Opposition Brief — Advance Leasing & Development, Inc. v. Hart

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SY | OCI US 009

No. 00-348

‘od en

° WBA‘ a

IN THE hates

Supreme Court of the Huited States

i

ADVANCE LEASING AND DEVELOPMENT, INC., et ai.,

Petitioners,

v.

CHRIS HART, etc., et al.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

BRIEF IN OPPOSITION FOR RESPONDENTS

HILLSBOROUGH COUNTY, CHRIS HART

AND JOSEPH CHILLURA

CHARLES W. PITTMAN HERBERT RAYMOND ALLEN, II*

GorDON J. SCHIFF Senior Assistant County Attorney

ANDREW K. MACFARLANE Jutta C. MANDELL

MACFARLANE FERGUSON Assistant County Attorney

& McMuLLEN Office of the County Attorney

2300 Park Tower 601 East Kennedy Boulevard

400 North Tampa Street 27th Floor

Tampa, Florida 33602 Tampa, Florida 33602

(813) 273-4200 (813) 272-5670

Attorneys for Respondents Hillsborough County,

Chris Hart and Joseph Chillura

* Counsel of Record

162604 @ Counsel Press LLC

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

i

QUESTIONS PRESENTED BY PETITION

Whether City of Monterey v. Del Monte Dunes at

Monterey, Ltd., 526 U.S. 687 (1999) eliminated the rational

basis test so as to mandate the reversal of a summary

judgment entered on Substantive Due Process, Equal

Protection, and Due Process Takings claims brought pursuant

to 42 U.S.C. § 1983, and to mandate a jury trial to consider

the reasonableness of the local government’s proffered

justification in denying a DRI/Rezoning Application?

Whether Del Monte Dunes holds that there is a Due

Process Takings claim cognizable under 42 U.S.C. § 1983,

without the landowner first availing himself of a state

postdeprivation remedy?

TABLE OF CONTENTS

Page

Questions Presented by Petition ................ i

OE OE COE oh aS eR oe ee ll

Table of Cited Authorities ...... serene ewes IV

sstnborment OF UNO TOONS snes sn co os OS ee we ee 1

a. History of Petitioners’ DRI and Rezoning

Pe PEPE eS reer Se oo pee 2

b. Challenges to County’s 1989 Comprehensive

Plan which relate to Petitioners’ right to

Goveiop Che PROMOTE cok kc kee encccw saan 7

c. Statement of Federal Court Case ......... 8

Summary of the Argument .......06csssceences 10

Reasons for Denying the Writ of Certiorari ...... 11

I. The Eleventh Circuit’s Decision Does Not

_ Conflict With Del Monte Dunes. ......... 11

II. Contrary To Del Monte Dunes, The Eleventh

Circuit Did Not Reach The Merits Of A

Takings Claim In That Petitioners Conceded

That Their Claim Was Not Ripe For Review.

ines REE Ake ROBE CEE LE SR el eee eas 12

iil

Contents

Page

Ill. Petitioners’ Claim That Del Monte Dunes

Eliminated The Rational Basis Test Is

NET A SE ee eee 16

IV. Del Monte Dunes Does Not Conflict

- With Decisions Of The Eleventh Circuit

Except On The Right To A Jury Trial In

“Takings” Cases ........25ssseececeees 17

V. Del Monte Dunes Does Not Alter Or Even

Consider The Traditional Summary Judgment

Standards And Summary Judgment Was

Warranted Because Petitioners Failed To

Establish Issues Of Material Fact In Their

Claims For Substantive Due Process, And

Equal Protection Which Are Unrelated To

The Reasonableness Of The Denial Of

Petitioners’ DRI/Rezoning Application.... 20

ee. ce ea yee kebe Gakewee aaa 22

iv

TABLE OF CITED AUTHORITIES

Page

Cases:

Bannum, Inc. v. City of Fort Lauderdale, 157 F.3d

EU Ee Gals SOE k iets veer ea kane vens 16

Buckles v. Kings County, 191 F.3d 1127 (3% Cir.

REE aes bee aa ERE Oe eRe Oe Ce 20

City of Monterey v. Del Monte Dunes at Monterey,

Ree COE 558 sak Vi ees passim

Federal Communications Commission v. Beach

Communications, Inc., 508 U.S. 307, 113 S. Ct.

2096, 424 L. Ed. 2d. 211.(1993) «............ 17

First English Evangelical Church of Glendale v. Los

Angles County, 482 U.S. 304 (1987) .......... 13

Haves v. City of Miami, 52 F.3d 918 (11™ Cir.

FRED ak vies koe ds OO eae a ees 16

John Corporation v. The City of Houston, 214 F.3d

OUR A ee EE hae Bioko een eae ks 19

Joint Ventures, Inc. v. Department of Transportation,

DO Os MR GEe CO SRO 6 kc sks ce eave cence 15

Layne & Bowler Corp. v. Western Well Works, Inc.,

261 US 567,43 5S. Ct. 422 (1923) ... 202.6555 12

Pw

Cited Authorities

Page

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

FOGS CIGSE) oa osc saan teeae ieee es ‘ 13

New Port Largo Inc. v. Monroe County, 95 F.3d 1048

(20 Che. 1966) ssa pry Rr rare 11,19

Reheard v. Lee County, 30 F.3d 1412 (11™ Cir.

