Bickerstaff Clay v. Harris Cty., GA , 89 F.3d 1481 ( 1996 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 94-9215
D. C. Docket No. 94-3-COL
BICKERSTAFF CLAY PRODUCTS COMPANY, INC.,
Plaintiff-Appellee,
versus
HARRIS COUNTY, GEORGIA, By and through
its Board of Commissioners; GEORGE ELMORE;
DANNY BRIDGES; CARL C. HOBBS, III; WALLACE
MARRINER; WARREN POPP,
Defendants-Appellants.
Appeal from the United States District Court
for the Middle District of Georgia
(July 16, 1996)
Before TJOFLAT, Chief Judge, CARNES, Circuit Judge, and FAY,
Senior Circuit Judge.
TJOFLAT, Chief Judge:
In this case, a company challenges under several provisions
of state and federal law the decision of a county board of
commissioners to rezone the company's property. The district
court granted injunctive relief in favor of the company, and the
county took this interlocutory appeal. For the reasons that
follow, we affirm in part, reverse in part, and vacate in part.
I.
A.
The property in question is a landlocked 161-acre tract
located in southwest Harris County, Georgia, along Interstate
Highway 185. Appellee Bickerstaff Clay Products, Inc.
("Bickerstaff"), a brick manufacturing company, bought the
property in 1960 because of the property's rich reserves of a
mineral used in the brickmaking process. Bickerstaff uses a form
of rock called weathered mylonite in the manufacture of bricks;
the Harris County property lies along a vein of such rock. At
the time Bickerstaff purchased the property, it had no immediate
need to mine the weathered mylonite on the property. It
conducted several test drills on the property and dug a trench to
determine the extent of the mylonite deposit, but otherwise did
not mine the property. Instead, Bickerstaff held the property in
its mineral reserves for future use.
2
In 1984, the governing entity for Harris County, a five-
member Board of Commissioners, enacted a county-wide zoning
ordinance, including a comprehensive land-use plan for the
county. The ordinance provided that initial determinations on
zoning matters such as rezoning requests would be studied by the
county planner's office, which would recommend the denial or
granting of the request to a planning commission. The planning
commission would hold a public meeting on the rezoning request,
and then would make recommendations to the Board of
Commissioners, which would have final authority over all zoning
decisions. The 1984 ordinance zoned Bickerstaff's property A-1,
which is the designation given to vacant property.1 Under the
ordinance, the uses permitted on land zoned A-1 include general
agriculture and forestry; the stated purpose of the A-1 category
is to "preserve land areas suitable for eventual rezoning."
In 1993, Bickerstaff decided to make use of the mylonite
reserves on the Harris County property. To that end, Bickerstaff
applied for a mining permit from the Georgia Environmental
Protection Department. In this application, Bickerstaff
indicated the proposed duration and manner of the mining and
explained how the company would shield surrounding areas from the
noise and visual disturbances attendant to the operation.2 The
1
The 1984 zoning ordinance was re-enacted almost verbatim
in 1988 and again in 1990 to cure alleged procedural defects in
the original ordinance. The zoning of Bickerstaff's property was
A-1 in all three ordinances.
2
The mining of mylonite does not involve any blasting or
crushing of rock. It is simply a digging operation, whereby the
3
application also contained provisions for land reclamation and
runoff containment. In August of 1993, the Department granted
Bickerstaff a permit to mine the property.
While preparing its application to the Environmental
Protection Department, Bickerstaff discovered that the property
had been zoned A-1, and that A-1 zoning would not permit mining.
Armed with state approval of the mining operation, Bickerstaff
sought to have the property rezoned M-2, which would permit
mining. Bickerstaff presented its plan to the Harris County
planner, who found that M-2 zoning was consistent with the
county's comprehensive land-use plan and recommended that the
planning commission approve the rezoning request. Following a
public meeting, however, the planning commission voted to
recommend that the Board of Commissioners deny the rezoning
request.
The Board of Commissioners then held a public hearing on
Bickerstaff's application for rezoning. In accordance with the
zoning ordinance, Bickerstaff was allowed to present its proposed
plan for mining its land, and any citizen with an opinion about
Bickerstaff's proposal was allowed to speak. The Board made no
decision on the rezoning request at that time, but instead met
privately two weeks later to consider the request. At that
meeting, the Chairman of the Board of Commissioners moved to
rezone the property R-1, which allows only low-density
rock is extracted from the ground using backhoes and then hauled
away in dump trucks.
