Opposition Brief — Corn v. City of Lauderdale Lakes

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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.

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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

L-27

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.

L-37

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

L-38

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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