NR se cs Ba ER ee a a 15

Restigouche, Inc. v. Town of Jupiter, 59 F.3d 1208

Chiao 2) ) Peer erT Ee erie r err 16

Villas of Lake Jackson, Ltd. v. Leon County, 121 F.3d

GIO. (11% Cie. T9RT) 6 ose eed ies ceecuss 13, 14, 19

Statutes:

Pr gih Lome @. . ere rere i, 9, 10, 13, 18, 19, 20

Fla. Stat. § 163.3184(9)(b) .......--- eee ee eee 7

Fla. Stat. § 163.3184(10) ........--. eee ee eens 7

Fla. Stat. § 163.3184(10)(b) ......-..---2- +e eee 7

Fla. Stat. § 163.3194(1)(a) ......--- ee eee eee 3

Fla. Stat. § 380.06 ......... ccc cece nccncccees 1,5

Fla. Stat. § 380.06(1) .........-- ee ee eee eee eee l

Cited Authorities

a eR rane. rue yi sraa

gS &. : eee reac tare ara A

Soe Sek: erie ire en wa na aaesy te

United States Constitution:

TTP OCEE CET RTC CTT eee

Rule:

a gD eee err rere es

18

11

]

STATEMENT OF THE CASE

Florida law requires that certain proposed developments,

such as the super regional mall proposed by Petitioners,

undergo local, regional and state review pursuant to the

provisions of § 380.06, Fla. Stat., prior to the initiation of

any development. These proposed developments, known as

“developments of regional impact” or “DRIs,” require local,

regional and state approval because they “would have a

substantial effect upon the health, safety, or welfare of

citizens of more than one county” due to their “character,

magnitude or location.” § 380.06(1), Fla. Stat.

Under § 380.06(14), Fla. Stat., a proposed DRI may be

approved, denied, or approved subject to conditions,

restrictions or limitations, by a local government. One of

the statutory factors local government is required to consider

is whether and to what extent the proposed development:

“is consistent with the local comprehensive plan and local

land development regulations.” § 380.06(14), Fla. Stat.

The local comprehensive plan under which Petitioners’

proposed DRI was reviewed was the Future of Hilisborough

County Comprehensive Plan for the time frame through 2010

(“the 1989 Comprehensive Plan”). Pursuant to the

requirements of Chapter 163, part II, Fla. Stat., Hillsborough

County (the “COUNTY” ) adopted the 1989 Comprehensive

Plan on July 12, 1989, which included classifying the

Petitioners’ property as Regional Commercial (“RC”). The

RC future land use category was the only land use category

under the 1989 Comprehensive Plan which allowed for

consideration of a maximum retail component in excess of

300,000 square feet of development.

2

Petitioners’ proposed DRI project also required rezoning

from Agricultural Residential (“AR”) to Planned

Development — Mixed Use (“PD-MU”) under the

Hillsborough County Land Development Code (1992, as

amended) (“LDC’’). The General Review Criteria for a PD

zoning district under the LDC are: (1) physical characteristics

of the site and relation to surrounding property; (2) the

density or intensity of the proposed development in relation

to the surrounding land uses and zoning; (3) the relation of

the PD district to public utilities, facilities and services;

(4) the relation of the PD district to major transportation

facilities; (5) compatibility of the PD district; (6) provision

for gradual changes in density or intensity; (7) internal/

external relationship. LDC § 2.7.5.11.1.

a. History of Petitioners’ DRI and Rezoning Application

Petitioners, Peter A. Geraci and Roy N. Geraci,

(“Geraci”) own property located in Northwest Hillsborough

County, at the northeast quadrant of the intersection of Dale

Mabry Highway and Van Dyke Road. All property sought

to be developed was owned by the Geracis and parts of the

property were, at times, under contracts for sale to Forbes-

Cohen Development Corporation (“Forbes-Cohen”) and

Advance Leasing and Development, Inc. (“ALD”). For many

years the property has been used for cattle operations.

On October 17, 1988, Forbes-Cohen filed an Application

for Development Approval of a Development of Regional

Impact (“DRI ADA”), for 1.3 million square feet of retail

development on 215 acres of the Geracis’ property. Forbes-

Cohen never obtained approval from the Tampa Bay

Regional Planning Council (“TBRPC”) and never sought any

decision by the COUNTY on the DRI ADA. Forbes-Cohen

3

abandoned the project in late 1989. The-project was dormant

in 1990 and 1991. On February 28, 1992, Petitioner, ALD,

filed an “Update” to the Forbes-Cohen DRI ADA for a

proposed mall (DRI No. 192), consisting of 1.28 million

square feet of retail development on 194 acres of the Geracis’

property (the “DRI Parcel”). On January 21, 1993, ALD

submitted to the COUNTY a rezoning application, including

a General Development Plan dated July 21, 1992, requesting

a zoning change from AR to PD-MU on the DRI Parcel for

1.28 million square feet of development (RZ 93-170).

