# Opposition Brief — Corn v. City of Lauderdale Lakes

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1999
- **Citation:** 526 U.S. 1145

## Text

Bupremes Gourt, U8

|
RIDBD |
APR 27 1999 E
No. 98-1428 ; oFFict F THE CEERK |
\ iE CRER
| ee
In The

Supreme Court of the United States
October Term, 1998

OT re City of Lauder dale LaKes 51] L 2 9 L018

Corn v. City of Lauderdale Lakes, 95 F.3d 1066 (11th
Cir. 1996) cert. denied 118 S.Ct. 44] (1997)
je * Bi ce Seeeierene hereon ware e th oe 2, 2.

Corn v. City of Lauderdale Lakes. 118 S.Ct. 441 (1997)

Corn v City of Lauderdale Lakes. unpublished

Dolan v. City of Tigard, 512 U.S. 374 | (1994) ...9, 14 15,

Duignan v. U.S., 274 U.S. 195 (1927)

e v. Sarasota Co., 908 F.2d 716 (llth Cir. 1990),
cert. denied, 498 U.S. 1120 (1991)

Husty v. U.S., 282 U.S. 694 (| (1931)

Kaiser Aetna v. United States, 444 U.S. 164 (1979)... a

ge

TABLE OF AUTHORITIES - Continued

Loretto v. Teleprompter A
Cia SE Lee ee cee.
Lucas v. South Carolina Coastal Council, 505 U.S.
1003 (1992).....

AT 7 _ en P- , eee ; a. ~ ii > , , let:
Nollan v. California Coastal Comm'n. 483 U.S. 825
(1987)

Penn Central Transp. Co. v. New York City, 438 U.S.
104 (1978)

Ruckleshaus v. Monsanto Co.. 467 U.S. 986 (1984)..

Tennessee v. Dunlap, 6276 U.S. 312 (i976)... =.

Wheeler v. City of Pleasant Grove, 896 F2d 1347
fjaen Cir 19. eae er tens

FEDERAL RULES AND STATUTES

42 U.S.C. § 1983....

United States Constitution

Fifth Amendment............. Wieranwires “ty cae © 3

Fourteenth Amendment.

state Statutes and Ordinances

City of Lauderdale Lakes

reese Na See CP, aR ye cd
Ordinance No. 549............
Ordinance No. 552......... Re ae ee te ee wa

Ordinance No. 568............ agi tg ait genta Crate

—
v-

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>

STATEMENT OF THE CASE AND FACTS

Petitioner has reported a portion of the relevant facts
accurately, but has omitted a number of items important
tor this court’s review of the petition. Accordingly, while
the facts cited by petitioner are accepted as correct to the
extent they are presented, additional facts have been

provided for this court’s consideration.

A. The Disputed Property

Of the original 261 acres (purchased for less than
$5,000 per acre by Herman Corn) annexed into the City of
Lauderdale Lakes in 1966, only 8.5 acres are at issue (the
Property). (App. B2, Corn IV; TR 57, 194).! While the
majority of Corn’s parcel was designated for residential
or business development, the City was concerned about
Corn’s use of the Property and accordingly created a new
zoning category, C-1A, for that specific portion of land
(App. D14, Corn III). The C-1A classification gave the City
the right to control the use of the Property, so that any
thing developed on that land would first have to be

approved by the City Council. (Id.)

Corn developed most of the 261 acres in accordance
with his original development plan. (App. B2; Corn IV).
While approximately $100,000 was expended by Corn in

preparation of development, no portion of this sum was

' References to the transcript of the trial proceedings before
Judge Paine in the United States District Court for the Southern
District of Florida (August 12-15, 1991) shall be designated “TR”
followed by the appropriate page number

4

directed specifically towards development of the Prop-

erty. (/d.) In fact, Corn did not submit a preliminary site
plan for the Property until 1976, some ten years after his
development expenditures and the annexation of the 261

acres. (/d.)

Prior to that time, in 1975, the City retained the
services of a planner to create a land use plan and certify
its compliance with Broward County’s Master Land Use
Plan. (D14; Corn III). By law, all municipalities within
Broward County had to be in compliance with Broward
County’s Master Plan by November of 1977. (TR 466,

food

526-527). That planner, Michael Shiff, recommended
rezoning of the property in light of its juxtaposition to the
residential portions of Corn’s land. (Jd.) The land was not
rezoned at that time, however, insofar as no development
was pending and it was assumed that the problem would
be addressed in the final land use plan. (App. D15; Corn

ITI).

In April of 1977, prior to the City Council’s initiating
any definitive action to rezone the Property, Corn submit-
ted a preliminary site plan which called for the construc-
tion of a 67,000 square foot strip shopping center on the
front portion of the property and a 900-unit, 103,000
square foot mini-warehouse storage facility on the rear
portion of the subject property. (App. E2-3; Corn v. City of
Lauderdale Lakes, 771 F.Supp. 1557 (S.D.Fla. 1991)).

The preliminary site plans submitted by Corn were
reviewed by the City in the ordinary course of govern-

ment. There were various meetings of the Planning and

Zoning Committee wherein Corn’s plans for development

ae)

were discussed. (TR 98). Ultimately, after various meet-
ings and discussions with Corn, the Planning and Zoning
Board eventually recommended on a 2-1 vote that Corn’s
preliminary site plan, as amended, be approved. (App
D16; Corn III).

The matter then came before the City Council for
approval of the preliminary site plan, and was discussed
at several City Council meetings. (App. D17-36; Corn III)
Members of the Council and members of the community
expressed concerns with the proposed development. (Id.).
The specific concerns voiced were that the mini-ware-
house development would adversely affect the property
values of the residences across the canal, that it would
destroy the residential character of the neighborhood,
that it would adversely affect traffic in their neighbor-
hood, that the peace and quiet of the neighborhood
would be destroyed by trucks and vehicles coming to the
warehouses in the early morning and late evening, and

that it would represent a significant fire hazard. (Jd.).

On July 12, 1977, approval of Corn's preliminary site
plan again came up for vote after having been tabled on
several prior occasions. (App. 1D24-34; Corn III). At that
meeting,
548 which eliminated, among other things, mini-ware-

the City passed on first reading Ordinance No.

houses as a permissible use under a C-1 zoning classifica-
tion. (App. J12-17). The City also passed on first reading
Ordinance No. 549 which rezoned Corn’s land from C-1A
to B-3. (App. J18-21). The ordinances were not enacted at
that time. Public hearings were held on Ordinances Nos.
548 and 549; they actually became law in September of
1977. (App. D31: Corn IID).

At a later meeting, on luly 19, 1977, the City passed

in first reading Ordinance No. 552 which called for a 150-
dav moratorium on construction on all C-1 property
within the City boundaries. (App. 1034: Corn III). This
ordinance became effective on August 9 1977. (App. }24).
At the expiration of! the 150-day period, the moratorium
was extended for an additional 180-days by Ordinance

Nio. 568, at whi h time it expired by its own terms. | App

126-28)

rhe effect of this legislation was to prevent all con-
struction on the subject property between August 9, 1977
and September 20, 1977. (App. J1-28). After September 20,
1977. Corn could build on the Property in any manner
permitted by the B-3 business classification. (TR 234-36,

583; App. B3; Corn IV)

B. The State Court Litigation

Corn instituted state court litigation on August 11,
1977. challenging both the validity of Ordinances Nos.
548 549 and 552 and the City s refusal to approve his
preliminary site plans. (App. B4; Corn IV). He was ulti-
mately successful, and the City was directed to approve
Corn’s preliminary site plans upon their resubmission
with several modifications. (Id.) The basis for the judg-
ment in favor of Corn at the state court level was the
judge s finding that Corn had a vested right to the C-1A
classification, thus estopping the City from changing that
classification or denying Corn usage of the property in
accordance with that classification. (App. H17). The City
was therefore ordered to approve Corn’s plans upon the

correction of three deficiencies. (/d.)

The judgment of the state trial court was affirmed by

Florida's lei Dunne) Court of Appeal in February
1983. (App. Gl1-11; 427 So.2d at 244). The appellate court
found that as. an owner of property typically
acquires no vested rights in the continuation of existing
zoning under Florida law, Corn had relied in good faith
on the zoning and had made substantial change in the
nature and contour 0! the land so as to equitably estop

the City from a change in zoning. (App. G8-9).

rhe mandate of the Fourth District Court of Appeal
was issued on March 4, 1983. (App. E5: 771 F.Supp. 1557
(S.D.Fla. 1991)). Corn did not resubmit a preliminary site
plan which complied with the directives of the final judg-
ment until October of 1983, a period of seven months
following issuance of the mandate. (App. E5: 771 F.Supp.
1557). At that time, Corn was advise .d that it would be
necessary for him to plat the property in order to comply
with County, not City, requirements. (Id.). Corn then did
nothing for a period of another year until he filed a
Motion to Enforce Final Judgment 1n Broward County
Circuit Court seeking a ruling that he did not have to
comply with any ‘ ‘ounty ordinances ; which were not in
existence in 1977. (App E4: 771 F.Supp. 1557). The action
was unopposed by the City, and Corn obtained the ruling
he desired. (TR 597). De spite h having prevailed at the state
court level, however, Corn elected to forego building the
proposed project and instead proceeded with the federal

itigation. (App. D3-4; Corn III).

C. The Federal Court Litigation

1. The District Court Litigation; District Corn
I

Corn filed his federal action against the City in 1984
and the case proceeded to trial as a § 1983 action on
Corn’s claims that the City had taken his property with-
out just compensation. (App. B5; Corn IV).* The district
court found that the City had acted arbitrarily and capri-
ciously and had deprived Corn of a constitutionally pro-
tected property interest and therefore had violated his
substantive due process rights. (App. E21; 771 F.Supp.
1557 (S.D.Fla. 1991)). The court did not pass on the issue
of whether Corn’s Fifth Amendment rights had been

E23 Contam, wy
4

violated. (App. 3; 771 F.Supp. 1557)

On the question of damages, the court reviewed the
evidence presented by Corn and the City in light of the
parameters set forth in Wheeler v. City of Pleasant Grove,
896 F.2d 1347 (11th Cir. 1990). The court entered judgment
in favor of Corn in the amount of $727,875.02. Corn, not
satisfied with this amount, appealed the judgment as
inadequate. The City cross-appealed the determination
that it had violated Corn’s Fourteenth Amendment sub-

stantive due process rights.

Corn had dismissed his procedural due process and equal
protection claims, so that the only remaining counts at trial were
those alleging violations of the just compensation and
substantive due process clauses of the Fifth and Fourteenth

Amendments, resepctfully.

2. The Eleventh Circuit Appeal; Corn III

The Eleventh Circuit opinion held that the trial court
erred as a matter of law in its determination that the City
Lad violated Corn’s Fourteenth Amendment substantive
due process rights and, consequently, reversed the find
ing of liability (App. D1; Corn III). Corn’s claim that the
trial court had erred in its damage determinations was
rendered moot by the reversal. (/Jd.). Remand of the case
was limited to the issue of whether Corn could prevail on
his Fifth Amendment just compensation claim. (App

D57: Corn III).

3. Corn’s First Petition for Writ of Certiorari

Corn filed his first Petition with this court in Febru
ary, 1994, and attacked the Eleventh Circuit’s findings
with respect to his substantive due process claim. (App
K). This Petition was denied. Corn v. City of Lauderdale
Lakes, 511 U.S. 1018 (1994)

4. the District Court Litigation; District Corn
Il

Upon remand, the district court addressed (
Fifth Amendment just compensation claim for the first
time. The district court received additional legal argu
ment from the parties in the form of written status
reports, but received no additional evidence beyond that

presented in the August 1991 bench trial. (App. C10)

The district court defined the legal issue presented as

follows:

CORN asserts through his just compensation

laim that the impact of the CITY’s invalid regu
lations effected a taking of his property interest
in either the Subject Property or his proposed

development. Therefore, the issue in this case is

the land or in the development project) has been
taken without just compensation by virtue of the

CITY’s ordinances and action affecting each

Ultimately, the district court rejected Corn’s just com
|

pensation claim with respect to both the mini-warehouse

project and

the Property. With respect to the former, the
rt found that Corn did not have a vested right to the
development of his mini-warehouse project because the
City had not issued a permit to Corn upon which he
relied to his detriment, nor did Corn have a reasonable
expectation in the unfettered development of the Prop-
erty. (App. C17). The court further found that the ordi-
nances did not effect a taking of the Property because

Corn was never deprived of all “economically viable use”

5. The Eleventh Circuit Appeal; Corn IV

In Corn IV, the Eleventh Circuit disapproved of that
portion of the district court’s opinion finding that Corn
did not have a vested right in the development of his
project, noting that “the district court failed to consider
the state court’s holding that, under Florida law, Corn

had acquired certain vested rights in the Project.” (App

Despite this, the court affirmed the district court's
rejection of Corn’s just compensation claim, because
regardless of Corn’s vested rights in the project, the

‘private property’ ” subject to the Fifth Amendment's
prohibition . does not include every single property
interest recognized by law.” (App. B16, Corn IV). Because
(orn failed to show that he was deprived of all econom!

‘lly viable use of his Property, the court rejected Corn’s

claim for the period of time after the moratorium expired

but remanded to the district court for further factual
findings as to Corn’s just compensation claim during the

moratorium period. (App. B21; Corn IV)

It was in this appeal, for the first time, that Corn
raised the issue of whether the rough proportionality
standard of Dolan v. City of Tigard, 512 U.S. 374 (1994)
would apply to his case. Specifically, Corn argued that
the Eleventh Circuit in Corn III failed to apply the appro
priate standard of review to his substantive due process
claim, in light of this Court’s later opinion in Dolan. (App.
B9: Corn IV at n. 3). The Eleventh Circuit summarily
dismissed this claim as “meritless, insofar as “Dolan did

not address the type of substantive due process claim

asserted by Corn.” (Jd. at App B10).

