Opposition Brief — Yardarm Restaurant, Inc. v. City of Pompano Beach

No. 03-531

IN THE

Supreme Court of the United States

YARDARM RESTAURANT, INC.,

Petitioner,

v,

THE CITY OF POMPANO BEACH,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE

District Court OF APPEAL OF FLORIDA,

FourtTH DISTRICT

BRIEF IN OPPOSITION

~ Henry LATIMER

Counsel of Record

CARAN ROTHCHILD

JEROLD I. BUDNEY

GREENBERG TRAURIG, P.A.

401 East Las Olas Boulevard

Suite 2000

Fort Lauderdale, FL 33301

(954) 765-0500

Counsel for Respondent

184603 cr

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

TABLE OF CONTENTS

‘Tere Of Cited Amthorities ... .. occ cece ve vveses ill

er l

ee es 6 Se ys

Reasons for Denying the Petition ..-............ 4

I. Yardarm II Does Not Conflict With Federal

~ Takings Law Because, /nter Alia, The Fourth

District’s Decision That Petitioner’s Takings

Claim Was Barred As Res Judicata Was

Based On Fiorida LOW. ... 6 ccc ceccssoves 5

II. There Is No Decisional Conflict Between

Yardarm II And Any Applicable Federal Case

Cited By Petitioner Regarding Whether

Petitioner’s State Created Rights Were

Entitled To Substantive Due Process

PUR cia s Goa scacuwekar eee esos 11

Ill. There Is No Decisional Conflict Between

Yardarm II And Any Substantive Due Process

Case Cited By Petitioner Analyzing The

Executive vs. Legislative Distinction.

Yardarm II Properly Held That Petitioner Has

No Substantive Due Process Claim With

Respect To Its Building Permits Because,

Inter Alia, The Acts Complained Of Were

“Executive” Not “Legislative.” .......... 20

Il

Contents

Page

IV. There Is No Decisional Conflict Regarding

Procedural Due Process Presented By

Yardarm ff. ......~+00d800 ee 23

V. The Petition Presents No Intolerable Conflict

Among The Nation’s Lower Courts, No

Confusion Or Error So Important That It Must

Be Corrected Immediately, And No Need For

The Court To Expand The Substantive

Component Of Due Process. ............. 26

Conclusion ......+se0+ see a 29

il

TABLE OF CITED AUTHORITIES

Page

CASES

Adams v. Robertson,

ae ce 10

Agins v. City of Tiburon,

ol | a 5, 6, 8, 11

Albery v. Reddig,

Pam wae 290 (Fee Cir, 1963) . www cscs ccueesss 27

Albright v. Oliver,

ED ons cc tvs cedure sessvens 13

Bankers Life and Casualty Co. v. Crenshaw,

ek Sa re 10

Biser v. Town of Bel Air,

Dee Bee Pe CA UE, 1993) ow es causcens 15

Board of Regents v. Roth,

ETE oy ob obs vecun des sveds 14, 17-18

Boatman v. Town of Oakland,

CB rr 24

Bohen v. City of East Chicago,

Toe eee thee CPP, 1986). wn cc cccesceas 22

lv

Cited Authorities

Page

Boston Envtl. Sanitation Inspectors

Ass[’]n v. City of Boston,

(ogy Gree: le A |) errr er 17

Bowers v. Hardwick,

Ie Ue TEED 6s bbe en cenenseaneeeeences 17

Brown v. Brienen,

. 722 F.2d 360 (7th Cir. 1983) rrr 14

Bryan v. City of Madison,

2135 F.36 267 (50 Civ, 2O0B) no cc cee cwccvces 19

Burrell v. City of Kankakee,

Jee we Siveee, 1% A. 4) eer eee een 15

Carolan v. City of Kansas City, Mo,

ke Bes Le Ae) eee 15

Charles v. Baesler,

910 F.2d 1349 (6th Cir. 1990) ............... 17

Chesterfield Dev. Corp. v. City of Chesterfield,

936 F.2d 1102 (8th Cir. 1992) .......0csceess 19

Chiplin Enterprises, Inc. v. City of Lebanon,

eye & By Te oe lf) re 15

Cited Authorities

Page

Chongris v. Board of Appeals of

Town of Andover,

811 F.2d 36 (1st Cir. 1987) cert. denied,

GBs Sie SCPE GeEe 6 dk ccc ss aaewie ese 27

Chudasama v. Mazda Motor Corp.,

E23 F.O0- 2953 (00 Oe. WSR) ac cccavseess 4

City of Cuyahoga Falls, Ohio v. Buckeye

Community Hope Foundation,

538 U.S. 188, 123 S. Ct. 1389 (2003) ......... 13

City of Pompano Beach vy.

Yardarm Restaurant, Inc.,

834 So.2d 861 (Fla. Dist. Ct. App. 2002) ..... passim

City of Pompano Beach v.

Yardarm Restaurant, Inc.,

641 So.2d 1377 (Fla. Dist. Ct. App. 1994) .... passim

City of St. Louis v. Praprotnik,

E> UD. LECTIG 6 vauccusuensoapaueeee 22

Coleman v. Thompson,

TOE Lian ae CRED vase inca vdennxboeeeee 9

| Collins & Co., Inc. v. City of Jacksonville,

38 F. Supp. 2d 1338 (M.D. Fla. 1998) ......... 21

<_<

vi

Cited Authorities

Colony Square So. v. Prudential Ins. Co.,

819 F.2d 272 (11th Cir. 1987), cert. denied,

ASS U.S. S77 CISGS) occ cccasxcnceessenbees 3-4

Construction Ind. Ass’n Sonoma Cty. v.

City of Petaluma,

522 F.2d 897 (9th Cir. 1975), cert. denied,

44 U.S. SROCIFI vo 0oendsrsutaveerenea 27

Creative Environments, Inc. v. Estabrook,

680 F.2d 822 (1st Cir.), cert. denied, 459 U.S. 989

(4 Perr eras eee ras 15, 26-27

Crocker v. Hakes,

G16 F.26: 257 (HOM. TFG nds ieee eicreeees 25, 28

Crown Point I, LLC v. Intermountain

Rural Elec. Assn.,

319 F346 1211 €2Geh Cor, 2008) csc ccccvscses 19

Crymes v. Dekalb County, Georgia,

9235 F.24 1462 (1 ith Cis, 1991)... cc ccecvccccs 21

Daugherty v. Sarasota County,

157 F.R.D. 542 (M.D. Fla. 1994) ............. 8

DeCarlo v. Fry,

Coe e oh be Brewer a 22

Durley v. Mayo,

CPE ROR eget: | Bepreeere wer ye res 10

Vil

Cited Authorities

Page

FMC Corp. v. Varco Int’l, Inc.,

677 F.2d 500 (Sth Cir. 1982) ................ 4

Gamble v. Eau Claire County,

5 F.3d 285 (7th Cir. 1993), cert. denied, 510 U.S.

oe ee rer remy rr rere 8

Gardner v. City of Baltimore Mayor

and City Council,

Fae Fae GS CHC. FGGE) nw i ccescuccvcsecs 15, 26

Griswold v. Connecticut, nes

Pe Bh OT EE 1b 6-0 k0 400s k batho eneeee ia

Harbours Pointe of Nashotah v. Village of Nashotah,

aie eae FOR CHURCH. BOGE) oscccncwvenceses 9

Harman v. Forssenius,

; FOU U.S. SEB (IFES) occ ecvsccconseevncses 22

Hicks v. Feiock,

a erry eee eae: 10

Hughes v. Washington,

eg ee re ree 22

Keystone Bituminous Coal Ass’n v. DeBenedictis,

4O0 U.S. 470 CISC T) .. 5 were ccc wanesccens 10

Littlefield v. City of Afton,

Fee Fae o7e Come Ce. TTBS) oo ca ckccivitwces 19

vill

Cited Authorities

Page

Lynch v. People of New York,

Be Ri SENOS ce cnc nen csenesesnceneass 9

McKinney v. Pate,

20 F.3d 1550 (11" Cir. 1994), cert. denied,

je goe Mt) iis ee ee ee 11, 17,21, 22

Michigan vy. Long,

Ee Sie DOR EUMOED 0.65 e hot neceexcessacces 7

Midnight Sessions, Ltd. v. Philadelphia,

945 F.2d 667 (3d Cir. 1991) ........ ceecsneee 25

Migra v. Warren City School Dist.