In April 1993, a noticed public hearing on DRI No. 192

and RZ 93-170 was held before the Hillsborough County

Zoning Hearing Master (“ZHM”)' . The ZHM recommended

denial of Petitioners DRI and Rezoning application based

upon numerous concerns, including inconsistency with the

1989 Comprehensive Plan, as prohibited by § 163.3194(1)(a),

Fla. Stat., and inconsistency with the applicable zoning law.

On May 14, ALD submitted several modifications to

RZ 93-170 including an approval to provide 80 acres of

offsite upland mitigation. On June 11, 1993, COUNTY staff

wrote Petitioners about staff’s concerns that certain parcels

owned by the Geracis adjacent to the proposed mall site were

not part of the DRI/RZ applications. Staff recommended a

coordinated rezoning. On June 23, 1993, the Geracis filed a

separate rezoning application for forty-two (42) acres located

adjacent to the DRI parcel and fronting on Van Dyke Road

and Dale Mabry Highway (the “Outparcels”). The rezoning

1. The COUNTY uses a ZHM to conduct a public hearing on

DRI/RZ applications, and to make findings of fact and

recommendations. See LDC Division 2.7. The ZHM makes its

recommendation to the Hillsborough County Board of County

Commissioners, which has the sole power to make a final decision

on the applications. Jd.

4

application requested a rezoning from AR to Planned

Development-Commercial (“PD-C”), for 235,000 square feet

of office development. The rezoning application was in

addition to the DRI/RZ application filed by ALD.

On June 29, 1993, the ZHM held a second noticed public

hearing on DRI No. 192 and RZ 93-170. On July 14, 1993,

the ZHM recommended denial based on numerous concerns,

including inconsistency with the 1989 Comprehensive Plan

-and the applicable zoning law; the proposed parcelization

of Outparcels; failure to address impacts on wildlife habitat,

wetlands and transportation; and incompatibility.

On September 3, 1993, Petitioners combined RZ 93-170

(for the DRI Parcel) and RZ 93-332 (for the Outparcels) into

consolidated RZ 93-170, which the Petitioners called a

“unified plan” on 271 acres. In October 1993, Petitioners

revised their General Development Plan (dated September

3, 1993/revised October 21, 1993) for 1.28 million square

feet of development on the DRI Parcel and 235,000 square

feet of office development on the Outparcels.

On November 2, 1993, the ZHM held a third noticed

public hearing on DRI 192 and RZ 93-170, under the revised

~ General Development Plan. On November 17, 1993, the

ZHM recommended approval of a reduced level of

development consisting of 697,000 square feet on the

southern half of the property under consideration, along with

ten (10) conditions and restrictions on the General

Development Plan.

On November 30, 1993, Petitioners again amended DRI

192 and RZ 93-170 to reduce the proposed project to a

“phased” project in which only Phase One, consisting of

880,000 square feet of development, would receive specific

5

DRI approval. Further, Petitioners proposed that no

development would be approved on the Outparcels and future

proposed development would be subject to further DRI

review and public hearings by the COUNTY.

On December 16, 1993, the Hillsborough County Board

of County Commissioners (“BOCC”) held a public hearing

on DRI 192 and RZ 93-170, as amended on November 30,

1993. The BOCC accepted the ZHM recommendations

except that the development would encompass the entire 274

acres. The BOCC conditionally approved the development

of 697,000 square feet of development on 274 acres, subject

to the Petitioners’ revision of the General Development Plan

to address the ten (10) conditions, in the November 17, 1993

ZHM recommendation. Petitioners submitted a General

Development Plan (dated January 21, 1994/revised February

11, 1994) for 697,000 square feet of development on 274

acres. However, Petitioners failed to comply with the

conditional approval set forth by the BOCC at its December

16, 1993 hearing.

On March 29, 1994, the BOCC held a second public

hearing on DRI No. 192 and RZ 93-170. At the hearing,

Petitioners presented the February 11, 1994 revised General

Development Plan for 697,000 square feet of development.

The BOCC denied the applications because the Petitioners

again failed to comply with 2 of the 10 conditions set by the

BOCC at its December 16, 1994 hearing.

On April 26, 1994, the BOCC held a public meeting

(not hearing) for the sole purpose of formally adopting a

denial resolution based upon the motion adopted on March

29, 1994. In accordance with § 380.06, Fla. Stat. the BOCC

adopted Resolution 94-0102, denying the DRI/RZ

6

applications but enumerating changes that would make the

development eligible to receive approval, which included those

conditions in the November 17, 1993 ZHM recommendation.

Consistent with § 380.06(14), Fla. Stat., the BOCC set out its

reasons for denial in Resolution 94-0102, including lack of

environmental protection, inconsistency with the character of

the community, incompatibility, noncompliance with the

Comprehensive Plan and the LDC, and transportation impacts.