6. Corn’s Second Petition for Writ of Certiorari

Corn filed a second Petition for Writ of Certiorari,
arguing the precise issues before the Court in his instant
petition. (App. L). Notably, in that Petition, Corn again
argued that the Eleventh Circuit erred in failing to apply
the Dolan rough proportionality standard by virtue of its

ngs in connection with his substantive due process

10

claim (App L34-39). Corn’s second Petition was also
denied. Corn v. City of Lauderdale Lakes, 118 S.Ct. 441

(1997).

7. The District Court Litigation; District Corn
II] :

On remand, the district court concluded that Corn
was not denied all economically viable use of the Prop-
erty during the moratorium because the moratorium
ordinance was reasonable in its length and there existed
economically viable uses of the property pursuant to the
B-3 zoning classification. (App. All). Accordingly, the
district court entered final judgment in favor of the City

and the individual council members.

8. The Eleventh Circuit Appeal; Corn V

In his most recent brief to the Eleventh Circuit, Corn
abandoned all of his prior arguments and focused on the
factual findings of the district court. (App. M). Speci-
fically, Corn alleged that the City had judicially admitted
that the moratorium applied to ban all building on the
Property, and was therefore bound by these admissions
(App. M32-35). The Eleventh Circuit affirmed the district
court’s findings on a per curiam basis. (App. A1-2). None
of the issues raised in District Corn III or Corn V have
been addressed in the instant Petition, which is limited
solely to the issues previously raised in Corn’s prior

})

etition to this Court

r
}
|

1]

REASONS WHY THE WRIT SHOULD NOT ISSUE

I. THE WRIT SHOULD NOT ISSUE BECAUSE THE
CIRCUIT COURT OF APPEALS’ DECISIONS DO
NOT CONFLICT WITH THE RULINGS OF ANY
OTHER COURT AND ARE BASED ON THE
APPROPRIATE LEGAL STANDARDS AS PREVI-
OUSLY ENUNCIATED BY THIS COURT.

A. Introduction

For the third time, petitioner seeks a ruling from this
Court that would entitle him to just compensation simply
by virtue of the state court’s final judgment in his favor
Completely ignoring the Eleventh Circuit's findings with
respect to the existence of a “taking, petitioner implies
that a state court’s equitable finding of vested rights is in
the nature of a “physical invasion” of property and there
fore a per se entitlement to just compensation This unten
able position is directly contrary to the established
precedent of this Court, and has not been espoused by
any other court in the nation. Insofar as petitioner 1s
simply attacking the lower court's application of the law
to the facts, and has not implicated any important federal

question or confusion, certiorari should again be denied

B. Whatever the nature of the “right” alleged by
Corn, the courts below properly found that
there had been no taking such that just compen-
sation would be required

[Throughout this litigation, Corn has consistently
attempted to parlay the state court’s determination that
he had a vested right in the zoning classification of the

Property into a per se taking within the contemplation of

~

and focus on tl

S1S,

j
y

aspect of the ana

;

action

‘ernmental

POV

] .
uldal

yartic

to a deprivation

i

13

property ownership that their deprivation alone constl-

tutes a taking of the whole property. See, e.g., Loretto v
Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982)

I]
j
‘

(right to exclude others); Nollan v California Coastal
Comm'n. 483 U.S. 825 (1987) (same); Kaiser Aetna v. United
states. 444 U.S. 164 (1979) (same). In other words, they
have involved “traditional” property rights, as opposed

to the more peripheral interests asserted by Corn.

Even where such traditional rights are involved,
; i } : . “ =

however, there is no compensable Fifth Amendment tak-
ing where a balancing of the public interest involved and

tne property right affected will sustain the state s exercise

I
i " » . i sar tle Ilewn : rocf
of its regulatory power. LUCcas 7 South Carolina Coastal
a7 i] Le ge } Vi 2 i >) "cy 7 ~~ . ry _
uUNCLI 05 U.S. 1003 (1992). lo require compensation

} , a 5 s 2 \ 7 . ] . 5 as ,
whenever the economic potential of property 1s affected

would effectively compel the government to regulate by

' seal owe » Allard 1A 7 — - 1070 lher
purchase.” Andrus v. Allard, 444 U.9. o1, 69 (17. 9). Where,
i

; here, the regulation involved simply limits one portion
of the rights retained by the property owner, a finding of

1 compensable taking is even less compelling. “At least

where the owner possesses a full ‘bundle’ of property

}

rights, the destruction of one ‘strand’ of the bundle is not

1 taking, because the aggregate must be viewed in its
ntir ld , a A
ntirety. id. at 69-606

The Eleventh Circuit properly a

ind found that the zoning ordinances in question did not
rise to the level of a compensable taking. Corn was able
after a period of slightly more than a mot th, to build on

1
the Propery in any manner permitted by the B-3 business

classification. (TR 234-36, 583; App B3: Corn IV). He

simply chose not to do so, instead pursuing a ruling in

2 a4 nn | } in ' . . ~~: .
state court that he could build the specific project he

t
A

14

initially desired. Corn had already profited substantially
on the remainder of the parcel, and stood to profit on any
development of the Property within the confines of the
B-3 classification. Moreover, despite Corn’s allegation
that once the state court judgment enforced his “right” to
build the mini-warehouse project it was economically
infeasible, the district court explicitly found in its first
judgment that Corn failed to prove this aspect of his
claim. (App. E30; 771 F.Supp. 1557 (S.D.Fla. 1991)).

Corn’s requested disposition in this case is logically
insupportable. He concedes that property rights “are cre-
ated and their dimensions are defined by existing rules or
understandings that stem from an independent source
such as state law.” Ruckleshaus v. Monsanto Co., 467 U.S.
986, 1001 (1984), citing Webb’s Fabulous Pharmacies, Inc. v.
Beckwith, 449 U.S. 155, 161 (1980), and Board of Regents
Roth, 408 U.S. 564, 577 (1972). On the other hand, he fails
to recognize that he never had the expectation of compen-
sation for the right to build his mini-warehouse under
state law. Instead, he tries to equate an equitable remedy
with a traditional property right under federal Constitu-
tional law, and thereby requests this Court to protect his
conferred ability to build a mini-warehouse project in a

way never contemplated by any state court.

C. Dolan v. City of Tigard still does not apply to a
substantive due process claim, and may not be
considered with respect to Corn’s Fifth Amend-
ment just compensation claim.

Corn once again raises the applicability of the Dolan

v. City of Tigard rough proportionality standard to this

15

case. but fails to indicate the context in which he
addresses this argument. To the extent that Corn is now
attempting to challenge the Eleventh Circuit's just com
pensation analysis pursuant to the dictates of Dolan, he
has failed to preserve this issue by raising it below and it
should not be considered now. See Husty v. U.S., 282 U.S
694, 701-702 (1931); Duignan v. U.S., 274 U.S. 195, 198-200;

Tennessee v. Dunlap, 426 U.S. 312, 316, n. 3 (1976).

Moreover, as consistently argued by the City
throughout the pendency of this litigation, Dolan simply
does not apply to the substantive due process clain
advanced by Corn. A substantive due process claim
focuses not on the nature of the right allegedly “taken”
by the legislative body, but instead turns solely on the
propriety of the government's exercise of its police
power. Fide v. Sarasota Co., 908 F.2d 716, 721-722 (11th Cir.
1990). In other words, if the plaintiff is able to prove
arbitrary and capricious action by the government, if Is
unnecessary to prove the destruction of value of the

property right affected. Id.

[he “rough proportionality” standard discussed in
Dolan arises in the context of a Fifth Amendment just
compensation claim only, as the required nexus to be
established in determining whether the regulation at
issue “substantially advances legitimate state interests,”
as a part of the broader takings analysis. Nollan v. Califor
nia Coastal Comm'n, 483 U.S. 825, 834 (1987). The analysis
presupposes the existence of a constitutionally protected

right that has been taken from the property owner:

Without question, had the city simply required
petitioner to dedicate a strip of land along

16

Fanno Creek for public use, rather than condi-
tioning the grant of her permit to redevelop her
property on such a dedication, a taking would
have occurred

Dolan, 512 U.S at 384.

Conversely, Dolan distinguished the more traditional

land use regulation cases such as the instant one:

First, they [the land use regulations] involved
essentially legislative determinations classifying
entire areas of the city, whereas here the city
made an adjudicative decision to condition peti-
tioner’s application for a building permit on an
individual parcel. Second, the conditions
imposed were not simply a limitation on the use
petitioner might make of her own parcel, but a
requirement that she deed portions of the prop-
erty to the city.

Dolan, 512 U.S. at 385. The problem with Corn’s attempts
to apply Dolan to his case are that he has never ade-
quately shown that he was deprived of a constitutionally
protected property interest by the City. Instead, the fac-
tual findings of the district court have been that Corn
suffered, at most, a limitation on one use of his Property

for a short period of time.

Again, Corn desires a logical fallacy to dictate the
result in this case. He wishes to separate the state court
enforced right to enjoy the previous zoning classification
of the Property from the value of the Property itself, and
then merge the two once again to recover the full value of
the Property by virtue of his isolated loss. Alternatively,

he wishes to forego any proof of a loss of value or

interest, and simply recover whatever dubious damages

17

he may on the basis of a rough proportionality standard

measured in a vacuum.

This he may not do. Takings law has always required
a delicate balance of the competing interests of the prop-
erty owner and the government, and the lower courts’
rulings in this case have appropriately applied the appli-
cable legal standards to the facts of this case. Corn has
failed to point to any court that embraces his theory of
takings law, and has consequently failed to allege any

basis for review by this Court.

+

CONCLUSION

For the foregoing reasons, the Petition for Writ of

>

Certiorari should be denied.
DATED: April 27, 1999

Respectfully submitted,

MicHAEL C. MATTSON

Counsel of Record

Cooney, Mattson, LANCE,
BLACKBURN, RICHARDS &
O’Connor, P.A.

2313 Wilton Drive

P.O. Box 14546

Fort Lauderdale, FL 33303

Attorneys for Respondents

Kl

APPENDIX K
No. 93-1308

In The

Supreme Court of the United States

Octroser TERM, 1993
seunnennemmenantnpene ® a

HERMAN CORN, Trustee,

Doe 194010¥
etitioner,

US.

THE CITY OF LAUDERDALE LAKES,

Respondents
— — —---- @ —- -- —
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
SE -@e- — =
PETITION FOR WRIT OF CERTIORARI
— ¢- = -_ .
GIDEON KANNER

Counsel of Record
M. REED HUNTER
KEAFEY, ROACH & MAY

CROSBY,

Professional Corporation
700 South Flower Street, Suite 2200

Los Angeles, California 90017
(213) 896-8000

K2

ANDREW T. LAVIN
RICHARD A. IVERS

ROMANIK, LAVIN, HUSS & PAOLI

1901 Harrison Street

Hollywood, Florida 33020

+? 90911 fay D ot tor
Attorneys for Petitioner

Lawyers Brief Services ¢ Appellate Brief Printers e

(213) 613-1013 (714) 720-1510

1 he

QUESTIONS PRESENTED

l. (a) When a land owner, consistent with the direc-
ive of this Court in Williamson County Regional Planning
nmission Hamilton Bank, 473 U.S. 172 (1985), defers

pursuing his federal constitutional and civil rights claims

ra
whee

use regulation controversy until a final adjudi-
on of his state law-defined rights in property in the
appropriate state court is reached, may a Federal Circuit
kurt of appeals ignore and override final factual find-
and legal determinations made in the earlier state
ourt proceedings (as well as the findings of the United
States District Court consistent with the earlier final state
court judgment) and purport to adjudicate that owner’s

rights to use his land as if a court of first instance?

(b) When such Circuit Court adjudication con
tlicts with the state court final judgment and the District
Court factual findings, does that adjudication (1) dety
this Court’s holding in Williamson County, (2) violate the

rights of that land owner to due process of the law, (3)

contravene the constitutional doctrine of comity; (4)

ignore federal law relating to full faith and credit (as well

as collateral estoppel and other doctrines of preclusion),
and (5) improperly divest the District Court of its func-

tion as finder of fact?

2. (a) Where a landowner enjoys a fully vested right

to build on his land in a City according to present zoning,
confirmed by a final judgment of a state court of compe-
tent jurisdiction, which judgment also expressly estops
the City from changing the zoning, may the City constitu-
tionally deprive him of that right by a purported change

in zoning?

(b) In this situation, when the City — in ostensible
review of a site plan consistent with a development plan
it has already approved (by state law, a nondiscretionary
ministerial review limited to insuring technical site plan
compliance) — nonetheless changes the zoning without
notice, prehearing investigation or competent supporting
evidence, thus depriving the landowner of his vested
rights and preventing him from building, does that City
deny the landowner due process of law and just compen-

sation?

ee .

3. In Eide v. Sarasota County, 908 F.2d 716, 720 (9th
Cir. 1990), cert. denied 498 U.S. 1120 (1991), the Eleventh
Circuit first articulated a conceptual construct that there
are precisely “four types of challenges [based on
allegedly unconstitutional land use regulation] a plaintift
may bring . . . [1] just compensation, 2} due process
takings, [3] arbitrary and capricious due process and [4]
equal protection claims.” This construct was the template
of the Circuit Court’s opinion below. Is this construct

consistent with this Court’s rule that challenges to the

K4

constitutionality of land use regulations are to be deter-

mined on an ad hoc basis?

4. Does the Eleventh Circuit’s explication of sub-
stantive due process rights in this case (and other land
use cases) correctly explicate the law of this court, or are
conflicting interpretations from other Circuit Courts of

Appeal, and other state courts, correct?

>. What is the proper measure of damages for a
temporary taking of property set aside for a particular
authorized and appropriate development if, when devel-
opment is unlawfully delayed and then finally permitted
the economic window of opportunity for that develop-

ment has vanished?

PARTIES TO THE PROCEEDINGS

Plaintiff, appellant and cross-appellee, and petitioner
is Herman Corn, Trustee, Defendants and respondents
are the City of Lauderdale Lakes, a Florida municipal
corporation (the City), Howard Craft (Mayor), Alfonso
Gereffi, Jerome J. Cohan, Morris Klein, Lyman L. Allen,

Louis Greenwald and Harry Kaufman (C ity Councilmen).