Board of Educ.,

oo ee re errr rr Te 7

Monell v. Department of Secial Services

of the City of New York,

oe gt re er ree 22

Moore v. East Cleveland,

Pe Sr NOT 6 os 0066 Can Scedeuesvebas 14,17

Natale v. Town of Ridgefield,

EPO Fite 20m COOSA NFOFD ook scescccsevene's 18

Nicholas v. Pennsylvania State Univ.,

yeep me Bagh! os | | ere Tre passim

ix

Cited Authorities

Page

North Florida Educ. Dev. Corp. v. Woodham,

942 F. Supp. 542 (N.D. Fla. 1996), appeal at

E20 Fie POP CAN Ge LOMO fen vee nksieceswnes 21

Oklahoma City v. Tuttle,

Tie Wh ON EEOMOD vac cbdevenwanasasseheus 22

Pace Resources, Inc. v. Shrewsbury Township,

808 F.2d 1023 (3d Cir.), cert. denied, 482 U.S.

ok i of PRE EE TT CTE TE Oe OEE 15

Palazzolo v. Rhode Island,

eee Pee eee 6

Palko v. Connecticut,

Se SE OEE. Cos paeu ak sy bee be aeaen 16, 17

Pascoag Reservoir & Dam, LLC v. Rhode Island,

cope Pele fe ee ae

PFZ Properties, Inc. v. Rodriguez,

Paw ©. oe ClO CW, TSPE) 0.0 oc ce sescsuceaees 15, 28

Poe v. Ullman,

Per a Pe OES A cas ohauee scednde bens 14

Raskiewicz v. Town of Boston,

754 F.2d 38 (1st Cir. 1985), cert. denied, 474 U.S.

ih | EEE TERETE PETC T EC eeTe Te 27

x

Cited Authorities

Page

Regents of Univ. of Mich. v. Ewing,

474 U.S. 214 (1985) .....-- eee eee eee eee 13, 14, 16

Reserve Ltd. v. Town of Longboat Key,

933 F. Supp. 1040 (M.D. Fla. 1996) .......... “16

Rhyce v. Martin,

173 F. Supp. 2d 521 (E.D. La. 2001) (aware nes 17

Roberts v. Moss,

coe bo ee le Be. errr 4

Roe v. Wade,

See CEP TED ek cab EADS eee ease eeesers 14

Sauer v. New York,

ee is ETD 6 neds o.odvecesbensuaveds 18

Schaper v. City of Huntsville,

BOP Wee FO CHU CPEFD ic pecccccwceseves 17

Scott v. Greenville County,

716 F.2d 1409 (4th Cir. 1983) ............... 22

Scudder v. Town of Greendale,

TOR F.26 Fre CF CH. BFGS) wc cccccccsvccess 15

South Gwinnett Venture v. Pruitt,

491 F.2d 5 (Sth Cir.), cert. denied, 419 U.S. 837

gg FOPPTOC TET Peer e ee rere Terror TT. 15

xi

Cited Authorities

Sutton v. Cleveland Bd. of Educ.,

958 F.2d 1339 (6th Cir. 1992) ...........

Sylvia Dev. Corp.,

48 F.3d 810 (4th Cir. 1995) .............

Tri-County Paving, Inc. v. Ashe County,

281 F.3d 430 (4th Cir. 2002) ............

TRM, Inc. v. United States,

32 £56 D4) (Lite Cir, 1995)... cic cvcee

United Artists Threatre Circuit, Inc. v.

Township of Warrington, PA,

316 F.36 392 (3* Cir, 2003) 2. ceccvcsees

United States ex rel. T.V.A. v. Powelson,

i Peer ere ere ores

’

United States v. El Paso Natural Gas Co.,

Fe eee ee COE hos chav deedarscers

Vandor, Inc. v. Militello,

301 F.3d 37 (2d Cir. 2002) ....cccccccees

Village of Belle Terre v. Boraas,

416 U.S. 1(1974) oo... ccc eee eeceeeees

Washington v. Glucksberg,

521 U.S. 702 (1997) .........eecceeeees

Page

17

15

18

20

25

18

Xi

Cited Authorities

Page

Weinberg v. Whatcom County,

2O1 E36 FAG CO CE. BOGE) «oc cc ve bocce cute 19

Williams v. Goldsmith,

905 F. Supp. 996 (M.D. Ala. 1995) ........... 21

Wohl v. City of Hollywood,

915 F. Supp. 339 (S.D. Fla. 1995) ............ 21

Yale Auto Parts, Inc. v. Johnson,

Fare Pe OP GG COED 6 ox vc kek betewenes 26

Yardarm Restaurant, Inc. v.

City of Pompano Beach,

eRe | re er a

Yardarm Restaurant, Inc. v.

City of Pompano Beach,

Sig © Bice: S . | eeepc = 2

U.S. CONSTITUTIONS

See es NE, © inva ncs dwennctebestesaees 2

ft fF Ee PT eee ee re 2

STATUTE

UBS. BION ...5 6d ss csccssscccs 2, 5, 20, 22, 24

1

The Respondent, the City of Pompano Beach

(the “City”), respectfully requests this Court to deny the

Petition for Writ of Certiorari. The Fourth District Court of -

Appeal’s decision did not create any conflict, let alone an

intolerable conflict among the nation’s lower courts. Nor did

the Fourth District Court of Appeal commit any error so

important that it must be corrected immediately.

OPINIONS BELOW

The opinion of the Fourth District Court of Appeal

(“Fourth District”), entered on October 9, 2002 and attached

as Appendix 1 through 19 to the Petition, is reported as City

of Pompano Beach v. Yardarm Restaurant, Inc., 834 So. 2d

861 (Fla. Dist. Ct. App. 2002) (“Yardarm II’). Petitioner’s

Motion for Rehearing, Rehearing En Banc, and to Certify

Questions of Great Public Importance were denied on

February 4, 2003 by Order of the Fourth District, which is

attached as Appendix 20 through 21 to the Petition.

Petitioner’s Petition for Discretionary Review of Yardarm I]

by the Supreme Court of Florida was denied on July 16, 2003,

which order is attached as Appendix 120 through 121 to the

Petition.

An earlier opinion of the Fourth District in favor of the

City entered on September 9, 1994 and attached as Appendix

22 through 47 to the Petition, is reported as City of Pompano

Beach v. Yardarm Restaurant, Inc., 641 So. 2d 1377 (Fla.

Dist. Ct. App. 1994) (“Yardarm I’’). Petitioner’s Petition for

Discretionary Review of Yardarm I by the Supreme Court of

Florida was denied. Yardarm Restaurant, Inc. v. City of

Pompano Beach, 651 So. 2d 1197 (Fla. 1995). This Court

also denied Petitioner’s Petition for Writ of Certiorari of

Yardarm I. See Yardarm Restaurant, Inc. v. City of Pompano

Beach, 515 U.S. 1144 (1995).

2

STATEMENT OF THE CASE!

In 1987, Petitioner filed a two count Complaint alleging

that the City had taken its property, in violation of the Fifth and

Fourteenth Amendments to the United States Constitution and

the Florida Constitution, and 42 U.S.C. § 1983. (App. at p. 31).