Petitioners challenged the DRI/RZ denial by filing-an

Appeal Petition with the Florida Land and Water Adjudicatory

Commission (“FLWAC’”), pursuant to § 380.07, Fla. Stat., in

June 1994 (the “DRI Proceeding”).? The DRI Proceeding was

a de novo proceeding by FLWAC on the DRI/RZ applications

under which the COUNTY’s denial was not entitled to a

presumption of correctness. On June 19, 1998, Petitioners

voluntarily withdrew/dismissed the DRI Proceeding. FLWAC

issued a Final Order of Dismissal on July 29, 1998.

2. Petitioners also filed a petition in the Circuit Court

for Hillsborough County, Florida, for a Writ of Certiorari to

quash the COUNTY ’s denial of Petitioners’ RZ application.

The petition was dismissed as not timely filed, and that dismissal

was upheld by the Florida Second District Court of Appeals in

Advance Leasing & Development, et al. v. Board of County

Commissioners, Case No. 95-2718. Further, Petitioners filed a

petition for vested rights against the COUNTY’’s significant wildlife

habitat ordinance and concurrency regulations, which was denied

by a county land use hearing officer. Petitioners appealed the land

use hearing officer’s denial to the BOCC, which affirmed the

decision. The Hillsborough County Circuit Court denied Petitioners’

Petition for Writ of Certiorari in Advance Leasing & Development,

et al. v. Hillsborough County, Case No. 97-8568-A (R7-181-12) on

August 24, 1998, finding that Petitioners had no vested rights. The

Florida Second District Court of appeals also denied Petitioners’

petition for Writ of Certiorari in Case No. 98-03651 on January

26, 1999.

7

b. Challenges to County’s 1989 Comprehensive Plan

which relate to Petitioners’ right to develop the Property

On September 20, 1989, the Florida Department of

Community Affairs filed a petition challenging the 1989

Comprehensive Plan of Hillsborough County as not in

compliance, pursuant to § 163.3184(10), Fla. Stat., based in

part upon the lack of appropriate data and analysis to support

densities and intensities in the 1989 Comprehensive Plan. In

this administrative proceeding a Recommended Order was

entered which included the conclusion of law that the

Comprehensive Plan’s levels of densities and intensities in

Northwest Hillsborough County were not supportable by data

and analysis. The Geraci property was included within the area

which was the subject of the administrative proceeding.

The Recommended Order was forwarded to the Florida

Administration Commission (“FAC”), consisting of

the Governor and Cabinet for final agency action.

§§ 163.3184(9)(b) and (10)(b), Fla. Stat. The FAC entered its

Final Order on December 16, 1993 (“the Final Order”). The

Final Order recommended the following remedial actions for

Area 3(c), which includes the Geracis’ property:

“the three (3) outparcels along Dale Mabry Highway and Van

Dyke Road currently designated RC will be designated

Commercial Office (“CO”) . . . [and t]he main area currently

designated RC with a FAR of 1.0 will be amended to designation

of Urban Mixed Use* (“UMU*”).” The Final Order found that

the RC classification was not supportable by relevant and

appropriate data and analysis, but the recommended remedial

action was for guidance only.

The Final Order returned the Comprehensive Plan to

the COUNTY for public hearings and a determination of

appropriate land use classifications. The Planning Commission

8

recommended and the BOCC adopted by Ordinance No. 94-

10 amendments, to the Future Land Use Map (“FLUM”),

which changed the land use classification on 253 acres of

the Geracis’ property (including the DRI Parcel) from RC to

CMU-12. The CMU-12 classification allows for

consideration of development with up to a 0.5 FAR of which

up to 650,000 square feet could be retail uses. On October

27, 1994, after additional hearings, the BOCC adopted CMU-

12 for the Geracis’ property.

The FAC retained jurisdiction to determine compliance

of the COUNTY’s Comprehensive Plan after the adoption

of remedial amendments. On February 24, 1998, Petitioners

filed a Notice of Violation of Agency Action with the FAC,

alleging that the COUNTY ’s legislative action, which

changed the land use classification on Petitioners’ property,

had violated the Final Order. On April 16, 1998, the

Administration Commission issued a determination that the

COUNTY acted consistent with the Final Order.

c. Statement of Federal Court Case

On January 13, 1995, Petitioners served its initial

Complaint on the Defendants.* On August 21, 1995,

3. Defendants are the COUNTY through its individual

Commissioners serving on the Board of County Commissioners, the

Secretary of the Department of Community Affairs for the State of

Florida, and Jan Smith, individually and a member of the

Hillsborough County Planning Commission. During the case there

have been three Secretaries of the Department of Community A ffairs-

originally Linda Shelly was served, then replaced by James F.

Murley, and currently this office is held by Steven S. Seibert. Jan

Smith was voluntarily dismissed as a party from the case on June 4,

1998.