4
residential development.3 Bickerstaff had not requested R-1
zoning, and had no notice that the Board would consider rezoning
the property R-1. The Chairman's motion passed by a vote of four
to one.
B.
Following the Board's decision, Bickerstaff brought this
suit against Harris County, alleging violations of the United
States Constitution, the Georgia Constitution, and state real
property law.4 Bickerstaff's primary contention is that rezoning
3
R-1 is the designation given to land that is to be
developed as a residential subdivision containing single-family
lots.
4
Bickerstaff's amended complaint, the pleading before us,
contains eight counts. The complaint is a typical shotgun
pleading, in that some of the counts present more than one
discrete claim for relief. See, e.g., Anderson v. District Bd.
of Trustees, 77 F.3d 364, 366-67 (11th Cir. 1996). Moreover, in
some instances one cannot discern, with respect to a given claim
for relief, the substantive rule giving rise to the claim. For
purposes of this appeal, we give Bickerstaff's complaint a
liberal reading, and construe it as presenting the following
claims for relief:
(1) A takings claim pursuant to 42 U.S.C. § 1983 that seeks
just compensation for the full value of the property under the
Fifth and Fourteenth Amendments to the United States
Constitution. (Count one.) This count also seeks an injunction,
under an undisclosed rule of law, prohibiting the Board from
preventing Bickerstaff from mining its property.
(2) A claim under 42 U.S.C. § 1983 for money damages on the
ground that the Board has violated Bickerstaff's (unspecified)
"substantive rights" under the Fifth and Fourteenth Amendments.
(Count two.) This count also seeks the same injunctive relief as
count one. The district court appears to have interpreted this
allegation as alleging a claim under the substantive component of
the Fourteenth Amendment's Due Process Clause.
(3) A claim under 42 U.S.C. § 1983 for money damages on the
ground that, in reaching its zoning decision, the Board denied
Bickerstaff its right to procedural due process under the Fifth
5
the property R-1 constituted a taking of Bickerstaff's property
because the rezoning rendered the property virtually useless: the
property cannot be developed as a residential subdivision because
and Fourteenth Amendments. (Count three.) This count also seeks
the same injunctive relief as count one.
(4) A takings claim under the Georgia Constitution, Article
I, Section I, Paragraph I, and Article I, Section III, Paragraph
I. This claim seeks an injunction prohibiting the Board from
preventing Bickerstaff from mining its property. (Count four.)
(5) A claim for a declaration that (unspecified) provisions
of the United States and Georgia Constitutions grant Bickerstaff
a "vested right" to mine the property. (Count five.) This count
seeks in the alternative money damages for the full value of the
property.
(6) A claim that (unspecified) provisions of the United
States Constitution and Georgia law and several provisions of the
Harris County zoning ordinance grant Bickerstaff the right to
mine the property as a "non-conforming use." Bickerstaff seeks
an injunction prohibiting the Board from preventing it from
mining the property. (Count six.)
(7) A claim that the Board's denial of Bickerstaff's M-2
zoning request was "arbitrary and capricious" (under an
unspecified provision of law) and also violates the Harris County
zoning ordinance. Bickerstaff seeks an injunction prohibiting
the Board from preventing Bickerstaff from mining the property.
(Count seven.)
(8) A claim that the Harris County zoning ordinance is
invalid under O.C.G.A. § 36-66-5 (1982), because of procedural
irregularities in the adoption of the ordinance. Bickerstaff
seeks a declaration that the ordinance is invalid. (Count
eight.)
The district court had subject matter jurisdiction under 28
U.S.C. §§ 1331 and 1343 to entertain Bickerstaff's federal
constitutional claims. The court entertained Bickerstaff's
state-law claims under its supplemental jurisdiction. The
district court based its injunction only on the claims described
in (1), (2), and (4)-(7) above. Accordingly, we do not address
the claims described in (3) and (8).
