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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2000
- **Citation:** 531 U.S. 823

## Text

re Court, U.S.

: oO LED

99204 1 JUN } 5-200

No.

oe Se eee

OFFICE OF JHE CLERK

In The
Supreme Court of the United States

o

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

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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. |

ili

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
pe he py os 6 | ee i er iv
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)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_0883%3A1. Public record. Not legal advice.