TABLE OF CONTENTS

Page
QUESTIONS PRESENTED arrestee aoe Siew
PARTIES TO THE PROCEEDING ........... ere cey | +

Lvs: GIN SEE CPR Fig bo Ci ee )

t

F. Mr. Corn In The Federal Courts: Damages Awarded
Based On Constitutional Violations

By the time the illegality of the City’s acts of frustra-
tion had been definitively adjudicated (1985), Mr. Corn
1ad been deprived of the use of the Property for eight
years. The window of economic opportunity for the mini-
warehouse project had been lost; other warehouse facili-

ties in the area had preempted Mr. Corn’s opportunity

in spite of the mandate, the City refused to approve the
ite plan unless Mr. Corn complied with planning requirements
roperty platting) that came into existence after July 1977. (771

4 B5) On March 26, 1985, the 17th Judicial

ed the City to issue the building permit

-
+
-
+
x

without platting. (771 F.Supp. at 1562; App. B6)

K25

The market was saturated. the Property remains vacant
f

today.

On January 17, 1984, Mr. Corn filed the underlying
case below in the United States District Court for the
Southern District of Florida No. 84-6034-CIV, seeking
damages for violation of the just compensation, due pro-
cess and equal protection clauses of the Fifth and Four-
teenth Amendments and the Civil Rights Act (42 U.S.(

§ 1983). (771 F.Supp. at 1

961; App. B5-6)

On October 22, 1985, the district court (Gonzalez, J.)
dismissed the action believing it to be unripe under the
Williamson County test. (771 F.Supp. at 1562; App. B7) In
Corn v. City of Lauderdale Lakes, 816 F.2d 1514 (11th Cir
1987), the Eleventh Circuit reversed, and (significantly)
acknowledged the final state court ruling: “A final judg-

ment rendered in Corn’s favor estopped the City from

—
~
~
oe

~

-
—_
~~
nm

J

rezoning the property during the pe

ownership of it.” Id. at 1515. The “property” thus referred
od

‘ 7 $4 ror 4 incl } Oo }
tO Was, again, the entire Large! Site inciuding tn

erty
\ 1 ] ~> -
L/nN Aus ust i8 7 i I iif Vii 1 f i 1 \ I
. } 1 - i . {p ~Aa T _ . ¢ -atiak
trial, the District Court (Paine, }.) issued its Op!
sisting of findings of fact, conclusions Of law and

} . > —4] ’ ] ] 7 ‘ -+ ; x ~ 11" +4 "
extended damages caiculations purportedly pursua t

the Eleventh Circuit standard expressed in W ele) ( y
f
( 14 1247 (148k Cie 1
| isa? (>? Oye F.2d LO iit II MN
y 1 + » > > AA,
Having failed to demonstrate that Mr. C

ir * ] inAnnanc§ > , a. 4 ‘ ,+
nripe, the City flip-flopped and argued tnat 1

t
But the district court held that the action was not Darred

lumitations or res judicata, and the tieventh Uircult
_ ‘ , westdowdala I ; OA 14 Rec teh ("3 ’
orn v. City of Lauderdale Lakes, 904 F.2d 585 (11th Cir. 19%

K26

IV). The district court’s substantive factual findings
echoed the state court final judgment, e.g., the passage of
critical ordinances on the first reading was without notice
and without even an attempt at investigation of the
appropriateness of the mini-warehouse use; “the City
Council was motivated solely by an irrational desire to
thwart CORN’s plans.” Corn v. City of Lauderdale Lakes,
771 F.Supp. at 1569; App. B22

rhe District Court presented its conclusions of law in
the frame of reference of the Erde v. Sarasota County con-
struct. Significant conclusions include: (1) Corn enjoyed
vested rights in the pre-luly 12, 1977 zoning, and “[t]his
issue, having been presented, fully litigated, and resolved
in a prior suit between these parties, cannot be reliti-
gated” (771 F.Supp. at 1566; App. B15); (2) Corn enjoyed a
protected property interest under Florida law (771
F.Supp. at 1566; App. B15-16); (3) the City acted arbi-
trarily and capriciously in its actions in July 1977 and
thereafter, including its so-called moratorium and report
which “seems nothing more than an attempt at post ho

rationalization.” (771 F.Supp. at 1569; App. B21-22).

G. Twenty-Four Years After The Annexation Agree-
ment And Thirteen Years After Commencement Of
Litigation Which Generated Seven Prior Reported
Decisions, The Eleventh Circuit Goes Back To
Square One, Ignores Prior Factual Determinations
By Both State And Federal Courts As Well As Final
And Preclusive Legal Findings, And Proceeds As If
It Were Writing On A Clean Slate As A Court Of
First Instance

This case reached the Eleventh Circuit for the third

time following an appeal by Mr. Corn and a cross-appeal

K27

by the City from the District Court’s decision. Mr. Corn
asserted error in the computation of damages under
Wheeler IV and in the holding that the individual defen-
dants enjoyed absolute immunity. The City sought to
relitigate issues previously and finally decided by the
Florida state courts (vested rights) and the Eleventh Cir

cuit (statute of limitations).

rhe Eleventh Circuit panel, consisting of three judges
who had participated in neither of the prior Circuit deci
sions, wrote as if it were a court of first Impression, as II
the state court proceedings had never happened or at
least as if they had no legal effect, and usurped the
District Court’s function as trier of fact as well. The
Opinion recites the basic state court determinations, but
never attempts to reconcile them with its own squarely
contrary conclusions, which include a finding that the

july 17, 1977 rezoning was proper (no mention is made of

371 ry.

the state court estoppel interdiction). (997 F.2d at 137

to he

App. A3-4)® Using as its conceptual framework the Ede

rhe Eleventh Circuit apparently saw its mission as not
just resolving the discrete controversy presented to it, but also

delivering a grand pronunciamento with broad impact

The district court’s error reaches beyond the fis«
of one Florida community and the merits of one
case .. More broadly this case involves question
about how decision-making is allocated between a
democratic institution, such as an elected city council,
and the federal courts. It involves fundamental issues
about the allocation of rights and powers within our
constitutional system. (997 F.2d at 1373; App. A7)
The problem with this grandiose language is that the
opinion does violence to the precise value it purports to
espouse: the proper “allocation of rights and powers within our

constitutional system.’

K28

Sarasota County template and focusing on substantive due
process, the court found that the City had not abused its
discretion on July 12, 1977 (997 F.2d at 1373-74, 1386;
App. A8, 40) (in contrast to the state court ruling that the
City had no discretion as a matter of state law), and that
what the City Council did was legislative (997 F.2d
1392-93; App. A54) (in contrast to the state court ruling
that it was administrative and ministerial).

The Opinion goes on at length about the neighbor-
hood activist input, in effect acknowledging that it was
the basis of the City’s decision. (997 F.2d at 1377-87; App.
A17-42)

REASONS WHY THE WRIT SHOULD ISSUE

A. The Startling August 13, 1993 Eleventh Circuit
Opinion Runs Counter To Monolithic Constitu-
tional, Statutory And Case Law And Threatens To
Destabilize The Clearly Defined Mode Of Interac-
tion Between Federal And State Trial And Appel-
late Courts

1. Striking At The Very Heart Of Federalism, The
Eleventh Circuit Ignored Guiding Principles Of
Full Faith And Credit, Comity, Preclusion And
Due Process Of Law

No concept is more fundamental to the system of
federalism than the motion that federal courts must yield
to state court determinations of state law, and give full
faith and credit to the final judgments of state courts. The
City had it exactly right when it wrote in a March 21, 1984
(unsuccessful) Motion to Dismiss:

K29

In 1980, the Supreme Court of the United States
held that issues actually litigated in a state court
proceeding are entitled to the same preclusive
effect in a subsequent federal § 1983 suit as they
enjoy in the courts of the state where judgment
is rendered. Allen v. McCurry, 449 U.S. 90, 101
S.Ct. 411 (1980).

What the City recognized as obvious, the Eleventh
Circuit — which must have known better — chose not to
recognize at all. Snubbing the Florida court system, the
Eleventh Circuit found that the City’s illegal acts were
valid.

For more than a century, this Court has recognized
that federal courts are bound by construction of state law
by state courts. See, e.g., Commercial Bank of Cincinnati v
Buckingham’s Executors, 46 U.S. 5 How. 317, 342-43 (1847).
Moreover, under 28 U.S.C. § 1738, judicial proceedings of
a state court “shall have the same full faith and credit in
every court within the United States and its Territories
and Possessions as they have by law or usage in the
courts of such State, Territory or Possession from which
they are taken.” Thus, with a few exceptions not relevant
here, matters finally determined in a state court of com-
petent jurisdiction are not open for reexamination in a
federal court. Kremer v. Chemical Constr. Corp., 456 U.S.
461, 485 (1982).

This bedrock rule not only avoids duplicative litiga-
tion and enhances the stability of the law; it also pro-
motes the comity between state and federal courts that is
the “bulwark of the federal system.” Allen, 449 U.S. at

95-96; see also Kremer, 456 U.S. at 478. The respect to a

K30

state court final adjudication comity dictates is partic-
ularly important when a federal court reviews a situation,
as here, where a party’s rights are grounded in fully
adjudicated state law. See generally Younger v. Harris, 401
U.S. 37, 44 (1971).

[his concept, which speaks to basic due process of
law, controls the relationship of federal and state courts
in every substantive field. However, because of the pro-
cedure prescribed by this Court in Williamson County for
“ripening” a land use regulation case, intellectual detours
by federal courts such as here present have a particular

potential for mischief in this area of the law.

N

The Eleventh Circuit Opinion Penalizes Land
Owners Seeking Due Process And Just Com-
pensation For Unconstitutional Land Regula-
tion Who Follow The Procedural Dictates Of
This Court

Williamson County holds that before a landowner may
seek damages in federal court arising out of unconstitu-
tional land regulation, he must first “seek compensation
through the procedure the state has provided for doing
so... {T]he State’s action is not ‘complete’ in the sense of
causing a constitutional injury ‘unless or until the State
fails to provide an adequate postdeprivation remedy for
the property loss.’” Id. at 194, 195 (quoting Hudson v
Palmer, 468 U.S. 517, 532 n.12 (1984)). Thus, Williamson
County compels a supplicant to litigate first in state court
to “ripen” his cause before seeking damages in federal

court. This is exactly what Mr. Corn did here. His reward

at the end of the trial for scrupulously following the

procedure this Court prescribed: a Circuit Court of

.

Appeal which simply ignored at least these state court
findings:

e that Mr. Corn had acquired vested rights

under Florida law to develop his property
ind
SO id

hn ®

according to the existing zoning

approved 1966 development plan (42

at 243; App. D8-9);

e that the City lacked discretion under Florida
law to change that zoning or to deny
appro\ al of the site plan (427 So.2d at 242-44

App 1D6-10):

e that the City was expressly estopped b
final judgment from a Florida court of com
petent jurisdiction from changing

(427 So.2d at 243; App. D9); and
PI

e that ordinances nos. 548, 549 and 552 wert

void and unenforceable. (427 So.2d at 241-42

App. D5)

[hese final determinations of state law would

manifestly received collateral estoppel effect under
ida law. Mobil Oil Corr Sh n, 354 So.2d 372. 374 (|
177); R.D.J. Enters. It Media Bank, 600 So.2d )
Fla. App. 1992). Under section 1738, they bind fed
courts as well. Allen, 449 U.S. at 96 (issue preclusion or
collateral estoppel applies in a § 1983 action); Migra
‘ ‘ ‘
lA irren City Crh Dist Rd 4 Fdu 165 LJ Cc = 2 Q7
1984) (claim preclusion or res judicata applies in a § 198
ction)
Hlad the Eleventh Circuit been faithful to its comity

= , , . '
Olivyator it could not have reached the result

K32

While the District Court understood for the most part the
limitations the prior proceedings placed on it,’ the Elev-
enth Circuit did not. In view of the preclusive finding
that Mr. Corn’s rights were vested and the 1977 ordi-
nances which forced the Property into idleness were
invalid, liability for a temporary taking was established.
See Lucas v. South Carolina Coastal Comm'n, 505 U.S. ais
120 L.Ed.2d 798 (1992). The Eleventh Circuit had but one
legitimate qustion [sic] to decide: how much monetary
damages should be awarded to Mr. Corn. If the August 13
opinion is followed, landowners will be required to liti-
gate liability in state court, only to face the pointless and
duplicative task of doing so all over again in federal
court. The horrendous extra burden this wil] place on
litigants and the judiciary cannot be what this Court
intended when it promulgated Williamson County.

3. The Eleventh Circuit Rode Roughshod Over
District Court Factual Findings (Including Find-
ings As To Motive And Intent) In Contravention
Of The Well-Defined Allocation Of Power And
Duties Between Federal Trial And Appellate
Courts

This caption needs little elaboration. The Eleventh
Circuit simply ignored findings of fact made by the Dis-
trict Court, which heard the evidence and observed the

’ The District Court made an “independent review of the
evidence” as to whether Mr. Corn’s substantive due process
rights were violated, reaching the same result as the state
courts. (771 F.Supp. at 1569; App. B21)

K33

witnesses.'? In its result-driven analysis, the Eleventh
Circuit badly overreached, divesting the District Court of

its allocated fact-finding powers.