6
there is effectively no access to a public roadway.5 According
to Bickerstaff, this taking was in violation of the Fifth and
Fourteenth Amendments to the United States Constitution6 and
Article I of the Georgia Constitution7 because the taking was
accomplished (1) pursuant to an invalid exercise of the county's
police power, and (2) without providing Bickerstaff just
compensation. Bickerstaff therefore asked the district court to
award the company just compensation for a temporary taking, in
the event the R-1 zoning was held invalid, or for a permanent
taking if it was not. See First English Evangelical Lutheran
Church v. Los Angeles County, 482 U.S. 304, 107 S. Ct. 2378, 96
L. Ed. 2d 250 (1987) (recognizing a Takings Clause claim for the
temporary deprivation of all use of private property).
5
Bickerstaff has a 20-foot-wide easement running 3,500
feet over neighboring land to Georgia Highway 315. Bickerstaff
contends, and the county does not dispute, that a residential
subdivision must have at least one means of ingress and egress,
and that, to accommodate a subdivision entrance, the easement
would need to be at least 60 feet wide.
6
The Fifth Amendment's prohibition on takings for public
use without just compensation is applied to the states through
the Fourteenth Amendment. See Chicago, B. & Q. R.R. v. Chicago,
166 U.S. 226, 239, 17 S. Ct. 581, 585, 41 L. Ed. 979 (1897).
Further references in this opinion to a takings claim under the
Fifth Amendment mean a takings claim under the Fifth and
Fourteenth Amendments.
7
The Georgia Constitution does not have a takings clause.
Georgia courts recognize takings claims, however, under the
eminent domain provision of Article I, Section III, Paragraph I
("[P]rivate property shall not be taken or damaged for public
purposes without just and adequate compensation being first
paid.") and the due process provision of Article I, Section I,
Paragraph I ("No person shall be deprived of life, liberty, or
property except by due process of law."). See Gradous v. Board
of Comm'rs, 349 S.E.2d 707, 709 (Ga. 1986).
7
In its answer to Bickerstaff's complaint the county denied
that it was liable under any of Bickerstaff's theories of
recovery. As for Bickerstaff's Fifth Amendment claim, the county
contended that the suit was not ripe for federal court review
because Bickerstaff had not pursued its remedies in state court.
See Williamson County Regional Planning Comm'n v. Hamilton Bank,
473 U.S. 172, 186, 105 S. Ct. 3108, 3116, 87 L. Ed. 2d 126
(1985). The county noted that, although Bickerstaff had filed a
suit on the same claims in the Harris County Superior Court,
Bickerstaff had persuaded that court to stay its hand pending the
outcome of the instant case. The county further contended that
because the superior court had jurisdiction over the controversy,
the instant case was barred.8 The district court did not rule on
8
The county provided the district court with no authority
for the proposition that the pendency of the state court suit
barred Bickerstaff's prosecution of this suit, and we know of
none. We read the county's answer on this point as a request
that the district court stay its hand until the state court
proceeding ran its course.
On appeal, the county contends that Bickerstaff's Takings
Clause and substantive due process claims are not ripe for
federal district court adjudication and that, therefore, the
district court should have dismissed them for want of subject
matter jurisdiction. In addition, the county contends that the
court, in the exercise of its discretion, should have dismissed
Bickerstaff's remaining pendent state law claims. We disagree.
Bickerstaff's federal constitutional claims are not
"frivolous," nor were they asserted "solely for the purpose of
[giving the district court subject matter] jurisdiction." Bell
v. Hood, 327 U.S. 678, 682-83, 66 S. Ct. 773, 776, 90 L. Ed. 939
(1946). Thus, the district court was not required to dismiss the
pendent state-law claims, and it was within its discretion to
decide the state-law issues.
8
these contentions and scheduled a bench trial on Bickerstaff's
claims for declaratory and injunctive relief.
The bench trial focused on Bickerstaff's acquisition of the
property, its plans to mine the land, and the circumstances
surrounding the rezoning of the property R-1. After entertaining
the parties' evidence, the court entered an order declaring the
R-1 and prior A-1 zoning classifications invalid. The court
enjoined the enforcement of either the R-1 or the A-1 zoning
classification on both state and federal grounds. It concluded
that these measures were "not substantially related to any valid
health, safety or welfare considerations" and thus, under the due
process clauses of both the state and federal constitutions,
constituted invalid exercises of the county's police power. In
addition, these classifications were enacted in derogation of
Bickerstaff's right under Georgia law and the Harris County
zoning ordinance to mine the property as either a vested right or
a nonconforming use. The court thus enjoined the county from
applying any zoning classification to the property other than M-
2. Finally, the court held that the R-1 classification, by
rendering Bickerstaff's property worthless, had effected a taking
of the property without just compensation in violation of the
state and federal constitutions. Proceedings to determine just
compensation have been stayed pending our resolution of this
appeal.
