Petition for Writ of Certiorari — Miami-Dade County v. Agripost, Inc.

Supreme Court, U.S.

FILED

} 991856 MAY 1828

No.

-OFRGCE—OF—THE—SLERK

In The

Supreme Court of the United States

e

MIAMI-DADE COUNTY, through its Manager and

Board of County Commissioners,

Petitioner,

VS.

AGRIPOST, INC., a Florida Corporation, and

AGRIDADE, LTD., a Florida Limited Partnership,

Respondents.

¢

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

+

PETITION FOR WRIT OF CERTIORARI

+

Ho.titanp & KNIGHT

701 Brickell Avenue

Suite 3000

Miami, Florida 33101-5441

Telephone: (305) 374-8500

Fax: (305) 789-7799

By: Daniet S. PEARSON

Rosert A. GINSBURG

Counsel of Record

Miami-Dade County

Attorney

Suite 2810

111 Northwest First Street

Miami, Florida 33128-1993

Telephone: (305) 375-5151

Fax: (305) 375-5634

By: Rosert LOweLi

KRAWCHECK

James J. ALLEN

Assistant County Attorneys

Counsel for Petitioner, Miami-Dade County

COCKLE LAW BRIEF

PRINTING CO., (800)

OR CALL COLLECT (402) 342-2831

) 225-6964

QUESTIONS PRESENTED

DOES THE ELEVENTH CIRCUIT’S EXCEPTION TO

THIS COURT’S RULE AGAINST REVERSING STATE

COURT JUDGMENTS PREVENT STATE COURTS FROM

DECIDING WHETHER REGULATORY ACTIONS

SHOULD BE REVERSED AS CONFISCATORY IN

ORDER TO AVOID PERMANENT TAKINGS SUCH AS

THE CLAIMED $140,000,000 TAKING IN QUESTION?

IF A FEDERAL COURT LACKS JURISDICTION OVER A

FEDERAL REGULATORY TAKING CLAIM BECAUSE IT

IS UNRIPE, DOES THE COURT NEVERTHELESS HAVE

JURISDICTION TO ADJUDICATE PRECLUSION

DEFENSES?

BY HOLDING THAT A STATE TAKING CLAIM WAS -

NEITHER BEFORE THE COURT NOR GERMANE, DID

THE ELEVENTH CIRCUIT DEPRIVE THE COUNTY OF

ITS RIGHT TO APPEAL THE DISTRICT COURT’S EXER-

CISE OF JURISDICTION OVER, AND ITS DISPOSITION

OF, THE COUNTY’S DEFENSES TO THAT CLAIM?

ii

TABLE OF CONTENTS -

COIRS ERIN FURMNE OD on cnccccinsecnnsesses snes

pre ae Bee 2 SOVOTTIIT TTT ee

TAREE GP ALFRRIS I <0 08s kas ccdidececensssas

COP TRUES WUAIOY a 5c cdc cdennddccccadasenaeeeseies

FRI, CIs kn ode nacundhcccncsencs keévbssuteuas

CONSTITUTIONAL AND STATUTORY PROVI-

- NS MAVOAME 55 cet ik. oe

SEATTRMIUS GHP TR CAB cbc cbc ccccnccceee cues.

REASONS FOR GRANTING THE PETITION.......

I. IN CONFLICT WITH SUPREME COURT DECI-

SIONS, THE ELEVENTH CIRCUIT AND THE

DISTRICT COURT EXCEEDED THEIR SUBJECT

MATTER JURISDICTION BY DISMISSING A

FEDERAL TAKING CLAIM AS UNRIPE,

INSTEAD OF PREVIOUSLY ADJUDICATED,

WHERE A STATE COURT HAD ALREADY

DETERMINED THAT A TAKING DID NOT

COOLER 0 os 0 550 cdeusebeethewanganaaneseeey eres

A. THE ELEVENTH CIRCUIT DENIED THE

RIGHT OF THE STATES TO JUDICIALLY

VOID TEMPORARY TAKINGS, BY HOLD-

ING THAT AN OWNER COULD NOT

RAISE A REGULATORY TAKING CLAIM

UNTIL AFTER CONCLUSION OF STATE

JUDICIAL REVIEW OF THE GOVERN-

WERPCEIL, AA TUE 0 sa. deeeesakscnpvhatdanee

iii

TABLE OF CONTENTS - Continued

Page

B. THE LOWER COURTS EXCEEDED THEIR

JURISDICTION AND EFFECTIVELY

REVERSED THE STATE COURT BY DIS-

MISSING A FEDERAL TAKING CLAIM

AS UNRIPE, INSTEAD OF PREVIOUSLY

ADJUDICATED, WHERE THE STATE

COURT HAD HELD THAT NO TAKING

OCCURRED .......cccccc cece cscsseeseeees 10

Il. ASSUMING THE DISTRICT COURT LACKED

JURISDICTION OVER -A FEDERAL REGULA-

TORY TAKING CLAIM BECAUSE OF UNRIPE-

NESS, IT EXCEEDED THAT JURISDICTION BY

ADJUDICATING THE COUNTY’S PRECLUSION

DEFENSES ON THE MERITS, IN CONFLICT

WITH SUPREME COURT CASE LAW. .....-+5: 21

CONCLUSION 2. 0.cc ccc cececcccsccescssccccerocres 23

iv

TABLE OF AUTHORITIES

Page

CASES

Brown & Root, Inc. v. Breckenridge,

No. 99-1831, 2000 WL 526068 (4th Cir. 2000) ...10, 15

Bauer v. Waste Management of Connecticut, Inc.,

GZ AA ETP CU. TI oak ccewcs leds cia 18

City of Hollywood v. Hollywood Beach Hotel,

283 So.2d 867 (Fla. 4th DCA 1973), aff'd in part,

rev'd in part on other grounds, 329 So.2d 10 (1976) .... 19

City of Jacksonville v. State ex rel. Mann,

yg Be ee ere eer ee 17

City of Treasure Island v. Decker,

174 30.240 756 (Pia. 20 DCA 2965) 22... ccc cesses. 18

Corn v. City of Lauderdale Lakes,

FS PD TOO CET Ge Ts wos os sa scsi ai Saas 16

Dade County v. National Bulk Carriers, Inc.,

GE Sib. BAD CRUE. TOPE ces csacncnas se nasaiwe 19, 20

Dale v. Moore,

EZe Fe ORG (ES Oe WON. 5 bs ice cee iss 12

Dasher v. Supreme Court of Texas,

GOD Eee GS Ge i, Fe inc ence vacdasapnwages 13

Davis v. Bayless,

70 F.3d 367 (5th Cir. 1995) fakes ad ak dRCAASEE AIOE D 13

District of Columbia Court of Appeals v. Feldman,

O60 Ud G62 FAG Sh AR SK passim

Federal Lands Legal Consortium v. United States,

oe Be. Be ge! ee erry ry TE 17

First English Evangelical Lutheran Church v.

County of Los Angeles,

SOS TED Se Cee Figs oko has bab bees Soka es passim

Vv

TABLE OF AUTHORITIES — Continued

Page

GASH Assocs. v. Village of Rosemont,

995 F.2d 726 (7th Cir. 1993)...5-..--ee seer renee 13, 14

Guess v. Board of Med. Exam'rs,

No. 91-264-CIV-5-F, 1991 WL 352536

(E.D.N.C. Sept. 12, 1991), aff'd, 967 F.2d 998

(Ath Cir. 1992)........ cece cece cere cence reece eeeces 13

Key Haven Associated Enterprises, Inc. v. Board of

Trustees of the Internal Improvement Trust Fund,

427 So.2d 153 (Fla. 1982) ....... eee eee eee eens 20

Keystone Bituminous Coal Ass’n v. DeBenedictis,

480 U.S. 470 (1987) ...... 20 cece eee eee eee e erences 17

Kunkes v. United States,

78 F.3d 1549 (Fed. Cir. 1996)........2--2eeeeeeeees 17

Lucas v. South Carolina Coastal Council,

505 U.S. 1003 (1992)........---++:- 6, 8, 9, 14, 16, 17

Lynk v. Laporte Superior Court No. 2,

789 F.2d 554 (7th Cir. 1986).........-- 2s eee eeeeees 11

Nary v. Dean,

32 F.3d 1521 (11th Cir. 1994)........-.--e eee eee 13

Penn Central Transp. Co. v. City of New York,

438 U.S. 104 (1978) .......- ccc ee eee eee eeees 16, 18

Pennzoil Co. v. Texaco, Inc.,

481 U.S. 1 (1987) .........cccceccccccccecececes

Ritter v. Ross,

992 F.2d 750 (7th Cir. 1993).........22eeeeeeees

Robinson v. Ariyoshi,

753 F.2d 1468 (9th Cir. 1985),

vacated on other grounds,

477 U.S. 902 (1986) ....... cece e eee eee e ee eee eeees

vi

TABLE OF AUTHORITIES - Continued

_ Page

Rooker v. Fidelity Trust Co.,

BOe Uh GED CRIS 5 a hese cha kicwevevccecebiaat passim

Smalleylogics Corp. v. Dade County, -

176 So.2d 574 (Fla. 3d DCA 1965) ................ 17

State-Dept. of Envtl. Protection v. Burgess,

667 So.2d 267 (Fla. Ist DCA 1995)................ 17

Steel Co. v. Citizens for a Better Env’t,

SaS AID. BS COPIED 6s ons c vives sod sib ives Wades een 22

Town of Esopus v. State,

631 N.YS.2d 213 GN.Y..Ct. Cl. 1996)... 0k. eine 18

Treister v. City of Miami,

893 F. Supp. 1057 (S.D. Fla. 1992),

aff'd Case No. 95-5173 (May 15, 1995)

CUIDSIIUIUNED sks CGA cea G hacer iebesdss ndaes 15, 22

Villas of Lake Jackson, Ltd. v. Leon County,

32a PO GED CRTG Ce Boer hs iac cs cdacs sansvccesens 16

Williamson County Regional. Planning Comm'n v.

Hamilton Bank,

SD Cie See COMO ka die eee ss cennsiucawawe 5, 7, 9, 14

Wood v. Orange County,

7im ©.2a IGS CW Cie 2969). 6 eee 11, 12

CONSTITUTIONAL PROVISIONS

WS. Gomet., Att FV, Bete noes eccce cde pecunescrers 1

US. Canets, Ame. Vi os i kisi 1, 34, 18, 16

U.S: Const., Amend. XIV, Sec. 1...3.60.0650 eed. t eee 1

Fis. Const... Art. VL, Sec. (e)..../ 205k CS. SER 2

Vii

TABLE OF AUTHORITIES - Continued

Page

Fla. Const., Art. VIII, Sec. (€) ......-.---eee reece eee 2

Fla. Const., Art. VIII, Sec. (f) ......-.--eeeeeeeeeeeeee 2

Fla. Const., Art. VIII, Sec. 11 (1885)..............-+-- Z.

STATUTES -

2B U.S.C. Sec. 1254(1). 02... cccceccccccccsccccwccscces 1

28 U.S.C. Sec. 1257(a)... 2.2 .cccccccccccesccssccccces 10

BO USC. Gare, WOSR vo ovine cc cdcundesecectzcccons i, 2 fi

9 UGC. Gee, UOGR occ ac ce cn cccwscccesnccscessieces 11

28 U.S.C. Sec. 1334). ..... 0. cece ccc cence ccceeccees 2

28 U.S.C. Sec. 1367(a)... 2... cece cece cece c ce cccccece 1, 2

We, i TIN ro acc osc shes cas ccndenenss cee 1

2B USC. Sec. 17SB a osc. cies acinceinvies eee cds ns > ED se

Pls ia Se. | Serr SP rre rer yer Terres 2

OTHER AUTHORITIES

Miami-Dade County Home Rule Amendment

and Charter, Sec. 1.02(A) ..........--eeeeeee eee eees Y

~ Code of Miami-Dade County, Florida, Sec.

os chk cad head cORdA RA Oh dapendeen eee 2, 20

Suzanna Sherry, Judicial Federalism in the

Trenches: The Rooker-Feldman Doctrine in

Action, 74 Notre Dame L. Rev. 1085 (1999)........ 13

Gary Thompson, The Rooker-Feldman Doctrine

and the Subject Matter Jurisdiction of Federal

District Courts, 42 Rutgers L. Rev. 859 ti, eres 13

1

PETITION FOR WRIT OF CERTIORARI

Miami-Dade County respectfully petitions for a writ

of certiorari to review the judgment of the United States

Court of Appeals for the Eleventh Circuit in this case.

¢

OPINIONS BELOW

The opinion of the court of appeals (App., infra, at 1)

is reported at 195 F.3d 1225 (11th Cir. 1999). The opinion

of the district court (App. 23) is unreported.

,

Vv

JURISDICTION

The court of appeals entered its order on November

15, 1999. App. 1. After timely motions for rehearing and

rehearing en banc were denied on February 18, 2000, the

court of appeals entered its judgment on the same date.

The jurisdiction of this Court is invoked under 28 U.S.C.

Sec. 1254(1). :

y

v

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Const., Art. IV, Sec. 1

U.S. Const., Amend. V

U.S. Const., Amend. XIV, Sec. 1

28 U.S.C. Sec. 1331

28 U.S.C. Sec. 1334(b)

28 U.S.C. Sec. 1367(a), (d)

28 U.S.C. Sec. 1738

42 U.S.C. Sec. 1983

Fla. Const., Art. VIII, Secs. (a), (e) (including Footnote 3,

which sets forth Fla. Const. Art. VIII, Sec. 11 (1885)),

and (f)

Miami-Dade County Home Rule Amendment and Char-

ter, Sec. 1.02(A)

Code of Miami-Dade County, Florida, Sec. 33-314

4

STATEMENT OF THE CASE

Agripost sued Miami-Dade County in the United

States District Court for the Southern District of Florida

on September 29, 1994. The jurisdiction of the federal

court was invoked under 28 U.S.C. Secs. 1331, 1367(a),

and 1334(b). Agripost claimed, inter alia, that the County

had taken its property without just compensation, in

violation of both the United States and the Florida Con-

stitutions.

Agripost had held a conditional, revocable unusual

use zoning approval, which the County had issued in

1987 for Agripost to operate a garbage-to-fertilizer planit.?

Agripost had entered into a similarly conditioned, revo-

cable lease with the state to conduct that sole use on state

property adjacent to an elementary school.

1 An unusual use is one of the various kinds of zoning

approvals, including variances, district boundary changes, etc.,

issued and revoked by Miami-Dade County, Florida pursuant to

its overall zoning ordinance, Chapter 33, Code of Miami-Dade

County, Florida. See, e.g., App. 51.

PE ee eg ete ee Oe ey ne any

Waal Seat ca nd ale ad %

Although Agripost had initially represented to the

County that its process could not pollute, the plant cre-

ated an unbearable vile stench; inhalable, finely-ground,

airborne garbage particles; uncontrollable slimy black

mold throughout the school; and asthma, vomiting and

other ailments of the school children. Agripost therefore

later admitted that it had created a public health pollu-

tion nuisance. AF2-331-332.? |

That nuisance violated the express conditions of

Agripost’s revocable zoning approval. Agripost proposed

a cure, which would have been (a) at the County’s

expense (R1-1-19, $59); (b) in further violation of the

conditional zoning approval (R-1-1-47, 4137(e)); and (c) a

threat of further pollution. R1-1-124. After quasi-judicial

public hearings, the County revoked the conditional,

unusual use zoning.

Agripost appealed to the Florida Circuit Court. It

argued, inter alia, that reversal was required under Flor-

ida law because “[bJoth the federal and State Constitu-

tions provide that the Legislature shall not take property

without due process of law and just compensation.”

