell v. City of
San Jose, 485 U.S. 1 (1988)) fits.
21 The district court found liability under substantive due
process. Since the measure of damages under this theory is the
same as under a takings claim (Wheeler v. City of Pleasant Grove,
833 F.2d 267, 270 n.3 (11th Cir. 1987) (Wheeler III)) the district
court did not try the inverse condemnation claim; it was
remanded by the Circuit. (997 F.2d at 1393 & n.3; App. A56-57)
L-43
is illegal, as were the zoning change and site plan denial
here, such act as a matter of law cannot “bear a substan-
tial relation to the public health, safety, morals or general
welfare.” (997 F.2d at 1374; App. A10) See, e.g., AA Pro-
files, 850 F.2d at 1488. Second, one of the prongs of the test
applied was “whether the deprivation . . . is the result of
an abuse of governmental power sufficient to raise an
ordinary tort to the stature of a constitutional violation.”
(997 F. 2d at 1374; App. A9) This suggests that the court
misperceived what was before it; a constitutional land
use regulation claim which implicates the exercise of the
state’s inherent police power and a self-executing Consti-
tutional provision, and does not sound in tort. See, e.g.,
Reardon v. San Francisco, 66 Cal. 492, 505 (1885).22 Third,
the Eleventh Circuit failed to factor in the vested rights
and preclusive ruling aspects of the case. The fact signifi-
cant to this Court is that the analysis bore scant resem-
blance to the substantive due process analysis this case
would have received in other circuits or state courts
throughout the land.
The Sixth Circuit opinion in Pearson v. City of Grand
Blanc contains a circuit-by-circuit review of substantive
due process land use law. (961 F.2d at 1217-20) According
to Pearson, the Third and Fourth Circuits are somewhat
more sensitive than others to landowner rights, the Ninth
and Eleventh Circuits are essentially congruent in
22 “(I]t is not a tort for government to govern...” (Dalehite
v. United States, 346 U.S. 15, 57 (1952) - even if that governance
takes private property. Whether just compensation is payable is
“an entirely separate question.” Kaiser Aetna v. United States, 444
U.S. 164, 174 (1979).
L-44
approach (open to some question in view of the Eleventh
Circuit construct), the Eight [sic] Circuit decisions are in
such internal disorder that there is no ascertainable cir-
cuit position . . . and so on. The Sixth Circuit’s own test is
extremely draconian; it will interfere in zoning abuse
cases only when such abuse is so extreme that it “shocks
the conscience.” Id. at 1222. With respect, the “shocks the
conscience” standard shocks the conscience; the right of a
citizen to receive rights guaranteed by the Constitution
should not be captive to the subjective emotional
response of a jurist.
Pearson also stresses that federal courts are typically
much more deferential to public entities in substantive
due process challenges than state courts. Id. at 1221-24.
There seems to be little rational basis for this dichot-
omized hierarchy of protection, particularly when state
courts are often called on to determine and enforce rights
under the United States constitution.23 The Pearson court
concluded:
We wish it were within our power to har-
monize these decisions, but the conflicts among
circuits are too great. Harmony will have to await
action by the Supreme Court. Id. at 1220 n.45.
(Emphasis added)
*3 Pearson suggests that a linchpin of the various analyses is
whether the critical decision is legislative (high deference) or
quasi-judicial, administrative, or ministerial (less deference). In
the case at bench, of course, the Eleventh Circuit somehow saw
the challenged acts as legislative, even though the preclusive
state court rulings held them to be administrative and
ministerial. No reason appears why a federal court should be
telling a state how to categorize its own governmental
decisions.
L-45
The quantum of federal constitutional protection a
citizen enjoys should not depend on the serendipity acci-
dent of geographical location. The case at bench extends
as opportunity to cure the pervasive conflicts and concep-
tual confusion in the application of substantive due pro-
cess law to land use cases.
E. This Court’s Guidance Is Needed In Resolution Of
The Recurring Question Of The Proper Measure Of
Damages In A Land Use Case Where An Economic
Opportunity Is lost Because Of A Temporary Taking
In 1977, when Mr. Corn went before the City, he was
on the brink of an exceptional economic opportunity:
ownership of the first mini-warehouse in the Lauderdale
Lakes area. When the dust settled in 1985, and he was
legally empowered to pursue that project, the window of
opportunity was gone: the relevant market was satu-
rated.24
In context, the related issues are: Where lawless gov-
ernment acts cause the economic feasibility of a contem-
plated project to be lost forever, does the temporary
taking become permanent (Mr. Corn’s position below)? If
24 As noted ante, this question was presented to but not
addressed by the Eleventh Circuit, since unaccountably it
returned to square one on the liability issue. The District Court
spoke to the proper measure of damages for the partial and
temporary taking (771 F.Supp. at 1570-71; App. B23-26), and Mr.
Corn presented the issue to the Eleventh Circuit at pp. 40-43 of
his Opening Brief, and p. 15 of his Brief of Cross-Appellee and
Reply Brief For Appellant (question is what damages apply “[i]f
by the time the regulations which effected a temporary taking
are set aside the confiscated project is no longer feasible).”
ee
L-46
not, how may compensation reflect not only the tempor-
ary loss of use but the fact that the land may be worth but
a fraction of what it was prior to the regulatory freeze? Is
an owner required somehow to attempt to mitigate dam-
ages by seeking to build consistent with the less desirable
zone classification he is challenging (which would render
any ultimate vindication pyrrhic)? And where the owner
is freed to build part of an integrated project (here the
mall) before he is able to develop the remainder, must be
proceed with such partial development even though
piecemeal construction is economically contra-indicated?
There is some law from lower courts that is helpful,
typically only by analogy. See, e.g., Benenson v. United
States, 548 F.2d 939 (Ct. Cl. 1977). But this Court has not
spoken to these recurring problems. Its address would
insure fairness and uniformity, and effect a significant
saving of time and judicial resources.
CONCLUSION
This case offers almost an embarrassment of cer-
tiorari-worthy issues. They engage in very fabric of fed-
eral law and speak to the relationships - largely
grounded in the United States Constitution - on which
that system is based: the relationship of federal courts to
state courts, of trial courts to appellate courts, of the
judiciary to local governments and of the several institu-
tions of governance to the rights secured in the constitu-
tion. The Eleventh Circuit ignored the principles
underlying these relationships and ran roughshod over
the rules that embody those principles.
L-47
The individual right at the center of this controversy
is the “personal right in property . . . That rights in
property are basic civil rights has long been recognized.”
Lynch v. Household Fin. Corp., 405 U.S. 538, 552 (1972). This
Court has reaffirmed the primacy of that right this term,
identifying as “an essential principle” the fact that
“{iJndividual freedom finds tangible expression in prop-
erty rights.” United States v. James Daniel Good Real Prop-
erty, __ U.S. __, 114 S.Ct. 492, 505 (1993). Regulating
authorities and reviewing courts need to be reminded to
stop trifling with the constitutional rights of citizens in
the name of political expediency.
It has been almost a decade since this court spoke in
Williamson County. This petition offers an appropriate
vehicle to resolve the recurring problems raised in its
aftermath.
DATED: February 11, 1994.
Respectfully submitted,
GIDEON KANNER
Counsel of Record
M. REED HUNTER
CROSBY, HEAFEY,
ROACH & MAY
Professional Corporation
and
ANDREW T. LAVIN
RICHARD A. IVERS
ROMANIK, LAVIN,
HUSS & PAOLI
Attorneys for Petitioner
HERMAN CORN, Trustee
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