Petition for Writ of Certiorari — Saboff v. St. Johns River Water Management District

re Court, U.S.

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99204 1 JUN } 5-200

No.

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OFFICE OF JHE CLERK

In The

Supreme Court of the United States

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JAMES R. SABOFF and KATHY R. SABOFF,

Petitioners,

ST. JOHNS RIVER WATER MANAGEMENT DISTRICT,

Respondent.

+

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

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PETITION FOR WRIT OF CERTIORARI

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LeFFLeR & Associates, P.A.

MicnHaet D. Jones, Esquire

Florida Bar Number: 0137608

Atrium II Building

301 West State Road 434

Suite 317

Winter Springs, Florida 32708

(407) 327-7275

(407) 327-7374 Facsimile

Attorney of Record for Petitioners

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

loser

QUESTIONS PRESENTED

1. If the State denies compensation to a landowner,

under state law, are the state court proceedings res judi-

cata to a Fifth Amendment taking claim under § 1983?

2. Must a landowner reserve a Fifth Amendment

taking claim for subsequent litigation in federal court if

the Fifth Amendment taking claim does not accrue until

after exhaustion of state court remedies?

3. If a Fifth Amendment taking claim does not

accrue until the landowner has been denied an adequate

post-deprivation remedy in the state court, thus creating

a separate Fifth Amendment constitutional cause of

action, is a formal written reservation under Fields v.

Sarasota Manatee Airport Authority, 953 F. 2d 1299 (11th

Cir. 1992) and Jennings v. Caddo Parrish School Board, 531 F.

2d 1331 (5th Cir. 1976), cert. denied, 429 U.S. 897, 97 S. Ct.

260, 50 L. Ed. 2d 180 (1976), necessary to preserve the

right to proceed in federal court after the state court has

denied relief under state law.

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PARTIES TO THE ACTION

All parties in the courts below are listed in the cap-

tion in this Court. Pursuant to Rule 29.1 of this Court,

Petitioners have no parent companies nor any non-wholly

owned subsidiaries. |

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TABLE OF CONTENTS

Page

GPPRIRIND CMOU EES ide esse vascecscdvctecves i

RMR BOF BRU MURS EM 6 sons cecnqaccancsce dues ii

pF gy ee er earns rere iii

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OPINIONS AND ORDERS BELOW ................ 1

STATEMENT OF JURISDICTION................... 1

CONSTITUTIONAL AND STATUTORY PROVI-

IE SEMEN MED neh esiv cS si chactericiccvacenes 2

oye se Us aa i yi oo: 3

REASONS FOR GRANTING THE WRIT ........... 7

I. If a Plaintiff pursues a state law regulatory tak-

ing claim in state court and is denied just com-

pensation on the grounds that state law does not

recognize a partial regulatory taking, does an

effective § 1983 federal taking claim remain?... 7

II. To require a formal Jennings reservation in state

court to preserve a § 1983 Fifth Amendment

action creates a trap for the unwary and ignores

the constitutional right of a property owner to

utilize procedure for obtaining damages and

compensation under the Fifth Amendment. A

reservation, whether it be formal, tacit, or by

consent is unnecessary in the context of § 1983 in

the federal land use action ...... ............. 15

EE 6 Lakai h ae Chee kae shed chs ses eke ye eaees 22

iv

TABLE OF AUTHORITIES

Page

Unrtep States Supreme Court Cases

Del Monte Dunes v. City of Monterey, 119 S. Ct. 1624

(RFE 5 sk vines cavsesseapedeweuseeenues webs eeanue 6, 7

Dolan v. City of Tigard, 512 U.S. 374 (1994)....... 14, 15

England v. Louisiana State Board of Medical Exam-

iners, 375 U.S. 411, 84 S. Ct. 461 (U.S.La. 1964) .... 16

Kremer v. Chemical Construction Corporation, 456

Ua SCE CEE) 6 66 oncinscecintghes «aes auemaeees 19

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

PO CEs va cbs dk cohdcekr i bee ces 12, 13, 14

Nollan v. California Coastal Commission, 483 U.S.

825, 197 S. Ct. 3141, 97 L. Ed. 2d 677 (1987)...... 15

Williamson County Regional Planning Comm’n v.

Hamilton Bank of johnson City, 473 U.S. 172, 105

S. Ct. 31086, 87 L. Ed. 2d 126 (1985)......... 9, 16, 17

Unitep States Court oF APPEALS CASES

Dodd v. Hood River, 59 F. 3d 852 (9th Cir. 1995)..... passim

Executive 100, Inc. v. Martin County, 922 F. 2d 1536

ei es | ee Sree ren rie te eh eerie 15

Fields v. Sarasota Manatee Airport Authority, 953 F.

28 TAR CIA Ce Sas hha tH ace WE passim

Florida Rock Industries, Inc. v. United States, 18 F. 3d

Se Ss: Se Balk 055 ccdebb bi add canes 13, 14

Jennings v. Caddo Parrish School Board, 531 F. 2d

1331 (5th Cir. 1976}, cert. denied, 429 U.S. 897, 97

S. Ct. 260, 50 L. Ed. 2d 160 (1976).........;.. passim

Vv

TABLE OF AUTHORITIES - Continued

Loveladies Harbor, Inc. v. United States, 28 F. 3d 1171

SG. BE I iis ie ih Ae hs eew a redineeiewe

Simpson v. North Platte, 206 Neb. 240, 292 N.W. 2d

og res oe eur ep yn ie wey

STATE CASES

Cole v. First Development Corporation of America,

339 So. 2d 1130 (Fla. 2nd DCA 1976)..........

Daniel v. Department of Transportation, 259 So. 2d

eg ee Perry peer

deCancino v. Eastern Airlines, Inc., 283 So. 2d 97

(Fla. 1973) (footnoted omitted).................

Department of Community Affairs v. Moormon, 664

ow & gi, ... Srrerrrr Perey Tere

Dilbon v. Women’s Specialty Retailing Group, 674 So.

Fe cE io xd thn hah ached wap cera anak

Flesche v. Interstate Warehouse, 411 So. 2d 919 (Fla.

ee ee EG Vi se wink rok ov oes kode twedne becua

Fox v. Treasure Coast Regional Planning Council, 442

oO. 2G Ze8 CFee: 200 TCA BORD) occ cies cee

Matthews v. Matthews, 133 So. 2d 91 (Fla. 2nd DCA

AROSE ST ahecie suieaen ik: peor” a ipa re eager rarer epee

Seaboard Coastline Railroad Company v. Industrial

Contracting Company, 260 So. 2d 860 (Fla. 4th

Sa HUNT 6s SKN Kees wahe chee bras cueiuectes

vi

TABLE OF AUTHORITIES - Continued

Page

Wallace v. Luxmoore, 156 Fla. 725, 24 So. 2d 302

Ns F566 W 40S Sand RTE ea Chan akan oe ee 22

Universal Construction Company v. City of Ft.

Lauderdale, 68 So. 2d 366 (Fla. 1953)............... 22

CONSTITUTIONS

Florida Constitution, Article II, Section 7........... 5,9

United States Constitution, Amendment V....... passim

United States Constitution, Amendment XIV ....... OB

STATUTES :

anne SUPT DOADEE va 5 in6 ones cdaawuvecan sane 5,9

et as SO Es 6.0.60 3 kbs bad SEMAR ONS EA bAa EL 2

ee is es 6 ko 5 dae Np heh kk <n Kb RRR 8, 10

Se Si, BF Oe a kksccatakangenkeei sien chase passim

OTHER

Rule 13 of the United States Supreme Court Rules ..... 2

PETITION FOR WRIT OF CERTIORARI

James R. Saboff and Kathy R. Saboff hereby petition

this Court for a writ of certiorari to review the judgment

in this case of the United States Court of Appeals for the

Eleventh Circuit or, alternatively, for a summary reversal

of the decision below.

OPINIONS AND ORDERS BELOW

1. The published Opinion of the United States Court

of Appeals for the Eleventh Circuit, cited at 200 F. 3d 1356

(11th Cir. 2000) is attached as Appendix A.

2. The unpublished decision of the Fifth District

Court of Appeals of the State of Florida, is reproduced as

Appendix B.

3. The unpublished denial of Saboff’s Petition for

Rehearing and Hearing En Banc by the Fifth District

Court of Appeals is reproduced as Appendix C.

4. The unpublished decision of the United States

District Court, Middle District of Florida, Orlando Divi-

sion is reproduced as Appendix D.

5. The unpublished denial of Saboff’s Petition for

Rehearing and En Banc Hearing is reproduced as Appen-

dix F.

,

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STATEMENT OF JURISDICTION

The decision of the Fifth District Court of Appeal of

Florida was entered on August 30, 1996.. The Saboffs filed

a timely Petition for Rehearing and En Banc review,

which was denied by the Fifth District Court of Appeal

on October 23, 1996. Petitioner then filed a timely Com-

plaint in the United States District Court, Middle District

of Florida, on November 14, 1996, and the District Court

entered judgment pursuant to a jury trial on July 28, 1998.