AF3-31. Agripost argued that a taking had already occurred

because the County’s action had caused the plant to close

2 Citations to the record on appeal include the records of

prior State court proceedings contained in accordion folders

(AF1-4) and lettered appendices and pages therein. All

emphasis is supplied herein unless otherwise noted. Footnotes

and citations are generally omitted from quotations.

down on January 17, 1991, and had “destroyed the $30

million investment.” AF3-177, 171.

The Florida Circuit Court concluded, inter alia, that

Agripost had failed to comply with the conditions and

could not practicably cure the violations. App. 59. Noting

Agripost’s “asserted $30,000,000 loss,” i.e., taking claims,

the Florida court affirmed the zoning revocation, reject-

ing Agripost’s taking claims in several respects as a mat-

ter of law. The Florida Third District Court of Appeal

denied certiorari on September 21, 1992. App. 60.

Two years later, Agripost filed the present action in

federal district court, reasserting, inter alia, its state and

federal just compensation taking claims, and inflating its

damages claim to $140 million. The County moved to

dismiss, and alternatively for summary judgment, con-

tending, inter alia, that the federal action effectively

sought review and reversal of the Florida circuit court's

adjudication, and was therefore jurisdictionally prohib-

ited under the Rooker-Feldman doctrine.? Alternatively, the

County argued that Florida res judicata and collateral

estoppel law barred the claims.

The district court rejected the County’s jurisdictional

arguments as to both the state and federal taking claims,

3 The Rooker-Feldman doctrine provides that “a United

States District Court has no authority to review final judgments

of a state court in judicial proceedings.” District of Columbia

Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983); Rooker v.

Fidelity Trust Co., 263 U.S. 413 (1923). The doctrine extends to

claims “inextricably intertwined” with the state court’s

judgment. Feldman at 483 n.16.

a art

PO Ce eee eT ee ee een

>

applying an “exception” fashioned by the Eleventh Cir-

cuit to Rooker-Feldman. App. 29. The district court then

dismissed the federal taking claim as jurisdictionally

unripe under Williamson County Regional Planning Comm'n

v. Hamilton Bank, 473 U.S. 172 (1985). Although the court

held that it could not exercise jurisdiction over the juris-

dictionally “unripe” federal taking claim (App. 34), and

that it would not exercise jurisdiction over the state taking

claim (App. 34-35), it nonetheless exercised jurisdiction

over both claims by rejecting the County’s preclusion

defenses to those claims on the merits. App. 28. Agripost

then refiled the action in state court, contending that the

County was now itself foreclosed from raising its preclu-

sion defenses. See App. 9.4

The County appealed, again arguing lack of subject

matter jurisdiction over both the federal and state taking

claims pursuant to the Rooker-Feldman doctrine. Regard-

ing the federal taking claim, the appellate court upheld

the district court’s application of the Eleventh Circuit

exception to the Rooker-Feldman doctrine. The court

affirmed that a Fifth Amendment taking claim could not

have ripened until the conclusion of the state litigation,

and Agripost “ ‘did not have a reasonable opportunity to

raise’ ” its Fifth Amendment claim in the state litigation.

App. 7.

4 The present Petition, and all subsequent filings assume

arguendo that the federal court decisions have the effect

Agripost contends. However, the County reserves the right to

raise any and all defenses and arguments in any and all

proceedings.

The Eleventh Circuit also expanded its exception to

Rooker-Feldman to disallow application of that jurisdic-

tional doctrine unless the prior state court judgment

“unambiguously disposes of a federal constitutional

claim.” App. 6 n.7. The Eleventh Circuit thus disallowed

altogether the County’s appeal related to the state taking

claim holding that said claim was neither “before the

court,” nor “germane to this appeal.” App. 2 n.1. The

Eleventh Circuit also held that even though the district

court lacked subject matter jurisdiction over the purpor-

tedly unripe federal taking claim, it properly adjudicated

the merits of the County’s preclusion defenses to that

very claim, to the prejudice of the County in the pending

state court litigation. App. 9 n.11.

¢

REASONS FOR GRANTING THE PETITION

This Petition is brought because the Eleventh Circuit

has created conflict among no fewer than four important

Supreme Court doctrines: (1) First English,5 which recog-

nizes not only an owner’s right to just compensation for

temporary takings, but also the right of states to deter-

mine whether regulatory action. should be reversed as ©

confiscatory and so avoid permanent takings; (2) Rooker-

Feldman, which prohibits federal district courts from exer-

cising jurisdiction to review state court adjudications; (3)

Lucas, which recognizes that no compensable taking

5 First English Evangelical Lutheran Church v. County of Los

Angeles, 482 U.S. 304 (1987).

6 Lucas v. South Carolina Coastal Council, 505 U.S. 1003

(1992).

be HAR IE ITA OR: Rio ae

exists where the “rights” lost were not part of the claim-

ant’s title to begin with; and (4) Williamson County, which

bars the exercise of federal question jurisdiction over

unripe just compensation claims.

The Eleventh Circuit’s effective rewriting of all these

doctrines to conflict with one another has led it to require

the Florida courts to permit, and the County to face,

unnecessary extensive relitigation of issues that have

been already decided by the Florida courts. Allowing the

- Eleventh Circuit opinion to stand will perpetuate unnec-

essary conflict among the foregoing decisions of this

Court, with enormous jurisprudential and financial con-

sequences both in this case and beyond.

I. IN CONFLICT WITH SUPREME COURT DECI-

SIONS, THE ELEVENTH CIRCUIT AND THE DIS-

TRICT COURT EXCEEDED THEIR SUBJECT

MATTER JURISDICTION BY DISMISSING A FED-

ERAL TAKING CLAIM AS UNRIPE, INSTEAD OF

PREVIOUSLY ADJUDICATED, WHERE A STATE

COURT HAD ALREADY DETERMINED THAT A

TAKING DID NOT OCCUR.

A. THE ELEVENTH CIRCUIT. DENIED THE

RIGHT OF THE STATES TO JUDICIALLY

VOID TEMPORARY TAKINGS, BY HOLDING

THAT AN OWNER COULD NOT RAISE A

REGULATORY TAKING CLAIM UNTIL AFTER

CONCLUSION OF STATE JUDICIAL REVIEW

OF THE GOVERNMENTAL ACTION.

In First English, this Court expressly recognized the

existence of a claim for a “temporary taking.” Such a

claim exists even though the regulatory action may be

stricken so that a permanent taking is never effected. The

Court rejected the holding of the California Court of

Appeals that “a landowner who claims that his property

has been ‘taken’ by a land use regulation may not recover

- damages for the time before it is finally determined that the

regulation constitutes a ‘taking’ of his property.” 482 U.S. at

306-07. “ ‘[T]emporary’ takings which, as here, deny a

landowner all use of his property, are not different in kind

from permanent takings, for which the Constitution clearly

requires compensation.” Id. at 318.

While recognizing a property owner’s right to com-

pensation for temporary regulatory takings, this Court

made it clear that states have the corresponding right to

void confiscatory regulations, and cannot be forced by

property owners to effect permanent takings:

[T]he landowner has no right under the Just

Compensation Clause to insist that a “tempor-

ary” taking be deemed a permanent taking.

Once a court determines that a taking has

occurred, the government retains the whole range

of options already available [including] with-

drawal of the invalidated regulation... .

Id. at 317, 321. Clearly the “whole range of options”

includes judicial reversal of the regulatory action, if affir-

mance would convert a temporary taking to a permanent

taking. See Lucas, 505 U.S. at 1027 n.17 (“the state may

elect to rescind its regulation and thereby avoid having to

pay compensation for a permanent deprivation”).

In the Florida court, Agripost asserted, as grounds

for reversal, taking claims under both the United States

EEE

eG Oe BAL. We de i OY

ear SSL LE ta lined ane cade Lote aon debits

and Florida Constitutions. The Florida court rejected

these claims as a matter of law. See infra at 16-19. In

conflict with First English, however, the Eleventh Circuit

held that, under Williamson County, a taking claim,

whether permanent or temporary, cannot be asserted

until after the conclusion of the state court appeal. The

Court held that an essential taking allegation was that

“the [Florida] Circuit Court’s decision . . . effectively ren-

dered Agripost’s property .. . worthless. ...” App. 13.

The Court thus held that a pre-existing temporary taking

cannot be asserted as a basis for avoiding a permanent

taking until after the taking has already become perma-

nent.

The precedent created by the Eleventh Circuit’s opin-

ion prevents state courts from considering taking allega-

tions for the purpose of preventing permanent regulatory

takings as authorized by this Court in First English and

Lucas. This departure from Supreme Court precedent not

only subjects Miami-Dade County to a $140,000,000 tak-

ing claim in the present case, but also subjects innumer-

able state regulatory authorities to incalculable liability

for permanent regulatory takings — a result never sanc-

tioned by this Court.

10

B. THE LOWER COURTS EXCEEDED THEIR

JURISDICTION AND EFFECTIVELY

REVERSED THE STATE COURT BY DISMISS-

ING A FEDERAL TAKING CLAIM AS

UNRIPE, INSTEAD OF PREVIOUSLY ADJUDI-

CATED, WHERE THE STATE COURT HAD

HELD THAT NO TAKING OCCURRED.

Under this Court’s long-standing Rooker-Feldman doc-

trine, federal district courts lack jurisdiction to review

and reverse state court adjudications either directly or

indirectly. The doctrine applies wherever a claim in fed-

eral court is “inextricably intertwined” with any state

court adjudication. Feldman, 460 U.S. at 482 n.16 (1983).

Unlike preclusion, Rooker-Feldman is not confined to iden-

tity of claims or issues, but more broadly preempts prac-

tically conflicting results. A federal claim is inextricably

intertwined with a state adjudication “if the federal claim

succeeds only to the extent that the state court wrongly

decided the issues before it.” Pennzoil Co. v. Texaco, Inc.,

481 U.S. 1, 25 (1987) (Marshall, J., concurring); see also,

e.g., Brown & Root, Inc. v. Breckenridge, No. 99-1831, 2000

WL 526068 at *3 (4th Cir. 2000) (holding that the “inex-

tricably intertwined” prong of the doctrine bars a claim

that was not actually decided by the state court but where

“success on the federal claim depends upon a determina-

tion that the state court wrongly decided the issues before

it”). , ,

The Rooker-Feldman lack of jurisdiction is rooted in

two fundamental components of federal court jurisdic-

tion. First, Congress has vested the authority to review

state court judgments in this Court alone. See 28 U.S.C.

Sec. 1257(a); Feldman, 460 U.S. at 482. Second, Congress

has empowered the federal district courts to exercise only

OD mgr meme =

hse rasta ES BT ER ME aaa

11

original jurisdiction. See, e.g., 28 U.S.C. Sec. 1331, 1332;

Rooker, 263 U.S. at 416.

In the present case, as discussed supra, the lower

courts found, contrary to First English, that no ripe Fifth

Amendment taking issue, temporary or otherwise, could

have been asserted to the Florida courts during the zon-

ing appeal. The district court then applied “an exception”

to Rooker-Feldman which the Eleventh Circuit had created

in Wood v. Orange County, 715 F.2d 1543, 1547 (11th Cir.

1983), to avoid a potential denial of due process where a

litigant had neither notice nor an opportunity to partici-

pate in prior litigation.?7 App. 29. The lower court thereby

expanded the “reasonable opportunity to raise” exception

to encompass the totally different circumstances of the

present case. Here not only did Agripost fully participate

in the state court proceedings, but also the due process

claim, itself, was held by the district court to be barred by

Rooker-Feldman. App. 29-30.

The Eleventh Circuit affirmed and applied the

“unripeness-lack of opportunity to raise” exception to

Rooker-Feldman in rejecting res judicata: “Our conclusion

that the Rooker-Feldman doctrine is inapplicable forecloses

the County’s res judicata defense . . . Agripost did not

have an opportunity to present the claim; it could not

have done so until judicial review . . . had run its course.”

” Some other circuits have attempted to follow suit. See, e€.g.,

Robinson v. Ariyoshi, 753 F.2d 1468, 1472 (9th Cir. 1985), vacated

on other grounds, 477 U.S. 902 (1986); Lynk v. Laporte Superior

_ Court No. 2, 789 F.2d 554, 564-65 (7th Cir. 1986) (Rooker-Feldman

not applied where it was not shown that there was a realistic

opportunity to raise his federal grounds in state court).

12

App. 15-16. The Court then extended its exception

beyond Wood and res judicata. It established, as an addi-

tional prerequisite to applying Rooker-Feldman, that the

state court judgment have “unambiguously dispose[d] of

a federal constitutional claim.” App. 6 n.7. As sole

authority for that novel proposition, the court cited only

its own opinion in Dale v. Moore, 121 F.3d 624 (11th Cir.

1997), which holds nothing of the sort.8

The Eleventh Circuit has thus created an “exception”

to Rooker-Feldman based upon either the purported prior

unripeness, or the failure to unambiguously dispose, of a

federal constitutional claim. Therefore, even though the

claim presently being asserted is “inextricably intert-

wined” with a prior state court adjudication under Feld-

man, the federal district court nevertheless has authority

to effectively reverse the state court if either circumstance

exists.

This is not the first time the Eleventh Circuit, or its

predecessor, has improperly expanded federal district

8 The court did add that the Rooker-Feldman doctrine “not

only bars review of claims that were actually litigated in state

court, but also bars those that are ‘inextricably intertwined’

with the state court judgment.” App. 6 n.7. However, it is clear

that the inextricably intertwined test is only to be applied if it is

first determined that there was both ripeness and unambiguous

disposition of a federal constitutional claim. For example,

because the federal taking claim was unripe during the state

litigation, the court held that the Florida taking claim, which had

been extensively litigated in the Florida courts, was not even

“germane” to the County’s appeal (App. 2 n.1), i.e., that it was

immaterial whether the present federal taking claim was

“inextricably intertwined” with the prior adjudication of the

state taking claim.

Pe Ee ee ee ee, ee ee eS eee oe

13

and circuit court jurisdiction in conflict with Rooker-Feld-

man. Indeed, it was in Feldman itself that this Court was

forced to correct the Fifth Circuit’s (the Eleventh Circuit's

predecessor) attempt, in Dasher v. Supreme Court of Texas,

658 F.2d 1045 (5th Cir. 1981), to equate the subject matter

jurisdiction question at hand with actual raising of a

federal -constitutional claim. Id. at 482 n.16. This brought

about the “inextricably intertwined” test, which the Elev-

enth Circuit now largely circumvents.?

9 The circuit and district courts have been varied and

inconsistent in their understanding of Rooker-Feldman. At one

extreme, the Eleventh Circuit in the present case has limited the

doctrine to res judicata, i.e., preclusion of a previously ripe

claim. Cf. Nary v. Dean, 32 F.3d 1521 (11th Cir. 1994) (holding

doctrines are distinct). Other courts have recognized the unique

jurisdictional nature of Rooker-Feldman. GASH Assocs. v. Village

of Rosemont, 995 F.2d 726, 728 (7th Cir. 1993) (holding that

Rooker-Feldman and res judicata “are not coextensive,” and

discussing Seventh Circuit case law including Ritter v. Ross, 992

F.2d 750 (7th Cir. 1993) (“State law permitted . . a collateral

attack on the judgment. . . . Thus Sec. 1738 [full faith and credit]

did not interdict sequential litigation. . . . There was no

jurisdiction to wage that collateral attack in federal court.” Id. at

728); Guess v. Board of Med. Exam'rs, No. 91-264-CIV-5-F, 1991

WL 352536 at *6 (E.D.N.C. Sept. 12, 1991), aff'd, 967 F.2d 998 (4th

Cir. 1992) (Rooker-Feldman “includes within its ambit principles

of preclusion”); Davis v. Bayless, 70 F.3d 367, 376 (Sth Cir. 1995)

(merging doctrines, holding that Rooker-Feldman does not bar an

action “when that action would be allowed in the state court of

the rendering state”).