Following the district court's entry of the injunctive
relief described above, the county took this interlocutory
9
appeal. We have jurisdiction under 28 U.S.C. § 1292(a)(1)
(1994). We review the district court's factual findings for
clear error. Fed. R. Civ. P. 52(a). Questions of law and mixed
questions of law and fact are reviewed de novo. See Nadler v.
Mann, 951 F.2d 301, 311 (11th Cir. 1992).
II.
As noted, the district court's injunction addressed three
zoning classifications: A-1, R-1, and M-2. The court invalidated
the A-1 and R-1 classifications and ordered the Board to apply
the M-2 classification to the property. We summarily vacate the
aspect of the court's injunction that prohibits the Board from
applying any zoning classification to the property except M-2.
The court cited no authority, state or federal, for such action
-- which, in effect, usurped the Board's legislative function --
and Bickerstaff has cited us to none.
In the discussion that follows, we address first the court's
decision to strike down the A-1 zoning and conclude that
Bickerstaff's challenge to that zoning is time barred. Turning
next to the Board's decision to zone the property R-1, we
conclude that the court had no basis for invalidating the
decision on the ground that Bickerstaff had acquired a right to
mine the property as either a vested right or a nonconforming use
under Georgia law. The court's alternative holding -- that,
under Georgia law, the Board's decision constituted a taking
without just compensation -- is, however, correct. We therefore
10
affirm the court's decision invalidating the R-1 zoning. We
vacate, though, the court's holding that the Board's decision
also violated the United States Constitution, because
Bickerstaff's federal claim is not ripe.9
A.
Bickerstaff cannot challenge the county's original decision
to zone the property A-1. The property has been zoned A-1 since
1984, and Bickerstaff is barred from challenging this zoning not
only by the applicable statute of limitations, see O.C.G.A. § 50-
14-1(b), but also by the doctrine of laches.10 The provision of
the district court's injunction invalidating the A-1 zoning is
accordingly vacated.
9
We are mindful of the doctrine that a federal court
should not pass on federal constitutional issues unless necessary
to its decision. See Ashwander v. Tennessee Valley Auth., 297
U.S. 288, 347, 56 S. Ct. 466, 482, 80 L. Ed. 688 (1936)
(Brandeis, J., concurring) ("The Court will not pass upon a
constitutional question although properly presented by the
record, if there is also present some other ground upon which the
case may be disposed of."). We believe that it is prudent to
discuss the federal constitutional claims in this case because
the damages issue remains to be litigated. If we do not decide
the federal constitutional claims, then the district court, in
framing the issues for the damages trial, will likely provide for
recovery under the Fifth Amendment Takings Clause and the
substantive component of the Fourteenth Amendment's Due Process
Clause. If the district court submitted those claims to the
jury, and an appeal followed, we would likely be required to
reach the federal claims. We believe it judicious to reach them
now.
10
On appeal, Bickerstaff's brief is silent on these points
and thus appears to concede them.
11
B.
We consider now the merits of the remaining state-law
grounds for the district court's invalidation of the R-1 zoning.
They are: (1) that Bickerstaff had acquired a right to mine the
property as a nonconforming use within the meaning of the Harris
County zoning ordinance; (2) that Bickerstaff had acquired a
"vested right" under the Georgia common law to mine the property;
and (3) that the Board's R-1 rezoning of the property (and its
refusal to rezone the property M-2) constituted a taking without
just compensation in violation of the Georgia Constitution.
1.
The Harris County zoning ordinance defines a nonconforming
use as "[a] building, structure or use of land existing at the
time of enactment of this ordinance and which does not conform to
the regulations of the district in which it is situated." The
court found that Bickerstaff's intention to mine the property was
a "use of land" that existed at the time the zoning ordinance was
enacted, because the ordinance defines "use" as "[t]he specific
purpose for which land or building is designed, arranged,
intended, or for which it is or may be occupied or maintained"
(emphasis added).