Both counts alleged that, starting in 1973, the City took

Petitioner’s property by engaging in obstructionist tactics of

Petitioner’s proposed hotel projects with respect to issuance and

revocation of building permits. (App. at p. 31). ~

In 1990, the trial court granted partial summary judgment

in favor of the City on Yardarm’s federal takings claims, agreeing

that Yardarm could not pursue its federal takings claims until it

had exhausted its state law takings claim. (App. at p. 31 n.6).

Trial on Petitioner’s state law takings claim occurred in

1991 (the “1991 Trial’). (App. at p. 31). The City defended

Petitioner’s claims by introducing evidence that Petitioner had

a building permit in place from 1977 to 1979, and from July,

1981 to May, 1985, Petitioner’s inability to obtain financing

1. In accordance with its obligation to the Court to point out any

perceived misstatement made in the Petition, Sup. Cr. R. 15(2), the City

hereby disputes Petitioner’s purported “facts” in its “Jurisdiction” and

“Statement of the Case” sections, and throughout the Petition, because

such “facts” are not borne out by the Record below or the Fourth District’s

decisions. (App. at pp. 1-19, and 22-47). In addition to presenting “facts”

that are unsupported by, and in most instances directly contrary to, the

Record, Petitioner erroneously represents that the factual “findings

[of the trial court] were not reversed by the [Fourth District,]” (Pet. at

p. 3 n.2), when in actuality both judgments (App. at pp. 48-95, and 96-

115) were reversed in their entirety. (App. at pp. 1-19, and 22-47).

In both Yardarm I and Yardarm II, the Fourth District, in reversing the

trial court, provided the operative facts. (App. at pp. 1-19, and 22-47).

The facts of this case, as stated by the Fourth District in Yardarm I and

Yardarm II, do not present the issues or questions raised by Petitioner

in its Petition.

3

was due to causes unrelated to the City’s earlier alleged actions

(in 1973-74), and Petitioner ultimately lost its property in 1986

not because of the City, but because it had mortgaged its East

Side property to buy the West Side property. (App. at pp. 31-

32).

The trial court in the 1991 Trial found that the City had

effected a permanent taking. (App. at pp. 2 and 32). However,

in 1994, the Fourth District reversed, holding in Yardarm I that:

(1) the facts did not support a taking claim because Petitioner

had not been deprived of substantially all use of its property;

(2) the trial court’s findings suggesting that harassment had

continued after 1981 were unsupported by the record; and

(3) the statute of limitations had run on any taking claim because

there was no record evidence that would support a finding

that there was a taking by the City after September 15, 1983.

(App. at pp. 2, 9, and 47).

Afterward, Petitioner sought review from the Florida

Supreme Court and this Court, which requests were denied.

651 So. 2d 1197 (Fla. 1995); 515 U.S. 1144 (1995). The case

was then remanded for reconsideration of the summary

disposition of the purported substantive due process claim,

however, the Fourth District expressly declined to rule on the

merits of any such claim. (App. at pp. 2, and 46-47).

Thereafter, the trial court reinstated Petitioner’s Complaint

as a “substantive due process claim,” and the case proceeded to

a bifurcated trial on liability (the “1998 Trial”). (App. at pp. 2,

and 10 n.3). In February 1999, the trial court entered Petitioner’s

proposed Judgment Determining Liability? (the “1999

2. The trial judge merely signed his name to the 36 page

document created by Petitioner. “The cases admonishing trial courts

for the verbatim adoption of proposed orders drafted by litigants are

legion.” Colony Square So. v. Prudential Ins. Co., 819 F.2d 272,

(Cont'd)

4

Judgment”), and the City appealed. (App. at pp. 1-3).

The resulting decision by the Fourth District, (App. at pp. 1-

19), reversed the 1999 Judgment in its entirety. (App. at p. 19).

REASONS FOR DENYING THE PETITION

Petitioner essentially advances five (5) grounds upon

which it suggests that this Court should grant certiorari

review: (i) that Yardarm II conflicts with federal takings law;

(ii) that Yardarm II conflicts with federal substantive due

process law with respect to whether aplaintiff has substantive

due process protection over state created rights; (iii) that

Yardarm IT conflicts with federal substantive due process law

with respect to the concept of executive vs. legislative acts;

(iv) that Yardarm II conflicts with federal procedural due

process law; and (v) there is a need to expand the substantive

component of due process to create a federal cause of action

for developers whose property has not been taken and who

have not been deprived of any funcamental right. None of

the grounds support a case for review. The Fourth District

decision did not create any conflict, let alone an intolerable

conflict among the nation’s lower courts. Nor did the Fourth

District commit any error so important that it must be

corrected immediately, and there is no need for this Court to

create a federal cause of action for developers whose property

has not been taken and who have not been deprived of any

fundamental right.

(Cont'd)

274-75, 276 n.9 (11th Cir. 1987), cert. denied, 485 U.S. 977 (1988);

see also Roberts v. Moss, 344 F.2d 747. 752 (3d Cir. 1965); FMC

Corp. v. Varco Int’l, Inc., 677 F.2d 50(, 502 n.2 (Sth Cir. 1982);

Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1373 n.46

(11th Cir. 1997); United States v. El Pasc Natural Gas Co., 376 U.S.

651, 657 n.4 (1964).

5

I. YARDARM II DOES NOT CONFLICT WITH

FEDERAL TAKINGS LAW BECAUSE, INTER

ALIA, THE FOURTH DISTRICT’S DECISION

THAT PETITIONER’S TAKINGS CLAIM WAS

BARRED AS RES JUDICATA WAS BASED ON

FLORIDA LAW.

Petitioner first seeks review of the holding in Yardarm

IT that its federal takings claim was barred as res judicata

under state law. The sole asserted conflict is with a decision

of this Court which was not addressed in Yardarm II or by

the trial court, and is predicated on a federal takings claim

which was not even tried below.’ Petitioner inaccurately

portrays Yardarm II as having rejected this Court’s Agins

v. City of Tiburon decision, 447 U.S. 255 (1980), and as

conflicting with this Court’s subsequent “takings” cases.

In fact, Yardarm II makes no reference at all either to Agins

or to the federal takings issues raised by Petitioner in its

Petition, and disposes of the federal takings claim solely on

the independent state law ground that it was barred as

res judicata under Florida law. Regardless of whether it is

viewed as an issue of jurisdiction or of prudence, this Court

should not address the complex takings issues raised by

3. The trial court’s 1999 Judgment expressly recognized that

the “legal principles [upon which] this case was tried” were only

alleged violations of due process under 42 U.S.C. § 1983, and not

federal takings claims, although the trial court also blanketly adopted

in the 1999 Judgment Petitioner’s proposed footnote that stated that

he nonetheless “believes that the facts presented support a takings

claim.” (App. at p. 70). The only reference to a takings claim in the

1999 Judgment is in that cursory footnote, and nowhere is there any

reference to Agins or any other federal takings issues. Moreover,

Yardarm I had limited the scope of its remand to consideration by

the trial court of Petitioner’s federal “due process” claim, not its

federai “takings” claim. (App. at pp. 46-47).

6

Petitioner here where those issues were not tried below, and

instead were disposed of on an independent state law basis.

It is instructive that Petitioner does not cite to the

Yardarm I] decision it asks this Court to review in contending

that the Fourth District “refus[ed] to apply” and “criticized”

Agins, but instead only cites to the ten-year old Yardarm I

opinion (Pet. at p. 27), which did neither.* First, Yardarm I

did not reject Agins or even suggest that Florida takings law

differed from the federal takings precedent it sought to follow.

To the contrary, Yardarm I only recognized that back in 1994

confusion had arisen regarding some aspects of regulatory

“takings” law,° but ultimately adjudicated Petitioner’s takings

claim based on an alternative independent state law basis.