Commentators have joined in on both sides of the debate.

Cf., e.g., Suzanna Sherry, Judicial Federalism in the Trenches: The

Rooker-Feldman Doctrine in Action, 74 Notre Dame L. Rev. 1085

(1999) {arguing for importance and uniqueness of Rooker-

Feldman) with Gary Thompson, The Rooker-Feldman Doctrine and

the Subject Matter Jurisdiction of Federal District Courts, 42

14

The Eleventh Circuit combined its restrictive rewrit-

ing of Rooker-Feldman with a misreading of First English,

Williamson, Lucas, and Florida law. Applying its new

“unambiguous disposition” prerequisite, the court nar-

rowed the dispositive issue to whether “Agripost’s Fifth

Amendment takings claim was actually litigated in the

[Florida] Circuit Court (and decided against Agri-

post)... .” App. 12. The court concluded that a federal

taking claim could not ripen until after the conclusion of

the state proceedings, because an essential allegation was

that “the [Florida] Circuit Court’s decision . . . effectively

rendered Agripost’s property . . . worthless. ...” App.

13. Effectuating its new “unambiguous disposition” pre-

requisite, the court never even reached the “inextricably

intertwined” test.

The foregoing allegation predicated upon Florida

court action, which the Eleventh Circuit finds essential to

establishing jurisdiction would, in the Seventh Circuit, be

jurisdictionally barred by Rooker-Feldman as an attack upon

a state court judgment. GASH, supra, found that Rooker-

Feldman prohibits federal jurisdiction where a plaintiff

effectively “objects to the outcome of a judicial proceed-

ing [and] has no claim independent of the state court’s

adverse decision. .. . ” 995 F.2d at 727, 729. Agripost’s

injury, like GASH’s, “was caused by the judgment, just as

in Rooker, Feldman, and Ritter [v. Ross, 992 F.2d 750 (7th

Cir. 1993)].” Id. at 729.

Under any analysis, the Eleventh Circuit rendered

meaningless one clearly dispositive issue, viz., whether

Rutgers L. Rev. 859 (1990) (arguing that Rooker-Feldman is

redundant and unnecessary).

15

the state court judgment decided critical issues against

Agripost such that its federal taking claim could succeed

only to the extent that the state court wrongly decided

the issues before it. See, e.g., Pennzoil and Brown.

Although the Florida Circuit Court did not decide each

and every potential element of a Fifth Amendment taking

claim, this is not required in order for Rooker-Feldman to

apply, nor, indeed, for a taking claim, itself, to fail. The

Eleventh Circuit considered it immaterial that the Florida

courts adjudicated several essential common elements of

both a state and federal taking claim that would be

“reversed” if Agripost’s federal taking claim were to

succeed.

The Florida and federal taking claims clearly have

common essential elements, see, e.g., Treister v. City of

Miami, 893 F. Supp. 1057, 1067 (S.D. Fla. 1992), aff'd, Case

No. 95-5173 (May 15, 1995) (unpublished)!° However,

under its new Rooker-Feldman prerequisite of unam-

biguous disposition of a ripe federal constitutional claim,

the Eleventh Circuit expressly found that neither the

10 The Treister court held:

We have no doubt that the issues raised by a claim for

taking, and the elements of the claim, under the

Florida Constitution, are sufficiently similar to the

parallel claim under the United States Constitution so

as to constitute identical claims for res judicata purposes,

and that the issues necessarily litigated therein are

sufficiently identical for issue preclusion purposes ... . It

is axiomatic that the Constitutions of the United

States and the State of Florida require that just and

full compensation be paid in the event of a taking.

U.S. Const. Amend. V; Art. X; Sec. 6(a), Fla. Const.

893 F. Supp. at 1067-1068.

16

question of the adjudication of the state taking claim, nor

the impact of that adjudication upon the federal taking

claim, was before the Court or germane to the appeal.

App. 2 n.1].

The Florida court had rejected Agripost’s taking

claims through several holdings that Agripost’s federal

complaint effectively sought to reverse. First, the Florida

circuit court essentially found, as a matter of Florida law,

that Agripost, which owned no real property, had only

the narrowest of conditional, revocable rights to public

land, which were not “taken.” Lucas held that govern-

ment cannot take away claimed property “rights” that

never existed, such as the “right” to create a nuisance that

harms neighboring property or the public. 505 U.S.

1027-29. See also Penn Central Transp. Co. v. City of New

York, 438 U.S. 104, 130 (1978) (rejecting as “quite unten-

able” the suggestion that a taking is established simply

by showing that a landowner has been denied the ability

to exploit a particular property interest); Villas of Lake

Jackson, Ltd. v. Leon County, 121 F.3d 610, 614 (11th Cir.

1997) (holding “right against excessive regulation does

not encompass separate protection of individual strands

in the bundle of property rights”); Corn v. City of Lauder-

dale Lakes, 95 F.3d 1066, 1074 (11th Cir. 1996) (holding that

the “property” subject to the Fifth Amendment’s prohibi-

tion . . . does not include every single property interest

recognized by the law).

In Lucas, this Court reaffirmed its traditional defer-

ence to state definitions of the nature and scope of private

property interests, a deference which was not followed by

the Eleventh Circuit. Thus, if a property restriction

repeats or enforces limitations inherent in the title, the

17

restriction never effects a taking. Lucas at 1026-27; see, e.g.,

Federal Lands Legal Consortium v. United States, 195 F.3d

1190 (10th Cir. 1999) (holding that grazing permits are not

property for purposes of either the Takings Clause or the

Due Process Clause); Kunkes v. United States, 78 F.3d 1549,

1550 (Fed. Cir. 1996) (holding that plaintiffs did not have

a valid takings claim because they did not follow statu-

tory requirements to maintain claim); and Smalleylogics

Corp. v. Dade County, 176 So.2d 574, 577-78 (Fla. 3d DCA

1965) (rejecting a property owner’s contention that it had

a vested property right in a conditional zoning approval).

The Florida court negated a compensable taking as a

matter of law citing, inter alia, Smalleylogics, because Agri-

post lacked a protected property interest, and, in any

event, relinquished any such claim by violating the origi-

nal conditions of zoning approval.

Second, the Florida court’s affirmance was based

upon the existence of “obnoxious odors . . . for an unrea-

sonable length of time . . . which verified the non-compli-

ance with conditions.” App. 58. Agripost’s proscribed

and admitted nuisance activities “were not part of [its]

title to begin with.” Lucas at 1027. Thus, it can never be a

taking to forbid uses that are barred by “background

principles” of either property law or nuisance law. Id. at

1029; see also Keystone Bituminous Coal Ass‘n v.

DeBenedictis, 480 U.S. 470, 505-6 (1987) (compensation not

required where regulation prevents harm or danger or

restrains activities tantamount to public nuisance); City of

Jacksonville v. State ex rel. Mann, 27 So.2d 727 (Fla. 1946)

(holding that government “retains plenary power to pro-

tect its citizens by abating a nuisance if and when that

condition should occur”); State Dept. of Envtl. Protection v.

18

Burgess, 667 So.2d 267, 271 (Fla. lst DCA 1995) (holding

that “[hjarmful or noxious uses of property can be pro-

scribed by government regulation without the require-

ments of compensation”); City of Treasure Island v. Decker,

174 So.2d 756 (Fla. 2d DCA 1965) (holding that zoning

regulation which denied construction of a facility that

would constitute a public nuisance was not arbitrary,

unreasonable, confiscatory, or unconstitutional).

Third, based upon background principles of Florida

law and undisputed fact, the Florida court found that

Agripost was “always on notice” of the consequences of

its actions. App. 59. Therefore, as a matter of law, Agri-

post could not have an investment-backed expectation of

a right to violate zoning conditions and avoid revocation.

See Penn Central, 438 U.S. at 124; see also, e.g., Bauer v.

Waste Management of Connecticut, Inc., 662 A.2d 1179, 1198

(Conn. 1995) (finding that where landfill secured expan-

sion permit from the state only to have the expansion

later revoked, there had been no taking because it was a

gamble to go forward with the plan in light of the perva-

sive regulatory climate); Town of Esopus v. State, 631

N.Y.S.2d 213, 215 (N.Y. Ct. Cl. 1995) (holding that where

state refused to renew landfill’s license, no duty to pay

since taking occurs “only if [the state’s] actions destroyed

a claimant's previously vested, unconditional right to use

the land in a certain way, and, even then, only if there is

no other viable use to which the land can be put”).

Clearly, as a matter of law, Agripost could have no rea-

sonable investment-backed expectation to support a tak-

ing claim where its property interest included — indeed,

was defined by - the County’s right to revoke, and the

Florida courts so held.

ala

19

Fourth, the Florida court rejected Agripost’s claim of

a taking of a vested right, by expressly holding that the

County was not estopped to revoke the conditional revo-

cable zoning. App. 59.!1

In flagrant conflict with Rooker-Feldman, the Eleventh

Circuit effectively overturned all of the foregoing adjudi-

cations of the Florida court. While addressing the federal

taking claim the Eleventh Circuit held that the Florida

court’s “task was limited to one question: whether the

Board’s revocation of Agripost’s permit was justified.”

App. 14. The Court did not explain what it meant by

“justified.” Further, as discussed supra, the Court totally

excluded from its consideration the Florida court’s adju-

dication of the Florida taking claim.

The Eleventh Circuit exacerbated the conflicts with

established Supreme Court precedent by effectively

reversing longstanding Florida Supreme Court case law.

The governmental action in issue was an unusual use

zoning resolution — precisely one of the kinds of zoning

action involved in Dade County v. National Bulk Carriers,

Inc., 450 So.2d 213, 214, 215 (Fla. 1984).!2 In National Bulk,

'! Under Florida law estoppel is equivalent to the taking of

a vested property right. City of Hollywood v. Hollywood Beach

Hotel, 283 So.2d 867, 869 (Fla. 4th DCA 1973), aff'd in part, rev'd

in part on other grounds, 329 So.2d 10 (1976).

2 This petition should be granted on broad legal and policy

grounds independent of the Eleventh Circuit’s failure to give

effect to Florida Supreme Court case law. Nevertheless, this

failure to afford full faith and credit underscores the deleterious

and far-reaching consequences of the Eleventh Circuit’s failure

to abide by this Court’s precedents. The County repeatedly

urged that if the Eleventh Circuit had any doubt as to the

20

the Florida Supreme Court mandated that the Florida

Circuit Court, in an appeal from a Miami-Dade County

unusual use zoning action, must make “a determination

of whether the County’s action is confiscatory and consti-

tutes a taking without just compensation, in which event

the action of the board must be stricken.” Id. at 216.

The Eleventh Circuit “distinguished” the present case,

holding that it was controlled by Key Haven Associated

Enterprises, Inc. v. Board of Trustees of the Internal Improve-

ment Trust Fund, 427 So.2d 153 (Fla. 1982), which pertained

to a statutory dredge and fill permit. App. 17. The Elev-

enth Circuit believed that National Bulk pertained only to

an ordinance. Id. In fact, it is facially apparent that both

National Bulk and the present case involved the identical

kind of zoning action - a Miami-Dade County unusual use

zoning resolution. See National Bulk at 214, 215.

Moreover, National Bulk expressly distinguished Key

Haven as not controlling except as to its holding that a

zoning action or ordinance is “by definition, invalid if it ts

confiscatory.” Id. at 216 (emphasis in original, quoting Key

Haven at 159). The Florida Supreme Court made it clear

that this rule pertained not only to an ordinance itself,

but also to “the application of a zoning ordinance.” Id. at

216. The County’s unusual use zoning permit action in

National Bulk, like that in the present case, was but an

application of the County’s overall zoning ordinances,

pursuant to which all zoning actions are taken by resolu-

tion. Code of Miami-Dade County, Florida, Sec. 33-314(b),

applicability of National Bulk to Agripost’s zoning appeal, it

should have certified the matter to the Florida Supreme Court.

a

21

at App. 54. Thus, under National Bulk, when the Circuit

Court affirmed Agripost’s zoning revocation, it necessarily

rejected Agripost’s taking claim.

With regard to the state taking claim, the Court went

even further in applying its exceptions to Rooker-Feldman.

The Eleventh Circuit prohibited the County from appeal-

ing, either as to jurisdiction or on the merits, the district

court’s adverse adjudication of the County’s preclusion

defenses to the state taking claim. App. 2 n.1. Although

the district court had declared that it would not exercise

jurisdiction over the state taking claim (App. 34-35), it

adversely decided the County’s preclusion defenses to that

claim. App. 28. The Eleventh Circuit’s response to the

County’s appeal of that decision was simply to hold that

the state taking claim in its entirety was neither before the

Court nor germane. App. 2 n.1. The Court thus deprived

the County of its right to appeal. The Eleventh Circuit's

expanded exception to Rooker-Feldman thus eviscerates the

basic right to appeal both from a district court's exercise of

jurisdiction and its substantive adjudication.

II. ASSUMING THE DISTRICT COURT LACKED

JURISDICTION OVER A FEDERAL REGULA-

TORY TAKING CLAIM BECAUSE OF UNRIPE-

NESS, IT EXCEEDED THAT JURISDICTION BY

ADJUDICATING THE COUNTY’S PRECLUSION

DEFENSES ON THE MERITS, IN CONFLICT

WITH SUPREME COURT CASE LAW.

The Eleventh Circuit and the district court below not

only exceeded their jurisdiction by effectively reversing a

past state court adjudication, but also by affirmatively

invading the province of the state courts with regard to

22

future state court litigation. While affirming the dismissal

of Agripost’s alleged federal taking claim because it was

found to remain jurisdictionally unripe, the Eleventh Cir-

cuit noted that the district court’s substantive adjudica-

tions would bar Florida preclusion law defenses in the

subsequent state litigation. App. 9. Assuming arguendo _

the Fifth Amendment taking claim was jurisdictionally

unripe, these adjudications exceed the court’s jurisdic-

tion. They also substantively violate the requirement to

afford full faith and credit to state court adjudications. 28

U.S.C. Sec. 1738.'5

The Eleventh Circuit expressly affirmed where

“[ajlthough the district court ultimately dismissed [for

lack of subject matter jurisdiction], it first considered — and

rejected — Dade County's res judicata and collateral estoppel

defenses.” App. 9. This holding is in direct conflict with

some of the most unequivocal pronouncements known to

Supreme Court jurisprudence. Steel Co. v. Citizens for a

Better Env't, 523 U.S. 83, 94 (1998) (“Without jurisdiction

the court cannot proceed at all in any cause. Jurisdiction

is the power to declare the law, and when it ceases to

exist, the only function remaining to the court is that of

announcing the fact and dismissing the cause. . . . The

13 See, e.g., Treister v. City of Miami, 893 F. Supp. 1057, 1067

(S.D. Fla. 1992), aff'd, Case No. 95-5173 (May 15, 1995)

unpublished:

[The circuit] court entered summary judgment for the

City on the basis that the prior [zoning appeal] was

res judicata of the issues raised in Treister’s [separate

taking] action. He now appeals claiming that changed

circumstances have entitled him to relief in his

original [taking] action. We disagree.

23

requirement that jurisdiction be established as a thresh-

old matter . . . is inflexible and without exception.”); see also

Feldman at 482 n.16 (holding that once a court lacks

jurisdiction, it has “no power whatever” over the merits).

In condoning this exercise of jurisdiction over

defenses to an unripe claim, the Eleventh Circuit equated

the elimination of lack of ripeness with the absence of

preclusion. App. 15. First, as shown supra, under First

English, Agripost’s claim that a “temporary” taking had

already occurred was not unripe. Therefore, the federal

taking claim, as well as the state taking claim, was prop-

erly before the Florida court. Second, collateral estoppel,

or issue preclusion, applies precisely to prevent the read-

judication of dispositive issues, regardless of whether a

subsequent claim was ripe at the time of the prior adjudi-

cation.