In Georgia, however, "mere preliminary work not of a
substantial nature does not constitute a nonconforming use;
neither does a use which is merely contemplated for the future
but unrealized as of the effective date of the regulation."
Rainwater v. Coweta County Bd. of Zoning Appeals, 181 S.E.2d 540,
12
541 (Ga. Ct. App. 1971). Bickerstaff's drilling and testing on
the property more than thirty years ago -- to determine the
extent of the mylonite vein -- cannot be characterized as
anything but preliminary, and its intention to mine the property
was, in 1984 (when the Harris County zoning ordinance was
enacted), a "use . . . merely contemplated for the future."
Extending a nonconforming use to an owner's unrealized intentions
for his property would mean that any property owner, whenever
confronted with unfavorable zoning, could claim a nonconforming
use by stating that he had always intended to use the property
as, for instance, a shopping center, or an apartment complex, or
an office park. Bickerstaff has not acquired the right to mine
the property as a nonconforming use, and we reverse the district
court's conclusion to the contrary.
2.
Bickerstaff contends, and the district court held, that it
has a "vested right" to mine the property -- a right that the
Board is powerless to limit. This right supposedly arose from
the company's preliminary drilling and testing of the soil on the
property. We do not believe that Georgia's vested rights
doctrine extends that far.
The doctrine of vested rights that the district court
applied in this case is derived from the principle of equitable
estoppel. See Cohn Communities, Inc. v. Clayton County, 359
S.E.2d 887, 889 (Ga. 1987). The doctrine applies when a
13
"landowner, relying in good faith, upon some act or omission of
the government, has made a substantial change in position or
incurred such extensive obligation and expenses that it would be
highly inequitable and unjust to destroy the rights he has
acquired."11 Id.
Bickerstaff has established none of these elements. While
Bickerstaff's expenditures for the test drills may have risen to
the level of "extensive obligation[s] and expenses," Harris
County made no representations on which Bickerstaff could have
relied or did rely. At no time between Bickerstaff's purchase of
the property and the company's application for rezoning did any
Harris County official promise Bickerstaff that the property
would be zoned for mining. We therefore reverse the district
court's holding that Bickerstaff has acquired a vested right to
mine the property under Georgia law.
3.
In order to determine whether a zoning ordinance has
effected a taking without just compensation in violation of the
Georgia Constitution, see Ga. Const. art. I, § III, par. I, and
11
The Georgia courts have applied the vested rights
doctrine in cases where a property owner has materially changed
his position in reliance on a zoning ordinance and government
assurances that a building permit will issue. See, e.g., Barker
v. County of Forsyth, 281 S.E.2d 549, 552 (Ga. 1981); Cohn
Communities, 359 S.E.2d at 889. Whether the Georgia courts would
extend the vested rights doctrine to cases such as Bickerstaff's
is an open question. We need not reach the question because, as
explained in the text, Bickerstaff has failed to meet the
doctrine's requirements.
14
note 7 supra, courts employ a balancing test. In the words of
the Georgia Supreme Court, a court must "weigh[] the benefit to
the public against the detriment to the individual." Gradous v.
Board of Comm'rs, 349 S.E.2d 707, 709 (Ga. 1986). In practical
terms, the balancing test means that an aggrieved landowner must
show that the zoning decision "presents a significant detriment
to the landowner and is insubstantially related to the public
health, safety, morality, and welfare." Id. at 709-10.
The district court found that the application of the R-1
zoning classification to Bickerstaff's property rendered the
property virtually worthless. We agree that the rezoning of
Bickerstaff's property R-1 deprives the property of all
reasonable economic use. Thus, Bickerstaff has proven the first
part of its Georgia takings claim: that the zoning "presents a
significant detriment to" Bickerstaff.
The district court further concluded that the R-1 zoning was
not substantially related to the public health, safety, morality,
or welfare, and was thus an invalid exercise of the county's
police power. Although there is no formula for determining when
government action exceeds the police power, the Georgia Supreme
Court has held that a zoning decision that "completely fails to
scrutinize the merits of the land in question and the impact of
the decision upon the landowner's property rights" is an invalid
exercise of the police power. Barrett v. Hamby, 219 S.E.2d 399,
402 (Ga. 1975).