(App. at pp. 2, and 43-47).

Yardarm I did not reverse the 1991 Judgment solely

because Petitioner had not shown it was denied economically

viable use of its land. Instead, as was later recognized in

Yardarm II (App. at p. 2), the Fourth District in Yardarm I

had based its 1994 decision on an independent state law

ground — Petitioner’s takings claim was barred by the

applicable four year statute of limitations under state law.

(App. at pp. 2, and 43-47). Yardarm I held that even if there

had been a taking of Petitioner’s property as Petitioner

contended, then the record demonstrated that any such taking

4. Similarly, Petitioner cites only to the 1991 Judgment

(App. at pp. 96-115) which was reversed in Yardarm I, (App. at

pp. 22-47), rather than the 1999 Judgment, (App. at pp. 48-95), which

is the subject of Yardarm II, (App. at pp. 22-47), in asserting that the

trial court had found the City’s actions were political and without

relation to proper police power objectives. (Pet. at pp. 9-10).

5. In Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001), this

Court recognized that it had given “some, but not too specific

guidance to courts” regarding regulatory takings.

7

had occurred more than four years before the commencement

of the lawsuit in 1987, and was time-barred under Florida

law. Id.

Importantly, Yardarm II did not decide the federal

question of whether or not a takings claim can be predicated

solely by proving that the denial of a building permit failed

to substantially advance legitimate state interests. In a plain

statement of the adequate and independent state law grounds

for its decision,’ Yardarm II only applied Florida state law

governing claim and issue preclusion in finding that its earlier

decision in Yardarm I operated as res judicata with respect

to any takings claim which may be encompassed by the 1999

Judgment: Yardarm I “in addition to being the law of the

case with respect to the state law takings claim, was

issue preclusion, or res judicata, on [Petitioner]’s federal

takings claim.” (App. at p. 9). In turn, Yardarm Ihad decided

the takings issue on an independent state law ground that the

takings claim was barred by the four-year statute of

limitations. (App. at pp. 2, and 43-47).

6. The City disputes Petitioner’s characterizations of the scope

of Agins and its progeny, and of the purported “two-prong takings

test.” The City also disputes Petitioner’s assertion that the City’s

actions were motivated by a desire to provide unobstructed harbor

views, and failed to substantially advance legitimate state interests.

However, for the reasons set forth herein, review should be denied

without regard to these disputes.

7. Michigan v. Long, 463 U.S. 1032, 1037-44 (1983).

8. Federal claims asserted in federal court are also subject to

the same preclusive res judicata effect of a prior state court judgment

as would be given to that judgment under the law of the state in

which that judgment was rendered. Migra v. Warren City School Dist.

Board of Educ., 465 U.S. 75, 81 (1984).

8

Yardarm II only held that Yardarm I operated under

Florida’s res judicata principles to bar Petitioner’s federal

takings claim, and did not seek to interpret Agins or this

Court’s federal takings precedent. Because both federal and

Florida takings claims are subject to a four-year statute of

limitations,’ and Petitioner had not contended that the

purported “takings” underlying its federal takings claim

differed from the purported “takings” which had been at issue

in Yardarm I,'° the time-bar of Petitioner’s state law takings

claim adjudicated in Yardarm IJ operated as res judicata with

respect to Petitioner’s federal takings claim.

Although Petitioner’s federal takings claim did not

become ripe until after its state takings claim had been

rejected in Yardarm I, the time-barring of the property

owner’s state takings claim results in a forfeiture of that

property owner’s federal takings claim because a property

owner cannot extend the limitations period on federal takings

claims by delaying to file a state takings claim until after the

limitations period has expired:

[T]he cases hold that the federal claim is unripe

until state remedies are exhausted. But a claimant

cannot be permitted to let the time for seeking a

state remedy pass without doing anything to obtain

it and then proceed in federal court on the basis

that no state remedies are open.

Gamble v. Eau Claire County, 5 F.3d 285, 286 (7th Cir. 1993),

cert. denied, 510 U.S. 1129 (1994); accord Pascoag

9. Daugherty v. Sarasota County, 157 F.R.D. 542, 547 (M.D.

Fla. 1994).

10. The 1999 Judgment acknowledged that “this case was tried”

under the due process principles raised in Count II, rather than the

“takings” claim which had been raised in Count I. (App. at p. 70).

9

Reservoir & Dam, LLC v. Rhode Island, 337 F.3d 87, 94-95

(1st Cir. 2003), petition for cert. filed, 72 U.S.L.W. 3292

(Oct. 17, 2003); Vandor, Inc. v. Militello, 301 F.3d 37, 38

(2d Cir. 2002); Harbours Pointe of Nashotah v. Village of

Nashotah, 278 F.3d 701, 706 (7th Cir. 2002) (property owner

“failed to pursue its state remedies in a timely fashion and

has forfeited its right to assert a claim for just compensation

under either Wisconsin or federal law’’).

This Court has repeatedly emphasized that in accepting

jurisdiction to review a state court decision:

it must appear affirmatively from the record, not

only that a federal question was presented for

decision to the highest court of the state having

jurisdiction, but that its decision of the federal

question was necessary to the determination of

the cause, and that it was actually decided or that

the judgment as rendered could not have been

given without deciding it.

Lynch v. People of New York, 293 U.S. 52, 54 (1934).

Accordingly, this Court

will not review a question of federal law decided

by a state court if the decision of that court

rests on a state law ground that is independent of

the federal question and adequate to support the

judgment.... [RJesolution of any independent

federal ground for the decision could not affect

the judgment and would therefore be advisory.

Coleman v. Thompson, 501 U.S. 722, 729 (1991).

Specifically, where a state appellate court relies upon

the state law of res judicata to deny a federal constitutional

claim, in lieu of addressing the merits of the federal claim,

10

then “the Court will not undertake to review it.” Durley v.

Mayo, 351 U.S. 277, 281 (1956).

Here, Yardarm II relied upon the independent state law

of res judicata in denying Petitioner’s federal takings claim,

and the predicate for that application of res judicata was the

Yardarm I decision which itself relied upon an independent

state law statute of limitations defense in disposing of

that takings claim.'' Accordingly, Yardarm II decided an

independent state law question —- rather than the federal

question posed by Petitioner in its Petition — in denying

Petitioner relief with respect to its federal takings claim. Even

if the Court had jurisdiction to review Yardarm II based on

the federal takings question posed by Petitioner, it would

not be prudent for this Court to do so on this record where

the state appellate court decision under review cites only to

an independent state law ground for its decision, and the

federal takings claim was not even tried be ow. See Adams v.

Robertson, 520 U.S. 83, 90 (1997): sankers Life and

Casualty Co. v. Crenshaw, 486 U.S. 71, 79-80 (1988)

(regardless of whether certain federal questions were

sufficiently “pressed or passed upon below” in state court to

satisfy the prerequisites to this Court’s certiorari jurisdiction,

it was not prudent to review those complex questions based

on such a record).

11. This Court has declared it will not overturn purported errors

in the adjudication of state law by an intermediate state appellate

court where, as here, the state supreme court has denied review

of that decision. Hicks v. Feiock, 485 U.S. 624, 629-30 (1988).

This Court also has expressed its reluctance to review the propriety

of such adjudications of state law issues in the context of federal

takings claims: “We are not disposed to displace the considered

judgment of the Court of Appeals on an issue whose resolution is so

contingent upon an analysis of state law.” Keystone Bituminous Coal

Ass'n v. DeBenedictis, 480 U.S. 470, 486 n.15 (1987).

11

In any event, even if Yardarm J had not been predicated

upon an independent state statute of limitations defense,

Yardarm II cannot be used to obtain belated review of

Yardarm I’s dictum regarding Agins and “takings” law.