The Water Management District filed its appeal with the

Eleventh Circuit Court of Appeals on August 25, 1998,

which reversed the decision of the District Court by

Order dated January 18, 2000. Petitioners’ Motion for

Rehearing and Rehearing En Banc was denied on March

20, 2000, and this Petition for Writ of Certiorari has been

timely filed in accordance with Rule 13 of the United

States Supreme Court Rules. This Court has jurisdiction

over this matter pursuant to 28 U.S.C. § 1254(i).

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CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The federal constitutional provisions at issue in this

matter are the Fifth and Fourteenth Amendments of the

United States Constitution. The Fifth Amendment pro-

vides, in part, “[NJor shall private property be taken for

public use, without just compensation.” United States

Constitution, Amendment V. The Fourteenth Amendment

provides, in part, “[NJor shall any state deprive any

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

law.” United States Constitution, Amendment XIV.

STATEMENT OF THE CASE

Petitioners, James R. and Kathy R. Saboff (“Saboffs”),

purchased an unimproved residential lot in The Springs

Landing subdivision consisting of approximately .7 acres

and fronting upon the Little Wekiva River.! In 1991, after

the homeowners association and Seminole County

approved the Saboffs’ proposed plans for the construc-

tion of their home, the Saboffs, for the first time, were

advised that in 1989, five (5) years after they had pur-

chased the property, the St. Johns River Water Manage-

ment District (“Water Management District”) had enacted

a Riparian Habitat Protection Zone Rule ("Riise ),

which, in essence, placed the Saboffs’ entire lot into the

Habitat Protection Zone and restricted the total use of the

lot. The Saboffs then approached the Water Management

District’s Governing Board seeking a waiver to the RHPZ.

On June 11, 1991, the Board granted the Saboffs a permit

to construct their home subject to the condition that the

Saboffs dedicate a conservation easement which would

encompass four-tenths (.4) of an_acre, over one-half (1/2),

of their riverfront property.

The Saboffs brought an action in the Circuit Court for

the Eighteenth Judicial Circuit in Seminole County, Flor-

ida alleging, among other things, a violation of their

federal substantive due process rights and equal protec-

tion afforded to them by the United States Constitution,

and seeking a mandatory injunction pursuant to 42 U.S.C.

1 Contrary to the Eleventh Circuit Court of Appeals’

Factual Background, the subdivision restrictions prohibiting

building on only a fraction or less than .05 acres, which was

designated below the hundred year flood plain.

§ 1983, to allow the Saboffs to construct their residence.

In the same timeframe, an administrative proceeding was

commenced by third parties to challenge the Water Man-

agement District decision allowing the Saboffs to clear

the lot.

The Water Management District removed the state

court action to the United States Middle District Court of

Florida, where it filed a Motion to Dismiss based upon

the issue of “ripeness.” As a result of negotiations, the

parties to the pending federal litigation and administra-

tive proceedings stipulated to allow the Saboffs to con-

struct a home and pool on three-tenths (.3) of an acre of

their property. The parties entered into a Partial Settle-

ment Agreement, dated January 1992, (Appendix E)

wherein the Saboffs dismissed the injunctive relief,

deleted all federal claims, and remanded the action back

to the state court. It was specifically agreed that the

settlement was in no way a “consent to or waiver of

defenses to any matters complained in any proceedings.”

(Appendix E)

The state court action was reconvened and the Sab-

offs filed their Amended Complaint, which sought

declaratory relief, procedural and substantive due pro-

cess violations, as well as inverse condemnation, pursuant

to Florida law and the Florida Constitution. The state court,

in a series of orders, dismissed the Saboffs’ Second

Amended Complaint and the Saboffs thereafter filed a

Third Amended Complaint seeking declaratory relief,

together with an action for inverse condemnation, sub-

stantive due process and invasion of privacy, all pursuant

to Florida law and the Florida Constitution.

On May 11, 1995, the state circuit court dismissed

Saboffs’ Third Amended Complaint, with prejudice, spec-

ifically ruling, as a basis for dismissal, that a landowner

could not state a claim for inverse condemnation by

regulation if they did not allege a deprivation of substan-

tially all reasonable economical use of the property. The

Saboffs then appealed to the Fifth District Court of

Appeal and, on August 30, 1996, fifteen (15) months later,

the Fifth District Court of Appeal affirmed the lower

court’s dismissal, citing Florida Constitution, Article II,

Section 7: § 369.311, Florida Statutes, and Department of

Community Affairs v. Moormon, 664 So. 2d 930, 932-933

(Fla. 1995). The Saboffs’ Motion for Rehearing and En

Banc proceedings was denied by the Fifth District Court

of Appeals on October 23, 1996. (Appendix C). Two (2)

weeks later, the Saboffs filed a federal court action pur-

suant to 42 U.S.C. § 1983 for violation of their federal

constitutional and Fifth Amendment rights by virtue of

denial of just compensation for a regulatory taking of

their property.

The Saboffs’ § 1983 action had now accrued as a

result of the state court’s denial of just compensation, and

the Saboffs alleged the constitutional tort for denial of

just compensation, pursuant to the Fifth Amendment to

the United States Constitution, and deprivation of equal

protection and substantive due process under the Four-

teenth Amendment to the United States Constitution.

After motion practice in federal court, a jury trial was

conducted in May of 1998, where the parties agreed to

submit evidence on all issues, reserving the inverse con-

demnation ruling for the judge, and damages and other

issues to the jury. The trial court judge determined that

the imposition of the RHPZ conservation easement over

four-tenths (.4) of the Saboffs’ lot amounted to a right or

interest in real property being taken and limited the

Saboffs’ right to exclude others from their property, thus

constituting inverse condemnation of the Saboff property.

Evidence was produced that substantiated the Saboffs’

claim that the Water Management District’s rule, as

applied, violated Saboffs’ substantive due process rights

and denied them equal protection. Appraisers for both

sides agreed that the imposition of the RHPZ over the

Saboffs’ property had a significant impact on the value.

The jury determined that the “as applied” rule resulted in

a substantive due process and equal protection violation

of the Saboffs and awarded damages for inverse condem-

nation and substantive due process violations.

The Water Management District appealed the District

Court’s decision and, after oral argument, the Eleventh

Circuit of Appeals reversed the judgment, holding that

Jennings v_Caddo Parrish School Board, 531 F.2d 1331 (5th

Cir. 1976), cert. denied, 429 U.S. 897, 97 S. Ct. 260, 50

L. Ed. 2d 180 (1976), and Fields v. Sarasota Manatee Airport

Authority, 953 F.2d 1299 (11th Cir. 1992), dictate that the

Saboffs’ federal claims are barred by Florida law of res

judicata. The Eleventh Circuit’s holding ignores the rul-

ing of this Court in Del Monte Dunes v. City of Monterey,

119 S. Ct. 1624 (1999), and the fact that the state court

action and the state court’s dismissal of the Saboffs’ tak-

ings claims were based solely on state law and did not

address federal constitutional claims, which did not arise

until the denial of compensation under state law.

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REASONS FOR GRANTING THE WRIT

At issue is whether a § 1983 tort action founded upon

violation of the Fifth Amendment of the United States

Constitution is a separate independent cause of action

than that which is brought, or can be brought, in state

court pursuant to state law seeking just compensation.

This Court, in Del Monte Dunes, held that “there is no

constitutional or tortious injury until the landowner is

denied just compensation,” and further that “a federal

court, moreover, cannot entertain a taking claim under

§ 1983 unless, or until, the complaining landowner has

been denied an adequate post deprivation and remedy.”

To allow the Eleventh Circuit Court of Appeals decision

in this cause to stand will effectively foreclose a property

owner’s right to a federal taking claim.

I. If a Plaintiff pursues a state law regulatory taking

claim in state court and is denied just compensation

on the grounds that state law does not recognize a

partial regulatory taking, does an effective § 1983

federal taking claim remain?

The question is whether a regulatory taking claim,

brought pursuant to § 1983 and sounding in tort, is an

identical cause of action to that brought in the state court

pursuant to the State Constitution. If a separate cause of

action, the doctrine of res judicata does not apply to

subsequent federal court actions and the decision below

must be reversed. The Eleventh Circuit Court ruled that

the Saboffs’ federal taking claim, brought pursuant to 42

U.S.C. § 1983, was barred by the doctrine of res judicata

because their prior inverse condemnation suit in state

court, which had been dismissed for failure to state a cause of

action, was an identical action, and the Saboffs had failed

to make a formal reservation of their federal claim in

state court pursuant to Jennings v. Caddo Parrish School

Board, 531 F.2d 1331 (5th Cir.), cert. denied, 429 U.S. 897

(1976). The Saboffs had argued that the Partial Settlement

Agreement reserved further federal actions and the Water

Management District consented to subsequent federal

actions as a result of the remand to state court and the

subsequent administrative hearing, where the Saboffs

stated on the record that they would bring an action

based on the constitutionality of the actions of the Water

Management District. Under Dodd v. Hood River County,

59 F.3d 852 (9th Cir. 1995), the Water Management District

implicitly consented, or by tacit agreement, recognized

the Saboffs’ reservation of their subsequent federal court

action. But, in any event, the doctrine of res judicata

could not apply because a state taking claim was not

identical to a § 1983 federal regulatory claim.