15
The county has presented no evidence indicating that the
Board evaluated prospective uses for the property, conducted a
study of the possible impact mining would have on neighboring
property, or even considered the probable effect that R-1 zoning
would have on the value of Bickerstaff's property. The members
of the Board testified at trial that they thought the R-1 zoning
was in the "best interests" of the county, but they offered no
justification for this conclusion.
The exercise of the police power is not without limits.
Where, as here, the governing entity "completely fail[s] to
scrutinize" the balance between the public interest in the
contemplated zoning and the impact of the zoning on the property,
the entity's decision is beyond its police power. It is clear
that the R-1 zoning had a significant detrimental effect on the
value of Bickerstaff's property and that the Board had only vague
and unsubstantiated conclusions to justify the zoning.
Therefore, the rezoning of Bickerstaff's property constituted a
taking of the property in violation of the Georgia Constitution.
III.
The district court also held that the Board's decision to
rezone Bickerstaff's property R-1 was invalid under the Takings
Clause of the Fifth Amendment and the substantive component of
the Due Process Clause of the Fourteenth Amendment. The court so
held because it found that the zoning decision (1) effectively
condemned Bickerstaff's property for a purpose not within the
16
county's police power to pursue and (2) failed to provide
Bickerstaff just compensation.12 In concluding that these two
elements made out a claim under both the Takings Clause and the
Due Process Clause, the district court did not consider whether
the Bickerstaff's takings claim subsumed its substantive due
process claim. We hold that it does.
A.
The Takings Clause of the Fifth Amendment prohibits
government from condemning "private property . . . for public
use, without just compensation." The clause applies in any case
in which government action renders private property worthless.13
See Agins v. Tiburon, 447 U.S. 255, 260-63, 100 S. Ct. 2138,
2141-43, 65 L. Ed. 2d 106 (1980); Lucas v. South Carolina Coastal
Council, 505 U.S. 1003, ___, 112 S. Ct. 2886, 2893, 120 L. Ed.
12
The district court erred in holding that any zoning
classification that is an invalid exercise of the police power
constitutes a Fifth Amendment taking. To constitute such a
taking, the zoning classification must render the property
worthless. See Agins v. Tiburon, 447 U.S. 255, 260-63, 100 S.
Ct. 2138, 2141-43, 65 L. Ed. 2d 106 (1980) (stating that
government action that deprives a landowner of only part of the
value of his property is not a taking prohibited by the Fifth
Amendment). Due to our disposition of Bickerstaff's Takings
Clause claim, however, this error is of no moment.
13
A taking within the meaning of the amendment may occur
in one of two ways. First, the government, exercising its power
of eminent domain, may institute a proceeding to condemn the
landowner's property for a public use. Second, a taking may
occur when the government, exercising its police power, enacts a
measure -- here, a zoning classification -- that effectively
condemns the landowner's property without paying for it. When
the government has not instituted an eminent domain proceeding,
the only way a property owner can vindicate his Takings Clause
rights is to institute an inverse condemnation proceeding. This
is what Bickerstaff has done in this case.
17
2d 798 (1992) (government action effectively condemns a
landowner's property if it denies him "all economically
beneficial or productive use" of his property). Bickerstaff
contends, and has established, that the R-1 zoning classification
rendered its property worthless, and it seeks "just compensation"
for its loss. Bickerstaff also contends that this "taking" was
not for a "public use." Depending on the resolution of the
public use issue,14 Bickerstaff will be entitled to just
compensation for either the temporary or permanent loss of use of
the property.15
The substantive component of the Due Process Clause
prohibits a government entity from applying to property a zoning
14
The district court reached the public use issue and
resolved it in favor of Bickerstaff. The court erred in doing
so, however, because, as we explain in part III.B., infra,
Bickerstaff's takings claim is not ripe.
15
It is not necessary that Bickerstaff prevail on the
public use issue in order to obtain just compensation for the
loss of use of its property. If Bickerstaff succeeds in having
the R-1 zoning classification declared invalid, its loss of use
will be for a temporary term -- from the date the R-1
classification became operative to the date of its invalidation.