B. In Contravention Of Mr. Corn’s Vested Rights And
An Established Body Of Constitutional Law, The
1977 City Council Made Decisions It Was Not
Empowered To Make, Violating Its Own Required
Procedures, And Made Them On Impermissible
Grounds

|. By 1977, Mr. Corn’s Rights To Build The Mall
And Mini-Warehouse Were Vested; The City
Was Bound By A State Court Final Judgment
Estopping It From Changing The Zoning And
Divesting It Of Discretion To Deny The Site
Plan

A brief look at the City actions the Eleventh Circuit
upheld demonstrates how far it wandereduafield. At the
time he went into the July 12, 1977 hearing, Mr. Corn

enjoyed:

e a development plan approved by the City
pursuant to the agreed annexation which
entitled him to develop the mini-warehouse
project;

'0 For example, the District Court found that the City was
“motivated solely by an irrational desire to thwart CORN’s
plans.” (771 F.Supp. at 1569; App. B22) But it is axiomatic that
findings as to motive and intent are factual, and uniquely within
the purview of the trial court. Rogers v Lodge, 458 U.S. 613,
622-23 (1982). The testimony of Mayor Howard Craft (see n.4,
ante) is alone sufficient to sustain this finding.

~

K34

vested 1 ights under Florida law to SO
dev elop; i]

* a state court final judgment that estopped the
City from changing the zoning on the Prop-
erty; and

e a City Council empowered only to conduct
an administrative-ministerial review.

By all reason this should have made“the site plan

hearing a technical review of details. But the reality was

otherwise

2. Mr. Corn Was Ambushed By The No-Investiga-
tion, No-Notice, No-Due Process Extralegal Pur-
ported Zoning Change

In enacting the 1977 ordinances with no advance
notice, the City not only ignored its own charter require
ments, but also ignored the standards which “seem to be

universally prescribed in ali systems of law established

[The definition of property interests and the
determination whether a particular interest is a vested property
right to which the protections of the United States Constitution
attach are, of course, quintessentially questions of state law
Preseault v. 1.C.C., 494 U.S. 1 (1990): Williamson ( ounty, 473 U.S
t 184; Logan v. Zimmerman Brush Co.. 455 US 422, 430 (1982)
exaco, Inc. v. Short, 454 U.S. 516, 525 (1982): Wheeler v City of
Pleasant Grove, 664 F.2d 99, 100 (5th Cir Unit B 1981), cert. denied
456 U.S. 973 (1982). As to Florida law, see Hollywood Beach Hotel
Co. v. City of Hollywood, 329 So.2d 10, 16-17 (Fla. 1976). A
particularly insightful explication of the meaning of vested
rights (rights “which cannot be interfered with or taken away
without just comprensation”) is found in Nemmers v. City of
Dubuque, 716 F.2d 1194, 1197 (8th Cir. 1983).

by civilized countries.”'!2 Twining v. New Jersey, 211 U.S

/3, 110-11 (1908). Mr. Corn was blindsided: he had no real

opportunity to prepare to be heard on the subject matte

of any of the ordinances. And the curiously perverse
procedure the City adopted of enacting the ordinance
first and thereafter undertaking a study to justify the
ordinance, not only (again) violated the City charter, but
was disturbingly reminiscent of the command of the
Queen of Hearts: “Sentence first verdict afterwards
Carroll, Alice in Wonderland, Ch. 12.

As Mayor Craft testified (see p. 11 n.4, ante), the 197
City Council paid no attention whatsoever to the solemn
commitments the City made to Mr. Corn in 1966. The
whole scenario could serve as a textbook prototype Of
what this Court has defined as constitutionally, impermis
sible: frustration of “investment-backed profit expecta

)

tions.” Williamson County, 473 U.S. at 200.

[he denial of notice and hearing, and the failure of the
City to follow fair procedure: oreven its own procedures are
matters traditionally considered under the rubric of procedural
due process. But there is no conceptual reason they cannot be
part of a pattern of arbitrary and capricious behavior that
implicates substantive due process as well (the procedural due
process claim for relief in this case was dismissed before the
district court resolution). There is no clear delineation “| Tlhe
line between “procedure” and “substance” is hazy in the setting
of the regulation of land uses.” Coniston Corp. v. Village of
Hoffman Estates, 844 F.2d 461, 468 (7th Cir. 1988). “Where, as
here, the plaintiff alleges the denial of the process consists of an
official’s arbitrary action, a claim for violation of substantive
due process is indistinguishable from a claim for violation of

proc edural due proc ess.” Sierra l ake Reserve v. ( ity of Ro klis 935
F.2d 951, 957 (9th Cir. 1991), cert granted and judgment vacated,
113 S.Ct. 31 (1992), on remand, 987 F.2d 662 (1992)

K36

[he state court holding that the 1977 zoning change
was illegal came as no surprise. Florida law unequivo-
cally holds that when a city purports to change a zoning
ordinance to defeat a permit application and site plan
that would be approved under existing zoning, that City
acts “arbitrarily, capriciously, discriminatorily and ille-
gally.” City of Margate v. Amoco Oil Co., 546 So.2d 1091.
1093-94 (Fla. App. 1989).

3. Inappropriate Deference To Neighborhood
(NIMBY) Activists At The Expense Of Constitu-
tional Rights - The Basis Of The City’s 1977
Actions Here - Is An Increasing And Critical
Problem Needing Address By This Court

In its 1993 opinion, the Eleventh Circuit called Green-
briar, Ltd. v. City of Alabaster, 881 F.2d 1570 (11th Cir.
1989), a “red cow,” i.e., a precise precedent. (997 F.2d at
1390 & n.2; App. A48) (It is not even close.!3 But the
case at bench has one significant fact in common with

'S In Greenbriar, the landowner sought a change of zoning
to enable a desired project as to which he had no right, vested or
otherwise [id. at 1572, 1581]; here, Mr. Corn sought only to build
according to a vested right under existing zoning. In Greenbriar,
the City won below, thus getting the benefit of a favorable
review standard; that should have inured to Mr. Corn here. The
real “red cows” are A.A. Profiles, Inc. v. City of Ft. Lauderdale, 850
F.2d 1483 (11th Cir. 1988), cert. denied, 490 U.S. 1020 (1989);
Southern Co-Op Development Fund v. Driggers, 696 F.2d 1347 (11th
Cir. 1983), cert. denied, 463 U.S. 1208 (1983); and Wheeler v. City of
Pleasant Grove, 664 F.2d 99 (5th Cir. Unit B 1981) (Wheeler 1). In
each of these comparable vested rights-substantive due process
appeals, the landowner (whose position was not as strong as Mr.
Corn’s here) prevailed.

K37

Greenbriar: in both cases public officials abdicated their

governmental powers in favor of NIMBY activists.'4

'4 The August 13 Opinion notes that “[i]n Greenbriar... the
City’s decision was based upon “political pressure” from citizen
voters who turned out as a crowd to oppose the development.”
(997 F.2d at 1389; A46). This language from Greenbriar (881 F.2d
at 1579) is quoted with approval:

[N]othing is more common in zoning disputes than
selfish opposition to zoning changes. The
Constitution does not forbid government to yield to
such opposition; it does not outlaw the characteristic
operation of democratic . . . government, operations
which are permeated by pressures from special
interests . . . The fact “that town officials are
motivated by parochial views of local interests which
work against plaintiffs’ plan and which may
contravene state subdivision laws” . . . does not state

a claim of denial of substantive due process.” (997

F.2d at 1389; A47)

This harsh standard has drawn critical comment from
within the Eleventh Circuit. In an acerbic (but finally obedient)
opinion, one district judge wrote that Greenbriar “clearly stands
for the proposition that elected officials who vote on zoning
requests can act for purely political reasons, because partisan,
political decision-making, even by unknowledgeable, close-
minded politicians . . . is automatically deemed rational and,
therefore, cannot be arbitrary and capricious unless it is the
product of corruption . . . The only limitation appears to be that
there be no forty pieces of silver. . . Anything goes! ... [T]he
Greenbriar answer . . . simply says, ‘THAT’s politics!’.” Church of
Jesus Christ of Latter-Day Saints v. Jefferson County, 721 F.Supp.
1212, 1214-16 (N.D. Ala. 1989) (emphasis in original).

Something is disturbingly amiss in the Southeast United
States: obeisance to NIMBY activists is proliferating like kudzu.

K38

[here is virtually no dispute on this point:!5 the only

question is as to the propriety of the abdication.!¢

[his problem may be more severe in the Eleventh
Circuit than elsewhere, but it approaches crisis propor-
tions throughout the country. It is the subject of a 1990
presidential report by the Advisory Committee on Regu-
latory Barriers to Affordable Housing, “Not In My Back
Yard” Removing Barriers to Affordable Housing. Slogans
tend to be highminded; the reality behind the acronyms is
often no more than social or economic self-aggrandize-
ment. There is every incentive in this situation for public
officials — often motivated by nothing more exalted than a
desire to perpetuate themselves in office — to count noses

and pander. If a court overturns a decision (and they

1S

he concurring opinion of Judge Hatchett (997 F.2d at
1393-94; App. A57-58) is revealing. It makes but one point, and
makes it repeatedly: “nothing in the opinion should be
interpreted as creating a new rule of law that developers will
always be unsuccessful in stating a substantive due process
claim when a large number of citizens oppose a land use
proposal”; “we do not hold that local governments will always
prevail in defending substantive due process claims whenever
their zoning decision follows public meetings where citizens
express general welfare concerns” (997 F.2d at 1393, 1394; App.
A57-58). Why was this concurrence necessary? Precisely
because the majority opinion, fairly read, seems to do precisely
what the Judge Hatchett said it did not do; make NIMBY
protestation, no matter how self-serving or irrational, a
sufficient basis — in itself, without more — for land use decisions.

'6 To bolster its conclusion that the NIMBY opposition was
a good and sufficient basis for the 1977 City acts, the Eleventh
Circuit called the unsworn opinions and idiosyncratic concerns
of the activists “evidence” and “facts.” (997 F.2d at 1386: App.
A38-39)

K39

rarely do), the officials are personally absolved of respon-
sibility. In the process, constitutional safeguards take the
hindmost.

The most instructive precedent of this Court is Wash-
ington ex. rel. Seattle Trust Title & Trust Co. v. Roberge, 278
U.S. 116 (1928). Striking down a zoning ordinance that
made operation of a “philanthropic home for children or
for old people” contingent on approval of two-thirds of
neighbors living within a specified radius as an invalid
delegation of power and a violation of the due process
clause (id. at 118), this Court held (id. at 121):

The right of the trustee to devote its land to
any legitimate use is property within the protec-
tion of the Constitution.

What happened below is uncomfortably close to
Roberge redux, only worse: it lacks Roberge’s statutory
framework.!7

Mr. Corn does not suggest that barriers be placed
before citizens wishing to appear before a governmental
body and thus directly participate in the political process.
This is a cherished American tradition; the right to be
heard — even when speaking from misinformation or self-

17 Also instructive is City of Cleburne v. Cleburne Living
Center, 473 US. 432, 448 (1985) (a city may not avoid the
strictures of the Constitution “by deferring to the wishes or
objections of some fraction of the body politic”). See also Marks v.
City of Chesapeake, 883 F.2d 308, 310-12 (4th Cir. 1989). Florida
state law is consistent that public opposition is not a sufficient
basis for zoning decision. Bailey v. City of St. Augustine Beach,
938 So.2d 50, 52 (Fla. App. 1989); BML Investments Inc. v. City of
Casselberry, 476 So.2d 713 (Fla. App. 1985).

K40

interest must be preserved. But this Court needs to
remind regulators that there is a “sanity check”; officials
must not yield to public pressure when constitutional

rights are at risk.

C. The Eleventh Circuit Eide Construct, Central To the
[sic] Disposition Of This Case Below, Is Inconsis-
tent With The Teachings Of This Court, And
Requires Litigants Challenging Land Use Regula-
tions To Operate Under A Set Of Rules Different
From Those In Other Circuits

In Eide v. Sarasota County, 908 F.2d 716 (9th Cir. 1990)

the Eleventh Circuit unveiled a construct for resolution of

constitutional challenges to land use regulations. The
Court noted that the required threshold step was “deter-
mining what type of claim Eide is making,” and then
pronounced that there were precisely “four types of chal-
lenges [based on allegedly unconstitutional land use reg-
ulation] a plaintiff may bring . [1] just compensation,
[2] due process takings, [3] arbitrary and capricious due

process and [4] equal protection claims.” Id. at 720.

since Eide, this construct has been used pervasively
in the Eleventh Circuit, at both trial and appellate levels.
see, €.@., Rearhard v. Lee County, 968 F.2d 1131, 1134-35
(11th Cir. 1992). It was the matrix for the decision below;
the construct is repeated at 997 F.2d 1373-74 (App. A

7-9), 18

'® The Eleventh Circuit construct has been referred to, to
Mr. Corn’s knowledge, in only one other circuit: it is mentioned

as unhelpful in a district court opinion (Pearson v. City of Grand

K4]

This Court has, of course, adopted its own quite

different approach:

[W]e have frequently observed that whether a
particular restriction will be rendered invalid by
the government's failure to pay tor any losses
proximately caused by it depends largely “upon
the particular circumstances [in that] case.”
(citations)

In engaging in these essentially ad hoc, fa
tual inquiries

Penn Central Trans. Co. v. City of New Yor} 138 U.S

124 (1978).!9

[his Court’s ad hoc, fact-focused construct posits an
almost infinite variety of situations; the Eleventh Circuit
posits but four rigid categories. The problem with the
kind of categorization exercise the Eleventh Circuit

attempted, however intellectually nimble in the abstrac t,

Blanc, 756 k.Supp 414, 318 (E.D. Mich. 1991)). and as helpful in
the Sixth Circuit affirmance of that opinion (Pearson v. City of
Grand Blanc, 961 F.2d 1211, 1215-16 (6th Cir. 1992))

19 See also Concrete Pipe & Prods., Inc. v. Construction Laborers
Pension Trust, 113 S.Ct. 2264, 2290 (1993): Lucas. 112 S.Ct it 2893
MacDonald, Sommer & Frate Yolo County, 477 U.S. 340. 349

(1986); Connolly v. Pension Benefit Guaranty ¢ orp., 475 U.S. 211
224 (1986). As this Court emphasized in Loretto v. Tel prompter
Manhattan CATV (¢ orp., 458 U.S. 419, 426 (1982), while ad ho
considerations control these cases, “the inquiry is not
standardless. The economic impact of the regulation, e: pecially
the degree of interference with investment-backed e» pectation

is Of particular significance.”