In its decision, the Eleventh Circuit panel did not

reach the merits of Saboffs’ partial regulatory taking

claim, but reversed the judgment on the rationale that (a)

under Fields v. Sarasota Manatee Airport Authority, 953 F.2d

1299 (11th Cir. 1992), “the doctrine of res judicata in

conjunction with 28 U.S.C. § 1738 precludes the plaintiff

from pursuing in federal court a claim previously litigated

in state court,” unless the plaintiff reserves the federal

claim by formal reservation on the state court record

pursuant to Jennings; (b) the Court in Fields found that

Florida law treats claims as “identical” for res judicata

purposes where the causes of action “share similarity of

facts essential to both actions”; (c) in this case, “the facts

underlying the state and federal claims at issue are indis-

putably identical,” and, thus, “it is clear that Florida res

judicata principles would normally preclude the subse-

quent federal action”; and (d) because the exception to

res judicata under Jennings requires that a reservation of

the federal claim “must be set forth clearly, on the record,

and at the outset of the state court claim, which was not

done in this case,” the Saboffs’ off-the-record understand-

ing with the District “is clearly insufficient to meet the

standard for a Jennings reservation.” The panel thus con-

cluded that “Jennings and Fields dictate the Saboffs’ fed-

eral law claims are barred by Florida law of res judicata.”

(See Appendix A).

The circuit court’s decision ignores this Court’s hold-

ings in, Williamson County Regional Planning Comm'n v.

Hamilton Bank of Johnson City, 473 U.S. 172, 105 S. Ct. 3108,

87 L. Ed. 2d 126 (1985), as well as established Florida law.

There can be no Fifth Amendment violation until the state

court has denied just compensation. Indeed, the state

courts denied compensation expressly stating, “plaintiffs

cannot otherwise state a claim for inverse condemnation

by regulation because they cannot allege that they have

been deprived of substantially all reasonable economical

use of the property,” citing Florida law, Fox v. Treasure

Coastal Regional Planning Council, 442 So. 2d 221 (Fla. 1st

DCA 1983). The Fifth District Court of Appeal concurred

and filed a Per Curiam Opinion again citing Florida law.

Department of Community Affairs v. Moormon, 664 So. 2d

930, 932-933 (Fla. 1995); Florida Constitution, Article II,

Section 7; § 369.311, Florida Statutes (1995). The Saboffs’

state court claims were dismissed at the pleading stage. It

is clear that the Florida courts held there could be no

10

partial regulatory taking under Florida law, despite the

recognition of such claims under federal law.

The Fields Court found that entry of summary judg-

ment against a landowner was proper “only if (1) Florida

preclusion law would bar the filing of a state court suit

raising the federal taking claims,” See, 28 U.S.C. § 1738;

and (2) the homeowners failed to make a Jennings reser-

vation. This is interesting since the court had questioned

the wisdom of Jennings and the Court’s reluctance “to

override Jennings.” (Id. 1305).

It is well established in Florida that the doctrine of

res judicata does not bar a cause of action merely because

the action arose from the same factual situation. Seaboard

Coastline Railroad Company v. Industrial Contracting Com-

pany, 260 So. 2d 860 (Fla. 4th DCA 1972). Res judicata

applies only when the four identities are present (1)

identity of the things sued for; (2) identity of the cause of

action; (3) identity of the persons and parties; and (4)

identity of the quality or capacity of persons for or

against whom the claim was made. Cole v. First Develop-

ment Corporation of America, 339 So. 2d 1130 (Fla. 2nd

DCA 1976); Matthews v. Matthews, 133 So. 2d 91 (Fla. 2nd

DCA 1961).

Res judicata does not apply in this case for two

reasons. There is no identity of the cause of action nor an

identity of the thing sued for. “A fair way of determining

the nature of a cause of action is to examine the main

prayer of plaintiff’s complaint.” Daniel v. Department of

Transportation, 259 So. 2d 771 (Fla. 1st DCA 1972). It is

undisputed that Saboffs’ state action claim sought differ-

ent remedies from that aliowed under § 1983. Moreover,

11

“For there to be ‘identity of cause of action,’ within the

meaning of the doctrine, the degree of proof required in

the second suit must be at least as great as that required

to support recovery in the first suit. If the degree of proof

required in the first suit is greater than that required in

the second, the cause of action cannot be held to be the

same.” Matthews v. Matthews, 133 So. 2d 91 (Fla. 2nd DCA

1961).

The state court would not allow the Saboffs to plead

a partial regulatory taking, much less present evidence

and proof of the same. Federal law recognizes a partial

regulatory taking and, at the federal district court trial,

the jury awarded compensation based on the evidence

supporting the cause of action for a regulatory taking,

“thus, the defense of res judicata must fail in the instant

cause because of the difference in the degree of proof

required by Florida and federal courts.” 133 So. 2d at 95.

The Eleventh Circuit focused upon the identity of the

facts essential to the maintenance of the suits rather than

distinguishing between the state cause of action based on

state eminent domain principles and a § 1983 federal

constitutional tort action arising after denial of just com-

pensation for improper regulatory taking. Florida courts

have recognized the problem of applying res judicata

when two (2) theories arise out of a similar set of facts.

The Fourth District Court of Appeal noted in Seaboard

Coastline Railroad v. Industrial Contracting, 260 So. 2d 860

(4th DCA 1972):

“The problem in applying res judicata arises in

connection with the ‘identity of the things sued

for’ and ‘identity of the cause of action.’ ”

12

Even though both actions arose out of the same

set of facts, there is not, in our opinion, the

necessary element present to satisfy the afore-

mentioned conditions. The essence of the ‘things

sued for’ is essentially different although having

arisen from the same factual situation.”

The Fields Court noted the precise question before it

was whether the presence of an additional element for

establishing a compensable taking (an absolute decrease

in value) is significant to shield the homeowner's federal

claim from the application of Florida’s law merger and

bar rules. 953 F.2d at 1308. The Fields Court then recog-

nized that the question of res judicata was a “close one,”

concluding that the federal taking claims were essentially

the same as raised in the Florida law inverse condemna-

tion action. The state court in Saboff refused to recognize

any claim for partial regulatory taking. State and federal

law impose different rights and duties and, particularly

where the federal claim is based upon a constitutional

tort action.

“the principle test for determining whether the

causes of action are the same is whether the

primary right and duty or wrong are the same in

each case.” Dilbon v. Women's Specialty Retailing

Group, 674 So. 2d 799 (1996).

The Eleventh Circuit’s focus upon the identity of the

parties and the quality or capacity of the parties to whom

the claim was made overlooks the significant body of

federal law on partial regulatory takings developed in the

wake of Lucas v. South Carolina Coastal Council, 505 U.S.

1003 (1992). Federal courts have generally recognized two

species of “regulatory taking.” First, where a party is

denied all economically viable use of their property,

13

which is a “categorical” taking under Lucas; and second, a

partial deprivation resulting from the imposition of a

regulatory restraint, i.e., where a regulation deprives the

owner of a substantial part, but not necessarily all of the

economical use or value of the property. Both species

were addressed by Justice Scalia in his opinion in Lucas at

Footnote 7, as stated in Florida Rock Industries, Inc. v.

United States, 18 F.3d 1560 (Fed. Cir. 1994):

Nothing in the language of the Fifth

Amendment compels a court to find a taking

only when the government divests the total

ownership of the property; the Fifth Amend-

ment prohibits the uncompensated taking of pri-

vate property without reference to the owner’s

remaining property interests. In Lucas, the

Supreme Court touched upon the question of a

partial regulatory taking, see 112 S. Ct. 2893-95,

but, concluding on the facts before it that the

case was one in which the owner was called

upon “to sacrifice all economical beneficial uses

in the name of the common good,” Id. at ___, 112

S. Ct. at 2895, the Court found a categorical

taking and thus did not have to decide the par-

tial taking question. Id. at __ n. 9, 112 S. Ct. at

2896 n. 9.