Yardarm is seeking indirectly what it could not get directly

— this Court’s review of the previous Fourth District opinion

in Yardarm I. Nine years ago, Yardarm sought review from

this Court of Yardarm I, but its certiorari petition was denied.

515 U.S. 1144 (1995). Yardarm is attempting to get a second

bite at the apple, and effectively asking the current Court to

second-guess the denial of certiorari review back in 1995.

It should not be permitted to do so, and the Petition should

be denied.

fl. THERE IS NO DECISIONAL CONFLICT

BETWEEN YARDARM II AND ANY APPLICABLE

FEDERAL CASE CITED BY PETITIONER

REGARDING WHETHER PETITIONER’S STATE

CREATED RIGHTS WERE ENTITLED TO

SUBSTANTIVE DUE PROCESS PROTECTION.

The Fourth District in Yardarm II properly, and consistent

with this nation’s substantive due process law, concluded that

Petitioner had no substantive due process rights in its building

permits because, inter alia, building permits are state created

rights, not fundamental rights guaranteed by the Constitution,

and the acts complained of, i.e., the revocation and lapsing

of Petitioner’s building permits, were “executive” not

“legislative.” (App. at pp. 16-19).!?

12. Specifically, the Fourth District held in pertinent part that:

Yardarm may not recover for damages under its federal substantive

due process claim that the City denied or delayed its building permits

for improper reasons[,] [because] [a]pplying McKinney [v. Pate, 20

F.3d 1550 (11th Cir. 1994), cert. denied, 513 U.S. 1110 (1995)] to

(Cont'd)

12

The threshold inquiry for a non-legislative substantive

due process claim is whether a plaintiff has demonstrated an

interest to which substantive due process protection applies.”

Nicholas v. Pennsylvania State Univ., 227 F.3d 133, 139 (3d

Cir. 2000). Substantive due process protects “fundamental”

rights or interests that are deeply rooted in this Nation’s

history and tradition. See Washington v. Glucksberg, 521 U.S.

702, 721 (1997). As this Court wrote in Glucksberg:

Our established method of substantive-due-process

analysis has two primary features: First, we have

regularly observed that the Due Process Clause

specially protects those fundamental rights and

(Cont’d)

the facts of this case, we conclude as a matter of law, that the

developer had no cognizable substantive due process claim because

its property interest in the building permits was created by state law,

not the Constitution, and both the issuance and revocation of

the building permits constituted executive and not legislative acts.

(App. at p. 19).

13. [W]hen a plaintiff challenges the validity of a

legislative act, substantive due process typically

demands that the act be rationally related to some

legitimate government purpose. In contrast, when a

plaintiff challenges a non-legislative state action...

we must look, as a threshold matter, to whether the

property interest being deprived is ‘fundamental’

under the Constitution. If it is, then substantive due

process protects the plaintiff from arbitrary or

irrational deprivation, regardless of the adequacy of

the procedures used. Jf the interest is not

‘fundamental,’ however, the governmental action is

entirely outside the ambit of substantive [due]

process and will be upheld so long as the state

satisfies the requirements of procedural due process.

Nicholas, 227 F.3d at 142 (emphasis added).

13

liberties which are, objectively, “deeply rooted in

this Nation’s history and tradition,” and “implicit

in the concept of ordered liberty,” such that

“neither liberty nor justice would exist if they

were sacrificed[.]” Second, we have required in

substantive-due-process cases a “careful description”

of the asserted fundamental liberty interest. Our

Nation’s history, legal traditions, and practices thus

provide the crucial “guideposts for responsible

decisionmaking,” that direct and restrain our

exposition of the Due Process Clause.

Id. at 720-21 (citations omitted); see also City of Cuyahoga

Falls, Ohio v. Buckeye Community Hope Foundation, 538

U.S. 188, 123 S. Ct. 1389, 1397 (2003) (Scalia, J., Thomas,

J., concurring).

Justice Scalia, with whom Justice Thomas joined,

recently wrote that “[t]he judicially created substantive

component of the Due Process Clause protects, we have said,

certain ‘fundamental liberty interests’ from deprivation by

the government, unless the infringement is narrowly tailored

to serve a compelling state interest.... Freedom from

delay in receiving a building permit is not among these

‘fundamental liberty interests.’”” Buckeye Community Hope

Foundation, 538 U.S. 188, 123 S. Ct. at 1397.

“The protections of substantive due process have for the

most part been accorded to matters relating to marriage,

family, procreation and the right to bodily integrity... .”

Albright v. Oliver, 510 U.S. 266, 272 (1994). As expressed

by Justice Powell in his concurrence in Regents of Univ. of

Mich. v. Ewing, 474 U.S. 214 (1985),

Even if one assumes the existence of a property

right, [], not every such right is entitled to the

14

protection of substantive due process. While

property interests are protected by procedural due

process even though the interest is derived from state

law rather than the Constitution, Board of Regents

v. Roth, 408 U.S. 564, 577 .. . (1972), substantive

due process rights are created only by the

Constitution.

The history of substantive due process “counsels

caution and restraint.” Moore v. East Cleveland, 431

U.S. 494, 502 . . . (1977) (opinion of POWELL, J.,

for a plurality). The determination that a substantive

due process right exists is a judgment that “certain

interests require particularly careful scrutiny of the

state needs asserted to justify their abridgment.’”

Ibid., quoting Poe v. Ullman, 367 U.S. 497, 543...

(1961) (HARLAN, J., dissenting). In the context of

liberty interests, this Court has been careful to

examine each asserted interest to determine whether

it “merits” the protection of substantive due process.

See, e.g., East Cleveland, supra; Roe v. Wade, 410

U.S. 113 .. . (1973); Griswold v. Connecticut, 381

U.S. 479. . .(1965). “Each new claim to [substantive

due process] protection must be considered against

a background of Constitutional purposes, as they

have been rationally perceived and historically

developed.” Poe, supra, 367 U.S., at 544...

(HARLAN, J., dissenting).

Ewing, 474 U.S. at 229; see also Brown v. Brienen, 722 F.2d

360 (7th Cir. 1983) (holding that there was no denial of

substantive due process because

‘substantive due process’ is a shorthand for the

fact that the Supreme Court has interpreted the

due process clause of the Fourteenth Amendment

§

+

3

3

15

to confer certain substantive rights based mainly on

the Bill of Rights. . . . But [where] there is nothing

in the Bill of Rights about protecting [certain] rights

as such[,] [s]uch nights are protected under the due

process clause of the Fourteenth Amendment if at

all only as a form of property, of which the state

cannot deprive a person without due process of law;

they are not protected by the due process clause

viewed as a conduit for applying portions of the Bill

of Rights to the states.

Gardner v. City of Baltimore Mayor and City Council, 969 F.2d

63 (4th Cir. 1992) (holding that developer plaintiffs who claimed

that they were denied substantive due process by the failure of

various city officials to approve proposals for development

“possessed no property interest protected by the Fourteenth

Amendment.”); Creative Environments, Inc. v. Estabrook, 680

F.2d 822 (1st Cir.), cert. denied, 459 U.S. 989 (1982); Chiplin

Enterprises, Inc. v. City of Lebanon, 712 F.2d 1524 (1st Cir.

1983) (building permit); PFZ Properties, Inc. v. Rodriguez, 928

F.2d 28 (1st Cir. 1991); Pace Resources, Inc. v. Shrewsbury

Township, 808 F.2d 1023, 1034-37 (3d Cir.) (development plan),

cert. denied, 482 U.S. 906 (1987); Biser v. Town of Bel Air, 991

F.2d 100, 104 (4th Cir. 1993) (no right to special zoning

exception authorizing commercial buildings in the residential

area), cert. denied, 510 U.S. 864 (1993); South Gwinnett Venture

v. Pruitt, 491 F.2d 5 (Sth Cir.) (en banc) (rezoning application),

cert. denied, 416 U.S. 910 (1974), and, cert. denied, 419 US.