a

| ] 1
hat categorization inevitaDly Means exclusion [here

is, tor example iO really appropriate place in the Ele,
t I

enth Circuit template tor vested rights. This tact worked

} , ‘
iversely to Mr. Corn in this case: the construct had n¢
|
cit to recognize the Uperiol tatu hat state-court
j sci al ot adhe inal
ljudicated vested property rights enjoy in the hierarchy
prote ted interest
1'} , | ; ’ 7 , | 1,
Ihe Eide construct does not express the test this

" ; '
vuurt has established. It imposed upon Mr. Corn, and

FS | ve
will impose upon future Eleventh Circuit landowner-liti

rants, a straight-jacket landowners in other circuits will
{ ipre
D. This Case Presents A Vehicle For Resolving The

Significant Conflict Which Exists Between The Sev-
eral Circuits (And Between Federal And State
Courts) As To The Breadth Of Substantive Due
Process Guarantees In Land Use Cases

| ' }
[he substantive due process analysis in the August

to logic and precedent in a number of ways.?2! First, it

i

ignored Eleventh Circuit precedent that where a City act

In Eide, 908 F.2d at 724-25 n.15, the Eleventh Circuit
gently chided this Court for failing to make clear into which of
the four available pigeonholes one of its cases (Pennell v. City

in Jose, 485 U.S. 1 (1988)) fits

he district court found liability under substantive due

process. Since the measure of damages under this theory is the

me as under a takings claim (Wheeler v. City of Pleasant Grove
833 F.2d 267, 270 n.3 (11th Cir. 1987) (Wheeler IIT)) the district
court did not try the inverse condemnation claim: it was

>

remanded by the Circuit. (997 F.2d at 1393 & n.3; App. A56-57)

13 opinion (997 F.2d at 1374-76; App. A9-13) did violence

K435

}
al, as were the zoning change and site plan denial

ere. such act as a matter of law cannot “bear a substan

at

}

tial relation to the public health, safety, morals o1 general

welfare.” (997 | 2d at 1374 App Al1Q) See, e Q AA Pr

‘les, 850 F.2d at 1488. Second, one of the prongs of the test
j 1 . . j
ipplied was “whether the deprivation is the result of

in abuse of governmental power sufficient to raise an

tit

ordinary tort to the stature of a constitutional violation

‘
,

(997 F. 2d at 1374; App. A9) This suggests that the court

misperceived what was before it; a constitutional land

use regulation claim which implicates the exercise ot! the

state’s inherent police power and a self-executing Consti

tutional provision and does not sound in tort. See, ¢
Reardon v. San Francisco, 66 Cal. 492 505 (1885).22 Third

the Eleventh Circuit failed to factor in the vested rights
and preclusive ruling aspects of the case. The tact signifi
cant to this Court is that the analysis bore scant resem

, 1 : ! } _
blance to the substantive due process analysis this case
t

would have received in other circuits or state courts
throughout the land

, . ry

The Sixth Circuit opinion in Fearson v. 4 ity of Grand

Blanc contains a circuit-by-circuit review of substantive
due process land use law. (961 F.2d at 1217-20) According
to Pearson. the Third and Fourth Circuits are somewhat
more sensitive than others to landowner rights, the Ninth

and Eleventh Circuits are essentially congruent in

2 “TI}t is not a tort for government to govern (Dalehite
LInited States, 346 U.S. 15, 57 (1952) — even if that governance

takes private property Whether just compensation 1s payable is
in entirely separate question.” Kaiser Aetna v United States, 444

U.S. 164, 174 (1979)

K 44

approach (open to some question in view of the Eleventh
Circuit construct), the Eight [sic] Circuit decisions are in
such internal disorder that there is no ascertainable cir
cuit position and so on. The Sixth Circuit’s own test i:
extremely draconian; it will interfere in zoning abuse
cases only when such abuse is so extreme that it “shocks
the conscience Id. at 1222. With respect the “shocks the
conscience” standard shocks the conscience; the right ofa
citizen to receive rights guaranteed by the Constitution
should not be captive to the subjective emotional!

response Of a jurist

Pearson also stresses that federal courts are typically

much more deferential to public entities in substantive

due process challenges than state courts. Id. at 1221-24.

[There seems to be little rational basis for this dichot
omized hierarchy of protection, particularly when state
courts are often called on to determine and enforce rights
under the United States constitution.*' The Pearson court

concluded

We wish it were within our power to har
monize these decisions, but the conflicts among
circuits are too great. Harmony will have to await
iction by the Supreme Court. Id. at 1220 n.45

(Emphasis added)

Pearson suggests that a linchpin of the various analyses is
whether the critical decision is legislative (high deference) or
quasi-judicial, administrative, or ministerial (less deference), In
the case at bench, of course, the Eleventh Circuit somehow saw
the challenged acts as legislative, even though the preclusive
state court rulings held them to be administrative and
ministerial. No reason appears why a federal court should be
telling a state how to categorize its own governmental

dex ISIONS

K45

| protec tion a

i

The quantum of federal constitutiona

itizen enjoys should not depe nd on the serendipity ICC]
dent of geographical location. The case at bench extend
is Opportunity to cure the pervasive conflicts and conce]
tual confusion in the application of substantive due pri

law to land use cases

CeSS

EF. This Court’s Guidance Is Needed In Resolution Of
The Recurring Question Of The Proper Measure Of

Damages In A Land Use Case Where An Econom

Opportunity Is lost Because Of A Temporary Taking

In 1977, when Mr. Corn went before the City, he wa
on the brink of an exceptional economic opportunity
ownership of the first mini-warehouse in the Lauderdal

When the dust settled

IT} L985, ind he

Lakes agTeada
legally empowered to pursue that project the windo
opportunity was gone: the relevant market wa at

rated.24

In context, the related issues are

ernment acts cause the econom

lost torever, does the tempo!

plated project to be
position belov

taking become permanent (Mr. Corn

1 As noted ante, this question vas pre ented t Dut
addressed by the Eleventh Circuit ince una inta
returned to square one on the liability issue. The District ¢

r measure of damages for the partia
1570-71; App. B23-2¢

spoke to the prope
temporary taking (771 F.Supp. at
Corn presented the issue to the Eleventh Circuit at py

ss-Appellee

his Opening Brief, and p 15 of his Brief of Cro
Keply Brief For Appellant (question is what dama

by the time the regulations which effec ted a tempor:
no longer feasible

ges apply
"a

y

are set aside the confiscated project |

I Wihat Il WaS Prot to the revulatory freeze? I

required somehow to attempt to mitigate dam
king to build consistent with the less desirable
sification he is challenging (which would rendet
e vindication pyrrhic)? And where the ownet
o build part of an integrated project (here the

‘fore he 1s able to develop the remainder, must be

ith such partial levelopment even though
il construction 1s economically contra-indicated?
me law from lowe! vuurts that 1 helpful
nl I} lo 4 By pT] ; } lint ‘
F.2d 9 (Ct. Cl. 19 But this Court has not
these recurring problems. Its addr would
rness and uniformity, and effect a significant
ne and judicial resource

¢ offers almost an embarrassment of cet
thy issues. They engage in very fabric of fed
ind speak to the relationships largely
in the United States Constitution on which

m is based: the relationship of federal courts to

courts, of trial courts to appellate courts, of the

to local governments and of the several institu

governance to the rights secured in the constitu

[he Eleventh Circuit ignored the principles

ig these relationships and ran roughshod over

that embody those prin iples

if
rso

fual right at the enter of tl ontrovel

il right in propert That rights in
ic civil rights has long been recognized
id Fin. Corp., 405 ( Toye, (19 ) th

j j j , a Dr
} Cu ite ait L/S ‘ tr i i
114 ‘ ee 19 yt} (i yWY 4) xevgulating
1 re ie@~wiing court need to pe re ninded to
ith th onstitutio}r ii rignt >} it] (*T LT)
| |
Ot poitical expe Hency
, , ,
n almost a decade since tl ourt spoke in
infv. This petition oftet mn appropriate
} , .O | / oh.
olve the recurring problems raised in if
, ‘
kebrual il LYV4
7] ?
pectfully submitted
f TT ' » " ns '
(,1IIRON K AIN JI is
, . ,
MWrsel yf Re ru

CROSBY, HEAFEY
ROA I A MAY

Professional ¢ Orpo! ition

and

\NDREW T. LAVIN

RICHARD A. IVERS

ROMANIK, LAVIN,
HUSS & PAG LI

ittorneys for Petitioner

i

; \
HERMAN CORN, Trustee

ees

as

L1

APPENDIX L
QUESTIONS PRESENTED

Does a landowner have a constitutionally pro
tected property interest in a vested right to build a speci
} ua
fic project on land, which pursuant to state law the city is
estopped from thwarting, so that the landowner ts enti
tled to just compensation pursuant to the Fifth Amend
j

ment for the city’s confiscation of his vested right?

)

a). Does a landowner who has vested rights to
develop a specific project suffer the loss of all use of his
‘and during the pendency of state litigation through
which the landowner establishes his vested rights and the

city’s obligation to approve the project?

2(b). Even if the land can be developed for alternate
uses, must the landowner develop his land for any such
use during the pendency of the state litigation and
thereby moot his state claim, abandon his vested right
and forfeit his constitutional right to obtain just compen

sation for the confiscation of his project?

(a). Does a city commit a compensable taking of
property pursuant to the Fifth Amendment when it
wrongfully prevents development of land through
invalid regulation comprised of the enforcement of
invalid ordinances and the administrative rejection of a
site plan it lacks discretion to deny, since the city’s
invalid action can never substantially advance any legiti-

mate state interest?

3(b). Does the rough proportionality analysis of
Dolan v. City of Tigard, 512 U.S 374 (1994), apply to a city’s

administrative exaction of a landowner’s constitutionally

i
} ,
protected vested right to build a pecific project
} } } } j
condition to the landowner’s development of his land

PARTIES TO THE PROCEEDING

Plaintiff, Appellant and Petitioner 1 Herman Corn

irustee ( Corn )

Defendants and Responds nts are the City of Laude

dale Lakes, a Florida muni ipal corporation (the “City

Howard Craft (“Mavor’ ) Alfonso Geretti, lerome
Cohan. Morris Klein, Lyman L. Allen, Louis Greenwald
and Harrv Kaufman (collectively the “City Councilmen
TABLE OF CONTENTS
Page

QUESTIONS PRESENTED

PARTIES TO THE PROCEEDING ij
LIST OF APPENDICES
TABLE OF CITED AUTHORITIES Vill
OPINIONS BELOW
JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVI
SIONS ...

STATEMENT OF THE CASE j
A. Introduction. .

B. Pre-Litigation Background

ocean areas

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( Lal \ i
LA \
my nti ted for \
’ y i Fide

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i the Proje

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roperty in
: :
Vhich Just ¢

‘ . , ,
eat ul ft What Property Inter im We
'
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ry | tected 1 thy laking hase
+4 '
ria \ \ reat » | nstitu mati
| ') }
t \ " , ;
boc | Propert Interest t v ed Wwigh
. '> " “ie
he Fleventh Circuit Kec nize tmnat Ve
' , ,
Right re (C onstitutionall Protected |
, , '
ty Interests Under Florida Lav
, ’
; he i] Ti} V ¢ ted cen nt ! ‘ i
' ' ‘ tT) t ‘ ‘
tion Protected Property Interests Is |
| |
icf nit yvithn puIPreme *% irt bciKl
a | ’ i
purispruacnce
a ‘
r? i iled te Prot t Trl vi
I? by ¢
n
i}
i .
| » 4 cy frrti ona ‘
1 [he ( ontrise ition oO} {orn ( «¢ 1 stitute Mally

laking of the Property Throu

yf thie State Court

iItigation

;

‘rest in the Project Effec

yhout the Pen

itv’s Action

ny Legitimate

te

1

‘
'
’
re |
ror
{ i
1?)
I
ly
it
1?
;
ty |

d al

Mey

|}
BB
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*

riST OF APPENDICES
| OURT O
ED SEPTEMBI
i ( ) | 1 {} i |
. '

1QQ
i
‘
IOMENT. FINDIN
TOON OOF LAY
RICT CO
1994
{
{ COURT OF A
FID AUGI ae

OF FACT AND
ITED STATES DIS!
DATED AUGI

Sale eee

ORDER AWARDING ATTORNEYS’ FEES AND
COSTS, U.S. DISTRICT COURT, S.D. FLORIDA,
DATED MAY 20, 1992 E1-E16

APPENDIX F

DECISION, DISTRICT COURT OF APPEAL OIF
FLORIDA, DATED FEBRUARY 16, 1983 F1-F1]

APPENDIX G

CORN V. CITY OF LAUDERDALE LAKES, CASE
NO. 77-12955, BROWARD COUNTY CIRCUIT
COURT, FINAL JUDGMENT DATED OCTO

BER 20, 1978 G1-G18
APPENDIX H
ORDERS, CIRCUIT COURT IN AND FOR

BROWARD COUNTY, FLORIDA DATED JAN

UARY 28, 1970 AND MAY 18, 1971 H1-H6
APPENDIX I

CITY OF LAUDERDALE LAKES ORDINANCES

NOS. 103, 104, 105, 548, 549, 552, 568... 11-128

TABLE OF CITED AUTHORITIES
Cases Pages

AA Profiles v. Citv of Fort Lauderdale, 850 F.2d
1483, 1488 (11th Cir. 1988), cert. denied, 490 U.S.