Justice Stevens, writing separately, crit-

icized as arbitrary the notion that “[a] land-

owner whose property is diminished in value

95% recovers nothing, while an owner whose

property is diminished 100% recovers the land’s

full value.” Id. at___, 112 S. Ct. at 2919, Stevens,

dissenting. In response, Justice Scalia, writing for

the Court, noted that Justice Stevens’ analysis

“errs in its assumption that the landowner

14

whose deprivation is one step short of com-

plete is not entitled to compensation.” Id. at

__, 112 S. Ct. at 2894, n. 8.

18 F.3d at 1568-69.

And, further explained:

Finally, the dissent believes that Supreme

Court precedent establishes that a Fifth Amend-

ment claim that specific property has been taken

is an all or nothing proposition. If taken to mean

‘that a regulatory taking cannot result in less

than a taking of the property owner’s entire fee

estate, we cannot agree. There has never been

any question but that the government can take

any kind of recognized estate or interest in

property it chooses in an eminent domain pro-

ceeding; it is not limited to fee interests. We see

no reason or support for a different rule in

inverse condemnation cases, and that is true

whether the taking results from a physical or

regulatory action.

Id. at 1572. (emphasis added). See, also Loveladies Harbor,

Inc. v. United States, 28 F.3d 1171, 1179-80 (Fed. Cir. 1994).

The conservation requirements imposed on the Sab-

offs by the District are the type of regulations that consti-

tute a taking, in that there is no reasonable relationship,

or “nexus” between the permanent condition of the Sab-

offs’ property and the use to which the property is being

made. Indeed, the evidence supports the fact that the

mitigation requirements are “merely being used as an

excuse for taking property simply because at that particu-

lar moment the landowner is asking the city for some

license or permit.” Dolan v. City of Tigard, 512 U.S. 374,

390 (1994), quoting from, Simpson v. North Platte, 206 Neb.

15

240, 245, 292 N.W. 2d 297, 301 (1980). The facts of the

Saboffs’ case fall precisely within Dolan; there has been an

“arbitrary and capricious substantive due process” tak-

ing. See, Executive 100, Inc. v. Martin County, 922 F.2d

1536, 1540 (11th Cir. 1991); Nollan v. California Coastal

Commission, 483 U.S. 825, 197 S. Ct. 3141, 97 L. Ed. 2d 677

(1987). In sum, even though a deprivation of all use is not

shown, a regulatory taking may be found based on con-

sideration of other factors.

II. To require a formal Jennings reservation in state

court to preserve a § 1983 Fifth Amendment action

creates a trap for the unwary and ignores the consti-

tutional right of a property owner to utilize pro-

cedure for obtaining damages and compensation

under the Fifth Amendment. A reservation,

whether it be formal, tacit, or by consent is unnec-

essary in the context of § 1983 in the federal land

use action.

The Eleventh Circuit’s reliance upon the doctrine of

res judicata and an express reservation pursuant to Jen-

nings and Fields is ironic given the Fields Court’s conster-

nation about Jennings, which parallel some concerns held

by the Dodd Court. The Fields opinion, at footnotes 5

through 10, evidenced the Court’s concern for potential

unfair application of the res judicata rules and notes that

in each case considered, the state court had fully addressed

federal takings claims, or that the federal takings claims were

not at issue in the state court action. The Court’s acknowl-

edgement that counsel for the homeowners in Fields

“believed Florida state taking law was identical to federal

taking law” is instructive. The Court further declined “to

ee eT

16

weaken res judicata and collateral estoppel rules to

accommodate state court parties who are taken unaware

by changes in state law announced for the first time

incident to their case.” Such is not the case before this

Court.

The Saboffs were made aware of the need to pursue

state court remedies before resorting to federal court by

the Water Management District itself when the District

filed its Motion to Dismiss based on ripeness. The Saboffs

were forced to delete their federal claims and forced back

to the state court. As part of the remand negotiations, the

parties entered into a Partial Settlement Agreement

(Appendix E), where it was specifically recognized that

remand was to cure any ripeness issues. The Eleventh

Circuit apparently overlooked the fact that the Saboffs

were forced to pursue state court proceedings, notwith-

standing that the Fields Court noted that the operation of

Williamson County, much like the abstention doctrine at

issue in England v. Louisiana State Board of Medical Exam-

iners, 375 U.S. 411, 84 S. Ct. 461 (U.S.La. 1964), “forces

would be federal court litigants to litigate their claims in

state court.” 473 U.S. 172 at 304. The Court further stated:

“Therefore, for purposes of applying Migra, we

hold that would be federal court litigants, who

are forced to pursue state court proceedings in

order to satisfy exhaustion requirements

imposed by federal law, incident to a taking

clause claim, are ‘involuntarily’ in the state

courts and, therefore, qualify for the exception

to the generally applicable res judicata princi-

ples.” Id. at 1306.

The application of the Jennings reservation to a Fifth

Amendment taking claim is inappropriate as is the

EEE PEE NERA ROO Mind Meant

17

suggestion that a § 1983 action can be brought simul-

taneously with a state court action. It seems clear that

§ 1983 Fifth Amendment claims cannot be brought simul-

taneously with a state court action. As Dodd notes:

Once the appropriate state agency reaches a

final decision, the second ripeness requirement

of Williamson County, the compensation element,

is triggered. A federal court lacks jurisdiction to

consider an as-applied regulatory taking claim

until a determination is reached that “just com-

pensation” has been denied by the state;

because the Fifth Amendment prescribes taking

without just compensation, no constitutional

violation occurs until just compensation has

been denied. The nature of the constitutional

right, therefore, requires that a property owner

utilize proceedings for obtaining compensation

before bringing a § 1983 action.

Dodd at 859.

The Dodd Court concluded that “under the teachings

of Williamson County and decisions of this Court in the

context and ripeness, the compensation element is satis-

fied if remedies available under state law have been

pursued.” Id. at 860

[T]o hold that a taking Plaintiff must first pre-

sent a Fifth Amendment claim to the state court

system as a condition precedent to seeking relief

in a federal court would be to deny a federal

forum to every taking claimant. We are satisfied

that Williamson County may not be interpreted to

command such a revolutionary concept and

draconian result.

Dodd at 860-61 (emphasis added).

18

Likewise producing a draconian result is the require-

ment for a formal reservation to pursue a cause of action

that has not accrued. Assuming that the government is

not aware of recent Supreme Court cases announcing that

a § 1983 Fifth Amendment claim cannot be brought until

state court remedies have been exhausted, what “notice”

or type reservation must be given to unwary government

counsel? There is no mandated form nor statutory law

that sets forth a specific way to reserve a claim that

should or may be made for subsequent federal court

action. The Dodd Court recognized this concern and

found:

First, consent or tacit agreement is clear justifica-

tion for splitting a claim. Restatement Second of

Judgments, 26(1)(a), and comments a (1982).

Because a primary purpose of claim preclusion

is to protect defendants from being harassed by

repetitive actions based on the same claim, the

rule need not be enforced where the State and

County have implicitly consented to the split-

ting of the Dodd claim under state and federal

laws.

Dodd at 862 (emphasis added).

The Water Management District surely cannot claim

harassment by a repetitive action, because the merits of

the Saboffs’ federal claims have never been addressed. At

every proceeding, in the initial state court action, removal

to the federal court, then an administrative process, and

again in the state court, the Water Management District

acknowledged the potential for outstanding federal

claims when it filed the Motion to Dismiss based on

ripeness, which resulted in the remand. Such conduct

19

was surely a tacit agreement to face further federal claims

or, at a minimum, consent to further federal action. There

has never been a “full and fair adjudication” in state

court of the Saboffs’ constitutional claims to which fed-

eral due process guarantees them. Kremer v. Chemical

Construction Corporation, 456 U.S. 461, 482 (1982).

The Saboffs were anything but silent in reserving

their constitutional challenge. The administrative hearing

officer’s interim order incorporated by reference the Par-

.tial Settlement Agreement, where the Water Management

District gave implied consent to proceed on federal

claims at a later date. The Dodd Court also stated that a

court may reserve a part of the plaintiff’s claim for subse-

quent litigation by “expressly omitting any decision with

regard to it in the first judgment,” Dodd at 862. Speci-

fically, the Court stated: i

It may appear in the course of an action that the

plaintiff is splitting a claim but there are special

reasons that justify him doing so, and accord-

ingly that the judgment in the action ought not

to have the usual consequences of extinguishing

the entire claim; rather the plaintiff should be

left with an opportunity to litigate in a second

action that part of the claim which he justifiably

omitted from the first action.

Dodd at 862.

The Saboffs and the Water Management District

negotiated the Partial Settlement Agreement with the

negotiations clearly involving the possibility of further

action on federal claims as evidenced by the entire

remand process. After the state court claims had been

remanded, the Water Management District again

20

acknowledged that the Saboffs were reserving the right to

challenge any statutory or constitutional violation at the

administration hearing. The Partial Settlement Agreement

anticipated more than the remanded state court action,

the parties agreeing at pertinent Paragraphs 6, 7, and 8 as

follows:

6. Saboff agrees he will dismiss, with preju-

dice, Count V of the Complaint which Saboff

filed in the Circuit Court of the Eighteenth

Judicial Circuit in and for Seminole County,

Florida, bearing Case Number: 91-2970-

CA-16-L, now pending as Saboff and Saboff v.