The Eleventh Circuit’s negation of state preclusion

law along with its unripeness exception to Rooker-Feldman

not only creates new federal court jurisdiction to review

state court adjudications, but also requires federal courts

to reach the merits of these claims by negating state

preclusion law. This is a vast, unprecedented expansion

of federal district court jurisdiction, which completes the

erasure of the boundaries of federal jurisdiction, and cries

out for correction by this Court.

®

CONCLUSION

The Petition should be granted to harmonize several

important doctrines of federal jurisdiction and regulatory

takings. The conflicts sanctioned by the Eleventh Circuit

24

Set aiken ahh Ml ‘

portend both vast future federal district court interfer-

ence with state court judgments and the exercise of juris- |

diction over unripe claims. These conflicts create the

potential for the incalculable liability of innumerable reg-

ulatory authorities for permanent taking never intended

by either the United States Supreme Court, the state

courts, or the persons whose property has been perma-

nently taken. The writ should issue.

Respectfully submitted,

Ho.tianp & KNIGHT

Suite 3000

701 Brickell Avenue

Miami, Florida 33101-5441

Phone: (305) 374-8500

By: Danie. S. PEARSON

Florida Bar Number 062079

Rosert A. GINSBURG

Miami-Dade County Attorney

Suite 2810

111 Northwest First Street

Miami, Florida 33128-1993

Phone: (305) 375-3771

Fax: (305) 375-5634

By: Rosert L. KRAWCHECK

Florida Bar Number 128019

and

Oe ee ee ee ee Oe Te een Pe

a Oe

James J. ALLEN

Florida Bar Number 317861

APPENDIX

TABLE OF CONTENTS

A. Opinion to be Reviewed

Agripost, Inc., et al. versus Miami-Dade County,

United States Eleventh Circuit Court of

Appeals, Case No. 97-5654, Opinion dated

POOVGMNNOE 3D, TURE ik i sic Ccanned cee eueeen App. 1

Agripost, Inc., et al. versus Miami-Dade County,

United States Eleventh Circuit Court of

Appeals, Case No. 97-5654, Judgment dated

Peevenpet 15, F008 absentia App. 19

Agripost, Inc., et al. versus Miami-Dade County,

United States Eleventh Circuit Court of

Appeals, Case No. 97-5654, Order Correcting

Opinion dated December 14, 1999............ App. 21

B. Other Opinions in the Case

Agripost, Inc., et al. versus Metropolitan Dade

County, United States District Court, Southern

District of Florida, Case No. 94-2031-Civ-

Davis, Opinion dated September 5, 1997..... App. 23

C. Orders Denying Rehearing.

Agripost, Inc. et al. versus Miami-Dade County,

United States Eleventh Circuit Court of

Appeals, Case No. 97-5654, Order Denying

Appellant’s Petition for Rehearing dated

oe ge we PP ererrr Error Tse er errs App. 36

Agripost, Inc., et al. versus Miami-Dade County,

United States Eleventh Circuit Court of

Appeals, Case No. 97-5654, Order Denying

Petition for Rehearing En Banc dated February

OE, ED «kak evbatskwiease seen haeeeneee coe App. 37

il

APPENDIX

TABLE OF CONTENTS - Continued

D. Constitutional Provisions, Statutes and

Fla. Const., Art. VIII, Sec. (a), (e) (includ-

ing Footnote 3, which sets forth Fla.Const.

Art. VIII, Sec. 11 (1885)), and (f)......... App. 44

Ordinances:

US. Comet., Ast. Vi, SO0. Bi. cs csccasecaan App. 39 .

U.S. Camel, AGU We isi cansss cov earcan App. 39 :

U.S. Const., Amend. XIV, Sec. 1.......... App. 39

ae USA... DOR: Tasos vieecpwcavesccees App. 41

a0 USA; SOG. Tae vou ileiaa cece App. 41

28. USC. See. 19G7Iah Gah os sess ccceendes App. 41 |

ap USC. BOR Fas asian veedewere App. 42

42 US... Sale: THR sec ic aeeecceeaees App. 43 |

Miami-Dade County Home Rule Amend-

ment and Charter, Sec. 1.02(A) ............ App. 50

Code of Miami-Dade County, Florida, Sec.

SOAS 6 ick kcal cree eb ae toe App. 51

E. Other Material Essential to Understanding

the Petition

eo ee eer

Fra Ge Te

a ees

—S eT

Agri-Dade, Ltd., vs. Metropolitan Dade County,

Circuit Court of the Eleventh Judicial Circuit

of Florida, Appellate Division, Case: No.

91-214-AP, Opinion dated June 5, 1992..... App. 57

Agri-Dade, Ltd., vs. Metropolitan Dade County,

Florida Third District court of Appeal, Case

No. 92-01525, Order dated September 21,

TOUR is sc ccc dpgasdeeee ene aenal ee ae App. 60

APPENDIX A

App. 1

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 97-5654

D.C. Docket No. 94-2031-CV-EBD

AGRIPOST, INC., a Florida

Corporation, AGRI-DADE, LTD.,

a Florida Limited Partnership,

Plaintiffs-Appellees,

versus

MIAMI-DADE COUNTY, through

its Manager and Board of

County Commissioners,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Florida

(November 15, 1999)

Before TJOFLAT and EDMONDSON, Circuit Judges, and

KRAVITCH, Senior Circuit Judge.

TJOFLAT, Circuit Judge:

In 1987, the Board of Commissioners of Dade County,

Florida, granted Agripost, Inc. an unusual use zoning

permit for the construction and operation of a waste

App. 2

disposal facility. In 1991, the Dade County Zoning

Appeals Board revoked the permit. After an appellate

panel of the Dade County Circuit Court affirmed the

revocation, and the Florida District Court of Appeal

declined review, Agripost brought this suit against Dade

County, claiming that the revocation constituted a taking

without just compensation, in violation of the Fifth and

Fourteenth Amendments.! The district court dismissed

Agripost’s takings claim as unripe because Agripost had

failed to pursue Florida’s inverse-condemnation remedy.

The County now appeals,? contending that the district

court should have dismissed Agripost’s takings claim

under the Rooker-Feldman doctrine? for want of subject

matter jurisdiction, or, alternatively, granted it summary

judgment on the ground that principles of res judicata

and collateral estoppel barred the claim. We agree with

the district court that Agripost’s takings claim was

unripe. We therefore affirm its dismissal of the suit.

1 Agripost’s complaint contained several other claims

based on the revocation of Agripost’s permit. In its order

dismissing Agripost’s taking claim as unripe, the district court

concluded that Agripost’s other claims were legally insufficient

and directed the entry of final judgment in the County’s favor

on all claims. With the exception of an equal protection claim,

which we address in note 9 infra, none of these other claims are

before us or are germane to this appeal.

2 See infra part II.

3 The Rooker-Feldman doctrine derives from District of

Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S. Ct.

1303, 75 L. Ed. 2d 206 (1983), and Rooker v. Fidelity Trust Co., 263

U.S. 413, 44 S. Ct. 149, 68 L.Ed. 362 (1923), and reserves to the

United States Supreme Court the authority to review final

decisions from a state’s highest court. See also infra, note 6.

App. 3

&

In 1986, Dade County’s Board of Commissioners (the

“Board”) sought proposals for the construction and oper-

ation of a waste disposal plant that would create an

environmentally safe, useful end product from the

county’s solid waste. Agripost submitted a proposal,

which the Board subsequently accepted. Agripost then

leased a site for its facility.4 Because the site was zoned

for agricultural use, Agripost needed to obtain an

unusual use zoning permit from the Board before it could

construct and operate the plant. Agripost therefore

applied for such a permit. On March 5, 1987, the Board

approved Agripost’s application, but made its approval

subject to several conditions. One condition required

_ Agripost to operate its facility in accordance with the plot

use plan to be devised by Agripost and approved by the

County’s Zoning Director. Another required Agripost to

comply with all “conditions and requirements” of Dade

County’s Department of Environmental Resource

Management (“DERM”),5 which included specific

4 Agripost’s plant would convert garbage to agricultural

fertilizer by grinding the garbage into small particles and then

applying chemicals that enhanced the natural decay of the

resulting waste. The site that Agripost selected for this facility

abutted Dade County’s landfill and was near the County’s

transfer station from which waste was distributed to disposal

facilities. Unfortunately, the site was located in a residential

neighborhood and was adjacent to an 800-student elementary

school.

5 DERM reviewed Agripost’s permit application and issued

a memorandum detailing a list of requirements that were in turn

incorporated as conditions in the Board’s resolution authorizing

the unusual use zoning permit.

App. 4

requirements for the storage of waste products, and that

the facility not cause a nuisance.®

Agripost’s facility began operating in the fall of 1989,

and soon thereafter, area residents began complaining

that finely ground waste particles were emanating from

the plant and that a vile stench covered the area. Accord-

ing to officials from an adjacent elementary school, a

“black, thick glue-like mold” was covering nearly every

surface of the school, and students and teachers alike

were developing various illnesses.

In October 1990, DERM informed Agripost that its

facility was creating a nuisance; DERM alleged both that

noxious odors were emanating from the plant, and that

Agripost was storing waste products in a manner con-

trary to the conditions of its permit and in a location

other than that prescribed by the plot use plan. The

County’s Building and Zoning Department (“B&Z”) then

initiated procedures to revoke Agripost’s unusual use

zoning permit; B&Z issued zoning violation notices that

alleged that Agripost had breached the conditions of its

permit, and requested a hearing before the Zoning

Appeals Board (“ZAB”) to determine whether the permit

should be revoked. After a hearing on January 16, 1991,

the ZAB concluded that Agripost had failed to comply

6 On July 7, 1987, Agripost and Dade County signed an

agreement for the construction and operation of the facility (the

“Agreement”). The Agreement set out the amount of waste that

the County would deliver per week to Agripost and the

compensation that Agripost would receive for disposing of the

waste. The Agreement also incorporated the conditions that the

Board had placed on its approval of the unusual use zoning

permit.

App. 5

with the conditions of its unusual use permit, and there-

fore revoked it. The Board affirmed the ZAB’s decision.

Having exhausted its administrative remedies, Agri-

post appealed the Board’s decision to a three-judge panel

of the appellate division of the Dade County Circuit

Court (the “Circuit Court”). After reviewing the adminis-

trative record, the court concluded that Agripost had

failed to comply with the conditions of its permit; the

court therefore affirmed the revocation of Agripost’s per-

mit. The Florida District Court of Appeal thereafter

denied Agripost’s petition for certiorari review. See Agri-

Dade, Ltd. v. Metropolitan Dade County, 605 So.2d 1272 (Fla.

3d DCA 1992).

On September 29, 1994, Agripost brought the pre ent

lawsuit against Dade County in the United States District

Court for the Southern District of Florida. Agripost

claimed that by revoking the permit, the Board, and

therefore Dade County, deprived it of all economically

viable use of its leasehold interest, of its facility, and of its

rights under the Agreement. Because the County had not

provided just compensation, Agripost contended, the per-

mit revocation constituted a taking in violation of the

Fifth and Fourteenth Amendments.

In response, Dade County, citing the Rooker-Feldman

doctrine, which reserves to the United States Supreme

Court the authority to review final decisions from a

state’s highest court, moved the district court to dismiss

Agripost’s takings claim for lack of subject matter juris-

diction. According to the County, the Circuit Court

App. 6

decided Agripost’s takings claim in affirming the revoca-

tion of Agripost’s permit. The County moved alter-

natively for summary judgment on the grounds of res

judicata and collateral estoppel. It contended that (1) res

judicata barred the takings claim because the claim was

either litigated or should have been litigated in the Cir-

cuit Court proceeding, and (2) collateral estoppel barred

the takings claim because a factual issue essential to the

takings claim was resolved against Agripost in the Circuit

Court.”

7 Although res judicata, collateral estoppel, and Rooker-

_ Feldman are separate doctrines, they have a “close affinity” to one

another. Valenti v. Mitchell, 962 F.2d 288, 297 (3d Cir. 1992). In

considering whether to give preclusive effect to state court

judgments, federal courts must apply the state’s law of collateral

estoppel. See Vazquez v. Metropolitan Dade County, 968 F.2d 1101,

1106 (11th Cir. 1992). Under res judicata, a final judgment “bars a

subsequent suit between the same parties based upon the same

cause of action and is conclusive as to all matters germane thereto

that were or could have been raised.” Hoechst Celanese Corp. v.

Fry, 693 So.2d 1003, 1006 n.9 (Fla. 3d DCA 1997). Collateral

estoppel bars identical parties from relitigating issues that were

actually adjudicated in a prior proceeding. See Florida Dep't of

Revenue v. Ferguson, 673 So.2d 920, 922 (Fla. 2d DCA 1996). Under

the Rooker-Feldman doctrine only the United States Supreme

Court has the authority to review a final state court judgment that

unambiguously disposes of a federal constitutional claim. See

Dale v. Moore, 121 F.3d 624, 626 (11th Cir. 1997). The doctrine not

only bars review of claims that were actually litigated in state

court, but also bars those that are “inextricably intertwined” with

the state court judgment. Feldman, 460 U.S. at 482 n.16, 103 S. Ct.

at 1315 n.16. A federal claim is intertwined with the state court

judgment “if the federal claim succeeds only to the extent that the

state court wrongly decided the issues before it.” Pennzoil Co. v.

Texaco, Inc. 481 U.S. 1, 25, 107 S. Ct. 1519, 1533, 95 L. Ed. 2d 1

(1987) (Marshall, J., concurring).

App. 7

The district court, on its own initiative and over

Dade County’s objection, dismissed as unripe Agripost’s

takings claim, because Agripost had failed to pursue the

inverse-condemnation remedy that Florida provided to

property owners who, like Agripost, alleged that an

administrative decision rendered their property worth-

less. In the district court’s view, the Supreme Court's

decision in Williamson County Regional Planning Commis-

sion v. Hamilton Bank, 473 U.S.-172, 194-97, 105 S. Ct. 3108,

3120-22, 87 L. Ed. 2d 126 (1985), required Agripost to

pursue that remedy before it could make a Fifth Amend-

ment takings claim.®

In deciding that Agripost’s takings claim was not

ripe, the district court addressed the questions whether it

should dismiss the claim for want of subject matter juris-

diction under the Rooker-Feldman doctrine or, instead,

entertain the claim on the merits and reject it on grounds

of res judicata and collateral estoppel. Citing an exception

to the Rooker-Feldman doctrine, the court concluded with-

out elaboration that that doctrine did not apply because

Agripost “did not have a reasonable opportunity to raise

[its claim for compensation] before the Circuit Court.”

Similarly, the district court stated that res judicata and

collateral estoppel did not apply because Agripost’s

8 In Williamson, the Supreme Court noted that “(t]he Fifth

Amendment does not proscribe the taking of property; it

proscribes taking without just compensation.” Williamson, 473

U.S. at 194, 105 S. Ct. at 3120. Thus, the Court concluded, if the

state has established a process for obtaining compensation, the

property owner cannot prosecute a takings claim under the

Fifth and Fourteenth Amendments unless he alleges that the

state process is inadequate.

App. 8

appeal of the permit revocation to the Circuit Court did

not include a separate cause of action for inverse con-

demnation.?

Although Dade County prevailed in the district

court, it is Dade County, not Agripost, that now appeals

the district court’s judgment. Dade County asks that we

affirm the district court’s dismissal of Agripost’s takings

claim, but that we do so on grounds that the district court

rejected — namely, that the claim is barred by the Rooker-

Feldman doctrine, res judicata, and collateral estoppel. We

conclude that the district court correctly determined that

Agripost’s takings claim was unripe. We therefore affirm

its dismissal of the claim.