1020 (1989).... ete eae ais Ope 18
Allen v. McCurry, 449 U.S. 90, 95-96 . Petes > 2
Babbit v foupee, a7 SAY. Fass Gee COMMER % vc ch

Board of Regents v. Roth, 408 U.S. 564 (1972)....... 16

\

trict v. Duquis

City of Lauderdale

First English Evangelical

Angeles County, 317 (1987)

Alachua County

Hernando County Board of (¢

Villiams Corporation, 630 So.z

ee

AIDE. OE EN RNY gy ORES Oe PRE ag

>

respon

opence V.

ae ;
\ }
, ,
|
i
t \ ‘
igraf v.
7
ry +
tt I
? ‘7
{ i
T
e® oul
;
“y/ ith
1
i
¢*T I he
f \ ( lil
om
\ in
‘¢ » |
iY,
rve Ltd
+ 1380 |
'y {1Y95
=
Keisnau
) 1)
ISK (

/in

ir. 1YRY)

co Short, 554 U.S

Florida
Wis LOO

Monsanto (¢

mMerman,

( Ompanies

\

h Hotel v. Citv of Hollywood
| , we
(la ify
il Constr. Cory | bf) |
' } ; j ) ‘
i hailm | odu | 1] ’ 14
: .
Lire mpter Mat 1) ttan ( \] y (
126 (1982)
1 , , | ’
f tock Land Kank Radford
6-( 1935
Carolina Coastal Council 0)
| 1QQ”
f yt ee. he ¥. | 1964
i , 4
ort (Coastal Commission, 48
Co Company Mahon, 260

ony Boat Key 17

916, 525 (1982)

( range ( ounty,

1011 (5th Cir. DCA 1982)

;
1s
,
‘i
ry
}
“
.
{
it

denied, 115 S.Ct

411

Ls

| Wi rf | if (
] } |
P SO.La I
Li ryite tate \ {
tote) 78 (194
Wheeler C ity |

, ‘ 7,
1451 (lith Car. 1990)
\ i ;
VVitliamson Count
} ? ]
tltton Bank 1/3
| | State ( Of
‘ A ;
? ith Lmen men?
| ort rth men
PLCC 1 ' wma

City of |
Ordinance
Ordinance
Ordinance
Ordinance

Ordinance

13 |
er
1 2A
LO4
i‘ 1qk
iva

State

1uderd ile

Ni 103
=

WO
No LOS

A
\

VO

No. 549

Sti

| ederal

Statutes and

Lake

Corp 123 |
) é SY | } | | ,4
mmission bian
| 1985)
: , 4 ,
i | i? ' i

ntutes

Ordinances

amr pet

Ord nance No 552. Hs rN me . 7 9
Ordinance No. 568 . x on ie
Text

D. Mandelker, Land Use Law, The Zoning Process
S G22; Ot ZkG CAO OR viécaséer 1Y

Hanes and Minchew, On Vested Rights For Land
Use and Development, 46 Washington Law

> sleds | » eed / »\ ‘
Review 373. 376 (1989)..... si ay LY

OPINIONS BELOW

[his Petition seeks review of the following opinions

issued by the United States Court of appeals for the

T

1. Corn v. City of Lauderdale Lakes, 95 F.3d 1066 (11th
Cir. 1996) (“Corn IV”), and the Order Denying Rehearing
and a Suggestion for Rehearing En Banc, included as

Petitioner's Appendix A

Corn IV affirmed in part, vacated and remanded in
part the Findings of Fact and conclusions of Law Upon

Remand of the United States District Court for the South
ern District of Florida, (“Second final Judgment”

included as Petitioner’s Appendix B

’ } y ] y ? ae s , 7
sine Jaleo ’ er . (
OF Lauvaderaule Lakes NY; I 2d Feleb,

(lith Cir. 1993), cert. denied, 511 U.S. 1018 (1994) (Co?

III”), and the subsequent Order Denying Rehearing and a
‘ = ie } . . 2 \ ‘
Suggestion for Rehearing En Banc, included as Peti

tioner’s Appendix (

firmed in part and reversed in part the

_ rf) 1 . — } . | . . ar :
August 30, 1991 decision of the United States District

L10

( ourt fo!

71 FSupp. 1557 (S.D. Fla. 1991) (the “First |

Appe ndix D

ment”), included as Petitioner's

the Southern District of Florida, publis!

In addition to the opinions identified above, this

controversy has generated the following rele

lished opinions and unpublished decisions, by

federal courts:

.
vant pub

| " q . OA ) 17 .
} ry ( j r ,_auaderaai iA‘ 4 \ t | ~\A 85 (11th
’ 1]
28 iYV) . 4.07 ij }
) ; ‘ . l nwsino ] O71 t >] 1 ,-
b Lorn City QuUderadal Lak Sil [ Gd i014
(llth Cir. 1987) ( Corn I )
: e } ea > 4A +4
c Corn City of Lauderdale Lak § F.3d 442 (11t!
,
{ t 1993)
’ p ; . ' 7 , ‘ » 3
uu Ori ( j oF | wdaerdale 4] , SO a | U
Fla. 1982)
j i | 7
Petitioner

JURISDICTION

[his_is an action for just compensation for the admin
istrative taking of real property and the vested right to
build a specific project without due process of law in
violation of the Fifth and Fourteenth Amendments to the
United States Constitution and the Civil Rights Act (42

U.S.C. § 1983). The judgments of the Eleventh Circuit

i
were entered as follow:
Corn IV was entered on September 23, 1996
)

orn’s Petition for Rehearing and Suggestion for Rehear

’ ' : inte 9 7

ing En Banc was denied on March 20, 199
Corn III was entered on August 13, 1993. Corn’s

Petition for Rehearing and Suggestion for Rehearing En

Ta

Banc was denied on October 14, 199

\n extension of time within which to file this Petition
for Writ of Certiorari to August 15, 1997, was granted by

irder of Justice Anthony M. Kennedy, Circuit Justice for

the leventh Circuit, on June 6, 199
T . | ,
[} Court ha urisdiction pursuant to 28 U.S.¢
4 |
i et |

CONSTITUTIONAIT
AND STATUTORY PROVISIONS

Fifth Amendment, United States Constitution

PVEbiwatts

|
shall private property be taken for

ublic use, without just compensation

L.12

Fourteenth Amendment, United States Constitution

“Section 1... nor shall any State deprive any
person of life, liberty, or property without due

process of law
12? U.S.C. § 1983:

“Every person who, under color of any statute
ordinances, regulation, custom or usage, of any
State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of
the United States or other person within the
jurisdiction thereof to the deprivation of any
rights, privileges, or immunities se ured by the
Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity
or other proper proceeding for redress

Citv of Lauderdale Lakes ordinances nos. 103, 104

105 548, 549, 552, and 565 are reproduced as Petitione!

Appendix I.

STATEMENT OF THE CASE

A. Introduction

[his case presents takings issues which this Court

has identified without resolving, which importa! { rue:

tions have been incorrectly decided by the Eleventh Cir

"7,
¥

’
ié

cult

Through this litigation Corn is seeking just compen
& b oi |

ation for the City’s administrative confiscation of his

ested right to develop a mini-warehouse/self-storage

icility with an attendant strip shopping center (the “Pro

ject”), on an 8'/2 acre part el of property (the “Property” )

he City wrongfully prevented Corn from developing the

a wee eee ee

SSS

|
|

|
H
t
;

SS

L13

Project by rejecting Corn’s preliminary site plan (the “Site
Plan”), after illegally enacting ordinances rezoning and
placing a moratorium on development of the Property
and eliminating warehouses as an authorized use of land
in the City. Before seeking just compensation in federal
court Corn had successfully sued the City in state court,
establishing that the offending ordinances were improp
erly enacted and that the City was estopped from enforce
ing the ordinances against the Property because Corn had
a vested right to develop the Project. The state court
found that the City lacked discretion and was required to
approve the Site Plan and issue a building permit for the

Project

The state court litigation lasted almost eight years
Throughout this time the wrongful rejection of the Site
Plan remained in effect, preventing Corn from develop
ing the Project, thereby depriving him of all economically
viable use of both his vested right to develop the Project

and the Property

Through the federal litigation Corn has unsuc
cessfully sought the recovery of just compensation for the
confiscation of his constitutionally protected property
interest in the Project and the loss of his use of his

Property

B. Pre-Litigation Background

The Property was part of a 261 acre tract (the
“Tract”), acquired by Corn in 1966, when the Tract was

located in unincorporated Broward County, and zoned

ed

for agricultural use. (App. G-2, State Court Final Judg
PI z

a

nent!; App. D-1, First Final Judgment). Corn agreed to
the annexation of the Tract into the City? in return for
which the City approved Corn’s development plan for
the Tract. (App. A-2, Corn IV) Accordingly, ordinances
were simultaneously enacted annexing the Tract into the
City (Ordinance 104), zoning the property comprising the
lract for residential, commercial and industrial use, in
accordance with Corn’s development plan (Ordinance
105), and creating zoning category C-1A, an industrial
zone which allowed warehouses, to apply to the Property
(Ordinance 103). (App. D-2, First Final Judgment; App

A-2, Corn IV)

Corn expend d in excess of $100,000 in reliance upon

the City’s annexation and zoning of the Property, devel

oping the Property for C-1A use. (App. G-3, State Court

Final Judgment; App. D-2, First Final Judgment) rhe
Property fronted on a main thoroughfare on the east and
was bounded by a canal on the south. (App. D-2, First
Final Judgment). Corn constructed canals on the western
and northern borders of the Property to create a buffet
between the Property and the proposed residential area:
thereby fixing the dimensions of the Property at 370 feet

r/ (ia
vide, and 1.030 feet deep (Jad

i 17 17 ‘
[he partie: were collaterally e topped from relitigating
. ,

e fact conclusively estal lished in the state Court Final!
ludgment. Allen McCurry, 449 U.S. 90, 96 (1980

Without ¢ Orn consent the ¢ ity would have had to hold a
f mal . ' , , ; f thy Rlorida lee lati ti
ormal referendum or secure an act of the Florida legisiature t
innex the Tract. Fla.Stat., Ch. 171, et seq

L15

Corn thereafter proceeded to develop the Tract in

accordance with his original development plans and the

zoning established by Ordinance 105, first building single
family homes and condominiums. (App. G-2, State Court
Final Judgment; App. D-2, First Final Judgment; App.
A-2, Corn IV). In 1969 the City attempted to change the
zoning of a portion of the Tract. (App. G-2-3, State Court
Final Judgment). Litigation ensued resulting in a judg-
ment holding that the City was estopped from changing
the zoning. (App. F-2, State Corn I). The ruling of estoppel
to change zoning was applicable to the entire Tract. (App.

H-2, Order Granting Summary Judgment).

On April 1, 1977, Corn submitted the Site Plan to the
City. (App. D-23, First Final Judgment). The Site Plan
depicted the construction of the Project, including an
approximate 103,000 square foot mini-warehouse situated
in the rear of the Property, and an approximate 67,000
square foot shopping center across the front of the Prop-
erty, between the main road and the mini-warehouse

facility. (/d.)

[he Site Plan was approved by the City’s Planning
and Zoning Board on two separate occasions. (App. G-9,
State Court Final Judgment; App. D-3, First Final Judg-
ment). The City Council tabled consideration of the Site
Plan on three occasions, at which meetings residents liv-
ing adjacent to the Property actively opposed the Project.
(App. G-9-10, State Court Final Judgment). While resi-
dents raised “concerns” regarding the Project, no resident
or member of the City presented any evidence supporting
any of the expressed concerns. (App. D-3, 21, First Final
Judgment). Indeed, each of the concerns had been consid-

ed by the City’s Planning and Zoning Board, which

L16

determined that the Site Plan complied with all of the
City’s regulations and ordinances regarding such matters

>

(App. G-7-9, State Court Final Judgment)

Ultimately, on July 12, 1977, the City acceded to the
residents’ vocal opposition to the Project. (App. F-4, State

5

Corn I; App. D-22, First Final Judgment; App. C-2, Corn
[I1I). Without having conducted any investigation of mini-
warehouses or study of whether there was any reason to
rezone the Property, (App. D-4, 21, First Final Judgment)
the City enacted Ordinance 549, which rezoned the Prop
erty from C-1A to B-3, a more restrictive category which
did not permit warehouses, and Ordinance 548, which
eliminated only storage warehouses as a permitted use in
the C-1A zone. (App. D-3, First Final Judgment). This was
the first time the City had considered rezoning the Prop-
he C-1lA

zoning category. (Id.). The City did not afford Corn o1

erty or changing the uses permitted within t

invone notice of its intention to enact these Ordinances

(App. F-4, State Corn I).

After enacting the Ordinances and based thereon, the
City Council denied approval of the Site Plan. (App
G-12, State Court Final Judgment; App. D-3, First Final

idgment)

The Citv soon thereafter enacted ordinance 552,

which imposed a 150 day building moratorium, prohibit-
ing the issuance of building permits for the two parcels of
C-1 property in the City, one of which was the Property
(App. G-11, State Court Final Judgment, App. D-3, First
Final Judgment). The moratorium was ostensibly enac ted
to evaluate the impact of C-1 zone uses on adjacent

yy 5

residential property. (App. 1-22-25. Ordinance 552). The

L17

Planning and Zoning Board’s report was not submittec
until December, 1977, months after the Property had
already been rezoned B-3. (App. C-35, Corn III). The
moratorium was extended by Ordinance 568, until July 4,
1978. (App. I-26, 27, Ordinance 568; App. D-4, First Final
Judgment). (Ordinances 548, 549, 552, and 568 shall col-

lectively be referred to as the “Ordinances”).

The City’s “purposeful action” prevented Corn from

developing the Project. (App. C-13, Corn III).

rn

The State Court Litigation —- Corn Has Vested
Rights in the Project and the City Must Approve the
Site Plan.

Corn sued the City in state court, challenging the
validity of the Ordinances and seeking to compel the City
to approve the Site Plan. (App. D-4, First Final Judg-
ment).? On October 20, 1978, the State Court Final Judg-
ment was entered, ruling in favor of Corn. (App. G, State

Court Final Judgment).