9

Petitioners filed an Eight Count Amended Complaint in which

they claimed that the COUNTY improperly refused to grant

rezoning and DRI development approval to enable them to

construct a super regional mall and thereafter, with the approval

of the Florida Department of Community Affairs, improperly

down-planned their property in an amendment to Hillsborough

County’s Comprehensive Plan. In six Counts of the Amended

Complaint Petitioners sought relief under 42 U.S.C. § 1983:

Count I alleged an arbitrary and capricious due process claim,

Count II alleged an equal protection claim that Petitioners were

treated differently from other similarly situated landowners,

Count IV alleged a due process takings claim, Count V alleged

an impairment of contract claim, Count VI alleged a procedural

due process violation, and Count VIII alleged a claim for

preliminary and permanent injunctive relief. The Amended

Complaint also contained State law claims. Count III alleged a

claim for equitable estoppel and Count VII alleged a claim for

specific performance. After three years in which the parties

engaged in extensive discovery, on September 21, 1998, the

District Court for the Middle District of Florida granted the

Motions for Summary Judgment filed by the COUNTY and

the Florida Department of Community Affairs on the § 1983

Counts and dismissed the State law Counts. On September 22,

1998, the District Court entered the Final Judgment against

Petitioners. (App. B, Petitioners Petition for Writ of Certiorari).

On October 19, 1998, Petitioners filed a Notice of Appeal

with the Middle District Court for Florida. On May 19, 2000,

the Eleventh Circuit Court of Appeals affirmed the judgment

entered by the Middle District Court of Florida. (App. A,

Petitioners Petition for Writ of Certiorari). After Petitioners

requested rehearing en banc on June 7, 2000, the Eleventh

Circuit denied rehearing en banc on July 24, 2000. On August

8, 2000, the Eleventh Circuit Court of Appeals granted

Petitioners’ Motion for Stay of the Mandate.

10

SUMMARY OF ARGUMENT

The decision by the Eleventh Circuit does not conflict

with Del Monte Dunes. or any other Federal appellate

decision. The Eleventh Circuit’s decision does not recite any

facts or evidence and does not discuss legal principles. The

Eleventh Circuit simply identified the issues which were

presented on Respondents’ Motion for Summary Judgment

and affirmed the District Court’s determination that

Respondents were entitled to summary judgment.

The case before the Eleventh Circuit and the case decided

by this Court in Del Monte Dunes deal with different subject

matter. The issue before this Court in Del Monte Dunes was

whether a landowner was entitled to a jury trial in a takings

case. In the instant case, the Eleventh Circuit did not review

a takings claim because Petitioners had not pursued to

completion the postdeprivation remedy available to them in

Florida. Therefore, Petitioners’ takings claim was unripe. In

Del Monte Dunes this Court noted that a takings claim under

§ 1983 had been allowed because California did not provide

a postdeprivation remedy for the taking.

Petitioners contend that Del Monte Dunes eliminated the

rational basis test which is used to determine whether

governmental action is reasonably related to the achievement

of some legitimate government purpose. The person asserting

substantive due process or equal protection violations has

the burden to negate every conceivable basis which might

support the governmental action. There is not even a hint in

Del Monte Dunes that this Court intended to eliminate or

modify the rational basis test.

11

Whether Del Monte Dunes conflicts with decisions of

the Eleventh Circuit other than the instant case is irrelevant.

The only conflict between Del Monte Dunes and Eleventh

Circuit cases is that in New Port Largo, Inc. v. Monroe

County, 95 F.3d 1048 (11th Cir. 1986), the Eleventh Circuit

held that a landowner was not entitled to a jury trial in a

regulatory takings case.

There is nothing in Del Monte Dunes to suggest there

has been any alteration of summary judgment standards.

Petitioners were not entitled to either a bench or jury trial

because Respondents were entitled to judgment as a matter

of law.

REASONS FOR DENYING THE WRIT

OF CERTIORARI

THE ELEVENTH CIRCUIT’S DECISION DOES

NOT CONFLICT WITH DEL MONTE DUNES.

The decision by the Eleventh Circuit identifies this as a

land-use controversy and specifies five issues. The Eleventh

Circuit then concluded that there was no error in granting

summary judgment for Defendants (Respondents). The

Eleventh Circuit’s decision does not recite any evidence or

discuss any principle of law. Petitioners impute rulings and

positions to the Eleventh Circuit which are not part of the

written decision and that cannot even be inferred.

Supreme Court Rule 10 provides in part: “A petition for

a writ of certiorari will be granted only for compelling

12

reasons.” One possible reason would be that the Eleventh

Circuit “has entered a decision in conflict with the decision of”

this Court. There is simply nothing in the Eleventh Circuit’s

decision that shows any conflict with any court.

In Layne & Bowler Corp. v. Western Well Works, Inc., 261

U.S. 387, 43 S. Ct. 422 (1923), this Court said .

. .. It is very important that we be consistent in not

granting the writ of certiorari except in cases

involving principles the settlement of which is of

importance to the public, as distinguished from that

of the parties, and in cases where there is a real and

embarrassing conflict of opinion and authority

between the Circuit Courts of Appeals. /d at 393.

(Emphasis added.)

The Eleventh Circuit, in the instant case, has said nothing to

create any kind of conflict.

Il.