I.

As a threshold matter, we must determine whether

Dade County has standing to appeal the district court’s

judgment. Because the district court dismissed Agripost’s

suit, the County was the prevailing party below. Ordi-

narily, the prevailing party does not have standing to

appeal because it is assumed that the judgment has

caused that party no injury. See Deposit Guar. Nat'l Bank v.

Roper, 445 U.S. 326, 333, 100 S. Ct. 1166, 1171, 63 L. Ed. 2d

427 (1980); Ashley v. Boehringer Ingelheim Pharms. (In re

DES Litigation), 7 F.3d 20, 23 (2d Cir. 1993). An exception

to this rule exists, however, when the prevailing party is

prejudiced by the collateral estoppel effect of the district

9 In reaching this conclusion, the district court effectively

denied the County’s motion for summary judgment based on

the affirmative defenses of res judicata and collateral estoppel.

ee Oe ee ee ee ve eS ee

App. 9

court’s order. In such a case, the litigant has been

aggrieved by the judgment and has standing to appeal.

See Ashley, 7 F.3d at 23.

This exception applies in the present case. Here,

although the district court ultimately dismissed Agri-

post’s takings claim, it first considered - and rejected —

Dade County’s res judicata and collateral estoppel

defenses. Unless it is set aside, the court’s ruling regard-

ing those defenses will have a preclusive effect in pend-

ing litigation that is likely to prejudice Dade County.

Following the district court’s ruling that Agripost’s tak-

ings claim had not been litigated in the Circuit Court and

therefore was unripe, Agripost brought a takings claim in

state court.10 Because the district court rejected the

County’s collateral estoppel and res judicata defenses, the

County will be precluded from raising those same

defenses in the state court proceeding.!! In other words,

10 The state court proceeding has been stayed pending the

outcome of this appeal.

11 In this case, the Florida court would look to federal claim

preclusion law in determining whether to give the former

federal judgment preclusive effect. See Andujar v. National

Property and Cas. Underwriters, 659 So.2d 1214, 1216 (Fla. 4th

DCA 1995) (“We agree with defendant to the extent that federal

claim preclusion law governs, rather than Florida’s. Whenever

res judicata is asserted, the court in the second forum is bound

to give the former judgment the same preclusive effect that the

rendering court would give it.”). A district court's ruling has a

preclusive (collateral estoppel) effect on subsequent litigation

only if “(1) the issue [is] identical in both the prior and current

action; (2) the issue was actually litigated; (3) the determination

of the issue was critical and necessary to the judgment in the

prior action; and (4) the burden of persuasion in the subsequent

action [is not] significantly heavier.” SEC v. Bilzerian (In re

App. 10

the County would be precluded from arguing that Agri-

post had already raised and lost its takings claim. Thus,

Dade County has standing to appeal the district court’s

judgment. !2

Bilzerian), 153 F.3d 1278, 1281 (11th Cir. 1998). The district

court’s resolution of Dade County’s res judicata and collateral

estoppel defenses satisfies these criteria. First, because the

takings claim that Agripost has filed in state court is identical to

the one presently before us, the question whether res judicata

and collateral estoppel bar the claim is also identical. Second,

these two defenses were clearly litigated in the district court.

Third, the district court’s ruling regarding those defenses was

necessary to its judgment; the essence of the defenses is that

Agripost’s takings claim had already been litigated in the

Circuit Court, and the resolution of that issue was necessary to

the district court’s ruling that the takings claim was unripe.

Fourth, the burden of persuasion in the pending state court

action is no heavier than the burden that existed in the district

court. Thus, unless it is set aside, the district court’s ruling will

preclude ‘Dade County from relitigating those defenses.

12 In addition to the takings claim, Agripost’s complaint

raised a claim under the Fourteenth Amendment’s Equal

Protection Clause. The district court dismissed this claim for

failure to state a claim upon which relief can be granted. See Fed.

R. Civ. P. 12(b)(6). Although Dade County appeals the district

court’s dismissal of that claim on the ground that the court

instead should have dismissed it under the doctrines of res

judicata, collateral estoppel, and Rooker-Feldman, we conclude

that the County has not been aggrieved by the district court’s

disposition of this claim. The district court’s judgment prevents

Agripost from relitigating its equal protection claim in another

proceeding; consequently, there is no collateral estoppel effect

that could be prejudicial to the County. We therefore make no

further mention of Agripost’s equal protection claim.

ls ee Bi Ns Ce SO dae nay

CO ee ea Oe ee een OO ee ee

” .

App. 11

III.

Before we address the County’s alternative argu-

ments that the district court should have either (1) dis-

missed Agripost’s takings claim for want of subject

matter jurisdiction, as required by the Rooker-Feldman

doctrine, or (2) entertained the claim on the merits and

granted summary judgment on the ground that the claim

was barred by principles of res judicata or collateral

estoppel, we think it necessary to recall what a property

owner must allege in order to state a claim that a local

entity has effected a regulatory taking of his property

without just compensation in violation of the Fifth

Amendment.

First, the property owner must allege that the gov-

ernmental action - here, the revocation of a permit to

operate a waste disposal plant — has “denie[d] all eco-

nomically beneficial or productive use of” his property.

Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015,

112 S. Ct. 2886, 2893, 120 L. Ed. 2d (1992). In other words,

the governmental action must have made the property

worthless. |

Second, the property owner must allege either that

the state law provides him no process for obtaining just

compensation (such as an action for inverse condemna-

tion) or that the state law appears to provide such proc-

ess, but due to state court interpretation, the process is

inadequate.!3 If the property owner makes either allega-

tion, then his Fifth Amendment takings claim is ripe. If,

13 An example of how a state law — adequate on its face -

could provide an inadequate remedy because of a state court’s

(the trial court’s and/or the appellate court’s) interpretation

App. 12

on the other hand, he makes neither allegation (and can-

not do so because the state law affords an adequate

process for obtaining just compensation), his Fifth

Amendment takings claim is not ripe. If such a claim is

pending in federal district court, the district court must

dismiss it for lack of subject matter jurisdiction since the

owner has failed to establish an Article III “case or con-

troversy.” See Reahard v. Lee County, 30 F.3d 1412, 1417

(11th Cir. 1994) (“It follows that ‘[a]s a practical matter,

Williamson precludes litigation of the merits of a just

compensation claim in federal court unless the state

declines to provide adequate procedures through which

an aggrieved party might seek compensation.’ ”) (quoting

New Port Largo, Inc. v. Monroe County, 985 F.2d 1488, 1496

(11th Cir. 1993) (Tjoflat, C.J., specially concurring)). With

the foregoing principles in mind, we turn to Dade

County’s argument that Agripost’s Fifth Amendment tak-

ings claim was actually litigated in the Circuit Court (and

decided against Agripost)!* and, therefore, that the

would be if the state law provided an inverse condemnation

action to remedy a taking, but the state court interpreted the law

as capping the property owner’s damages at less than the value

of what was taken. In such a case, the state court’s interpretation

of the law would render the remedy inadequate to provide “just

compensation” within the meaning of the Fifth Amendment.

14 State courts of general jurisdiction, such as the Dade

County Circuit Court, have the authority, if not a duty, to

entertain the federal constitutional claims presented to them.

Whether the three-judge Circuit Court that decided Agripost’s

appeal of the permit revocation would have had jurisdiction to

consider Agripost’s takings claim is problematic, as we point

out in the text infra.

Tee eee a ee ee ee Pee

App. 13

Rooker-Feldman doctrine required the district court to dis-

miss the claim for want of subject matter jurisdiction.

If Agripost’s Fifth Amendment takings claim was

actually litigated and decided against Agripost in the

Circuit Court, the Circuit Court’s decision must have

come after that court affirmed the County’s revocation of

Agripost’s permit. That is because without the revocation

of the permit, Agripost could not have claimed that the

County’s action denied Agripost all economically benefi-

cial or productive use of its property. At that point,

Agripost had to have filed a pleading (with the Circuit

Court) alleging the following:

The Circuit Court’s decision affirming the

County’s revocation of the permit effectively

rendered Agripost’s property (its leasehold, its

plant, and its rights under the Agreement)

worthless; Florida law provides no adequate

procedure, such as an action for inverse con-

demnation, for obtaining just compensation;

because Florida law is deficient in this respect,

Agripost has a ripe Fifth Amendment takings

claim, and is entitled to just compensation.

The Circuit Court thereafter would have had to

acknowledge Agripost’s pleading, entertain Agripost’s

takings claim on the merits, and deny relief. The court

would have denied relief because it found that the prop-

erty had not been rendered worthless.

We conclude that the Circuit Court did not acknowl-

edge, and therefore did not litigate, Agripost’s takings

claim for two reasons. First, the record is devoid of any

indication that Agripost presented such a claim to the

App. 14

Circuit Court after the court affirmed the Board’s revoca-

tion of Agripost’s permit.!> Specifically, we find no alle-

gation by Agripost to the effect that its property had been

rendered worthless and that Florida provided no ade-

quate process for obtaining just compensation. Nor is

there any indication that the Circuit Court noticed a

takings claim on its own initiative and, having done so,

rejected it as legally insufficient.

Second, the Circuit Court lacked the authority to

determine the takings issue. The Circuit Court’s task was

limited to one question: whether the Board’s revocation

of Agripost’s permit was justified. The court was not

called upon to determine whether there had been a Fifth

Amendment taking. A Fifth Amendment takings claim

could not have materialized until the Circuit Court

passed on the propriety of the Board’s revocation of

Agripost’s permit. See Lake Lucerne Civic Ass’n Inc., v.

Dolphin Stadium Corp., 878 F.2d 1360, 1370 (11th Cir. 1989)

(“The point is that the propriety of the agency action

must be finally determined before a claim for inverse

condemnation exists.”) (quoting Albrecht v. State, 444

So.2d 8, 12 (Fla. 1984)). Only after the Circuit Court

affirmed the Board’s decision and the Florida District

Court of Appeal denied Agripost certiorari review could

Agripost have claimed that the revocation of the permit

rendered its property worthless.!© See id. In sum, the

15 Nor is there any indication that Agripost presented the

Circuit Court with a Fifth Amendment takings claim prior to the

court’s decision affirming the revocation of Agripost’s permit.

16 The allegation that the property had become worthless

could not be made until the revocation of the permit became

App. 15

takings issue was not - nor could it have been - enter-

tained by the Circuit Court in its appellate review of the

Board’s action on Agripost’s permit. Consequently, the

Rooker-Feldman doctrine did not require the district court

to dismiss Agripost’s takings claim.

We next turn to Dade County’s claim that the district

court should have granted it summary judgment on the

ground that res judicata barred Agripost’s claim. Res

judicata bars a subsequent suit between the same parties

based on the same cause of action. It applies to (1) all

matters that were actually raised, and (2) all matters that

could have been raised in the prior suit. See Hoechst

Celanese Corp., 693 So.2d at 1006 n.9; ICC Chem. Corp. v.

Freeman, 640 So.2d 92, 93 (Fla. 3d DCA 1994). The County

claims that res judicata barred the takings claim because

Agripost actually raised (and the Circuit Court actually

adjudicated) that claim; alternatively, Dade County con-

tends that res judicata applied because Agripost had an

opportunity to present that claim to the Circuit Court.

Unfortunately for Dade County, our conclusion that

the Rooker-Feldman doctrine is inapplicable forecloses the

County’s res judicata defense. First, as we have observed,

the Circuit Court did not adjudicate a takings claim,

because Agripost did not present one to the court. Sec-

ond, Agripost did not have an opportunity to present the

claim; it could not have done so until judicial review (of

effective; that is, when the Circuit Court affirmed the Board’s

decision and the Florida District Court of Appeal denied

Agripost’s petition for certiorari on September 21, 1992. See

Agri-Dade, 605 So.2d at 1272.

App. 16

the Board’s action) in the Circuit Court and in the Florida

District Court of Appeal had run its course.

Finally, we consider Dade County’s contention that

the takings claim was barred by collateral estoppel. The

County asserts that the district court should have granted

it summary judgment on the basis of that defense because

the Circuit Court, in reviewing the permit revocation,

found that the Board’s action had not rendered Agripost’s

property worthless. The necessary result of this finding,

the County contends, is that Agripost’s Fifth Amendment

takings claim fails as a matter of law. The County’s argu-

ment proceeds as follows.

In First English Evangelical Lutheran Church v. County

of Los Angeles, 482 U.S. 304, 321, 107 S. Ct. 2378, 2389, 9

L. Ed. 2d 250 (1987), the Supreme Court recognized that

state courts have the power to strike down zoning actions

that are confiscatory, thereby subjecting the local govern-

ment to liability for a temporary taking only. In Florida, a

zoning ordinance that effectively confiscates property is

void. See Dade County v. National Bulk Carriers Inc., 450

So.2d 213, 216 (Fla. 1984). According to the County, this

rule also’ applies in a case involving the denial of a

permit; thus, if the denial is confiscatory, it is void. There-

fore, in reviewing the County’s action in the instant case,

the Circuit Court was required to set aside the Board’s

action if it was confiscatory.!7 Under the County’s view of

17 In reviewing the propriety of the Board’s revocation of

Agripost’s permit, the Circuit Court was required to determine

“whether the essential requirements of the law have been

observed.” City of Deerfield Beach v. Vaillant, 419 So.2d 624, 626

(Fla. 1982). The County contends that an essential requirement

of the law was that the Board’s action not be confiscatory.

App. 17

the law, because the Circuit Court affirmed the Board’s

action, it necessarily found that the action was not confis-

catory — that is, Agripost was not deprived of all produc-

tive use of its property. Given this finding, Dade County

contends, collateral estoppel precluded Agripost from

establishing in the district court an indispensable element

of its takings claim (that the Board’s action rendered its

property worthless), and the court should have granted

the County summary judgment.

Dade County’s argument is correct in part; certain

zoning actions are invalid under Florida law if they are

confiscatory. What the County fails to recognize, how-

ever, is that this rule only applies to zoning ordinances,

not to permit denials or revocations that constitute a

proper exercise of the local government’s police power.

See Key Haven Associated Enters., Inc. v. Board of Trustees of

the Internal Improvement Trust Fund, 427 So.2d 153, 159

(Fla. 1982). In the proceeding before the Circuit Court,

whether the Board’s revocation of Agripost’s permit

effectively confiscated its property was irrelevant; the

question before the court was whether the revocation was

within the scope of the Board’s police power. The court

answered the question in favor of the County. Because the

Circuit Court did not consider whether the Board’s action

would, if permitted to stand, effectively confiscate Agri-

post’s property, the district court correctly held that col-

lateral estoppel did not bar Agripost’s Fifth Amendment

takings claim.

App. 18

IV.

At last, we turn to the question whether the district

court properly dismissed Agripost’s takings claim as

unripe. We conclude that it did. Agripost failed to allege

in the district court (as it failed to allege in the Circuit

Court) either that Florida provided no process for obtain-

ing just compensation or that the process it provided was

inadequate. Agripost’s Fifth Amendment claim was not

ripe for review; therefore, the district court properly dis-

missed it for want of subject matter jurisdiction.

AFFIRMED.

App. 19

United States Court of Appeals

For the Eleventh Circuit

No. 97-5654

District Court Docket No. 94-2031-CV

AGRIPOST, INC., a Florida Corporation,

AGRI-DADE, LTD., a Florida Limited Partnership,

Plaintiffs-Appellees,

versus

MIAMI-DADE COUNTY, through its

Manager and Board of County Commissioners,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Florida

(Filed Nov. 15, 1999) |

Before TIOFLAT and EDMONDSON, Circuit Judges, and

KRAVITCH, Senior Circuit Judge.