The trial court found that because Corn had both
expended money and made substantial physical changes
in the land in reliance upon the City’s undertaking in
adopting the original zoning ordinances, it was grossly
unfair to permit the City to change the zoning of the
Property. (App. G-14-15, State Court Final Judgment;

App. F-5, State Corn I). The City’s annexation and zoning

> At the time Corn instituted the state court litigation
Florida law did not afford a landowner the entitlement to
recover money damages for the unconstitutional taking of

property. Corn I at 1517.

of the Property and Corn’s reliance thereon in preparing

the Property for development conferred upon Corn
vested rights in the zoning of the Property, and in the
Project. (App. G-17, State Court Final Judgment; App
C-3, Corn III). As a result, the City was estopped from
rezoning the Property and from denying approval of the
Site Plan. Id. Further, the Ordinances were declared
invalid for the City’s failure to follow its own notice and
procedural requirements for their passage. Id. The City
had no discretion and was obligated to approve the Site
Plan and issue a building permit for the Project upon
Corn’s correction of three technical deficiencies which the

Citv had never afforded Corn the opportunity to correct

\pp. G-12, State Court Final Judgment; App. I State
\ rh }

nforcement of the State Court Final Judgment, so that

ame |
a
ae
—s
—

the Ordinances and denial of the Site Plan

effect during the pendency of the appeal. (App D-5, First

Final Judgment). The State Court Final Judgment was
ffirmed. (App. F, State Corn I) The Florida appellate
urt issued its mandate on March 4, 1983, at which time

the decision became final. (App. D-5, First Final Jude
ent

Thereafter. Corn submitted a revised Site Plan to the
, : | | / ™ - Py
ty for approval, which the City refused to approve

} ] . }
unless Corn complied with platting requirements that
A A ‘/

ame into existence after July, 1977. (App. D-5, First Final
ludgment). On March 26, 1985, the state court ordered the

City to issue Corn a building permit without platting

(App. D-6, First Final Judgment).

Between June, 1977 and March, 1985, Corn was
wrongfully prevented from developing the Project while
he successfully litigated with the City in state court and
established his vested right to build the Project. During
the pendency of the litigation Corn did not develop the
Property for any other use because he remained intent on
developing the Property in accordance with his vested
right to build the Project. By the time Corn succeeded in
establishing his vested right to develop the Project
changes in the area and the growth of competition in the
it years had rendered development of the

Project economically unfeasible.

1
Orn Nas UNSUCCE tu

ly attempted to sell the Prop-

erty since 1985. The Property is still owned by Corn and

innot be developed ror any economicali\ viable uS¢

D. Federal Court Litigation

On January 17, 1984, Corn filed the underlying
action, seeking damages for violation of the just compen
sation, due process and equal protection clauses of the

ifth and Fourteenth Amendments and the Civil Rights
Act. (App. D-5, 6, First Final Judgment). The jurisdiction

of the district court was invoked under 28 U.S.C. §§ 1331

1a 124% Th " ‘ ¢ ArT AC a ermicc va. ; rine ler
cali i J. it ak it Was qgqismissea aS UNTIpE undael
| lleawr ‘4 Di aw 9170 ’ 9979019 ; [ 790771 > a a4]
VWiliiamson County | (AhnNnNING COMMISSION V. Hamilton Bank,

473 U.S. 172 (1985). (App. D-7, First Final Judgment). The

leventh Circuit reversed. (Corn I). The Eleventh Circuit
later contirmed that Corn’s claims were not barred by the

statute of limitations or res judicata. (Corn II).

On August 30, 1991, following a four day non-jury

trial, the district court issued the First Final Judgment,

L20

ruling in favor of Corn on his “substantive due process
takings claim”.4 The trial court concluded that the City
Council’s enactment of the Ordinances and rejection of the
Site Plan was motivated solely by an irrational desire to

thwart Corn’s Project. (App. D-22, First Final Judgment)

Specifically, the trial court made the following find
|. Corn had a vested right to build the Project

App. D-15, First Final Judgment).

?. Corn’s vested right in the Project was a constitu-

tionally protected property interest created by Florida

law. (App. D-20, First Final Judgment).

; The City acted arbitrarily and capriciously in
I~

ral of the Project, failing to independently

the merits of the Project, and instead blindly

following the will of the residents. (App. D-21, 22, First
Final Judgment)
, ;
The district court awarded damages as just compen
tion to Corn App. D-32, First Final Judgment)
7 " T ]
he First Final Judgment, claiming

awarded by the district court was

that the compensation

C-5, Corn III). The City

ot just. (App.
1.) The Eleventh Circuit reversed the First Final Judg-
ent, determining that certain findings of fact of the
district court were clearly erroneous. (App. C-38, 39 Cor
). The Eleventh Circuit ruled that the proper standard
' Through his substantive due proce taking laim Cc
1intained that the City’s wrongful rejection of the Site Pla
irbitrary and capricious. (App. C-4-5, Corn I]

L21

to be applied to Corn’s substantive due process claim was
whether a rational basis existed for the City’s action, and
reviewed the evidence and found that a rational basis
existed for enacting the Ordinances and rejecting the Site
Plan. (App. C-44, Corn III).

The Eleventh Circuit remanded the case to the dis-
trict court for a consideration of Corn’s just compensation
claim,° which had not been ruled upon. (App. C-56, Corn
III). The Eleventh Circuit also reversed the district court’s
dismissal of the City Councilmen, determining that the
denial of the Site Plan was an administrative act, for
which the City Councilmen only had qualified, rather
than absolute immunity. (/d.).

On remand, the district court issued the Second Final
Judgment, ruling in favor of the City and against Corn on
Corn’s just compensation claim (App. B, Second Final
Judgment). Corn appealed the Second Final Judgment to
the Eleventh Circuit, which affirmed the judgment in part
and remanded the cause to the district court solely for a
determination of whether Corn was deprived of all use of

q

the Property during the moratorium.® (App. A, Corn IV)

[The Eleventh Circuit concluded as follows

} f rr +13 . (oO r 1 TY) ( rr
Through Corn’s just compensation claim Corn

maintained that the City’s wrongful rejection of the Site Plan

1 7 » = . . ° . .

deprived him of economically viable use of his constitutionally

protected property interest in the Project and the Property.
(App. A-6-7, Corn IV)

6 The district court has entered an order concluding that

’ ’

7

f ; nas y } _ . hoe Pp norty deur Yea he
Corn was not deprived of! all use of the rroperty during the

moratorium, finding that the moratorium did not apply to the
Property, since the moratorium applied to C-1 property and the
Property was already rezoned to B-3. Corn has recently

aled this ruling to the Eleventh Circuit. The pendency of

iat

L22

1. While Corn was deprived of a use of the Prop-
erty, he was not deprived of all uses of the Property from
1977 through 1985, while he successfully established in
state court his vested rights and entitlement to build the
Project. During the pendency of the state court litigation
Corn could have and was obligated to develop the Prop-
ertv for some alternative use (App. A-! ,, 14, Corn

) Even if Corn had vested rights in the Project, the

ity’s denial of permission to build the Project does not

state a claim for just compensation because Corn was not
deprived of all uses of the Property. (App. A-19, Co lV)

\ denial of the right to develop a particular project may

J e ]
ritra r > . . a )

»s a diminution in (or

a , —~ oben
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t
OI

2. Florida Law Creates a Constitutionally Pro-
tected Property Interest in Vested Rights.

This Court has clearly explained that property inter-
ests protected by the Fifth Amendment’s takings clause
are not created by the Constitution, and instead, they are
created and their dimensions are defined by existing
rules or understandings that stem from an independent
source such as state law. E.g. Lucas, 505 U.S. at 1016, n.7;
Ruckelshaus v. Monsanto Company, 467 U.S. 986, 1001
(1984).?

It was conclusively established through the state
court litigation that Corn had a vested right to build the
Project so that the City was estopped from rezoning the

Property and was compelled to approve the Site Plan and

In Corn IV, the Eleventh Circuit erroneously stated that
‘property” as used in the just compensation clause of the Fifth
Amendment is defined much more narrowly than in the Fifth
and Fourteenth Amendments due process clauses, so that while
certain property interests may not be taken without due
process, they may be taken without paying just compensation
(App. A-18, 19, Corn IV). The Eleventh Circuit is clearly wrong.

[his Court has employed the identical standard of looking
to existing rules or understandings that stem from an
independent source such as state law to determine whether a
party has a property interest for both takings cases, e.g. Lucas,
505 U.S. at 1030, and due process cases E.g. Board of Regents v.
Roth, 408 U.S. 564, 577 (1972). Since resort is made to the same
legal standard, an interest is either a property interest for both
the takings clause and due process clause, or it is not a protected
property interest for either clause. See Texaco v. Short, 454 U.S.
516, 525 (1982) (evaluation of whether Indiana state law created
property interest in mineral rights for both claims of violation of
due process and taking of property).

L26

issue a building permit. (App. G, State Court Final Judg-
ment; App. F-9, State Corn I; App. C-3, Corn III). Florida
law creates a constitutionally protected property interest

in Corn’s vested right to develop the Project

A vested right under Florida law is a property right
which is created as a matter of fairness to protect the
property owner from the loss of an interest in property
which he has enjoyed. Hollywood Beach Hotel
Hollywood, 329 So.2d 10, 15-16 (Fla. 1976). A city is equita-
bly estopped from depriving a property owner of a par

? . 4 7 ,
ticular property right as a result of conduct of the city

— , rol: { h ; rim “4
upon which the landowner has relied to his detriment
EO SE I a et OT 2 ee Oe Yana)
ui Sakolsky mt ity of Corai Gables, | ] So.2d 4 oD 4 6H (t

1963). The city is estopped from exercising its police
power to prohibit a particular use of land when
landowner’s change of position in reliance on the city's
actions would render it inequitable and unjust to destroy

the right to use the land the landowner has acquired

ene SOS i a rare ee

rnanao County poara Commissioners 7 >.41 V\ ]
ATE 20) .. 5 1cc 114 —
YU »S —
~ la
a — =

—

- >
is — i -

>

Reese nes

Vested
Property

Recognizes that

Eleventh Circuit

The

»
,

;

Protected

Constitutionally

are

c

Interests

Rights

Law.

Under Florida

ermit or certificate of occupancy lI the city lacks discre
‘n and must issue the permit or certificate); AA Profil
City of Fort Lauderdale, 850 F.2d 1483, 1488 (11th Cir

1988). cert. denied, 490 U.S. 1020 (1989), (property interest

in woodchipping development); Wheeler v. City of Pleasant
rove. 896 F.2d 1347, 1351 (11th Cir. 1990) (property inte!

4. Recognizing Vested Rights as ¢ onstitutionally
Protected Property Interests is Consistent with

Supreme Court Takings Jurisprudence.

12 * j nor ; :
NnecovniZing that i vested | roperty right j onstl
) , i ,
tio! ’ otects 1 prope rt interes t for vn Nn compen
i r I
} t A. A y }
tion due under the Fifth Amendment for it vronegtiu
} \
king 1 onsistent with takings jurisprudence
I} | y+ } = A +} + mor rt. inter ot 17 rs
it) uli mas neia la a pr erry mterest 1 I
‘ ‘ + mr! r ry
tate which is less than fee simple titie ownersnip Can Dé
} TA?
onstitutionally protected property interest for whicn
} ] I
npensation 1 jue for its taking under the Fifti
i ‘ ; / | " 1
nenament. it in California Coastal mim
| ®C 1
tS U.d. ¢ 19% this court recognized that the right to
; |
r jars Na recognized tnat ested rignt have
]
titutional Dast nfrerring nstitutionai protection ¢
J ‘
, lay ; - ¢} Ehiic I {
perty rights a lat lowner has acquired in the use OF Mls 1ana
I
| i. y i} . la 7 iT i , L. : » ) . * ) 1A
1). Mandelker, Land Use Law, Che Zoning Process 66.12, at 214
QQ\ VY | j ;
8). Vested rights have been recognized as a super property

right”, being immune from exercise of the police power, and a
nh possessing more constitutional propriety weight than a

yroperty right. Hanes and Minchew, On Vested Rights To

ere T
i t At
* on alt site
ind Use and Development, 46 Wa hington Law Revi 173, 376
IOY ) | 1©@ E€XECICIse f re yulilatory pouice powel! that CallSeS the
, ~ +
liminishment of a vested right is one that goes too far ld

=

He Ss

SS Se SSS

alee aera

\
i

L29

exclude others from one’s property is a constitutionally
protected property interest. Id. at 834: see also Dolan v
City of Tigard, 512 U.S. 374, 384. In Pennsylvania Coal
Company v. Mahon, 260 U.S. 393 (1922), this court held that
the reservation of the right to mine underground coal was
a constitutionally protected property interest. Id. at 413
Invasion of a landowner’s airspace by planes whose noise
diminished but did not destroy all viable use of the land
was recognized as effecting a taking. United States v
Causby, 328 U.S. 256, 262 (1946). A tenant’s leasehold
interest in property, has been held to be a constitutionally

4

protected property interest. E.g. United States v. General

a real estate

Motors Corp., 323 U.S. 359, 378, 1945). Indeed,
lien to secure a mortgage has been held to be a constitu
tionally protected property interest. Louisville Joint Stock
Land Bank v. Radford, 295 U.S. 555, 596-602 (1935). The
taking of the right to devise a fractional interest in land
has been held to effect a compensable taking. Babbit
Toupee, 117 S.Ct. 727, 731-32 (1997).

In each of these cases the landowner had an expecta-
tion created by state law that the particular incident of
ownership in land would not be interfered with or taken,
thereby conferring constitutional protection upon each
such property interest. Each interest in land in issue was
an “essential stick in the bundle of rights that are com-
monly characterized as property”, see Nollan at 831,
because of the protection afforded the property interest
by state law and the landowner’s expectation of retaining
the particular interest as a result thereof. Such state law

legal recognition and protection creates a constitutionally

oe oo ~~
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oe —S ~~

~~ +~ ” ~

_ wee “oA

~ + — on a4

" ~_ .
= al

=e --

_ ~

AN rate mem en aa a ee ner toe

rroject, entitling him to just compensation pursuant tO

[ 4 A . j l — com —T >I 7 .
t itth Amendment therefor, irrespective of whethe1
1 ,
{ ’ ' L £ 4} Peo eas
\ ry etainea otner:n® ¢€ on micallys V1laDit uses O taehe> 2 rOop
4

B. The Confiscation of Corn’s Constitutionally Pro-
tected Property Interest in the Project Effected a
Taking of the Property Throughout the Pendency of
the State Court Litigation.