See First English Evangelical Lutheran Church v. Los Angeles
County, 482 U.S. 304, 107 S. Ct. 2378, 96 L. Ed. 2d 250 (1987).
If Bickerstaff's public use challenge fails, its loss of use will
be permanent and it will recover as just compensation the full
value of the property.
With respect to this second scenario, Bickerstaff's Takings
Clause and Due Process Clause claims differ. If, in the
prosecution of the due process claim, the zoning classification
were upheld, Bickerstaff would be entitled to no damages --
notwithstanding the complete taking of its property. Damages for
a taking occasioned by the application of a valid zoning
classification would be recoverable only under the Takings
Clause. It thus becomes apparent that Bickerstaff's claim under
the Takings Clause not only subsumes its substantive due process
claim, as we point out infra, but is broader than that claim.
18
classification that bears no relationship to the "public health,
safety, morals, or general welfare" and thus is beyond the
government's police power. See Village of Euclid v. Ambler Realty
Co., 272 U.S. 365, 395, 47 S. Ct. 114, 121, 71 L. Ed. 303 (1926).
A person whose property is affected by such a classification may
challenge the measure and, if successful, may recover damages for
any injury the classification may have caused him while it was
operative. Here, Bickerstaff contends that the application of
the R-1 zoning classification to its property is an invalid
exercise of the county's police power and has rendered the
property worthless. If Bickerstaff ultimately prevails on this
issue, it may recover in damages the value of its temporary loss
of use of the property.
This discussion makes it apparent that Bickerstaff's Takings
Clause claim and its substantive due process claim are identical
if the challenges to the validity of the R-1 zoning
classification itself are evaluated under the same standard.
That is, the claims are identical if the scope of "public use"
under the Takings Clause and the scope of "police power" under
the substantive component of the Due Process Clause are the same.
The Supreme Court's decision in Hawaii Hous. Auth. v. Midkiff,
467 U.S. 229, 240, 104 S. Ct. 2321, 2329, 81 L. Ed. 2d 186
(1984), indicates that they are.
Midkiff involved a landowner's challenge to the validity of
an Hawaii statute that provided for the condemnation of private
land and the sale of such land to the landowners' lessees. The
19
landowners mounted their challenge under the "public use"
component of the Takings Clause. They claimed that "the taking
of [their] property for the purpose of reselling it to [their]
lessees [was] not for a public purpose and hence violative of the
Fifth Amendment command: '[N]or shall private property be taken
for public use, without just compensation.'" Midkiff v. Tom, 483
F. Supp. 62, 65 (D. Haw. 1979).
In rejecting the landowner's challenge, the Supreme Court
compared the scopes of "public use" under the Takings Clause and
"police power" under the Due Process Clause. The Court concluded
that "the public use requirement is . . . coterminous with the
scope of a sovereign's police powers." Midkiff, 467 U.S. at 240,
104 S. Ct. at 2329; see also National R.R. Passenger Corp. v.
Boston & Maine Corp., 503 U.S. 407, 422, 112 S. Ct. 1394, 1404,
118 L. Ed. 2d 52 (1992) ("We have held that the public use
requirement of the Takings Clause is coterminous with the
regulatory power."). Bickerstaff's Takings Clause and
substantive due process challenges to the validity of the R-1
classification are therefore evaluated under the same standard.
Accordingly, Bickerstaff's Takings Clause claim subsumes its
substantive due process claim unless it can be said that the
Framers of the Bill of Rights, in addition to providing the
substantive rights contained in the Takings Clause, meant to
replicate by implication those same rights in the Due Process
Clause. We do not believe that such duplication was intended.
We therefore hold that Bickerstaff's challenge to the validity of
20
the R-1 zoning classification lies solely under the Takings
Clause.16
B.
The foregoing discussion makes clear that the only federal
constitutional ground supporting the district court's injunction
is Bickerstaff's Fifth Amendment takings claim. That claim,
however, is not ripe. See Williamson County Regional Planning
Comm'n v. Hamilton Bank, 473 U.S. 172, 186, 105 S. Ct. 3108,
3116, 87 L. Ed. 2d 126 (1985). A Takings Clause claim does not
become ripe unless the state provides no remedy to compensate the
landowner for the taking. A property owner cannot claim a
violation of the Clause unless the state provides the landowner
16
A reading of dicta in Eide v. Sarasota County, 908 F.2d
716 (11th Cir. 1990), cert. denied, 498 U.S. 1120, 111 S. Ct.