837 (1974); Burrell v. City of Kankakee, 815 F.2d 1127 (7th

Cir. 1987) (rezoning application); Scudder v. Town of Greendale,

704 F.2d 999 (7th Cir. 1983) (building permit); Carolan v. City

of Kansas City, Mo, 813 F.2d 178, 181 (8th Cir. 1987)

(occupancy certificate); Sylvia Dev. Corp., 48 F.3d 810 (4th Cir.

1995) (no right to special zoning designation authorizing

_ residential subdivision on agricultural land).

16

In Yardarm II, the Fourth District quoted Reserve Ltd. v.

Town of Longboat Key, 933 F. Supp. 1040, 1043-44 (M.D. Fla.

1996), which held that:

[a]ttempting to correct [the Eleventh] [C]ircuit’s

jurisprudence regarding the Fourteenth Amendment’s

Due Process Clause, McKinney holds that ...

substantive due process claims arising from non-

legislative deprivations of state-created property

interests are no longer cognizable. .. . In McKinney

... the Eleventh Circuit distinguished between

procedural and substantive due process claims in

the context of state-created rights and clarified that:

The substantive component of the Due

Process Clause protects those nghts that are

“fundamental,” that is, rights that are

“implicit in the concept of ordered liberty[.]”

... [A]reas in which substantive rights are

created only by state law . . . are not subject

to substantive due process protection under

ihe Due Process Clause because “substantive

due process rights are created only by the

Constitution.” As a result, these state law

based rights constitutionally may be

rescinded so long as the elements of

procedvural-not substantive — due process

are observed.

20 F.3d at 1556 (quoting Palko v. Connecticut, 302

U.S. 319, 325 ... (1937), and Regents of Univ. of

Mich. v. Ewing, 474 U.S. 214, 229 ... (1985))

(citations omitted).

(App. at pp. 13-15).

17

Thus, Yardarm II is consistent with Eleventh Circuit

substantive due process decisional law, 1.e., McKinney,

Reserve, and progeny,'* which itself is now consistent wiih

the majority of circuits throughout the country. See Rhyce v.

Martin, 173 F. Supp. 2d 521, 531 (E.D. La. 2001) (finding

that “[i]t appears that most circuits are now of th{e] view”

that “property interests created by state law . . . are not subject

to substantive due process protection[.]”), citing McKinney,

20 F.3d 1550, and Nicholas, 227 F.3d at 142-43; see also

Sutton v. Cleveland Bd. of Educ., 958 F.2d 1339, 1350 (6th

Cir. 1992) (concluding that plaintiff’s state created nght to

tenured employment lacks substantive due process

protection); Charles v. Baesler, 910 F.2d 1349, 1353 (6th

Cir. 1990) (holding that “[s]tate-created rights ... do not

rise to the level of ‘fundamental’ interests protected by

substantive due process. Routine state-created [] rights are

not ‘deeply rooted in this Nation’s history and tradition,’ and,

although important, are not so vital that ‘neither liberty not

justice would exist 1, [they] were sacrificed.’”), quoting

Bowers v. Hardwick, 478 U.S. 186, 191-94 (1986), quoting

Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977);

and Palko v. Connecticut, 302 U.S. 319, 326 (1937); Boston

Envtl. Sanitation Inspectors Ass[’]n v. City of Boston, 794

F.2d 12 (1st Cir. 1986); Schaper v. City of Huntsville, 813

F.2d 709 (Sth Cir. 1987).

Notwithstanding the decisional consistency on this

substantive due process issue, the Petitioner alleges that

Yardarm IT conflicts with this Court and the rest of the nation.

(Pet. at pp. 12-13). As support, Petitioner cites to Board of

14. This Court previously denied McKinney’s Petition for a Writ

of Certiorari which presented the question of whether a plaintiff who

has a state created property interest states a claim under the substantive

component of the Due Process clause. 513 U.S. 1110 (1995).

18

Regents v. Roth, 408 U.S. 564, 577 (1972) (a procedural due

process case holding that no property interest was deprived),

United States ex rel. T.V.A. v. Powelson, 319 U.S. 266, 279

(1943) (a takings case), and Sauer v. New York, 206 U.S.

536, 548 (19u. "i condemnation proceeding). Those cases,

however, only discuss the concept of property as it relates to

procedural due process and/or condemnation/takings claims,

and make no mention of substantive due process. Therefore

they are inapposite to establish the requisite decisional

conflict with Yardarm II/’s holding regarding whether

Petitioner possessed a fundamental right with respect to its

building permits entitling it to substantive due process

protection.'°

15. Similarly, Yardarm IT does not conflict with the other cases

cited in the Petition (Pet. at p. 13 n.11). Specifically, in Natale v.

Town of Ridgefield, 170 F.3d 258 (2d Cir. 1999), the plaintiff property

owner brought suit against the defendant municipality seeking

recovery for the violation of his rights in the issuance of zoning and

building permits. Jd. at 261. At the trial court level, judgment was

entered in favor of the plaintiff. Jd. at 262. However, on appeal, in

addition to invalidating the judgment because of an error in the jury

instructions, the Second Circuit held that:

{RJetrial is not necessary ... because, as a matter of

law, [the plaintiff] does not have a federally protectable

right in the [building] permits for which he applied.

Id. at 263 (emphasis added).

In Tri-County Paving, Inc. v. Ashe County, 281 F.3d 430

(4th Cir. 2002), the Fourth Circuit assumed without deciding that

the plaintiff had a protectable property interest, and only analyzed

whether the actions taken by the government were irrational, arbitrary,

or capricious to then affirm the grant of summary judgment for the

government defendant on the plaintiff’s substantive due process

claim.

(Cont’d)

19

Consequently, since the Petition does not demonstrate

any conflict between Yardarm IJ and any applicable

substantive due process federal decision, and in fact Yardarm

II, and the Eleventh Circuit’s McKinney decision and progeny

upon which Yardarm II is based, are consistent with the

decisional weight of authority throughout the country, the

Petition should be denied.

(Cont’d)

In Bryan v. City of Madison, 213 F.3d 267 (Sth Cir. 2000), cert.

denied, 531 U.S. 1145 (2001), the Fifth Circuit reasoned that

“liJn order to establish a substantive or a procedural due process

violation by claiming denial of a property right, [the plaintiff] must

first establish a denial of a constitutionally protected property right.”

Id. at 274. Applying those principles, the Fifth Circuit held that the

Bryan plaintiff “never had the right that he claim[ed] the defendants

denied him[,]” and therefore “[b]Jecause [the plaintiff] [] failed to

establish the denial of a property right, his due process claim fail{ed].”

Id. at 267.

The Weinberg v. Whatcom County case, 241 F.3d 746 (9th Cir.

2001), cited by Petitioner, was a procedural due process case,

and did not address any substantive due process issue. And in

Crown Point I, LLC v. Intermountain Rural Elec. Assn., 319 F.3d

1211 (10th Cir. 2003), the Tenth Circuit held that the developer had

failed to establish that it had a protectable property interest.

The Littlefield v. City of Afton case, 785 F.2d 596 (8th Cir. 1986),

cited by Petitioner, which held that the applicant for a zoning permit

had stated a substantive due process claim under Minnesota law,

was subsequently overruled by Chesterfield Dev. Corp. v. City of

Chesterfield, 963 F.2d 1102, 1104 n.2 (8th Cir. 1992) (holding that

the plaintiff developer failed to state a cause of action for violation

of substantive due process rights due to the city’s enforcement of an

invalid zoning plan ordinance).