JUDGMENT

This cause came to be heard on the transcript of the

record from the United States District Court for the

Southern District of Florida, and was argued by counsel;

UPON CONSIDERATION WHEREOF, it is now

hereby ordered and adjudged by this Court that the judg-

ment of the said District Court in this cause be and the

same is hereby AFFIRMED;

App. 20

It is further ordered that defendant-appellant pay to

plaintiffs-appellees, the costs.on appeal to be taxed by the

Clerk of this Court.

Entered: November 15, 1999

For the Court: Thomas K. Kahn, Clerk

By: /s/ Matt Davidson

Deputy Clerk

ISSUED AS MANDATE: MAR 02 2000

App. 21

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 97-5654

AGRIPOST, INC., a Florida Corporation,

AGRI-DADE, LTD., a Florida Limited Partnership,

Plaintiff-Appellees,

versus

MIAMI-DADE COUNTY, through its

Manager and Board of County Commissioners,

Defendant-Appellant,

On Appeal from the United States District Court

for the Southern District of Florida

(Filed Dec. 14, 1999)

Before TJOFLAT and EDMONDSON, Circuit Judges, and

KRAVITCH, Senior Circuit Judge.

BY THE COURT:

Appellee’s motion to correct the opinion is

GRANTED. Footnote one of the opinion is corrected to

read: “Agripost’s complaint contained several other

claims based on the revocation of Agripost’s permit. With

the exception of an equal protection claim, which we

address in note 12 infra, none of these other claims are

before us or are germane to this appeal.”

WV¥—_—

App. 22

Appellant’s motion to file enlarged petitions for

rehearing and for rehearing en banc is GRANTED.

/s/

APPENDIX B

App. 23

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

AGRIPOST, INC., a Florida CASE NO.

corporation and AGRI-DADE, 94-2031-CIV-

LTD., a Florida limited DAVIS

partnership, MAGISTRATE

i JUDGE

Plaintiffs, JOHNSON

° (Filed

METROPOLITAN DADE Sep. 5, 1997)

COUNTY,

Defendant.

/

BEFORE THE COURT is Metropolitan Dade County’s

Motion to Dismiss or, in the alternative, Motion for Sum-

mary Judgment (D.E. 10). After due consideration of the

parties’ memoranda of law and oral argument, the Court

will dismiss the federal claims and decline to exercise

supplemental jurisdiction over the state claims.

I. Factual Background

In July 1987, the Dade County Board of Commission-

ers (“Board”) and Agripost, Inc. entered into a contract

for construction of a demonstration facility to convert

municipal solid waste into compost.! Before executing the

contract, Agripost worked with Dade County staff to

locate a site for the facility. Complaint at { 27. Agripost

1 The Contract was subsequently assigned to Agri-Dade.

Complaint at 23.

App. 24

selected a site on the west side of Northwest 47th Ave-

nue, adjacent to a state-owned school for individuals with

disabilities, a “halfway house” detention center for

women operated by the State of Florida, and an elemen-

tary school surrounded by single-family homes. See Zon-

ing Hearing File at 22, 95. The State of Florida, owner of

the site, was leasing it to the Florida Department of

Health and Rehabilitative Services (“HRS”). Complaint at

{ 28.

On October 28, 1986, Agripost entered into a long-

term lease of the site with HRS.? The lease also gave

Agripost an option to lease up to thirty additional acres

within a defined tract adjoining the site (the “adjacent

site”). The lease provided that it would become void

should Agripost fail to obtain a contract to construct and

operate a resource recovery facility within six months of

its effective date. Complaint at { 31. In addition, HRS had

the option to terminate the lease if the site was not used

for a resource recovery facility. Complaint at { 31. Upon

termination, all buildings on the site would pass to HRS

without any compensation to Agripost. Complaint at

{1 31.

Following execution of the lease, Dade County’s

Building and Zoning Department (“B&Z”) advised Agri-

post that it would need an unusual use permit to operate

the resource recovery facility on the site, which was

zoned for agricultural use. Complaint at { 32. B&Z also

informed Agripost that it would not need a permit to

2 On July 8, 1988, Agri-Dade became the lessee of the site

pursuant to an assignment approved by the State of Florida and

HRS. Complaint at 29.

App. 25

store composted product in the adjacent site. Complaint

at { 34.

Agripost then applied for an unusual use permit to

build and operate the facility on the site. Complaint at

{ 34. The Board of County Commissioners approved the

unusual use permit on March 5, 1987, in Resolution

Z-63-87.3 The approval was expressly subject to certain

conditions, including:

2. That in approval of the plan, the same be

substantially in accordance with that submitted

for the hearing entitled “Dade County MSW

Composting Facility Agripost, Inc.” .. .

3. That the use be established and maintained

in accordance with the approved plan.

8. That the applicant comply with all condi-

tions and requirements of the Department of

Environmental Resources Management.

Resolution Z-63-87. Paragraph 8 incorporated various

conditions, including 1) that the compost product be cov-

ered and stored on an impermeable base, 2) that the

operation of the composting facility not cause a nuisance,

and 3) that no solid waste or compost products be stored

outdoors where they could be exposed to rainfall. See

3 A group of citizens appealed Resolution Z-63-87, arguing

the proposed use was incompatible with the neighborhood.

Concerned Citizens of Carol City, Inc. v. Metropolitan Dade County

and Agripost, Inc., Circuit Court No. 87-139 AP. Complaint at 37.

The state court affirmed the Board’s decision.

App. 26

Motion Appendix A at 47 (Department of Environmental

Resources Management Memorandum dated February 24,

1987).

On July 7, 1987, the County and Agripost entered

into a contract for construction of a demonstration facility

to convert municipal solid waste into compost.4 Com-

plaint at { 23. The contract incorporated the provisions of

the unusual use permit approval. Contract at J 3.01. The

contract also contained a provision regarding “obnoxious

odors” which stated: “ . . . continual generation of obnox-

ious odors, if not corrected within a reasonable time after

written notice by the County, shall constitute a default by

Agripost.” Complaint at { 50.

In October 1990, the Department of Environmental

Resources Management (“DERM”) notified Plaintiffs that

the facility was generating obnoxious odors and creating

a nuisance. Complaint at { 54. DERM then ordered Plain-

tiffs to submit, among other things, an odor control plan

for approval. DERM approved a modified version of

Plaintiffs’ plan on December 10, 1990. Complaint at J 57.

Plaintiffs and the County then discussed a possible con-

tract amendment that would enable Plaintiffs to imple-

ment the Odor Control Plan.5 At a December 20, 1990

meeting, the Board voted to reject the proposed amend-

ment. Complaint at 7 65.

4 The Contract was subsequently assigned to Agri-Dade.

Complaint at 23.

> The proposed amendment would increase some of the

“tipping fees” the County was required to pay under the

original contract.

App. 27

In the meantime, Dade County’s Building and Zon-

ing Department (“B&Z”) issued violation notices and

applied for a hearing before the Zoning Appeals Board

(“ZAB”), claiming Plaintiffs had violated Conditions No.

2, 3 and 8 of the unusual use zoning resolution. Com-

plaint at { 70. The ZAB held a revocation hearing on

January 16, 1991 and voted to revoke the unusual use,

finding that Plaintiffs had, in fact, violated these condi-

tions. Complaint at { 78. Plaintiffs closed the plant the

following day and appealed the ZAB’s decision to the

Board of Commissioners. Complaint at { 81. After a

hearing on May 23, 1991, the Board affirmed the ZAB’s

decision.

On July 10, 1991, Agri-Dade appealed the Board’s

order to the Appellate Division of the Circuit Court for

the Eleventh Judicial Circuit of Florida. On June 5, 1992,

the Circuit Court affirmed the Board’s action. Agri-Dade,

Ltd. v. Metropolitan Dade County, Case No. 91-214-AP

(“The County’s decision must be affirmed

because . . . Agri-Dade is found by the substantial compe-

tent evidence test not to have complied with the condi-

tions of the resolution, therefore justifying the County’s

revocation”).

On July 6, 1992, Agri-Dade petitioned the Florida

Third District Court of Appeal for a writ of certiorari. The

Third District denied the petition without comment on

September 21, 1992. Plaintiffs subsequently filed for

bankruptcy protection under Chapter 11 of the federal

Bankruptcy Code. Complaint at { 31.

On September 29, 1994, Plaintiffs filed the present

action, asserting the following federal and state law

App. 28

claims: inverse condemnation under the Fifth Amend-

ment to the U.S. Constitution and 42 U.S.C. § 1983 (Count

I), inverse condemnation under Florida law (Count II),

violations of the Equal Protection Clause of the Four-

teenth Amendment to the U.S. Constitution and Section

1983 (Count III), 4) violations of their procedural due

process rights under the Fifth and Fourteenth Amend-

ments to the U.S. Constitution and Section 1983 (Count

IV), violations of Fl. Stat. § 405.7003 (Count VI), breach of

contract (Count VII), and equitable estoppel (Count

VIII).°

II. Preclusion

a. Preclusive Effects of Prior Litigation on Federal

Claims

The County argues that the Florida Circuit Court's

decision has a preclusive effect on Plaintiff’s federal

claims in the present action. This argument is premised

on the Rooker-Feldman doctrine, as well as principles of

res judicata and collateral estoppel. After considering the

prior state court litigation in the context of each of these

doctrines, the Court rejects the County’s argument with

respect to Plaintiffs’ inverse condemnation and equal pro-

tection claims (Counts I & III). However, the Court con-

cludes the Rooker-Feldman doctrine bars Plaintiffs’

procedural due process claim (Count IV).

6 The Complaint originally asserted a claim for violations

of substantive due process rights under the Fourteenth

Amendment to the U.S. Constitution and Section 1983 (Count

V). Plaintiffs are no longer pursuing this claim. Response at 29

n.10.

App. 29

The Rooker-Feldman doctrine provides that a federal

district court may not review the final decisions of a state

court of competent jurisdiction. District of Columbia Ct. of

App. v. Feldman, 460 U.S. 462, 482 (1983); Rooker v. Fidelity

Trust Co., 263 U.S. 413, 415-416 (1923). The rule applies

“not only to claims actually raised in the state court, but

also to claims that were not raised in the state court but

are ‘inextricably intertwined’ with the state court’s judg-

ment.” Feldman, 460 at 482 n.16. The Eleventh Circuit has

recognized an exception to the rule when the plaintiff has

no “reasonable opportunity to raise his federal claim in

the state proceedings.” Powell v. Powell, 80 F.3d 464, 467

(11th Cir. 1996). Under those circumstances, the federal

claim is not considered “inextricably intertwined” with

the state court judgment. Id.

In considering Plaintiff's due process claim, the

Court notes that the Appellate Division of the Circuit

Court reviewed the County’s action pursuant to Florida

Rule of Appellate Procedure 9.030(c)(3). This rule

requires the Circuit Court to determine (1) whether pro-

cedural due process was accorded, (2) whether the essen-

tial requirements of the law have been observed, and (3)

whether the administrative findings and judgment are

supported by competent substantial evidence. City of

Deerfield Beach v. Vaillant, 419 So.2d 624 (Fla. 1982). By

affirming the County’s action, the Circuit Court neces-

sarily determined that no procedural due process viola-

tion had occurred. Under the Rooker-Feldmar. doctrine,

this Court may not re-determine whether Plaintiffs’ pro-

cedural due process rights were violated. Baggs v. City of

South Pasadena, 947 F.Supp. 1580, 1583 (M.D. Fla. 1996).

App. 30

Accordingly, the Court will dismiss Plaintiffs’ procedural

due process claim.

Plaintiffs’ remaining federal claims — equal protection

and inverse condemnation - fall within the exception to

the Rooker-Feldman doctrine, because Plaintiffs did not

have a reasonable opportunity to raise these arguments

before the Circuit Court. This Court will not have to

review the state court judgment to consider these claims.

Similarly, the doctrine of res judicata does not bar

Plaintiffs’ equal protection and inverse condemnation

claims. Res judicata precludes relitigation of claims that

were actually litigated or could have been litigated in an

earlier suit. Under Florida law, the following elements

must be present for the doctrine to apply: 1) identity of

the thing sued for, 2) identity of the cause of action, 3)

identity of parties, and 4) identity of the quality in the

person for or against whom the claim is made. Albretch v.

State, 444 So.2d 8, 11 (1984). The action before the Circuit

Court consisted of a direct appeal from the Board of

County Commissioners, where Plaintiffs challenged the

propriety of an administrative action. Since that cause of

action is different from Plaintiffs’ equal protection and

inverse condemnation claims, res judicata does not apply.

Finally, the doctrine of collateral estoppel does not

apply. Collateral estoppel applies when identical parties

wish to relitigate issues that were actually litigated as

necessary and material issues in a prior action. Carson v.

Gibson, 638 So.2d 79, 81 (Fla. 2d DCA 1994). Since none of

the issues which must be determined in the equal protec-

tion or inverse condemnation claims were actually liti-

gated in the Circuit Court, these claims are not precluded.

bai ean.

App. 31

b. Preclusive Effects of Prior Litigation on the State

Inverse Condemnation Claim

The County contends Plaintiffs’ inverse condemna-

tion claim under state law was already litigated before

the Circuit Court.? This Court disagrees. Under Florida

law, Plaintiffs are not barred from bringing an inverse

condemnation action after unsuccessfully challenging the

propriety of an administrative agency action, judicially or

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

587-88 (11th Cir. 1990); Albretch, 444 So.2d at 12-13, super-

seded by statute on other grounds as stated in, Bowen v.

Florida Dep't of Envtl. Regulation, 448 So.2d 506 (Fla. 2d

DCA 1984).

III. Ripeness Considerations

Counts I and II assert causes of action for inverse

condemnation under federal and state law, respectively.

With respect to the federal claim, Plaintiffs allege that the

County deprived them of their property interests without

just compensation, pursuant to Section 1983 and the Fifth

Amendment to the United States Constitution. The

United States Supreme Court has held, however, that a

7 The Court is aware that Plaintiffs raised the takings

claims in their Petition for Writ of Certiorari to the Third District

Court of Appeal. The County improperly relies on the Petition

and on the District Court’s denial without opinion of the

petition to argue that these issues were previously litigated. A

denial without opinion of a petition for certiorari does not

constitute an adjudication on the merits. Don Most Agency, Inc. v.

Harrison, 362 So.2d 56 (Fla. 2d DCA 1978); Bing v. A.G. Edwards

& Sons, Inc., 498 So.2d 1279, 1280 (Fla. 3d DCA 1986).

App. 32

takings claim under the Fifth Amendment does not

become ripe until a plaintiff uses available state law

procedures to obtain just compensation. Williamson

County Reg’l Planning Comm'n v. Hamilton Bank of Johnson

City, 473 U.S. 172, 194-197 (1985); see also New Port Largo,

Inc. v. Monroe County, 95 F.3d 1084, 1089 (11th Cir. 1996).

The rationale behind this holding is that the Fifth Amend-

ment does not proscribe the taking of property; rather, it

proscribes the taking of property without just compensa-

tion. Hamilton Bank, 473 U.S. at 194 (emphasis added).

Since Plaintiffs have not pursued their state inverse

condemnation claim in the Florida courts, the Court will

dismiss the federal claim (Count I) without prejudice.

IV. Dismissal under Rule 12(b)(6)

The County has moved to dismiss Plaintiff’s equal

protection claim (Count III) for failure to state a claim

under Fed. R. Civ. P. 12(b)(6). When considering the

County’s motion, the Court must construe the Complaint

in the light most favorable to the Plaintiffs and take its

allegations of material fact as true. Cannon v. Macon

County, 1 F.3d 1558, 1565 (11th Cir. 1993). The Court’s

inquiry is directed to whether the allegations in the Com-

plaint constitute a statement of a claim under Fed. R. Civ.

