[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 05-11523 U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Non-Argument Calendar August 29, 2005
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 01-02633-CV-JOF-1
GREATER ATLANTA HOME BUILDERS
ASSOCIATION, INC.,
NATIONAL ASSOCIATION OF INDUSTRIAL
AND OFFICE PROPERTIES, INC.,
Plaintiffs-Appellants,
versus
CITY OF ATLANTA, GEORGIA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(August 29, 2005)
Before BIRCH, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
The Greater Atlanta Homebuilders Association, Inc. (“GAHBA”) and the
National Association of Industrial and Office Properties, Inc. (“NAIOP”) appeal the
district court’s entry of summary judgment, based on lack of standing, in their action
against the City of Atlanta, Georgia, concerning the City’s alleged unlawful
expenditure of development impact fees imposed by the City on new development
projects.1 In their complaint, Plaintiffs asserted, inter alia, that the City’s application
of the impact fee program violated the Takings Clause.2 More specifically, Plaintiffs
asserted that the City’s expenditure of the collected fees amounted to an
unconstitutional taking because the fees were used to encourage construction in
undeveloped areas rather than to expand infrastructure to serve the fee-paying
development projects. The district court entered summary judgment after concluding
that the Plaintiffs, neither of which has ever paid an impact fee, did not have standing
to bring claims on behalf of their members and, alternatively, that the claims were not
ripe because Plaintiffs had not pursued available state law remedies.
On appeal, Plaintiffs argue the district court erred on both grounds. First,
Plaintiffs assert they established associational standing to bring this suit on behalf of
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GAHBA’s members must pay impact fees as a condition to development of single-
family residences within the City. NAIOP’s members must pay impact fees as a condition to
development of commercial properties within the City.
2
The Plaintiffs also asserted claims based on equal protection and substantive due
process. The district court’s dismissal of those claims is not at issue in this appeal.
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their members, and that the district court’s conclusion that the claim would require
a review with respect to each individual member’s circumstances was erroneous.
Second, Plaintiffs contend that the district court erred in its ripeness analysis because
their claims fall within an exception to the exhaustion requirement, given the
inadequacy of the administrative remedy.3 We review the district court’s standing
analysis de novo. See Bochese v. Town of Ponce Inlet, 405 F.3d 964, 975 (11th Cir.
2005).
After thorough review of the record and careful consideration of the parties’
briefs, we affirm.
To have standing, and therefore a justiciable “case or controversy,” Plaintiffs
must establish that: (1) they have suffered a particularized, concrete injury to a legally
protected interest (injury-in-fact); (2) the injury is fairly traceable to the challenged
action (causation); and (3) it is likely that the injury may be redressed by judicial
action (redressability). See Fla. Public Interest Research Group Citizen Lobby, Inc.
v. E.P.A., 386 F.3d 1070, 1083 (11th Cir. 2004) (citing Region 8 Forest Serv. Timber
Purchasers Council v. Alcock, 993 F.2d 800, 805 (11th Cir. 1993)). When the
plaintiff is an association, as here, the plaintiff-association also must show: (1) its
3
Based on our conclusion that the district court properly entered summary judgment based
on a lack of standing, we do not reach the court’s alternative basis for summary judgment, that the
claims were not ripe.
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members otherwise have standing to sue in their own right; (2) the interests the
plaintiff-association seeks to protect are germane to the association’s purpose; and
(3) neither the claim asserted nor the relief requested must require the participation
of the association’s members. See Region 8 Forest, 993 F.2d at 805 n. 3.
The district court held that because not all of Plaintiffs’ members had paid the
impact fees and thus were affected differently, Plaintiffs could not establish the
injury-in-fact component of the standing analysis, nor could they satisfy the third
component for associational standing -- that is, the relief requested must not require
the participation of the individual association members. The district court found the
instant case indistinguishable from Georgia Cemetery Ass’n, Inc. v. Cox, 353 F.3d
1319 (11th Cir. 2003), in which we held that the named plaintiff did not have
associational standing to bring an as-applied takings claim because such a claim “will
vary depending upon the economic circumstances of each of its members” and, thus,
required the participation of those members. Id. at 1322-23.
In this appeal, Plaintiffs attempt to distinguish this case from Georgia Cemetery
on the same grounds they asserted in the district court. They primarily assert that
because they challenge the City’s expenditure of the funds after collection, as
opposed to the collection itself, no individualized inquiry into each member’s
circumstances is necessary. They also claim that because they seek only injunctive
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relief, they can bring their claims. We, too, find Georgia Cemetery dispositive of the
associational standing inquiry. Like in that case, here, “the economic impact of [the
Atlanta ordinance] will vary depending upon the economic circumstances of each of
[the associations’ members].” 353 F.3d at 1323. In making this determination at the
summary judgment stage, a court considers the allegations of the complaint, as well
as the Plaintiffs’ proof on each element of standing. See Bischoff v. Osceola County,
Fla., 222 F.3d 874, 878 (11th Cir. 2000) (observing “each element of standing must
be supported in the same way as any other matter on which the plaintiff bears the
burden of proof, i.e., with the manner and degree of evidence required at the
successive stages of litigation”). We recently held that “it is not enough that the
plaintiff’s complaint sets forth facts from which we could imagine an injury sufficient
to satisfy Article III’s standing requirements, since we should not speculate
concerning the existence of standing, nor should we imagine or piece together an
injury sufficient to give plaintiff standing when it has demonstrated none.” Bochese,
405 F.3d at 976 (internal quotation marks and citation omitted) (emphasis in original).
By the very terms of the complaint, Plaintiffs’ claims require the individualized
inquiries discussed by the district court. Plaintiffs alleged that the City “unlawfully
burden[ed] developers in the allocation of civic costs, thereby violating Plaintiffs’
members’ property rights.” Because the alleged “unlawful burden” may, and likely
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will, be different for each member depending on, among other things, whether that
member has paid the impact fee or is exempt, the district court correctly denied
associational standing. We, too, find deficient the Plaintiffs’ proof on the
associational-standing issue, which consisted of, inter alia, Plaintiffs’ assertion that
they had compiled lists of their members, including those that had paid or would pay
the fee in the future. Just because individual members of the Plaintiff-associations
may have standing to assert the claims here does not, in and of itself, establish that
the associations themselves have standing. Cf. Nat’l Parks Conservation Ass’n v.
Norton, 324 F.3d 1229, 1243 (11th Cir. 2003) (noting fact that “appellants’ members
possess Article III standing . . . does not confirm that appellants themselves may
sue”). On this record, we affirm the district court’s conclusion that Plaintiffs have not
met their burden to establish associational standing to assert their takings claims.
AFFIRMED.
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