20

Il. THERE IS NO DECISIONAL CONFLICT

BETWEEN YARDARM IT AND ANY SUBSTANTIVE

DUE PROCESS CASE CITED BY PETITIONER

ANALYZING THE EXECUTIVE V&. LEGISLATIVE

DISTINCTION. YARDARM IT PROPERLY HELD

THAT PETITIONER HAS NO SUBSTANTIVE DUE

PROCESS CLAIM WITH RESPECT TO ITS

BUILDING PERMITS BECAUSE, INTER ALIA, THE

ACTS COMPLAINED OF WERE “EXECUTIVE”

NOT “LEGISLATIVE.”

Yardarm II did not hold that “[substantive] due process

violations can only be committed by an official vote of the

local legislative body.” (Pet. at pp. 1, and 13-17). As has been

the case throughout these proceedings, Petitioner has

confused the executive vs. legislative analysis required in

substantive due process claims, with the “state actor” analysis

inherent in all § 1983 claims, to erroneously argue that

Yardarm II conflicts with other decisions.

As aptly described by the Third Circuit, “the fabric of

substantive due process, as woven by our courts, encompasses

at least two very different threads.” Nicholas, 227 F.3d at

139. “The first thread of substantive due process applies when

a plaintiff challenges the validity of a /egislative act.”'® Id.

(emphasis in original). The second thread of substantive due

process protection applies to “non-legislative” or “executive”

acts.'’ Nicholas, 227 F.3d at 139. Thus, the legislative vs.

16. Ifit does not involve a fundamental right, a substantive due

process challenge to a legislative act is reviewed under a rational

basis test. See TRM, Inc. v. United States, 52 F.3d 941, 945 (11th

Cir. 1995).

17. State created or non-fundamental rights taken away by

executive action do not form the basis for a substantive due process

(Cont’d)

21

executive distinction is important to determine which

“thread” to use.

In a substantive due process analysis, the difference

between “legislative” and “executive” acts turns on who was

affected. Executive acts apply generally to only one person,

while legislative acts apply to all of society. McKinney, 20

F.3d at 1557 n. 9; Collins & Co., Inc. v. City of Jacksonville,

38 F. Supp. 2d 1338, 1342 (M.D. Fla. 1998); Crymes v.

Dekalb County, Georgia, 923 F.2d 1482, 1485 (11th Cir.

1991); Nicholas, 227 F.3d at 139 n.1.

Here, the Fourth District properly applied federal law

on this issue and concluded in Yardarm II that Petitioner had

no substantive due process claim respecting the issuance and/

or lapsing of its building permits because, inter alia, those

acts complained of were “executive” not “legislative.”

(App. at pp. 16-19). Yardarm II’s conclusion was based on,

inter alia, the fact that Petitioner never challenged any

legislative enactment of any ordinance or regulation by the

City Commission. Rather, Petitioner challenged the

application by City employees and administrative officials

of certain rules and ordinances specifically to Petitioner,

which are clearly executive acts under the substantive due

process analysis. See, e.g., Wohl v. City of Hollywood, 915 F.

Supp. 339, 343 (S.D. Fla. 1995). Moreover, to this day,

Petitioner provides no authority to support the position that

the issuance and/or lapsing of building permits, are anything

but executive acts.

(Cont'd)

claim. Jd.; McKinney, 20 F.3d at 1557 n.9; North Florida Educ. Dev.

Corp. v. Woodham, 942 F. Supp. 542, 549 (N.D. Fla. 1996), appeal

at 138 F.3d 955 (11th Cir. 1998); Williams v. Goldsmith, 905 F. Supp.

996, 1000 (M.D. Ala. 1995).

22

Thus, Yardarm II is consistent with Eleventh Circuit

substantive due process precedent, e.g., McKinney and

progeny, which itself is consistent with the rest of the country.

The cases cited by Petitioner do not change the reality

that for substantive due process purposes the acts complained

of were “executive” not “legislative.” Notably, neither Monell

v. Department of Soc. Serv. of the City of New York, 436

U.S. 658 (1978); City of St. Louis v. Praprotnik. 485 U.S.

112 (1988); Harman v. Forssenius, 380 U.S. 528, 540 (1945);

Hughes v. Washington, 389 U.S. 290, 298 (1967); DeCarlo

v. Fry, 141 F.2d 56 (2d Cir. 1998); nor Oklahoma City vy.

Tuttle, 471 U.S. 808 (1985), cited by Petitioner (Pet. at

p. 15), address substantive due process or the executive vs.

legislative distinction there under. Instead, those cases deal

with the issue of whether there could be municipal liability

at all under 42 U.S.C. § 1983, which in the instant case was

yet another fatal hurdle Petitioner was unable to overcome.'®

18. Petitioner misquotes DeCarlo and Bohen v. City of East

Chicago, 799 F.2d 1180, 1189 (7th Cir. 1986), to attempt to create

decisional conflict where none exists. (Pet. at pp. 15-16).

Moreover, neither Nicholas, 227 F.3d 133, nor Scott v. Greenville

County, 716 F.2d 1409 (4th Cir. 1983), cited by Petitioner, conflict

with Yardarm II. In Nicholas, consistent with Yardarm II, McKinney,

etc., the court held that to prevail on a non-legislative substantive

due process claim, a plaintiff must establish he has a protected

property interest. Nicholas, 227 F.3d. at 139-40. As to Petitioner’s

reliance on Scott, 716 F.2d 1409, to assert conflict, in Scott, the

developer seeking the permit had already received informal approval

that his proposed use was expressly reflected in the zoning

classification required. Jd. He was then informed by the legislative

body, the County Council, that the area including his proposed

development would be rezoned (a legislative act), and he would no

longer be eligible for a permit. Jd. These facts do not appear in the

instant case. Jd.

a

23

Thus, since there is no conflict here between Yardarm II

and the decisions cited by Petitioner on the executive vs.

legislative substantive due process issue, the Petition should

be denied.

IV. THERE IS NO DECISIONAL CONFLICT

REGARDING PROCEDURAL DUE PROCESS

PRESENTED BY YARDARM II.

In Yardarm II, the Fourth District indicated that the

portion of the 1999 Judgment finding Petitioner’s procedural

due process rights violated was erroneous, because, inter alia,

Petitioner never pled nor tried any procedural due process

claim. (App. at pp. 10-11). Petitioner’s purported “procedural

due process” claim was therefore disposed of on the

independent state law ground that it was barred under Florida

law by Petitioner’s failure to plead. Thus, this Court should

not address the complex procedural due process issues raised

by Petitioner here where those issues were not tried below,

and were disposed of on an independent state law basis.

Petitioner’s reliance on the Fourth District’s dicta,

wherein it indicated that had Petitioner pled or tried a

procedural due process claim, such a claim still failed because

there was no deprivation and, even if there were, Petitioner

was provided all the process it was due (App. at pp. 10-11),

is misplaced. ;

First, as aptly discussed by the Fourth District, and

undisputed by Petitioner, with respect to the City’s attempt

(in 1985) to repeal Petitioner’s 1973-74 special use exception

(after Petitioner had failed to use it in over ten (10) years),

the ordinance to repeal the special exception was never

actually enacted and Petitioner s special exception was never

repealed. (App. at p. 11). “Hence,” the Fourth District stated,

“assuming, for the sake of argument, that [Petitioner] had an

24

interest in the special exception, it was never deprived of

it.” (App. at p. 11) (emphasis added).

Such reasoning by the Fourth District is completely

consistent with procedural due process law throughout the

country which requires that there be a “deprivation.”