CONTRARY TO DEL MONTE DUNES, THE

ELEVENTH CIRCUIT DID NOT REACH THE MERITS

OF A TAKINGS CLAIM IN THAT PETITIONERS

CONCEDED THAT THEIR CLAIM WAS NOT

RIPE FOR REVIEW.

In City of Monterey v. Del Monte Dunes at Monterey, 526

U.S. 687 (1999), this Court dealt with the type of trial

to be held in a “takings case.” The Eleventh Circuit, in

the instant case, found summary judgment was proper.

In Del Monte Dunes, this Court considered the right to jury

trial on a “takings claim.” If Petitioners did have a valid “takings

claim,” that claim would not be ripe for review in that Petitioners

were not denied a post deprivation remedy in this cause.

Pp ——————---- .

13

In Del Monte Dunes, this Court reviewed whether a

landowner was entitled to a jury trial as afforded by the Seventh

Amendment on damage and liability issues arising from an

uncompensated regulatory taking by the City. A claim under

42 U.S.C. § 1983 was allowed “because the State of California

had not provided a compensatory remedy for temporary

regulatory takings.” 526 U.S. at 699. In Del Monte Dunes this

Court did not review Substantive Due Process claims, Equal

Protection claims, Procedural Due Process claims, standards

for summary judgment, or a challenge to the jury instructions.

By contrast, the Eleventh Circuit did not reach the merits

of the Petitioners Due Process Takings claim. The District Court

noted in its Order that:

Plaintiffs concede that their due process taking claim

is no longer viable in light of Villas of Lake Jackson,

Ltd. v. Leon County, 121 F.3d 610, 612 (11" Cir.

1997).

In Villas the Eleventh Circuit held that “[t]here is no

substantive due process ‘takings’ claim that would protect the

specific property right not already protected by the Takings

Clause.” 121 F.3d at 615. To reach this result the Eleventh

Circuit relied upon First English Evangelical Church of

Glendale v. Los Angles County, 482 U.S. 304 (1987), and Lucas

v. South Carolina Coastal Council, 505 U.S. 1003 (1992), to

find that a non-physical takings claim is properly redressed by

only the Just Compensation Clause. Thus, the Eleventh Circuit

in Villas determined, prior to this Court’s decision in Del Monte

Dunes, that

. .. [recent Supreme Court “takings” jurisprudence

and the well established contours of substantive due

process law dictate that ifa challenge to a “regulatory

14

taking” states a claim upon which relief may be

granted at all, it is a cause of action under the Takings

Clause, subject to the ripeness prerequisite of

exhaustion of the state-court inverse condemnation

remedy. Villas, 121 F.3d at 612.

The import of Villas is that there is no “unconstitutional

taking” until the landowner has been denied just

compensation, which principle was expressly described in

Del Monte Dunes. This Court recognized that

The constitutional injury alleged, therefore, is not —

that property was taken but that it was taken

without just compensation. Had the City paid for

the property or had an adequate postdeprivation

remedy been available, Del Monte Dunes would

have suffered no constitutional injury from the

taking alone. Del Monte Dunes, 526 U.S. at 710.

Petitioner, in the case at bar, has not suffered a “‘constitutional

injury” even if there was a taking because there is a

postdeprivation remedy available in Florida. Petitioners have

not availed themselves of this postdeprivation remedy, and

therefore, Petitioners had no claim for unconstitutional

taking to be presented to the Eleventh Circuit. Petitioners

acknowledged in the record before the District Court that

they had failed to pursue to completion their postdeprivation

remedy:

[REQUEST] 63. No Plaintiff has pursued

to completion any inverse condemnation

claim based upon any alleged taking by

HILLSBOROUGH COUNTY, FLORIDA.

15

[RESPONSE] 63. Denied, in that the

Plaintiffs have filed, and are pursuing to

completion an inverse condemnation claim in

state Court based upon an alleged taking by

Hillsborough County, Florida, without just

compensation pursuant to the Florida

Constitution. That matter is pending and will be

pursued to completion. It is admitted that

Plaintiffs have not pursued to completion any

inverse condemnation takings claim based upon

the Fifth Amendment to the United States

Constitution, as that claim will not be ripe for

adjudication by the United States District Court

until such time as Plaintiffs have pursued to

completion their inverse condemnation claim

based upon the Florida Constitution.

(Amended Response to Request for Admissions served

March 16, 1998) (DKT 236).

The lawsuit referred to in response to request number

63 was not filed until about November 19, 1997, or more

than two years after the Complaint was filed in the District

Court. Florida provides an adequate postdeprivation remedy.

See, e.g., Reheard v. Lee County, 30 F.3d 1412, 1417

(11" Cir. 1994) (Florida has allowed an action for inverse

condemnation for a temporary taking since 1990), citing to

Joint Ventures, Inc. v. Department of Transportation, 563

So. 2d 622 (Fla. 1990). Thus, Del Monte Dunes is legally

distinguishable from the case at bar because Petitioners have

no takings claim in that Florida provides an adequate

postdeprivation remedy, and because Petitioners could not

create a genuine issue of fact to warrant a trial.

16

Il.