+7 far-h 1ORS thoro wu a 2) 7 ATIVE ca re rarhich tho
nd March, LYS there Were alternative uses for W hich the

, “ ] }/ } uy Lh , ror 13 ] " } slo ‘
Property could mave peen developed. Nonetheless,

ee OPE eT Se, : 2 1072 ( a a ,
between june i1Y// and july, 19/5, Corn was prevented

oll
oe
+
~~

fre oam . »| yr the Py eter - 1 ,
rrOorm aeveioping tne rroperty for any useé pursual
‘ - s

is 1s the sole issue currently on

‘5 By March, 1985, due to changes in demographics and
»verbuilding in the area, there was no economically feasible uss
to which the Property could be put, so that the temporary taking

matured into a permanent taking

t
%
;
:
i
'
t
‘
:

"~ 1rd hh] tart ay ait hi ’ titutional ht

i Wa not oO bivtateu tv ValVe i 5S CONStITULLONaA! rig LS
} ,

‘nd moot his state court litigation by developing the

} | y : | 7
shing nis vested right to build the Project. As such, Corn
; 17 1 ) .
is deprived of all use of his Property
: f

, 7 : | , 7
_ +} ,O ’ } . _ +
The Eleventh Circuit held that Corn was not
me ] 3 . .}] ‘ 8. ee . er stey
eprived OT all economically viable use of the Froperty
i é i
» \ } * + - " + 7 i
luring the pendency ¢ t the state court litigation, expilall

been denied those uses to wit vants to pu

ll and: it is whether the landowner has been

denied all or substantially all economically via-

ble use of his land. (emphasis added) App

A-13, Corn IV)

The error in the Eleventh Circuit’s reasoning is that
Corn’s right to build the Project was not a use to which
he simply wanted to put the Property; inste ad, Corn had a

ed right to build the Project, with which right the City

illv interfere. While Corn successfully par-

ipated in the state court litigation and established that

the Project he was not legally obligated to develop the

Property for any alternative use.

As a practical matter, if Corn developed the Property
for an alternate use, he would not have been able to build
the Project. As a legal matter, development of an alternate
use would have rendered moot the controversy regarding
the City’s duty to approve the Site Plan. See Glisson

lachua County, 558 So.2d 1030, 1037 (Fla. 1st DCA 1990)

+

(issue of whether land use regulation effected taking o!

ad
ent

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L37

federal courts the ‘bulwark of the federal system’). The
Ordinances could not be invalid under state law yet
substantially advance any legitimate interest as a matter
of constitutional law. The City’s improper rejection of the
Site Plan could not be prohibited under state law yet pass
constitutional muster as advancing a legitimate interest.
Che full faith and credit which must be accorded the State
Court Final Judgment mandates the conclusion that the
city’s wrongful rejection of the Site Plan failed to substan-

tially advance any legitimate state interest.

The consequence of the City’s abuse of power was
the confiscation of Corn’s right to build the Project and
loss of all the use of the Property, thereby effecting a

compensable taking.

2. The Dolan Rough Proportionality Standard
Applies and Was Not Met by the City.

Alternatively, even if it is appropriate to analyze the
nexus between the City’s actions and any claimed legiti-
mate state interests, the Eleventh Circuit identified and
applied the incorrect standard of review. There must be a
greater nexus than a rational basis between the denial of
the Site Plan and the general welfare concerns identified

in Corn III

In Dolan, this Court identified the level of scrutiny to
be applied to a city’s actions to determine whether they
are substantially related to a legitimate state interest.
Dolan, 512 U.S. at 385. This Court identified the “essential

nexus” which must exist between the professed legiti-

mate state interest and the actions of the city. Id.

This Court held that when a city makes an adjudica-

tive decision as distinct from a legislative one, the burden
properly rests on the city to prove that its actions substan-
tially advance a legitimate state interest. Id. at 391 n.8.
[There must be a “rough proportionality” between a city’s
actions and the stated public purpose. Id. at 391. Rough
proportionality requires a reasonable relationship, a stan-
dard more strict than the rational basis level of scrutiny
under the equal protection clause of the Fourteenth
Amendment. Id. While no precise mathematical calcula-
tion is required, a city must make some effort to quantify
its findings in support of its actions, and cannot simply
believe that its actions will accomplish the desired result,

to substantially advance a legitimate state interest. Id. at

395, 396.

The Dolan rough proportionality standard is applica-
ble to this case. The City conditioned Corn’s right to
develop the Property on his forfeiture of his vested right
to develop the Project, thereby seeking to exact a consti-
tutionally protected property interest from Corn. Further
this exaction was effected by an administrative act — the
rejection of the Site Plan — and not a legislative act. (App.
F-10, State Corn I). Accordingly, under Dolan it was the

ity’s burden to establish that the rejection of the Site
Plan bore a reasonable relationship or rough propor-

tionality to the general health and welfare concerns the

City allegedly sought to achieve.

Dolan establishes that the City indeed had an obliga
tion to make a formal investigation of the Project before
rejecting the Site Plan. Expression of citizet ‘'s concerns
are not a sufficient basis upon which to take action. The

i+

ity had to have actual evidence that the Project would

]
|
i

nave a significant negative impact On traffic, parking,

noise, aesthetics and any other matters of public interest
f

before the City could lawfully reject the Site Plan in

‘ ay TOS
reliance thereon. See Dolan, 512 U.S at 395-96.

rhere is no dispute that the City lacked the requisite

findings to sustain its rejection of the Site Plan in the
name of the general welfare. Initially, the Planning and
f tl r 7 lfare. Initially, the | g
Zoning Board had recommended approval of the Site
Plan twice after becoming satisfied that the Project com-
plied with City regulations, including fire safety, traffic
and landscaping. The City Council did not investigate
mini-warehouses before acting. The City did not have the
benefit of the report it directed the Planning and Zoning
Board to prepare regarding the proximity of industrial
uses to residences when it rezoned the Property and
rejected the Site Plan. The City did not eliminate or
prohibit other allowable uses of the Property which
arguably cause more traffic, noise and air pollution.
\pp. D-21, First Final Judgment). While residents
attended City Council meetings and expressed opposition
to and concerns regarding the Project, the residents did
not present the City with any evidence establishing any
nexus between the Project and their concerns. There sim-
ply was no reasonable relationship between the repre-
sented public interest concerns and the Project to entitle
r

the City to reject the Site Plan.'®

If the Dolan rough proportionality standard does not
ly this Court must identify the standard for analyzing the
cus between a city’s actions and identified state interests in
takings cases. The record evidence establishes that the invalid
Ordinances and wrongful denial of the Site Plan failed to

ubstantially advance any legitimate state interest, regardless of

j J j aa
which standard applies.

L40

CONCLUSION

The Eleventh Circuit has acknowledged that the
issues presented through this Petition “reach beyond the
fisc of one Florida community and the merits of one case
and involve questions about how decision making is allo-
cated between a democratic institution such as an elected

I)

y
j
i

city council and the federal courts”. (App. C-7, Corn !
[The Eleventh Circuit has also acknowledged that the
issues presented herein have not been addressed or

decided by this Court. (App. A-16, n.5, Corn I\

}

[his case provides this Court with the opportunity to
establish legal guidelines to be applied by the federal
courts and state court in takings claims involving the
taking of vested rights and takings effected through
enforcement of invalid regulation. The issues presented
are both significant and commonplace. All gov ernmental
entities and landowners shall benefit from this Court's

resolution of the legal issues presented herein.
Corn respectfully requests this Court to grant Cer
tiorari to consider the issues presented herein
DATED: August 15, 1997
Respectfully submitted,

ANDREW T. LAVIN

Counsel of Record

RICHARD A. IVERS

ROMANIK LAVIN HUSS
& PAOLI

Attorneys for Petitioner

HERMAN CORN, Trustee

APPENDIX M

In the United States Court of Appeals
FOR THE ELEVENTH CIRCUIT

OF LAUDERDALE LAKES,

1 Florida municipal corporation, et al

o~
—
—
—

4 I]
f mpIicliiepwr|

STATE

MENT OF TYPE SIZE AND STYLI

his brief has been prepared in the type size and
of: 14 point Times Roman
TABLE OF CONTENTS
Page
RITIFICATE OF INTERESTED PERSO? D

AT

STATEMENT

EMENT

+

at

statemer

OF JURISDICTION x11

OF THE ISSUES

it of the Facts

ANDARD AND SCOPE OF REVIEW

Deprived of All Economically Viable Use of the

Property

-
i

he District Court’s Finding that Corn Was Not

A 17 t7 . 2

A 4 .
During the Moratorium Was Cle

rroneous

M5

a. Legal Standard for Constitutional Takings Claims

she)
b [his Court Remanded a Specific Factual Issue to
eR aa” A a enna Ce eae ares 23
( The record Undeniably Establishes that the Mor-
atorium Applied to the property, hereby Depriv-
ing Corn of All Economically Viable Use of the
Property During the Moratorium... 25
(i) The Property Was Not Rezoned Until Sep-
RR ee ia Gi ot a fhe ae ake Steer.
(ii) The City Intended For, and Interpreted the
Moratorium Ordinances to Apply to the
Property we we ee Le eee eine ein ea 26
(iii) The City Has Made Binding Judicial Admis-
sions That the Moratorium Applied to the
Property Bie el ert tee can at tue! Bes oe Ree: oan e See
(iv) Courts Have Always Held That the Mor-
atorium Applied to the oo) ee bam. ~.
Il. Corn Was Denied Due Process of Law Because
He Was Not Given the Opportunity to be Heard
or Present Evidence on Remand .............. 35
CONCLUSION ee Svar 2 bu a nO) Dee
Ce eG eae Ge eh ree ie i a ee
TABLE OF AUTHORITIES
Cases Pages
Armstrong v. Monzo, 380 U.S. 545, 552 (1965) ........ 37
Best Canvas Prod. & Supplies v. Ploof Truck Line
713 DF.2d 618, 621 (11th Cir. 1983) oO i
City of Lauderdale Lakes v. Corn, 427 So. 2d 239 (Fla.
Cth tx Bees fC ene Ces oda foc Cdhnecas ee aS 3
Corn v. City of Lauderdale Lakes, 816 F.2d 1514 (11th
Cir. 1987) (“Corn I”).. et esr Ok See . 5, 6 29, 33

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atorium applied to the Property and deprived
ne
Corn of all use of his property, and
. courts have found that the moratoriun
app ied ty the prope rtv al ad lepri ‘ | ( rn of |
use ofl the Prope rty?
Dida the listrict court Geprive Corn of his constitu
‘ | + . } . } |
t1i0Nnal rignt tg proceautladali qgiue Process on remand Dy
] }
failing to afford Corn an opportunity to be heard and
, |
present evidence on factual issues which were first raised
, }
by this Court on appeal because these matters ! id not
hy t 1 ici " + d 1 th ( +t ?
een Previdusi contestec DY tile it)
STATEMENT OF THE C ASE
| Nature of the Case
}

On July
City”), rejected a site plan, (t!
'’ for the deve

-
~~
a |
oa

= . Ila ’ .
by Appellant Corn

y

mini-warehouse facility \

center (the

¢
P|

12 1977 the City of! Lauderdale Lakes

pre yperty
A é

M9

(the “Property”), situated in the City. To ensure that Corn
could not develop the Project on the Property the City
rezoned the Property from C-1A to a B-3 zoning category,
eliminated warehouses as an authorized use in the C-]
zoning district and enacted a moratorium on the issuance

of building permits for Corn’s Property for one year.

Corn successfully sued the City in state court and
had all of the ordinances declared to have been wrong-
fully enacted and inapplicable to the Property. The state
court directed the City to approve the Site Plan and issue
a building permit for the Project upon Corn’s correction
of three minor items on the Site Plan. The City appealed
and the state court litigation was not finalized until 1985,
during which time Corn was prevented from building

» .
I rojyect

Through this federal litigation instituted in 1984,
Corn has sought just compensation for the City’s uncon-
stitutional taking of his Property. To date, Corn’s efforts
to secure compensation have been unsuccessful. Most of
Corn’s claims have been considered and rejected by this

Court

| 7 , ’ ] ' ’ levees ear ®) y {pp | - . “yar
[his appeal involves a review of the district court's

determination that the approximate one year moratorium
did not apply to the Property, and accordingly did not
deprive Corn of all economically viable use of the Prop-
erty. These findings are clearly erroneous. There is no
record evidence whatsoever to support the findings. To
the contrary, the record unequivocally establishes that the
city interpreted the ordinances imposing the moratorium

as applying to the Property and for the past twenty years

M10

has expressly acknowledged that the moratorium applied

to the Property.

Corn seeks the opportunity to recover just compensa-
tion for, at the least, the confiscation of his Property for
the one year during which the moratorium was in effect
and prevented him from using the Property

Il. The Course of Proceedings

t Si n » I ora? ; > litic ) Fy r
[This appeal is a continuation of litigation bs tween
r >

these parties which commenced in state court in 1977

and has continued since then, uninterrupted

During 1977, Corn instituted litigation in state court
(the “State Court Litigation”), against the City and its
individual City Council members (the ‘Appellee Council
men’). (PX-43, Amended Petition for Mandamus)
[Through the State Court Litigation Corn challenged the
validity of three ordinances which had been enacted by
the City, (collectively referred to as the “Ordinances
1e City’s denial of Corn’s Site Plan. The Ordinances
rezoned the Property, deleted warehouses as a permitted
use in the zoning category originally applicable to the
Prope

[Text truncated at 120,000 characters. The full text is on the page linked above.]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1384%3A2. Public record. Not legal advice.