P. 8(a). Investors Syndicate of Am., Inc. v. City of Indian

Rocks Beach, 434 F.2d 871, 879 (5th Cir. 1970).8 To state a

claim, Rule 8(a) requires “a short and plain statement of

8 Decisions of the Fifth Circuit issued before October 1,

1981 are binding authority in the Eleventh Circuit. Bonner v. City

of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981).

App. 33

the claim showing that the pleader is entitled to relief.”

The Court should not dismiss a complaint for failure to

state a claim “ ‘unless it appears beyond doubt that the

plaintiff can prove no set of facts’ ” which would entitle it

to relief. Cannon, 1 F.3d at 1565 (quoting Conley v. Gibson,

355 U.S. 41, 45-46 (1957)).

Plaintiffs’ claim that the County deprived them of

their equal protection rights in violation of the Four-

teenth Amendment fails under Rule 12(b)(6). The Equal

Protection Clause requires that all similarly situated per-

sons be treated alike. City of Cleburne v. Cleburne Living

Ctr., 473 U.S. 432, 439-40 (1985); Baggs v. City of South

Pasadena, 947 F.Supp. 1580, 1584-85 (M.D. Fla. 1996);

Moore v. City of Edgewood, 790 F.Supp. 1561 (M.D. Fla.

1992), aff'd, 985 F.2d 578 (11th Cir. 1993). If dissimilarly

situated people are treated differently, then there is no

equal protection violation. E & T Realty v. Strickland, 830

F.2d 1107, 1111 (11th Cir. 1987). Plaintiffs contend the

County treated County-owned facilities more favorably

than it treated Plaintiffs’ facility. Complaint at TI 98-104;

q{ 114-120. However, the factual allegations in the Com-

plaint and the attachments reveal that Plaintiffs’ facility

was unique in terms of its location, mode of operation,

and the terms under which it was permitted to operate.

See e.g., Complaint at 1 7 (goal was to build a demonstra-

tion facility as a model), 21-23 (proposal submitted for an

“alternative” resource recovery facility), 32 (unusual use

zoning required), and 35 (unusual use granted subject to

conditions). Based on these allegations, it appears Plain-

tiffs’ facility and the County’s facilities are not similarly

situated. Accordingly, this Court concludes that Plaintiffs

App. 34

have failed to state an equal protection claim under Rule

12(b)(6)-

V. State Law Claims

Since the Court has dismissed the federal claims, it

must now decide whether to exercise jurisdiction over the

remaining state law claims - Counts II and VI-VIII. A

federal court may decline to exercise jurisdiction where

|

principles of judicial economy, convenience, fairness, and

comity favor proceeding in state court. Carnegie-Mellon

University v. Cohill, 484 U.S. 343, 350 (1988). In particular,

where the federal claims are dismissed before trial, the

federal district court should dismiss the state claims, as

well. Id. at 350 n.7.

Plaintiffs argue the Court may exercise jurisdiction

based on 28 U.S.C. § 1334(b) because this case relates to

their bankruptcy proceeding. However, 28 U.S.C.

§ 1334(c)(1) permits the district court to abstain from

hearing a particular proceeding “in the interest of justice

or in the interest of comity with state courts or respect for

state law.” Given that the controlling law in this action is

Florida state law, the factors in Section 1334(c)(1) weigh

in favor of abstention. Accordingly, the Court declines to

exercise jurisdiction over the state claims.

VI. Conclusion

Accordingly, for the reasons stated in this order, it is

ORDERED AND ADJUDGED as follows:

(1) Count I is DISMISSED WITHOUT PREJUDICE

as unripe;

eee

Pe eT CON ee ey

App. 35

(2) Count III is DISMISSED for failure to state a

claim;

(3) Count IV is DISMISSED under the Rooker-Feld-

man doctrine;

(4) Counts II, VI, VII and VIII are DISMISSED, as

the Court declines to exercise jurisdiction over them;

(5) This case is CLOSED. All pending motions are

DENIED AS MOOT.

DONE AND ORDERED in Chambers at Miami, Flor-

ida, this 5th day of August Sept., 1997.

/s/ Edward B. Davis

EDWARD B. DAVIS

CHIEF UNITED STATES

DISTRICT JUDGE

cc:

Robert A. Ginsburg, Esq.

Robert Krawcheck, Esq.

Leslie Lupert, Esq.

Joseph Beasley, Esq.

Chesterfield Smith, Esq.

ET STs eee,

SE NTRA GREECE See

RE PDRTIT IS oe

APPENDIX C

TATA A Sy Pay Br ey:

da PORN ERR NR ONO ARES Be RTE Tp) motte

App. 36

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 97-5654

AGRIPOST, INC., a Florida Corporation,

AGRI-DADE, LTD., a Florida Limited

Partnership,

Plaintiffs-Appellees,

versus

MIAMI-DADE COUNTY, through its

Manager and Board of County

Commissioners,

Defendant-Appellant.

On Appeal from the United States District Court

for the Southern District of Florida

(Filed Febr. 18, 2000)

BEFORE: TJOFLAT and EDMONDSON, Circuit Judges,

and KRAVITCH, Senior Circuit Judge.

PER CURIAM:

The petition(s) for rehearing filed by appellant,

Miami-Dade County, is DENIED.

ENTERED FOR THE COURT:

/s/ Tjoflat

UNITED STATES CIRCUIT JUDGE

App. 37

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 97-5654

AGRIPOST, INC., a Florida Corporation,

_ AGRI-DADE, LTD., a Florida Limited

Partnership,

Plaintiffs-Appellees,

versus

MIAMI-DADE COUNTY, through its

Manager and Board of County

Commissioners,

Defendant-Appellant.

On Appeal from the United States District Court

for the Southern District of Florida

(Filed Febr. 18, 2000)

ON PETITION(S) FOR REHEARING AND

PETITION(S) FOR REHEARING EN BANC

(Opinion , Mth Ciz., 19 _, F.2d ).

BEFORE: TJOFLAT and EDMONDSON, Circuit Judges,

and KRAVITCH, Senior Circuit Judge.

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no mem-

ber of this panel nor other Judge in regular active service

on the Court having requested that the Court be polled

on rehearing en banc (Rule 35, Federal Rules of Appellate

a Sib ISAS AR NN ORAL ARR acho Sa OAL ANAS

TP sheo iia eben

App. 38

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

Rehearing En Banc are DENIED.

ENTERED FOR THE COURT:

/s/ Tjoflat

UNITED STATES CIRCUIT JUDGE

f

® aoe

S Ot, _ 7

o a Je

ant a 7

cee te a

rey ere od one bs ie a aptly 2

APPENDIX D

ei

App. 39

CONSTITUTION OF THE UNITED STATES

ARTICLE IV.

SECTION 1. Full faith and credit shall be given in

each state to the public acts, records, and judicial pro-

ceedings of every other state. And the Congress may by

general laws prescribe the manner in which such acts.

records, and proceedings shall be proved, and the effect

thereof.

(a

) ARTICLE [V.]

No persons shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a grand jury, except in cases arising in the

land or maval forces, or in the militia, when in actual

service in time of war or public danger; nor shall any

person be subject for the same offence to be twice put in

jeopardy of life or limb; nor shail be compelled in any

criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process

of law; now shall private property be taken for public use,

without just compensation.

——_———____

ARTICLE XIV.

SECTION 1. All persons born or naturalized in the

United Staites, and subject to the jurisdiction thereof, are

citizens of the United States and of the state wherein they

App. 40

reside. No state shall make or enforce any law which

shall abridge the privileges or immunities of citizens of

the United States; nor shall any state deprive any person

of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal

protection of the laws.

Fe ee ee a eee eee

App. 41

28 U.S.C. § 1331. Federal question

The district courts shall have original jurisdiction

of all civil actions arising under the Constitution, laws, or

treaties of the United States.

(June 25, 1948, c. 646, 62 Stat. 930; July 25, 1958, Pub.L.

85-554, § 1, 72 Stat. 415; Oct. 21, 1976, Pub.L. 94-574, § 2,

90 Stat. 2721; Dec. 1, 1980, Pub.L. 96-486, § 2(a), 94 Stat.

2369.)

28 U.S.C. § 1334. Bankruptcy cases and proceedings

(b) Notwithstanding any Act of Congress that con-

fers exclusive jurisdiction on a court or courts other than

the district courts, the district courts shall have original

but not exclusive jurisdiction of all civil proceedings aris-

ing under title 11, or arising in or related to cases under

title 11.

28 U.S.C. § 1367. Supplemental jurisdiction

(a) Except as provided in subsections (b) and (c) or

as expressly provided otherwise by Federal statute, in

any civil action of which the district courts have original

jurisdiction, the district courts shall have supplemental

jurisdiction over all other claims that are so related to

claims in the action within such original jurisdiction that

they form part of the same case or controversy under

App. 42

Article III of the United States Constitution. Such supple-

mental jurisdiction shall include claims that involve the

joinder or intervention of additional parties.

> * *

(d) The period of limitations for any claim asserted

under subsection (a), and for any other claim in the same

action that is voluntarily dismissed at the same time as or

after the dismissal of the claim under subsection (a), shall

be tolled while the claim is pending and for a period of 30

days after it is dismissed unless State law provides for a

longer tolling period.

28 U.S.C. § 1738. State and Territorial statutes and

judicial proceedings; full faith and

credit

The Acts of the legislature of any State, Territory, or

Possession of the United States, or copies thereof, shall be

authenticated by affixing the seal of such State, Territory

or Possession thereto.

The records and judicial proceedings of any court of

any such State, Territory or Possession, or copies thereof,

shall be proved or admitted in other courts within the

United States and its Territories and Possessions by the

attestation of the clerk and seal of the court annexed, if a

seal exists, together with a certificate of a judge of the

court that the said attestation is in proper form.

Such Acts, records and judicial proceedings or copies

thereof, so authenticated, shall have the same full faith

App. 43

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. (June 25, 1948, c. 646, 62 Stat. 947.)

42 U.S.C. § 1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or Terri-

tory 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 Constitu-

tion and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding

for redress. For the purposes of this section, any Act of

Congress applicable exclusively to the District of Colum-

bia shall be considered to be a statute of the District of

Columbia.

App. 44

CONSTITUTION OF THE STATE OF FLORIDA

SECTION 6. Schedule to Article VIII. -

(a) This article shall replace all of Article VIII of the

Constitution of 1885, as amended, except those sections

expressly retained and made a part of this article by

reference.

+ * *

(e) CONSOLIDATION AND HOME RULE. Article

VIII, Sections 9, 10, 711 and 24, of the Constitution of

3 Note.—Section 11 of Art. VIII of the Constitution of 1885,

as amended, reads as follows:

SECTION 11. Dade County, home rule charter. - (1) The

electors of Dade County, Florida, are granted power to adopt,

revise, and amend from time to time a home rule charter of

government for Dade County, Florida, under which the Board of

County Commissioners of Dade County shall be the governing

body. This charter:

(a) Shall fix the boundaries of each county commission

district, provide a method for changing them from time to time,

and fix the number, terms and compensation of the

commissioners, and their method of election.

(b) May gr2nt full power and authority to the Board of

County Commissioners of Dade County to pass ordinances

relating to the affairs, property and government of Dade County

and provide suitable penalties for the violation thereof; to levy

and collect such taxes as may be authorized by general law and

no other taxes, and to do everything necessary to carry on a

central metropolitan government in Dade County.

(c) May change the boundaries of, merge, consolidate, and

abolish and may provide a method for changing the boundaries

of, merging, consolidating and abolishing from time to time all

municipal corporations, county or district governments, special

taxing districts, authorities, boards, or other governmental units

Bi i Dn PN YAS ilitincs cer

Sai 2 hein tg thy, eM PNA BOS AM TEE ORG Bets do SBN OO Aa Nl pe he oh BAP UA desde S

ee ee nd

App. 45

1885, as amended, shall remain in full force and effect as

to each county affected, as if this article had not been

whose jurisdiction lies wholly within Dade County, whether

such governmental units are created by the Constitution or the

Legislature or otherwise, except the Dade County Board of

County Commissioners as it may be provided for from time to

time by this home rule charter and the Board of Public

Instruction of Dade County.

(d) May provide a method by which any and all of the

functions or powers of any municipal corporation or other

governmental unit in Dade County may be transferred to the

Board of County Commissioners of Dade County.

(e) May provide a method for establishing new municipal

corporations, special taxing districts, and other governmental

units in Dade County from time to time and provide for their

government and prescribe their jurisdiction and powers.

(f) May abolish and may provide a method for abolishing

from time to time all offices provided for by Article VIII, Section

6, of the Constitution or by the Legislature, except the

Superintendent of Public Instruction and may provide for the

consolidation and transfer of the functions of such offices,

provided, however, that there shall be no power to abolish or

impair the jurisdiction of the Circuit Court or to abolish any

other court provided for by this Constitution or by general law,

or the judges or clerks thereof although such charter may create

new courts and judges and clerks thereof with jurisdiction to try

all offenses against ordinances passed by the Board of County

Commissioners of Dade County and none of the other courts

provided for by this Constitution or by general law shall have

original jurisdiction to try such offenses, although the charter

may confer appellate jurisdiction on such courts, and provided

further that if said home rule charter shall abolish any county

office or offices as authorized herein, that said charter shall

contain adequate provision for the carrying on of all functions

of said office or offices as are now or may hereafter be

prescribed by general law.

App. 46

adopted, until that county shall expressly adopt a charter

or home rule plan pursuant to this article. All provisions

(g) Shall provide a method by which each municipal

corporation in Dade County shall have the power to make,

amend or repeal its own charter. Upon adoption of this home

rule charter by the electors this method shall be exclusive and

the Legislature shall have no power to amend or repeal the

charter of any municipal corporation in Dade County.

(h) May change the name of Dade County.

(i) Shall provide a method for the recall of any

commissioner and a method for initiative and referendum,

including the initiation of and referendum on ordinances and

the amendment or revision of the home rule charter, provided,

however, that the power of the Governor and Senate relating to

the suspension and removal of officers provided for in this

Constitution shall not be impaired, but shall extend to all

officers provided for in said home rule charter.

(2) Provision shall be made for the protection of the

creditors of any governmental unit which is merged,

consolidated, or abolished or whose boundaries are changed or

functions or powers transferred.

(3) This home rule charter shall be prepared by a

Metropolitan Charter Board created by the Legislature and shall

be presented to the electors of Dade County for ratification or

rejection in the manner provided by the Legislature. Until a

home rule charter is adopted the Legislature may from time to

time create additional Charter Boards to prepare charters to be

presented to the electors of Dade County for ratification or

rejection in the manner provided by the Legislature. Such

Charter, once adopted by the electors, may be amended only by

the electors of Dade County and this charter shall provide a

method for submitting future charter revisions and

amendments to the electors of Dade County.

(4) The County Commission shall continue to receive its

pro rata share of all revenues payable by the state from

whatever source to the several counties and the state of Florida

shall pay to the Commission all revenues which would have

App. 47

of the Metropolitan Dade County Home Rule Charter,

heretofore or hereafter adopted by the electors of Dade

been paid to any municipality in Dade County which may be

abolished by or in the method provided by this home rule

charter; provided, however, the Commission shall reimburse

the comptroller of Florida for the expense incurred if any, in the -

keeping of separate records to determine the amounts of money

which would have been payable to any such municipality.