St. Johns River Water Management District,

Patrick Frost, Florida Audubon Society, Charles

Lee, Friends of the Wekeiva and Nancy Prime, in

the United States District before the Middle

District of Florida, Orlando Division, Case

Number: 91-907-CIV-ORL-18.

7. This partial settlement agreement is not and

shall not be interpreted in any way to be a

consent or a waiver of defenses to any mat-

ters complained of in any proceedings by

Saboff. Furthermore, by this agreement, Sab-

off does not concede to DOAH’s jurisdiction

over this matter.

8. This Partial Settlement Agreement concerns

disputed claims and defenses. By stipulating

to this agreement, none of the parties admits

any facts or conclusions of law, except as

otherwise stipulated herein.

After the Partial Settlement Agreement, the remand

to state court, and the administrative hearing, the Water

Management District continued to steadfastly argue in

21

state court that the failure to allege a taking of all prop-

erty was a bar to compensation under state law. Clearly, a

tacit understanding and acknowledgement of potential

federal litigation.

By executing the Partial Settlement Agreement and

remanding the claims back to the state court for deter-

mination of state issues only, the Water Management

District specifically acknowledged “no consent or waiver

of defenses complained of in any proceedings by the

Saboffs”. Moreover, it is undisputed that, at the adminis-

trative hearing, which took place after the Water Manage-

ment District had raised the issue of ripeness and partial

taking in federal court, the Saboffs specifically advised

the hearing officer that they were going to bring an action

based, not on the conservation easement itself, but on the

constitutionality of the actions of the District. The District

impliedly if not expressly consented to the claims split-

ting.

The Dodd decision can be viewed as nothing more

than an attempt to interject common sense and logic into

the federal judicial system. Indeed, while not directly

addressing an England reservation, the Dodd Court

advanced the same concerns as Justice Douglas in his

concurring opinion in England. Justice Douglas was abso-

lutely correct when he stated the England case makes the

Pullman case somewhat of a “Frankenstein” and creates a

“trap for the unwary.” The Dodd Court alluded to this

trap with its statement that the requirement that one must

go through the state court proceedings, subjecting them-

selves to a myriad of judges, judicial assistants, justices,

and otherwise, who are not familiar with the “taking”

issues, as a condition precedent to bringing a Fifth

22

Amendment claim in federal court, is wrong in that it

denies a federal forum to every taking claimant.

The genesis of the reservation doctrine announced in

England, Jennings, and Fields is the res judicata doctrine.

Thus the reservation doctrine likewise should be gov-

erned by the well-settled principles of res judicata as

established by the Florida Supreme Court.

“(W]e note the Florida Supreme Court's holding

that ‘the [res judicata] doctrine will not be

invoked where it will work an injustice... ”

deCancino v. Eastern Airlines, Inc., 283 So. 2d 97

(Fla. 1973) (footnoted omitted); See also, Univer-

sal Construction Company v. City of Ft. Lauderdale,

68 So. 2d 366, 369 (Fla. 1953) (“Indeed, this very

Court, among others, has announced the salu-

tary principle that the doctrine of res judicata

should not be so rigidly applied as to defeat the

ends of justice.”); Wallace v. Luxmoore, 156 Fla.

725, 24 So. 2d 302, 304 (1946) (“Stare decisis and

res judicata are perfectly sound doctrines

approved by this Court, but they are governed

by well-settled principles and when factual situ-

ations arise that to apply them would defeat

justice, we will apply a different rule.”); Flesche

v. Interstate Warehouse, 411 So. 2d 919, 924 (Fla. |

1st DCA 1982).” |

CONCLUSION

The Saboffs exemplify the many property owners

caught in a decade of land use law that has been in a

constant state of confusion as courts consider various

theories, rights, and duties applicable to each party.

23

Before the merits of a property owner’s claim can be

addressed, a landscape of one mine field after another

must be crossed. People who spend their lives working in

the land use arena and “struggling to wrestle coherence

from the substantive and procedural goulash prepared by

a judicial system, sometimes lose sight of the fact that the

ultimate issue is protection of the individual. That is what

the Bill of Rights is all about.”

The Dodd Court recognized the potential unfairness

of preclusion law as it applies to a § 1983 Fifth Amend-

ment taking, as did the Fields Court. The Saboff Court’s

insistence that a reservation must be made on the record

at the outset of the state court suit produces a manifest

injustice which merely elevates form over substance,

which caused both the Dodd Court and the Fields Court

great concern.

The Saboffs did not go to federal court for a second

bite. The Saboffs’ state claims were dismissed on the

ground that Florida law did no allow compensation for a

partial regulatory taking. The doctrine of res judicata

does not apply and the Water Management District’s

motion, based on ripeness and the subsequent Partial

Settlement Agreement, amounted to a consent or tacit

agreement that further potential federal claims may exist,

and, thus, alleviates a formal reservation of a § 1983

action.

24

Dated this 14th day of June, 2000.

Respectfully submitted,

LeFFLER & Associates, P.A.

MicHae- D. Jones, EsQuire

Florida Bar Number: 0137608

Atrium II Building

301 West State Road 434, Suite 317

Winter Springs, Florida 32708

(407) 327-7275

(407) 327-7374 Facsimile

APPENDIX “A”

A-1

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 98-3337

D.C. Docket No. 96-1223-CIV-ORL-18

JAMES R. SABOFF, .

KATHY R. SABOFF,

Plaintiffs-Appellees,

versus

ST. JOHN’S RIVER WATER

MANAGEMENT DISTRICT,

Defendant-Appellant.

Appeal from the United States District Court

for the Middle District of Florida

(January 18, 2000)

Before DUBINA, Circuit Judge, KRAVITCH, Senior Cir-

cuit Judge, and NESBITT*, Senior District Judge.

NESBITT, Senior District Judge:

The Defendant St. John’s River Water Management

District appeals from the district court’s denial of its

motion for summary judgment on res judicata grounds.

For the reasons set forth below, we reverse.

“Honorable Lenore C. Nesbitt, Senior U.S. District Judge for the

Southern District of Florida, sitting by designation.

A-2

I. Procedural Background

In 1991, Plaintiff/Appellees James and Kathy Saboff

(“the Saboffs”), landowners in a Seminole County, Florida

subdivision, filed suit against Defendant/Appellant St.

John’s River Water Management District (“the District”)

in Florida state court for inverse condemnation, pro-

cedural and substantive due process violations, and

declaratory relief, under the Florida Constitution, as well

as for federal substantive due process and equal protec-

tion violations. The District removed the case to federal

court on the basis of federal question jurisdiction. After

the District moved to dismiss the Saboffs’ federal sub-

stantive due process and equal protection claims as

unripe, the Saboffs voluntarily dismissed the federal

claims. Subsequent to remand, the state circuit court dis-

missed the Saboffs’ claims for failure to state a cause of

action. On appeal to Florida’s Fifth District Court of.

Appeals, that court’s decision was affirmed. The Saboffs’

request for a rehearing en banc was denied on October 23,

1996.

On November 14, 1996, the Saboffs filed a complaint

alleging federal substantive due process and federal

equal protection claims, along with a federal takings

claim, in the District Court for the Middle District of

Florida. The district court summarily denied by

“endorsed order” the District’s motion for summary

judgment. The district court found a taking and sent the

determination of the value of the taking, along with the

~substantive due process and equal protection claims, to

the jury. The jury returned a verdict in favor of the

Saboffs on each of the claims, awarded $100,100.00 for the

A-3

taking and $14,000 for the substantive due process viola-

tion, but found no monetary damages for the equal pro-

tection violation. The district court denied the District's

post-trial motion for judgment as a matter of law.

II. Factual background

In 1984, the Saboffs purchased an unimproved resi-

dential lot in the Springs Landing subdivision located in

Seminole County, Florida for the purpose of constructing

a single family home. The lot is approximately 0.7 acres

and fronts the Little Wekiva River. At the time of pur-

chase, the property contained a subdivision restriction

prohibiting building on the 0.4 acres adjacent to the Little

Wekiva River, since that area was part of the one hundred

year flood plain.

The District is a state agency with powers under

Chapter 373 Florida Statutes, to regulate activities harm-

ful to water resources. In 1988, the Florida legislature

enacted Florida Statute § 373.415, which mandated that

the District Governing Board enact rules establishing rip-

arian habitat protection zones adjacent to the waterways

of the Wekiva River System, including the Little Wekiva

River. Pursuant to the legislation, the District conducted a

scientific study, and based upon that study, amended its

regulatory permitting rules to establish the Riparian Hab-

itat Protection Zone (“RHPZ”). Any lot in the RHPZ was

required to get a management and storage of surface

waters (“MSSW”) permit prior to construction.

