Bickerstaff Clay Products Co. v. Harris County Ex Rel. Board of Commissioners , 89 F.3d 1481 ( 1996 )

United States Court of Appeals,
Eleventh Circuit.
No. 94-9215.
BICKERSTAFF CLAY PRODUCTS COMPANY, INC., Plaintiff-Appellee,
v.
HARRIS COUNTY, GEORGIA, By and Through its BOARD OF
COMMISSIONERS; George Elmore; Danny Bridges; Carl C. Hobbs, III;
Wallace Marriner; Warren Popp, Defendants-Appellants.
July 16, 1996.
Appeal from the United States District Court for the Middle
District of Georgia. (No. 94-3-COL), J. Robert Elliott, Judge.
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.
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
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.
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 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
2
The mining of mylonite does not involve any blasting or
crushing of rock. It is simply a digging operation, whereby the
rock is extracted from the ground using backhoes and then hauled
away in dump trucks.
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 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 the
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
property R-1 constituted a taking of Bickerstaff's property because
the rezoning rendered the property virtually useless: the property
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 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).
cannot be developed as a residential subdivision because there is
effectively no access to a public roadway.5 According to
Bickerstaff, this taking was in violation of the Fifth and
6
Fourteenth Amendments to the United States Constitution and
7
Article I of the Georgia Constitution 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, 256 Ga. 469, 349 S.E.2d 707, 709 (1986).
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 these
contentions and scheduled a bench trial on Bickerstaff's claims for
declaratory and injunctive relief.
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.
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 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 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
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
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.
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.
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.
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, 123 Ga.App. 467, 181 S.E.2d
540, 541 (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, 257 Ga. 357, 359
S.E.2d 887, 889 (1987). The doctrine applies when a "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
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, 248 Ga. 73, 281 S.E.2d 549, 552 (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.
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 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, 256 Ga. 469, 349 S.E.2d 707, 709 (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., 349 S.E.2d 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, 235 Ga. 262, 219
S.E.2d 399, 402 (1975).
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 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
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
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, 1014-16, 112 S. Ct. 2886, 2893, 120 L. Ed. 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
Bickerstaff has done in this case.
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.
The substantive component of the Due Process Clause prohibits
a government entity from applying to property a zoning
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
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 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 no procedure (such as an
action for inverse condemnation) for obtaining just compensation.
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.
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, 256 Ga. 469, 349 S.E.2d 707
(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. 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
zoning decision to the receipt of our mandate. That claim shall be
tried under Georgia law.
SO ORDERED.