PETITIONERS’ CLAIM THAT DEL MONTE DUNES

ELIMINATED THE RATIONAL BASIS TEST

IS UNFOUNDED.

In their Point I, Petitioners’ claim that Del Monte Dunes

“limited the District Court’s deference in examining land-

use denials in a manner that fundamentally conflicts with

the ‘hypothetically possible’ precedent established in the

Eleventh Circuit (and others) and applied in this case.”

(Petitioners Petition for Writ of Certiorari at p. 9). What

Petitioners’ are calling the “hypothetically possible”

precedent is customarily referred to as the “rational basis”

test. The decision of the Eleventh Circuit in the instant case

says nothing about any test whatsoever.

The rational basis test is applied generally in evaluating

Substantive Due Process/Arbitrary and Capricious claims,

and Equai Protection claims. The rational basis test holds

that the governmental agency is entitled to prevail on these

claims if its action is reasonably related to the achievement

of some legitimate governmental purpose. The person

challenging the governmental action has the burden to

negate every conceivable basis which might support the

governmental action. Petitioners argue that Del Monte Dunes

“has discredited this impermissibly deferential standard

imposed by the Eleventh Circuit” in Bannum, Inc. v. City of

Fort Lauderdale, 157 F.3d 819 (11" Cir. 1998), Haves v.

City of Miami, 52 F.3d 918 (11" Cir. 1995). Restigouche,

Inc. v. Town of Jupiter, 59 F.3d 1208, 1211 (11" Cir 1995)

(Petition for Writ of Certiorari at p. 12).

17

These Eleventh Circuit cases are following faithfully the

pronouncements of this Court, including Federal

Communications Commission v. Beach Communications,

Inc., 508 U.S. 307, 113 S. Ct. 2096, 124 L. Ed. 2d. 211

(1993), which held that “those attacking the rationality of

the legislative classification have the burden to negate every

conceivable basis which might support it.” 508 U.S. at 314.

There is no suggestion whatsoever in Del Monte Dunes

that the rational basis test was supplanted or even changed,

and such a change cannot be inferred. The rational basis test

is well established in most, if not all, Circuits. Certainly there

was no intent by this Court to eliminate the rational basis

test and substitute in its place the proposition that the

reasonableness of governmental action must always be

presented to a jury. In Del Monte Dunes, the City had

sponsored the jury instructions, the jury instructions were

never challenged, and the propriety of the jury instructions

were not considered by this Court. See Del Monte Dunes,

526 U.S. at 704.

IV.

DEL MONTE DUNES DOES NOT CONFLICT

WITH DECISIONS OF THE ELEVENTH CIRCUIT

EXCEPT ON THE RIGHT TO A JURY TRIAL IN

“TAKINGS” CASES

Respondents submit that the only Eleventh Circuit

decision that is relevant.on this Petition is the decision

rendered in this case. The question is not whether some other

decision of the Eleventh Circuit might be in conflict with

Del Monte Dunes.

18

The Posture of Del Monte Dunes in This Court: As

considered by this Court, Del Monte Dunes was a claim

pursuant to 42 U.S.C. § 1983 that the City’s action

constituted an uncompensated regulatory taking in violation

of the Takings Clause. The District Court had afforded the

landowner a jury trial on the issues of liability and damages

on the claim of an uncompensated regulatory ixing.* The

case was under § 1983 “because the State of California had

not provided a compensatory remedy for temporary

regulatory takings.” 526 U.S. at 698.

Issues Decided By This Court in Del Monte Dunes: The

first issue was whether a § 1983 suit seeking legal relief is

an action at law within the meaning of the Seventh

Amendment. This court held that it was and that the Plaintiff

was entitled to a trial by jury.

The second issue was to “determine whether the

particular issues of liability were proper for determination

by the jury.” 526 U.S. at 718. The Court held “that the issue

whether a landowner has been deprived of all economically

viable use of its property is predominantly a factual question”

for the jury. 526 U.S. at 720. Also, this Court considered the

“jury’s role in determining whether a land-use decision

substantially advances legitimate public interest within the

meaning of our regulatory takings doctrine.” (Emphasis

added.) 526 U.S. at 720. The Court noted that this presented

a more difficult question. The important items here are that

this issue was presented “within the meaning of our

regulatory takings doctrine,” and within the particular context

and circumstances of the case. .

4. The District Court decided Del Monte Dunes’ Substantive

Due Process claim without submitting it to a jury.

;

:

19

In Del Monte Dunes this Court did not deal with:

Substantive Due Process claims.

Equal Protection claims.

Procedural Due Process claims.

Standards for summary judgment.

Propriety of jury instructions.

Pr rl?

Respondents concede that Del Monte Dunes conflicts with

New Port Largo Inc. v. Monroe County, 95 F.3d 1048 (11™ Cir.

1986), with regard to whether a landowner is entitled to a jury

trial as opposed to a bench trial in a regulatory takings case. In

the instant case, Petitioners were not entitled to a tnal of any

kind because Respondents were entitled to summary judgment.