The Saboffs, whose lot was in the RHPZ, applied in

March 1991 for a MSSW permit for the construction of a

A-4

home, swimming pool, and stormwater treatment system

on their lot. At that time, the Saboffs’ property was the

only undeveloped lot in the subdivision. The RHPZ rules

required that the Saboffs provide reasonable assurance

that their proposed construction activity would not

adversely affect the wildlife functions of aquatic and

wetland species in the RHPZ and meet water quality and

quantity criteria for the discharge of stormwater into the

Little Wekiva River. Since the home and pool would

require the destruction of 0.3 acres of RHPZ wildlife

habitat, the rules required the Saboffs to provide mitiga-

tion for the loss of habitat in order to receive the neces-

sary permits. By way of mitigation, the District proposed

that the Saboffs place a deed restriction or conservation

easement over the rear 0.4 acres of the lot (“Mitigation

Area”) prohibiting construction on that portion of the

property. The Saboffs requested that they be allowed to

place decking, a boardwalk, a fence, tree house, sandbox,

and a swing set in the Mitigation Area. In June 1991 the

Governing Board granted the MSSW permit for the con-

struction of the home and pool, subject to the Saboffs

recording a deed restriction or conservation easement,

with the additional modification that the Saboffs would

be allowed to clear certain types of underbrush from the

Mitigation Area.

Interested third parties administratively challenged

the permit, but the Saboffs were allowed, through agree-

ment with the District, to commence, and in fact com-

pleted, construction in the non-mitigation area prior to

the conclusion of the administrative proceedings. Follow-

ing completion of construction, but prior to a final admin-

istrative decision, the Saboffs initiated their judicial

A-5

challenges to the revised permit’s conservation easement

requirement. In August of 1992, the administrative pro-

cess resulted in the approval of the permit subject to the

Saboffs’ recording a deed restriction or conservation ease-

ment.

III. Discussion

We review de novo the denial of a motion for sum-

mary judgment on res judicata grounds. See Harris v.

Board of Education of Atlanta, 105 F.3d 591 (11th Cir. 1997);

Fields v. Sarasota Manatee Airport Authority, 953 F.2d 1299

(11th Cir. 1992).

As the district court did not provide any grounds for

denying the District’s motion for summary judgment, we

are without the benefit of the reasons upon which the

district court based its decision.

Although the District asserted a number of argu-

ments in its motion for summary judgment which may

have resulted in the dismissal of the action, the Court

only addresses the threshold issue of res judicata as to the

Saboffs’ claims for relief.

This case presents an issue previously recognized in

Fields v. Sarasota Manatee Airport Authority, 953 F.2d 1299

(11th Cir. 1992), a case squarely on point. While Wil-

liamson County Regional Planning Commission v. Hamilton

Bank of Johnston City, 473 U.S. 172, 105 S.Ct. 3108, 87

L.Ed.2d 126 (1985), requires potential federal court plain-

tiffs to pursue any available state court remedies that

might lead to just compensation prior to bringing suit in

federal court for a takings claim, the doctrine of res

A-6

judicata in conjunction with 28 U.S.C. § 1738! precludes a

plaintiff from pursuing in federal court a claim previ-

ously litigated in state court. Fields, citing Jennings v.

Caddo Parish School Bd., 531 F.2d 1331 (5th Cir. 1976), cert.

denied, 429 U.S. 897, 97 S.Ct. 260, 50 L.Ed.2d 180 (1976),

explains that this apparent dilemma is resolved by the

plaintiff “ ‘reserv[ing] her constitutional claims for subse-

quent litigation in federal court’ by ‘making on the state

record a reservation as to the disposition of the entire

case by the state courts’ to preserve access to the federal

forum.” Fields, 953 F.2d at 1303 (quoting Jennings, 531 F.2d

at 1332). Fields held that an additional two prerequisites

must be met for a “Jennings reservation” to be effective.

The potential federal court litigant must be precluded

from filing his or her suit in the federal court in the first

instance and must be in state court involuntarily. See

Fields, 953 F.2d at 1306.

Therefore, the relevant inquiry is whether Florida’s

law of res judicata would ordinarily bar the Saboffs’

subsequent federal claims, and if so, whether the Saboffs

made an effective Jennings reservation. See Fields, 953 F.2d

at 1307. “ ‘The Florida doctrine of res judicata bars subse-

quent litigation where there is (1) identity of the thing

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

persons and parties to the action, and (4) identity of the

quality or capacity of the person for or against whom the

1 Section 1738 requires “a federal court to give a state-court

judgment the same preclusive effect as would be given that

judgment under the law of the State in which the judgment was

rendered.” Migra v. Warren City School Dist. Bd. of Education, 465

U.S. 75, 81, 104 S.Ct. 892, 896, 79 L.Ed.2d 56 (1984).

A-7

claim is made.’” Fields, 953 F.2d at 1307-08 (quoting

Amey, Inc. v. Gulf Abstract & Title, Inc., 758 F.2d 1486, 1509

(11th Cir. 1986), cert. denied, 475 U.S. 1107, 106 S.Ct. 1513,

89 L.Ed. 912 (1986)). Florida law defines identity of

causes of action as causes “sharing similarity of facts

essential to both actions.” Id. (quoting Amey, 758 F.2d at

1510). The facts underlying the state and federal claims at

issue are indisputably identical. In Fields, the court held

that although a minor distinction exists between the fed-

eral and state takings claims, the state claim precluded

the subsequent federal claim under res judicata princi-

ples. See id. Once again, Fields is on all fours, and it is

clear that Florida res judicata principles would normally

preclude the subsequent federal action. Additionally, the

state court’s dismissal of the Saboffs’ state claims consti-

tutes an adjudication of the merits under Florida law for

the purposes of res judicata. See Fla.R.Civ.P. 1.420(b)

(“{uJnless the court in its order for dismissal otherwise

specifies, a dismissal . . . other than a dismissal for lack of

jurisdiction or for improper venue or for lack of an indis-

pensable party, operates as an adjudication on the

merits”); Aquatherm Industries, Inc. v. Florida Power & Light

Co., 84 F.3d 1388 (11th Cir. 1996).

As previously stated, the only way that the Saboffs

might have preserved their federal claims was through a

Jennings reservation. Both Jennings and Fields make clear

that a Jennings reservation, as an exception to the well-

settled doctrine of res judicata, must be set forth clearly,

on the record, and at the outset of the state court claim,

which was not done in this case. See Fields, 953 F.2d at

1309 n. 10; Jennings, 531 F.2d at 1332. The Saboffs argues

that they made an “implicit” Jennings reservation,

A-8

through an off the record verbal understanding with the

District that federal questions would be preserved. Even

if the facts supported this conclusion, this off the record

communication is clearly insufficient to meet the stan-

dard for a Jennings reservation as set forth in Jennings and

Fields.

VI. Conclusion

Jennings and Fields dictate that the Saboffs’ federal

law claims are barred by Florida law of res judicata.

Therefore, the district court’s denial of the District's

motion for summary judgment was improper and is.

REVERSED.

APPENDIX “B”

B-1

IN THE DISTRICT COURT OF APPEAL

OF THE STATE OF FLORIDA

FIFTH DISTRICT JULY TERM 1996

JAMES R. SABOFF

and KATHY R. SABOFF,

Appellants. ©

v. CASE NO. 95-1458

ST. JOHNS RIVER WATER

MANAGEMENT DISTRICT,

et al.,

Appellees.

/

Opinion filed August 30, 1996

Appeal from the Circuit Court

for Seminole County,

Seymour Benson, Judge.

Michael D. Jones of Leffler & Associates,

Inc., Winter Springs, for Appellants.

Michael L. Rosen of Florida Legal

Foundation, Inc., Tallahassee,

Amicus Curiae.

Kathryn L. Mennella, Palatka, and

Robert A. Butterworth, Attorney General

and Ana Cristina Martinez, Assistant

Attorney General, Tallahassee, for Appellees.

Carole Joy Barice of Fowler, Barice & Feeney,

P.A., Orlando, and Joseph Z. Fleming, Miami,

Amicus Curiae Florida Audubon Society.

PER CURIAM.

B-2

AFFIRMED. See Department of Community Affairs v.

Moorman, 664 So. 2d 930, 932-933 (Fla. 1995); Fla. Const.

art. II, § 7; § 369.311, Fla. Stat. (1995).

SHARP, W., HARRIS and THOMPSON, JJ., concur.

APPENDIX “C”

C-1

IN THE DISTRICT COURT OF APPEAL

OF THE STATE OF FLORIDA

FIFTH DISTRICT

JAMES R. SABOFF AND KATHY

R. SABOFF,

Appellant,

v. CASE NO. 95-1458

ST. JOHNS RIVER WATER

MANAGEMENT, etc., et al.,

Appellee.

DATE: October 23, 1996

BY ORDER OF THE COURT:

ORDERED that Appellants’ MOTION FOR

REHEARING, FOR REHEARING EN BANC, AND FOR

CERTIFICATION, filed September 16, 1996, is denied.

I hereby certify that the foregoing is

(a true copy of) the original court order.

/s/ Frank J. Habershaw

FRANK J. HABERSHAW, CLERK

BY:

Deputy Clerk

(COURT SEAL)

cc: Michael D. Jones, Esq.