(5) Nothing in this section shall limit or restrict the power

of the Legislature to enact general laws which shall relate to

Dade County and any other one or more counties in the state of

Florida or to any municipality in Dade County and any other

one or more municipalities of the State of Florida, and the home

rule charter provided for herein shall not conflict with any

provision of this Constitution nor of any applicable general laws

now applying to Dade County and any other one or more

counties of the State of Florida except as expressly authorized in

this section nor shall any ordinance enacted in pursuance to

said home rule charter conflict with this Constitution or any

such applicable general law except as expressly authorized

herein, nor shall the charter of any municipality in Dade County

conflict with this Constitution or any such applicable general

law except as expressly authorized herein, provided however

that said charter and said ordinances enacted in pursuance

thereof may conflict with, modify or nullify any existing local,

special or general law applicable only to Dade County.

(6) Nothing in this section shall be construed to limit or

restrict the power of the Legislature to enact general laws which

shall relate to Dade County and any other one or more counties

of the state of Florida or to any municipality in Dade County

and any other one or more municipalities of the State of Florida

relating to county or municipal affairs and all such general laws

shall apply to Dade County and to all municipalities therein to

the same extent as if this section had not been adopted and such

general laws shall supersede any part or portion of the home

rule charter provided for herein in conflict therewith and shall

supersede any provision of any ordinance enacted pursuant to

App. 48

County pursuant to 3Article VIII, Section 11, of the Con-

stitution of 1885, as amended, shall be valid, and any

amendments to such charter shall be valid; provided that

said charter and in conflict therewith, and shall supersede any

provision of any charter of any municipality in Dade County in

conflict therewith.

(7) Nothing in this section shall be construed to limit or

restrict the power and jurisdiction of the Railroad and Public

Utilities Commission or of any other state agency, bureau or

commission now or hereafter provided for in this Constitution

or by general law and said state agencies, bureaus and

commissions shall have the same powers in Dade County as

shall be conferred upon them in regard to other counties.

(8) If any section, subsection, sentence, clause or

provisions of this section is held invalid as violative of the

provisions of Section 1 Article XVII of this Constitution the

remainder of this section shall not be affected by such invalidity.

(9) It is declared to be the intent of the Legislature and of

the electors of the State of Florida to provide by this section

home rule for the people of Dade County in local affairs and this

section shall be liberally construed to carry out such purpose,

and it is further declared to be the intent of the Legislature and

of the electors of the State of Florida that the provisions of this

Constitution and general laws which shall relate to Dade

County and any other one or more counties of the State of

Florida or to any municipality in Dade County and any other

one or more municipalities of the State of Florida enacted

pursuant thereto by the Legislature shall be the supreme law in

Dade County, Florida, except as expressly provided herein and

this section shall be strictly construed to maintain such

supremacy of this Constitution and of the Legislature in the

enactment of general laws pursuant to this Constitution.

History. — Added, H.J.R. 858, 1941; adopted 1942; Am. S.J.R.

1046, 1955; adopted 1956.

SF Se. ae CO ee

SS ee ee El

App. 49

the said provisions of such charter and the said amend-

ments thereto are authorized under said Article VIII,

Section 11, of the Constitution of 1885, as amended.

(f) DADE COUNTY; POWERS CONFERRED UPON

MUN'!CIPALITIES. To the extent not inconsistent with the

powers of existing municipalities or general law, the Met-

ropolitan Government of Dade County may exercise all

the powers conferred now or hereafter by general law

upon municipalities.

App. 50

MIAMI - DADE COUNTY HOME

RULE AMENDMENT AND CHARTER

SECTION 1.02. RESOLUTIONS AND ORDINANCES.

A. The Board shall adopt its own rules of procedure

and shall decide which actions of the Board shall be by

ordinance or resolution, except as otherwise provided in

this Charter and except that any action of the Board

which provides for raising revenue, appropriating funds,

or incurring indebtedness (other than refunding indebt-

edness), or which provides a penalty or establishes a rule

or regulation for the violation of which a penalty is

imposed shall be by ordinance.

STATE OF FLORIDA )

>. 7

DADE COUNTY )

I, HARVEY RUVIN, Clerk of the Circuit Court in and

for Dade County, Florida, and Ex-Officio Clerk of the

Board of County Commissioners of said County, DO

HEREBY CERTIFY that the above foregoing is a true and

correct

COPY OF SECTION 1.02 A. OF THE CODE OF METRO-

POLITAN DADE COUNTY “THE HOME RULE AMEND-

MENT AND CHARTER” as appears of record.

App. 51

IN WITNESS WHEREOF, I have hereunto set my

hand and official seal on this 03RD day of DECEMBER,

A.D. 1999.

: HARVEY RUVIN, Clerk

: - Board of County Commissioners

Dade County, Florida

| By /s/ K. Guldstrand

Deputy Clerk

[SEAL]

Board of County Commissioners

Dade County, Florida

CODE OF MIAMI-DADE COUNTY, FLORIDA

Sec. 33-314. Finality of district boundary changes and

regulation amendments.

(a) In addition to the powers set forth in sections

33-313 and 33-315, the board of county commissioners

shall have the authority and duty to directly hear and act

upon applications for the following matters:

(1) District boundary changes. The board

shall hear and grant or deny applications

for district boundary changes on individ-

ual ‘pieces of property or on a neighbor-

hood or area-wide basis.

(2) The board of county commissioners shall

review those plans submitted as part of an

application for a planned development.

The board shall decide if the proposed

development is in accordance with the

provisions for a planned development and

App. 52

said board shall diligently consider the

recommendations of the building and zon-

ing department, and planning department

or the developmental impact committee

“prior to recommending approval,

approval with modification, or denial.

Said board shall only approve an applica-

tion for a planned development when

plans and other exhibits are in compliance

with the criteria for a planned develop-

. ment and otherwise meet the criteria con-

tained in section 33-311.

(3) Where an application for district bound-

ary change also contains a request for

unusual use, new use, variance or special

exception which is incidental or related

a thereto, or where there is pending on the

same property or portion thereof more

than one application for district boundary

change, variance, special exception,

unusual or new use, the said application

or applications shall be heard in their

entirety solely by the board of county

commissioners and when possible acted

upon at the same public hearing.

(4) All zoning applications by state and

municipal entities and agencies.

(5) Applications for unusual uses or amend-

ments or modifications thereto described

in section 33-13(e) when said unusual

uses, amendments or modifications

require approval before the board of

county commissioners in connection with

a class I or class IV permit application, as

defined in section 24-58.1.

i errrieneeeieeiiaiiiieeaiil

— i at

(6)

(7)

(8)

(9)

(10)

App. 53

Applications for development approval of

developments of regional impact or mod-

ification thereof. Where an application for

development approval of a development

of regional impact also contains a request

for any action under this chapter requir-

ing a public hearing or where there is

pending on any property an application

for development approval for a develop-

ment of regional impact and an applica-

tion for any other action under this

chapter requiring a public hearing, all

such applications shall be heard in their

entirety by the board of county commis-

sioners and where practicable acted upon

at the same public hearing.

Use variances as provided for in section

33-311(e)(1).

Self-service storage facilities as provided

for in section 33-247(38).

Upon application for, hear and decide

appeals where it is alleged there is an

error in any order, requirement, decision

or determination made by the develop-

ment impact committee executive council

or its chairman in the discharge of its

duties as defined in sections 2-114.1,

2-114.2, 2-114.3, 2-114.4 and Chapters 33E,

33H, 331 and 33] of the Code. The board of

county commissioners shall also hear and

decide appeals or other matters as pro-

vided by sections 2-114.2, 2-114.3, and

2-114.4 of the Code.

Applications for developmental resolu-

tions for which the applicant or the execu-

tive council of the DIC has invoked the

App. 54

administrative remedy set forth in section

2-114.1, Code of Metropolitan Dade

County, Florida.

(b) The board, after hearing why the application

should or should not be granted, shall consider the mat-

ter in accordance with the criteria specified in this chap-

ter, and shall by resolution either grant or deny the

application. In granting any variances, special exceptions,

new uses or unusual uses, the board of county commis-

sioners may prescribe any reasonable conditions, restric-

tions and limitations it deems necessary or desirable in

order to maintain the plan of the area and compatibility

therewith. Such action of the board of county commis-

sioners shall be final; provided, no such action shall be

taken until notice of time and place of the meeting at

which the board of county commissioners will consider

and take final action on the application has been first

published as provided in section 33-310 hereof. Anything

in this article to the contrary notwithstanding, when an

application for a district boundary change or special

exception, new use, unusual use or variance is filed by

the director or planning director it will only be decided

by the county commission after receiving the recommen-

dations of the two (2) directors and after the required

noticed public hearing, and such decision shall then be

final. Notwithstanding anything in this article or the

_Code of Metropolitan Dade County to the contrary, the

board of count commissioners may reconsider its action

upon a zoning application only in accordance with sec-

tion 33-319(k) of this Code or only at the same meeting at

which the action was taken and solely for the purpose of

App. 55

avoiding a manifest injustice. Except as otherwise speci-

fied hereby, if a motion to reconsider is adopted, no

further affirmative action shall be taken until notice of

such reconsideration and the time and place of final

action is provided in accordance with section 33-310

hereof; provided, however, that such affirmative action

may be taken before the next item on the zoning agenda

is called for consideration or before a recess or adjourn-

ment is called, whichever occurs first. :

(c) In granting any application for district boundary

change to an BU or IU District the board shall condition |

the same to be subject to the director’s approval of a plot

use plan, and such plan shall include among other things

but shall not be limited to the location of buildings and

structures, types, sizes and location of signs, light stan-

dards, parking areas, exits and entrances, drainage, walls,

fences, landscaping and sprinkler systems; provided that

such approval be by the zoning appeals board, following

public hearing, where the application involves business

uses in excess of ten (10) acres or one hundred thousand

(100,000) square feet of retail floor area or one thousand

(1,000) vehicle off-street parking space capacity, or indus-

trial use in excess of fifty (50) acres of five hundred (500)

vehicle off-street parking space capacity.

(d) Recommendation of the zoning appeals board

for or against regulation amendments when received by

the board of county commissioners shall be considered

and if it is determined to amend the regulations in any

manner, such amendment shall be enacted by ordinance

as provided by law. (Ord. No. 60-14, 4-19-60; Ord. No.

61-30, § 1, 6-27-61; Ord. No. 62-48, § 1E, 12-4-62; Ord. No.

73-46, § 1, 5-1-73; Ord. No. 74-20, § 7, 4-3-74; Ord. No.

App. 56

74-40, § 5, 6-4-74; Ord. No. 74-69, § 1, 9-3-74; Ord. No.

75-47, § 6, 6-18-75; Ord. No. 75-100, § 2, 11-4-75; Ord. No.

77-55, § 1, 7-19-77; Ord. No. 83-70, § 16, 9-6-83; Ord. No.

84-70, § 1, 9-4-84; Ord. No. 87-6, § 1, 2-17-87; Ord. No.

88-112, § 2, 12-6-88; Ord. No. 89-10, § 6, 2-21-89; Ord. No.

90-26, § 3, 3-20-90; Ord. No. 90-31, § 3, 4-3-90; Ord. No.

90-36, § 1, 4-17-90; Ord. No. 90-59, § 3, 6-19-90; Ord. No.

90-76, § 4, 7-24-90)

STATE OF FLORIDA )

SS:

COUNTY OF DADE _)

I, MARSHALL ADER. Clerk of the Circuit Court in

and for Dade County, Florida, and ex-Officio Clerk of the

Board of County Commissioners of said County, DO

HEREBY CERTIFY that the above and foregoing is a true

and correct COPY OF SECTION 33-314 OF THE CODE, as

appears of record.

IN WITNESS WHEREOF. I have hereunto set my

hand and official seal on this 20 day of AUGUST, A.D.,

1992.

MARSHALL ADER, Clerk

Board of County Commissioners

Dade County, Florida

By /s/ K. Guldstrand

Deputy Clerk

[SEAL]

APPENDIX E

App. 57

NOT FINAL UNTIL TIME IN THE CIRCUIT COURT

EXPIRES TO FILE ‘ OF THE ELEVENTH

REHEARSING [sic] JUDICIAL CIRCUIT IN

MOTION AND, IF FILED, AND FOR DADE

DISPOSED OF. COUNTY, FLORIDA

AGRI-DADE, LTD., APPELLATE DIVISION

Appellant, © CASE NO. 91-214-AP

VS. (Filed June 5, 1992)

METROPOLITAN DADE

COUNTY, by and through

BOARD OF COUNTY

COMMISSIONERS,

Appellee.

/

Opinion filed JUNE 05, 1992.

Appeal from the Board of County Commissioners,

Dade County, Florida.

Parker D. Thomson, Carol A. Licko, and Thomson

Muraro & Razook, P.A., and Susan H. Aprill and Bohrer

& Aprill, P.A., Attorneys

for Appellant, Agri-Dade, Ltd.

Robert A. Ginsburg, Dade County Attorney, and

Robert L. Krawkcheck, Asst. County Attorney, Attorneys

for Appellee, Metropolitan Dade County.

Sanford A. Freedman, Attorney for Intervenors, Fre-

dericka Wilson, et al.

Before ROBINSON, RAMIREZ and SHAPIRO, JJ.

ROBINSON, J

App. 58

A conditional unusual use permit was issued Agri-

Dade, Ltd. in 1987 (Resolution 2-63-87) to construct and

operate a plant to compost the County’s solid waste. On

May 23, 1991, the Board of County Commissioners sus-

tained a decision of the Dade County Zoning Appeals

Board revoking that resolution because of violations of

these conditions in that resolution.

This case challenges the legal validity of that decision

by the Dade County Commission, deciding between the

comfort, perhaps health, of 800 school children and the

need to environmentally recycle difficult to dispose of

garbage into healthful crop fertilizer. As a result, this

Court is asked to affirm a decision which could create up

to an asserted $30,000,000 loss for Agri-Dade.

The County’s decision must be affirmed because

when restating the above situation in legal terms, Agri-

Dade is found by the substantial competent evidence test

not to have complied with the conditions of the resolu-

tion, therefore justifying the County’s revocation. Small-

eylogics Corporation v. Dade County, 176 So.2d 574 (Fla. 3d

DCA 1965). In particular, where there was a requirement

not to create obnoxious odors, and where those odors

continued for an unreasonable length of time, and when

the President of Agri-Dade, who presented a plan to

remove the odor, said it would take months and a sub-

stantial monetary expenditure to retrofit the plant, the

Commission was justified in relying on the testimony of

the complaining neighbors and on the expert opinion

within the record which verified the non-compliance with

conditions.

App. 59

As a last issue meriting comment, Agri-Dade asserts

that the County Commission was estopped to revoke its

conditional unusual use permit. However, Agri-Dade was

always on notice that its permit was conditional on meet-

‘ing certain requirements. Revocation for failing to meet

conditions does not invoke estoppel. See Jefferson National

Bank at Sunny Isles v. Metropolitan Dade County, 271 So.2d

207 (Fla. 3d DCA 1972).

Affirmed.

Ramirez and Shapiro, JJ. concur.

App. 60

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

THIRD DISTRICT

JULY TERM, A.D. 1992 -

SEPTEMBER 21, 1992

AGRI-DADE, LTD., ** CASE NO. 92-01525

Petitioner(s), **

VS. ** LOWER

METROPOLITAN DADE ** [RIBUNAL NO. 91-214AP

CAs. oe. re -

=

Respondent(s). 4,

Following review of this petition for writ of cer-

tiorari, together with the response, it is ordered that said

petition is hereby denied. Schwartz, C.J., Ferguson and

Cope, JJ., concur.

A True Copy

ATTEST:

LOUIS J. SPALLONE

Clerk District Court of

Appeal, Third District

By: /s/ Ilegible

Deputy Clerk

cc: Parker D. Thomson Robert A. Ginsburg

Robert Lowell Krawcheck Sanford Freedman

Hon. Steven D. Robinson

/DM