The conflict between Del Monte Dunes and New Port Largo is

irrelevant to the Petition and to the decision of the Eleventh

Circuit in the instant case. Petitioners may not use conflicts

unrelated to the instant case to create conflict jurisdiction.

Petitioners assert that the Fifth Circuit in John Corporation

v. The City of Houston, 214 F.3d 573 (5 Cir. 2000), rejected

the Eleventh Circuit’s position on takings cases (Petitioners’

Petition for Writ of Certiorari at p. 20). Petitioners are incorrect.

Villas did not hold that a// Substantive Due Process claims are

subsumed by the Takings Clause. John Corporation is

consistent with Villas. John Corporation held that a landowner

could not bring a § 1983 takings claim and bypass an available

state postdeprivation remedy because the Takings Clause is only

violated when just compensation has been denied. All of John

Corporation’s takings claims were dismissed as “unripe”’ for

this reason. The Fifth Circuit noted that some Circuits hold that

the Takings Clause subsumes all Substantive Due Process

claims relating to deprivation of property.

20

In the instant case, Respondents did not contend on

summary judgment and the District Court did net hold that the

Takings Clause subsumed Petitioners’ Substantive Due Process/

Arbitrary and Capricious, Equal Protection or Procedural Due

Process claims. Moreover, only Petitioners’ takings claim was

deemed unripe; all other § 1983 claims were deemed ripe and

were considered on their merits.

V.

DEL MONTE DUNES DOES NOT ALTER OR EVEN

CONSIDER THE TRADITIONAL SUMMARY JUDG-

MENT STANDARDS AND SUMMARY JUDGMENT

WAS WARRANTED BECAUSE PETITIONERS FAILED

TO ESTABLISH ISSUES OF MATERIAL FACT IN

THEIR CLAIMS FOR SUBSTANTIVE DUE PROCESS,

AND EQUAL PROTECTION WHICH ARE UNRE-

LATED TO THE REASONABLENESS OF THE DENIAL

OF PETITIONERS’ DRI/REZONING APPLICATION

Petitioners assert that Del Monte Dunes affirms “the right

of each citizen to a jury trial to review the merits of a land use

denial.” (Petitioners Petition for Writ of Certiorari at

pp. 9-10) Under this argument, Del Monte Dunes would nullify

long-standing summary judgment principles and always require

a jury trial to determine whether the government’s action had a

rational basis. This argument is meritless, as reasoned by the

Third Circuit in Buckles v. Kings County, 191 F.3d 1127, 1141

(3™ Cir. 1999) since Del Monte Dunes did not alter or even

consider the traditional summary judgment principles.

Summary judgment was warranted on the Substantive

Due Process and on the Equal Protection claims on grounds

not set forth in the Petition for Writ of Certiorari. Regardless

21

of the reasonableness of the government’s proffered

justifications, summary judgment for Respondents would

still be required on each of these claims. As determined in

the District Court’s Order, the claim for Substantive Due

Process was deficient because the Plaintiffs lacked a vested

property interest to support this claim since the Plaintiffs

did not have “a vested right to the redesignation of their

property, under an estoppel or any other theory.” Similarly,

the Equal Protection claim was deficient since the

“[p]laintiffs have not provided a single instance in which a

similarly situated claim was treated differently,” and

Plaintiffs “fail to explain how projects referenced in the

record were similarly situated to that of Plaintiffs.” Finally,

as noted above, any takings claim could not be entertained

by the District Court because Petitioners have not pursued

to completion their Florida postdeprivation remedy.

Summary judgment for respondents was proper

notwithstanding Petitioners’ interpretation that Del Monte

Dunes eliminated the rational basis test.

22

CONCLUSION

This Court should deny Petitioners’ Petition for Writ of

Certiorari because Petitioners have failed to present an important

question to this Court which this Court must decide. Petitioners

have misconstrued the decision of the Eleventh Circuit Court

of Appeals in this matter and have misinterpreted this Court’s

decision in City of Monterey v. Del Monte Dunes at Monterey,

Ltd., 526 U.S. 687 (1999). After a review of the decision of the

Middle District Court of Florida, which was upheld by the

Eleventh Circuit Court of Appeals, it is clear that the lower

courts committed no error in granting summary judgement

against Petitioners. Further, the Eleventh Circuit Court of

Appeals decision is not in conflict with this Court’s decision in

City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526

U.S. 687 (1999). Therefore, this Court should determine that

Petitioners have not presented a compelling question.

Petitioner’s Petition for a Writ of Certiorari should be

denied.

Respectfully submitted,

CHARLES W. PITTMAN HERBERT RAYMOND ALLEN, II*

GorDON J. SCHIFF Senior Assistant County eT

ANDREW K. MACFARLANE = JULIA C. MANDELL

MACFARLANE FERGUSON Assistant County Attorney

& McMUuLLEN Office of the County Atiomey

2300 Park Tower 601 East Kennedy Boulevard

400 North Tampa Street 27th Floor

Tampa, Florida 33602 Tampa, Florida 33602

(813) 273-4200 (813) 272-5670

Attorneys for Respondents Hillsborough County,

Chris Hart and Joseph Chillura