Kathryn L. Mennella, Esq.

Edmund Baxa, Jr., Esq.

Joseph Z. Fleming, Esq.

Carole Joy Barice, Esq.

Gerald B. Curington, Esq. and

Ana Cristina Martineaz, Esq.

APPENDIX “D”

D-1

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

JAMES R. and KATHY R.

SABOFF,

ry CASE NO.

Plaintiff, 96-1223-CIV-ORL-18

V.

ST. JOHNS RIVER WATER

MANAGEMENT

DISTRICT,

Defendant.

/

ORDER

(Filed July 28, 1998)

This matter came before the court for trial on May 4,

1998. during the course of the trial, the court found as a

matter of law that four-tenths (4/10) of an acre of the

Saboff’s property had been taken for public use by defen-

dant, the St. Johns River Water Management District. By

stipulation of the parties, the issue of damages for the

taking, as well as plaintiffs’ equal-protection and substan-

tive-due-process claims, were submitted to the jury. In

accordance with Federal Rule of Civil Procedure 52(a),

the court now issues its findings of fact and conclusions

of law.

The plaintiffs owned a seven-tenths (7/10) acre lot

located in Seminole County, Florida, described as:

Lot 39, Springs Landing, Unit 2, as recorded in

Plat Book 24, Page 28, of the Public Records of

Seminole County, Florida.

D-2

Plaintiffs purchased the property in 1984. The property is

bounded on one side by the Little Wekiva River and was

but one lot in a multi-lot subdivision. When plaintiffs

purchased the property, it had already been permitted for

development and plaintiffs were presumably able to

build on any part of the property.

In 1988, Florida enacted legislation giving the St.

Johns Water Management District authority to establish

certain “riparian habitat protection zones” along the

Wekiva River. See Fla. Stat. § 373.415 (1995). In March of

1989, the District enacted a set of rules referred to as

40C-4.041, 40C-4.091, and 40C-41.063, which established a

riparian habitat protection zone over approximately 550

feet on each side of the Wekiva River as it runs through

portions of Orange, Lake, and Seminole County, Florida.

In December of 1990, the Saboffs decided to construct

a single-family residence on their property, which at that

time was the only remaining undeveloped lot in the

subdivision. The Saboffs were advised that they must

seek permit approval from the District Prior to beginning

construction. The Governing Board of the St. Johns River

Water Management District later issued the permit condi-

tioned upon the construction of a retention berm on the

rear portion of the property. The Board also advised that

a conservation easement was to be placed over four-

tenths (*/1) of an acre of the Saboffs’ property.

On June 11, 1991, the Saboffs accepted the conditions

imposed by the District under protest, and simul-

taneously commenced legal action against the District in

state circuit court. The District removed the action to this

D-3

Court, after which the District raised the issues of ripe-

ness and exhaustion of administrative remedies in seek-

ing dismissal. In response, the Saboffs amended their

complaint, deleting all federal claims causing the matter

to be remanded to state court for further administrative

and judicial proceedings. On August 7, 1992, after a state

administrative proceeding, the District entered a final

order imposing the deed restrictions and other conditions

upon the Saboffs’ property.

After a series of state court proceedings, the Saboffs’

state-law claims were dismissed, with the dismissal later

being affirmed by Floridas Fifth District Court of

Appeal. Saboff v. St. Johns River Water Mgt. Dist., 681 So.

2d 757 (Fla. Dist. Ct. App. 1996); St. Johns River Water

Mgt. Dist., 635 So. 2d 32 (Fla. Dist. Ct. App. 1994). The

Saboffs then filed the instant case pursuant to 42 U.S.C.

§ 1983. The court determined that the action was ripe as a

result of the Saboffs’ exhaustion of all administrative and

state court remedies. The court further determined that

the action was timely. E.g., Tari v. Collier County, 56 F.3d

1533, 1537 n.12 (11th Cir. 1995); accord Alachua County v.

Cheshire, 603 So. 2d 1334, 1337 (Fla. Dist. Ct. App. 1992);

In light of the credible evidence adduced at trial, the

court concludes that the Land and Water Adjudicatory

Commission’s 1988 Order as a Finding of Fact identifies

the District as a “Special Taxing District,” the District

stipulated that it did not have Eleventh Amendment

immunity, the stipulation was established in a state court

order in July of 1995. Arguably, after 1996, the Legislature

created Eleventh Amendment for the District. Prior to the

1996 legislation, however, the Districts were autonomous,

special taxing districts similar to a school board, County,

D-4

or municipality and, therefore, were not entitled to Elev-

enth Amendment immunity. Tuveson v. Florida Governor's

Counsel on Indian Affairs, 373 F.2d 730, 732 (11th Cir. 1984).

By imposing restrictions limiting the Saboffs’ ability

to disturb the underbrush on their property or otherwise

utilize the property as desired, the District has taken

more than one half of the Saboffs’ property. The trial

testimony also established that the Saboffs were treated

differently from similarly situated land owners within the

subdivision. The conservation easement imposed effec-

tively frustrates a portion of the Saboffs’ reasonable

investment-backed expectations and burdens the prop-

erty in a way not bargained for by plaintiffs. On the facts

established, the Court finds that the District’s imposition

of the easement has taken four-tenths (4/10) of an acre of

the Saboffs’ property.

Florida Statute section 704.061 defines a conservation

easement as a right or interest in real property, and limits

the Saboffs right to exclude others from their property,

which interferes with the full incidents of ownership. In

1987, the United States Supreme Court found that imple-

menting regulatory conditions that effectuate acquisition

of title or the interference with possessory rights may

warrant a finding that private property has been taken

for public use. See Nollan v. California Coastal Commission,

483 U.S. 825, 831-32 (1987). In the case at bar, the District

granted the Saboffs’ permit only after imposing the con-

dition that they grant an easement by deed to the District

for public use and benefit. “When a real property record

title is encumbered with an easement or restrictive cove-

nant, which is dedicated to the general public’s use, but

for which the private owner was never compensated, a

———— oreo

D-5

title taking must be found.” Note, Takings: Who Says it

Needs to Be So Confusing?, 22 Stetson L. Rev. 379, 385

(1993). The practical effect is that the District controls a

significant portion of the use of the Saboffs’ property.

The court is not persuaded by the District’s argument

that because the plaintiffs were able to build upon three-

tenths (°/10) of their property, there has been no taking.

Rather, the court is persuaded by a line of cases which

suggests the opposite. In 1992, the United States Supreme

Court considered the “unit of property” or “parcel as a

whole” analysis concluding that it would be inappropri-

ate to suggest that the taking of less than 100 percent of

the property would not result in a compensable taking.

Lucas v. South Carolina Coastal Council, 112 S.Ct. 2886

(1992). Circuit courts have followed Lucas, finding that a

partial taking may be found even if a viable, economical

use remains in the property. Front Royal & Warren County

Indus. Park Corp. v. Town of Front Royal, 135 F.3d 275,

285-86 (4th Cir. 1998); Loveladies Harbor, Inc. v. United

States, 28 F.3d 1171, 1178-79 (Fed. Cir. 1994); Reahard v. Lee

County, 968 F.2d 1131, 1134-35 (11th Cir. 1992), cert. denied,

514 U.S. 1064 (1995).

The court found that the Saboffs were intentionally

treated different from others similarly situated in their

subdivision and the riparian habitat protection zone,

which affected the use and benefits of a fundamental

property interest. The jury concluded that the Saboffs had

established a violation of their equal protection rights

under the Fourteenth Amendment, but did not award

damages.

D-6

The court further determined that there was a ques-

tion as to whether or not the District was reasonable in its

accommodation to protect the water and the wildlife. On

this issue, the court is guided by the decision in DeBlasio

v. Zoning Bd. of Adjustment of West Amwell, 53 F.3d 592,

598 (3d Cir. 1995), in which the court held that property

ownership, per se, is entitled to substantive due process

protection under the Fourteenth Amendment. The issue

of whether the District’s rules were arbitrary, capricious,

or failed to bear a substantial relationship to the objective

sought was submitted to the jury. The jury found that the

Saboffs’ substantive due process rights had been violated

and awarded the sum of fourteen thousand ($14,000.00)

dollars. The parties stipulated to waive a twelve-member

jury and accept the findings of a seven-member jury as to

the value of the property on June 10, 1991, the date the

court established as the date of the taking.

In accordance with the court’s findings of fact and

conclusions of law, as well as the verdict returned by the

jury, the court finds that the District took, by way of

inverse condemnation, four-tenths (4/10) of an acre of the

Saboffs’ property for which the Saboffs are to be awarded

$100,100.00, together with the applicable interest at the

applicable rate and costs; and that for violation of the

Saboffs’ substantive due process rights, the jury awarded

the amount of $14,000.00; and while the jury has found

the actions of the District have violated the Saboffs’ equal

protection rights under the law, no damages were

awarded for that violation. The court retains jurisdiction

to assess attorney fees and costs as applicable.