Second, with respect to the Fourth District’s discussion

in dicta regarding the acts by the Building Official on

Petitioner’s building permits that were complained about,

i.e., the revocation of Petitioner’s building permit in 1974

for failure to comply with applicable codes and regulations,

and the lapsing of Petitioner’s building permit by operation

of the South Florida Building Code in 1979 and 1985 due to

lack of progress, there is no conflict between the Fourth

District’s reasoning that since Petitioner had the right to

administratively appeal to the Broward County Board of

Rules of Appeals (“BCBRA”), with alternative and/or further

review by the circuit court, Petitioner had been provided with

adequate procedural due process.'®

The Fourth District’s reasoning was again based on

Eleventh Circuit law, including, among other decisions,

Boatman v. Town of Oakland, 76 F.3d 341 (11th Cir. 1996)

(holding that property owners’ civil rights action against a

town for its refusal to issue them a certificate of occupancy

did not fall under the procedural component of § 1983

because the state provided them all the process they were

due, i.e., the right to repair to the circuit court and seek an

order compelling a final inspection).

The Eleventh Circuit decisional law on this topic is

likewise consistent with its sister circuits which almost

19. Contrary to the representations in the Petition (pp. 20-21),

no hearings are required by law or otherwise before a building permit

lapses for lack of progress under the South Florida Building Code.

25

uniformly hold that a state provides constitutionally adequate

procedural due process when it provides reasonable remedies

to rectify a legal error by a local administrative body.

See, e.g., Midnight Sessions, Ltd. v. Philadelphia, 945 F.2d

667, 680 (3d Cir. 1991) (holding that city provided adequate

procedural due process where judicial mechanism existed

under which to challenge administrative decision to deny

application for dance hall licenses), overruled on other

grounds by United Artists, 316 F.3d at 400. Moreover, when

a state affords a “full judicial mechanism” with which to

challenge administrative decisions ..., the state provides

adequate procedural due process, regardless of whether the

plaintiff avails itself of that appeal mechanism. /d.; see also

Crocker v. Hakes, 616 F.2d 237 (Sth Cir. 1980) (holding that

where the plaintiff was granted a hearing before the City

Council, and as a result of his petition in state court, he

received a hearing before the Board of Zoning Appeals, and

had the right to seek relief in state court, there already exists

a state created avenue for review that satisfies due process).

Here, it is undisputed that Petitioner was aware of its

right to, and actually did, repair to the BCBRA and/or circuit

courts, or unilaterally chose not to.

Thus, since Yardarm II’s holding on Petitioner’s

purported procedural due process claim was based on an

independent state law ground, and in any event the Fourth

District’s reasoning does not conflict with federal decisional

law, the Petition should be denied.

26

V. THE PETITION PRESENTS NO INTOLERABLE

CONFLICT AMONG THE NATION’S LOWER

COURTS, NO CONFUSION OR ERROR SO

IMPORTANT THAT IT MUST BE CORRECTED

IMMEDIATELY, AND NO NEED FOR THE COURT

TO EXPAND THE SUBSTANTIVE COMPONENT

OF DUE PROCESS.

As its fifth “ground” for review, Petitioner attempts to

convince this Court that there is a need to expand the

substantive component of due process to create a federal

cause of action for developers whose property has not been

taken and who have not been deprived of any fundamental

right. Yet, to do what the Petitioner requests would upset

settled expectations, start the Court sliding down a slippery

slope, and otherwise confuse the law.

Contrary to the representations by Petitioner, this case

involves a local land-use dispute, and resolving such routine

land-use disputes that inevitably and constantly arise among

developers, local residents, and municipal officials is not

the business of the federal courts. As has been repeatedly

recognized, “allowing ‘every allegedly arbitrary denial by a

town or city of a local license or permit’ to be challenged

under [federal law] would ‘swell[] our already overburdened

federal court system beyond capacity.’” Gardner, 969 F.2d

at 68, quoting Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54

(2d Cir. 1985).

Petitioner would endow every disappointed property

owner with a federal claim, because every appeal from an

adverse ruling necessarily encompasses a claim that the

determination by the local agency was, from tie owner’s point

of view, irrational, arbitrary, capricious and an abuse of the

agency’s discretion. Cf. Creative Environments, Inc. v.

Estabrook, 680 F.2d 822, 833 (1st Cir. 1982), cert. denied,

27

459 U.S. 989 (1982). Petitioner’s position is inconsistent with

the oft-stated admonition that federal courts should not be

converted into super zoning boards or zoning boards of

appeal. See, e.g., Raskiewicz v. Town of Boston, 754 F.2d 38,

44 (1st Cir.), cert. denied, 474 U.S. 845 (1985); Albery vy,

Reddig, 718 F.2d 245 (7th Cir. 1983); Construction Industry

Ass'n Sonoma Cty. v, City of Petaluma, 522 F.2d 897 (9th

Cir. 1975), cert. denied, 424 U.S. 934 (1976). This Court

Should not accept Petitioner’s invitation to create “a rack

upon which every disappointed developer can stretch a

community that fails to roll out the red carpet for him.”

Chongris v. Board of Appeals of Town of Andover, 811 F.2d

36, 46 (Ist Cir.), cert. denied, 483 U.S. 1021 (1987).

As explained in Creative Environments, Inc.:

Such a claim is too typical of the run of the mill

dispute between a developer and a town planning

agency, regardless of [plaintiff’s] characterizations

of it and of defendants’ alleged mental states,

to rise to the level of a due process violation.

The authority ..., all Suggest that the

conventional planning dispute — at least when

not tainted with fundamental procedural

irregularity, racial animus, or the like — which

takes place within the framework of an admittedly

valid state subdivision scheme is a matter

primarily of concern to the state and does not

implicate the Constitution. This would be true

even were planning officials to clearly violate,

much less “distort” the state scheme under which

they operate. A federal court, after all, “should

not ... sit as a Zoning board of appeals.” Viliage of

Belle Terre v. Boraas, 416 U.S. 1,12... (1974)

(Marshall, J., dissenting). Every appeal by a

28

disappointed developer from an adverse ruling by

a local ... planning board necessarily involves

some claim that the board exceeded, abused or

“distorted” its legal authority in some manner,

often for some allegedly perverse (from the

developer’s point of view) reason. It is not enough

simply to give these state law claims constitutional

labels such as “due process” or “equal protection”

in order to raise a substantial federal question

under section 1983. As has been often stated,

“(t]he violation of a state statute does not

automatically give rise to a violation of rights

secured by the Constitution.” Crocker v. Hakes,

616 F.2d 237, 239 n.2 (Sth Cir. 1980) (per curiam).

Id. at 833 (emphasis in original) (footnote omitted). The First

Circuit has recently reaffirmed this ruling. PFZ Properties,

Inc. v. Rodriguez, 928 F.2d 28 (1st Cir. 1991), cert. dismissed

as improvidently granted, 503 U.S. 257 (1992).

Consequently, this Court should not accept Petitioner’s

invitation to expand the substantive component of due

process to create a federal cause of action for developers

whose property has not been taken and who have not been

deprived of any fundamental right, because to do so would,

inter alia, upset settled expectations, start the Court sliding

down a slippery slope, and otherwise confuse the law.

29

CONCLUSION

Since none of the grounds asserted by Petitioner support

a case for review, because, inter alia, the Fourth District

decision did not create any conflict, let alone an intolerable

conflict among the nation’s lower courts, the Fourth District

did not commit any error, let alone an error so important that

it must be corrected immediately, and there is no need for

this Court to expand the substantive component of due

process to create a federal cause of action for developers

whose property has not been taken and who have not been

deprived of any fundamenta! night, Respondent, the City of

Pompano Beach, respectfully requests the Court to deny the

Petition for a Writ of Certiorari.

Respectfully submitted,

HENRY LATIMER

Counsel of Record

CARAN ROTHCHILD

JEROLD I. BUDNEY

GREENBERG TRAURIG, P.A.

401 East Las Olas Boulevard

Suite 2000

Fort Lauderdale, FL 33301

(954) 765-0500

Counsel for Respondent