1073, 112 L. Ed. 2d 1179 (1991), may suggest at first blush that,
in a case such as this where the zoning classification renders
the property worthless, inverse condemnation claims under the
Takings Clause and the substantive component of the Due Process
Clause are not identical. See id. at 720-21.
We do not read Eide as drawing such a distinction. In
posing a hypothetical Takings Clause claim, the Eide panel
assumed sub silentio that the landowner was not questioning the
public purpose, that is, the "public use," behind the zoning
classification. In posing the hypothetical substantive due
process claim, though, the panel assumed expressly that the
landowner was questioning such public purpose. Were the panel to
have assumed that, in both cases, the landowner questioned the
public purpose behind the classification, we are satisfied that
it would have reached the same conclusion we reach today.
Eide describes a second specie of substantive due process
claims which is not presented in this case: a claim that a
regulatory measure exceeds the government's police power but has
not effected a taking. Eide refers to such a claim as "an
'arbitrary and capricious due process' claim." Id. at 721-22.
Because the regulatory measure has not rendered the property
worthless, this type of substantive due process claim is not
foreclosed by the Takings Clause.
21
no procedure (such as an action for inverse condemnation) for
obtaining just compensation. Williamson, 473 U.S. at 195, 105 S.
Ct. at 3121.
Bickerstaff contends that Georgia provides it no judicial
mechanism for obtaining just compensation in this case;
accordingly, its Takings Clause claim is ripe. We disagree.
Under Georgia law, a landowner may bring suit under the eminent
domain and due process provisions of the Georgia Constitution,
Ga. Const. art. I, § I, par. I and § III, par. I, to enjoin the
enforcement of a zoning classification that effects a "taking" of
his property. See, e.g., Gradous v. Board of Comm'rs, 349 S.E.2d
707 (Ga. 1986). We find no Georgia cases denying a landowner
just compensation for the temporary loss of use of his property
while burdened with an invalid zoning classification; nor do we
find any cases denying a landowner just compensation where a
valid zoning classification effectively condemns his property.
See, e.g., East-Bibb Twiggs Neighborhood Ass'n v. Macon Bibb
Planning & Zoning Comm'n, 888 F.2d 1573 (11th Cir. 1989), aff'g
662 F. Supp. 1465 (M.D. Ga. 1987), amended and superseded, 896
F.2d 1264 (11th Cir. 1989); see also Calibre Spring Hill, Ltd.
v. Cobb County, 715 F. Supp. 1577, 1581 (N.D. Ga. 1989). First
English Evangelical Lutheran Church v. Los Angeles County, 482
U.S. 304, 107 S. Ct. 2378, 96 L. Ed. 2d 250 (1987) holds that a
state deprives a landowner of his rights under the Takings Clause
if it denies him just compensation in either of these situations.
22
We assume that the Georgia courts will follow the holding of
First English.
We therefore do not hold that the Harris County Superior
Court will not as a matter of Georgia law recognize Bickerstaff's
takings claim and provide the company just compensation for
either a temporary or a permanent taking. We hold, instead, that
because the superior court will entertain Bickerstaff's claim for
inverse condemnation, Bickerstaff's Fifth Amendment takings claim
is not ripe for federal district court review.
IV.
In conclusion, we affirm the district court's injunction
that invalidates the application of the R-1 zoning classification
to Bickerstaff's property, but we do so on only one ground: the
classification constitutes a taking of Bickerstaff's property in
violation of the Georgia Constitution. We vacate the portions of
the injunction invalidating the A-1 zoning classification and
ordering the Board to apply the M-2 classification to the
property. Finally, we vacate the portion of the injunction that
is based on Bickerstaff's Takings Clause and substantive due
process claims. We direct the court to dismiss Bickerstaff's
Takings Clause claim as not ripe and to dismiss the substantive
due process claim because it states no case for relief.
We note that the district court has retained jurisdiction to
try Bickerstaff's claim for money damages for the temporary loss
of use of its property from the effective date of the Board's R-1
23
zoning decision to the receipt of our mandate. That claim shall
be tried under Georgia law.
SO ORDERED.
24