Accordingly, it is therefore ORDERED and

ADJUDGED as follows:

The District shall pay as full compensation the princi-

pal sum of ONE HUNDRED THOUSAND ONE HUN-

DRED ($100,100.00) DOLLARS for the real property

taken, together with simple interest calculated at the Flor-

ida legal rate of interest of 12 percent from June 10, 1991

to December 31, 1994, and 8 percent from January 1, 1995

to December 31, 1995, and 10 percent from January 1,

1996 to May 6, 1998, and thereafter at the legal rate of

interest until the total principal sum has been paid.

As such, the Saboffs shall recover a total of ONE

HUNDRED THOUSAND ONE HUNDRED ($100,100.00)

DOLLARS in full payment for their interest in the prop-

erty taken, together with interest on said amount in the

total amount of SEVENTY FOUR THOUSAND TWO

HUNDRED THIRTY THREE THOUSAND AND 07/100

($74,233.07), together with the sum of FOURTEEN

THOUSAND ($14,000.00) DOLLARS awarded for sub-

stantive due process violation for total damages of ONE

HUNDRED EIGHTY EIGHT THOUSAND THREE HUN-

DRED THIRTY THREE AND 07/100 ($188,333.07).

Further, James R. Saboff and Kathy R. Saboff shall

deliver to the St. Johns River Water Management District,

a Warranty Deed Passing fee simple interest to four-

tenths (*/10) of an acre of the Saboff property taken subject

to a correct meets and bounds survey.

The court hereby enters final judgment in favor of

the Saboffs in the amount of $188,333.07 as of May 6,

1998, together with interest at the legal rate until satis-

fied. The St. Johns River Water Management District shall

deposit said amount in the registry of the court within

thirty (30) days from the date of this order, and upon

D-8

payment of the money specified into the registry of the

court, the unencumbered right, title, and interest in and

to the described property shall vest fee simple in the St.

Johns River Water Management District. Any delay

encountered in obtaining the legal description to effectu-

ate the transfer of the property interest will not result in

the accrual of interest. The court retains jurisdiction to

award applicable fees and costs.

It is SO ORDERED in Orlando, Florida, this 28 day

of July 1998.

/s/ G. Kendall Sharp

G. KENDALL SHARP

United States

District Judge

Copies to all counsel of record

APPENDIX “E”

*

pial ee, s Bu

ee ee ace

es

ae

E-1

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRIENDS OF THE

WEKIVA and FLORIDA

AUDUBON SOCIETY,

Petitioners DOAH CASE NO. 91-6823

‘ SJRWMD APPLICATION

Vs. NO. 4-117-0298A

JIM SABOFF and ST.

JOHNS RIVER WATER

MANAGEMENT

DISTRICT,

Respondents.

i ee

PARTIAL SETTLEMENT AGREEMENT

COME NOW the parties, by and through their under-

signed counsel, and stipulate to the following partial

settlement of the above styled cause:

1. This action concerns the validity of a permit for

construction of a home by Respondent Saboff (“Saboff”)

on Lot 39 of Springs Landing, Unit II (hereinafter referred

to as “Saboff’s property”), within the Riperian Habitat

Protection Zone of the Little Wekiva River in Seminole

County, Florida.

2. Saboff’s property consists of two distinct areas:

(a) the building pad, most of which was cleared of natural

vegetation prior to August 1, 1991, on which a single

family residence (house, mulched driveway, pool and

sidewalk) are to be constructed; and (b) the remainder of

the lot, which is undisturbed, and which is to be encum-

bered by a conservation easement pursuant to the permit.

E-2

A proposed berm for stormwater treatment was also

approved to be located on a portion of the remainder of

the lot which is undisturbed.

3. The parties agree that the only matter at issue in

this administrative proceeding is the modification to per-

mit condition No. 17 approved by St. Johns River Water

Management District (“District”), on June 11, 1991, (per-

mit no. 4-117-0298). The parties stipulate that the permit

conditions no. 1 - 16 and 18 approved by the District and

the appropriateness of the design and location of the

proposed house and other parts of the proposed water

management system, as limited by permit conditions no.

1 - 16 and 18, are not at issue in this administrative

proceeding. The relevant permit conditions which were

approved by the District Governing Board are attached as

Exhibit “A” and incorporated herein. Inasmuch as the

focus of the amended petition is the sufficiency of the

modification to permit condition No. 17 (as opposed to

the construction of the residence), and Saboff is desirous

of beginning construction of his residence, the parties

agree that Saboff may proceed to construct the single

family residence (house, mulched driveway, pool and

sidewalk) pursuant to the terms of the District order

attached hereto as Exhibit “B” and incorporated herein.

4. This stipulation does not agree to any construc-

tion, including additional clearing, removal of under-

brush, or cutting of vegetation, at any location on the lot

outside the previously cleared area, with the exception as

set forth in Exhibit “B”.

5. Prior to undertaking any construction activities,

Saboff will delineate the construction area described in

E-3

paragraph 8 of Exhibit “B” by means of flagging or fenc-

ing, and shall deliver written notification of such delinea-

tion to each party so that each party will have at least

three working days to inspect the flagged or fenced delin-

eation prior to the beginning of construction. Notification

shall be delivered to the parties’ addresses as indicated in

this Stipulation.

6. Saboff agrees that he will dismiss, with prejudice,

Count VI of the Complaint which Saboff filed in the

Circuit Court of the Eighteenth Judicial Circuit in and for

Seminole County, Florida, bearing Case No. 91-2970-

CA16-L, now pending as Saboff and Saboff v. St. Johns River

Water Management District, Patrick Frost, Florida Audubon

Society, Charles Lee, Friends of the Wekiva and Nancy Prine,

in the United States District for the Middle District of

Florida, Orlando Division as Case No. 91-907-CIV-

ORL-18.

7. This Partial Settlement Agreement is not and

shall not be interpreted in any way to be a consent to or a

waiver of defenses to any matters complained of in any

proceeding by Saboff. Furthermore, by this agreement

Saboff does not concede to DOAH’s jurisdiction over this

matter.

8. This Partial Settlement Agreement concerns dis-

puted claims and defenses. By stipulating to this agree-

ment, none of the parties admits any facts or conclusions

of law, except as otherwise stipulated herein.

/s/ R. Duke Woodson

R. Duke Woodson

Attorney for Friends

of the Wekiva

Florida Bar No. 212849

111 N. Orange Ave.,

Ste. 1800

P. O. Box 2193

Orlando, FL 32802-2193

407 / 423-7656

/s/ Kathryn D. Mennella

Kathryn D. Mennella

Attorney for Respondent

St. Johns River Water

Management District

Florida Bar No. 320714

P. O. Box 1429

Palatka, FL 32178-1429

904/329-4215

E-4

/s/ Charles Lee

Charles Lee

Senior Vice President

Florida Audubon Society

460 Highway 436,

Suite 200

Casselberry, FL 32707

407 /260-8300

/s/ Michael D. Jones

Michael D. Jones, Esquire

Attorney for Jim Saboff

Florida Bar No. 137608

P. O. Box 3567

Winter Springs, FL 32706

407 /366-8806

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of

the foregoing has been provided by U. S. Mail this 9th

day of January, 1992 to: Michael D. Jones, Esquire, P. O.

Box 3567, Winter Springs, FL

R. Duke Woodson, Esquire, 111 North Orange Ave.,

Suite 1800, 32708; Kathryn £-MenneHa;St-—fohns-River

4 - ’ 4, 4,

32472+ Charles Lee, Senior Vice President, Florida

E-5

Audubon Society, 460 Highway 436, Suite 200, Casselbe-

rry, FL 32707.

/s/ Kathryn L. Mennella

R-—Dtrke—Woodsen |

KATHRYN L. MENNELLA

APPENDIX “F”

F-1

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 98-3337

JAMES R. SABOFF,

KATHY R. SABOFF,

Plaintiffs-Appellees,

versus

ST JOHN’S RIVER WATER

MANAGEMENT DISTRICT,

Defendant-Appellant.

On Appeal from the United States District Court

for the Middle District of Florida

ON PETITION(S) FOR REHEARING AND

PETITION(S) FOR REHEARING EN BANC

(Opinion oe ts 2 ee * (le ©

(Filed Mar. 20, 2000)

Before: DUBINA, Circuit Judge, KRAVITCH, Senior Cir-

cuit Judge, and NESBITT“, Senior District Judge.

PER CURIAM:

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

ber of this panel nor other Judge in regular active service

* Honorable Lenore C. Nesbitt, Senior U.S. District Judge for the

Southern District of Florida, sitting by designation.

ees

F-2

on the Court having requested that the Court be polled

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

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

Rehearing En Banc are DENIED.

ENTERED FOR THE COURT:

/s/

UNITED STATES CIRCUIT

JUDGE

ORD-42

(6/95)