United States Court of Appeals,
Eleventh Circuit.
No. 94-2577.
Mathias L. TARI; Helen A. Tari, Plaintiffs-Appellants,
v.
COLLIER COUNTY; Burt L. Saunders; Max A. Hasse, Jr.; Richard
S. Shanahan; Michael J. Volpe, et al., Defendants-Appellees.
July 10, 1995.
Appeal from the United States District Court for the Middle
District of Florida. (No. 89-246-Civ.Ftm-17D), Elizabeth A.
Kovachevich, Judge.
Before DUBINA, Circuit Judge, RONEY and ESCHBACH*, Senior Circuit
Judges.
ESCHBACH, Senior Circuit Judge:
Mathias Tari and his wife ("Tari") brought this action against
Collier County, the Collier County Commissioners in their official
capacities, and the members of the Collier County Code Enforcement
Board in their official capacities ("the County") for the County's
allegedly unconstitutional determination that the Tari's were
operating a fruit tree nursery on their property in violation of a
1
county zoning ordinance. Tari appeals the district court's
determination that this claim was not ripe for adjudication. We
affirm.
I.
In 1981, Tari opened a wholesale and retail fruit tree nursery
business in Collier County. This operation of a nursery on his
*
Honorable Jesse E. Eschbach, Senior U.S. Circuit Judge for
the Seventh Circuit, sitting by designation.
1
Mr. Tari, as personal representative of his wife's estate,
now represents both interests.
property allegedly violated Collier County Zoning Ordinance 82-2.
On February 19, 1989, Tari received a Notice of Violation from a
Collier County Code Enforcement Investigator after two
investigators had purchased a red rose bush from Tari a few days
earlier. The Notice provided that "[a]ll wholesale and retail
operations must cease at the above location and all signs must be
removed IMMEDIATELY upon receipt of this notice." The Notice went
on to state that "[a]ny person who violates this zoning ordinance
or fails to comply with any of the requirements shall upon
conviction thereof be fined, or imprisoned, or both as provided by
law and in addition shall pay all costs and expenses involved in
the case. Each day such a violation continues shall be considered
a separate offense."2 After consulting with an attorney, Tari
closed down the nursery.
Tari then contacted several individuals within the Zoning
Department to investigate the status of his case and to discuss his
options. Investigator William Smith and Code Enforcement Director
Richard Clark both advised Tari in person and over the phone that
if he did not agree with the investigators' interpretation of the
zoning ordinance, he could have the matter reviewed by Kenneth
Baginski, the Collier County Zoning Director. Tari instead asked
County Commissioner Anne Goodnight to investigate the Notice of
Violation. On March 23, 1989, Tari received a letter from
Assistant County Attorney Brenda Wilson informing him that the
County Attorney's Office was researching his matter to provide a
2
The parties dispute whether there was also a written notice
of Tari's right to appeal attached to the Notice of Violation.
legal opinion to Commissioner Goodnight as to whether Tari was
actually in violation of the zoning ordinance. After a series of
phone conversations with Tari, Wilson sent another letter on June
8, 1989 confirming her explanation to Tari of the County's two
alternative methods of enforcing a zoning violation. According to
the letter, one method of enforcement is to prosecute a zoning
violation in County Court as a misdemeanor. Such prosecution,
however, would not take place "until such time as our opinion is
completed and the State Attorney's Office is directed to proceed."
Wilson further explained that the statement on Tari's Notice of
Violation which indicated that each day the nursery remained in
operation was a separate offense "does not mean that fines are
accruing for each day you operate in violation. It simply means
that each day of violation may be separately investigated and
separately cited within an Information...." A second method of
enforcement, according to Wilson's letter, is to take the zoning
violation before the Code Enforcement Board. "All cases brought
before the Code Enforcement Board are based on evidence of prior
violations, but fines are only assessed prospectively. If a
defendant is found to be in violation, an Order to Comply is
entered and fines only begin to run upon non-compliance after the
date set for compliance by the Board. No fines are assessed
retroactively." On July 6, 1989, Wilson submitted her legal
opinion to Commissioner Goodnight in which she concluded that
Tari's use of the property violated the zoning ordinance. After
the County issued a second Notice of Violation and attempted to
schedule a hearing before the Code Enforcement Board, Tari chose to
file suit against the County in state court on October 10, 1989. 3
In his amended complaint, Tari sought damages and an injunction
prohibiting the County from applying the zoning ordinance to his
property.
On November 7, 1989, the case was removed to federal court.
The county moved to dismiss Count V, which alleged an as applied
arbitrary and capricious due process claim and Count VI, which
alleged a just compensation temporary takings claim, of Tari's
complaint on ripeness grounds. According to the County, it had not
made a final decision regarding the zoning violation when the
notice was issued on February 14, 1989 and therefore the district
court lacked subject matter jurisdiction under Williamson County
Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct.
3108, 87 L.Ed.2d 126 (1985). The district court denied this
motion. At the preliminary pretrial conference held on July 7,
1993, the County again raised the issue of ripeness in a motion for
summary judgment, and the district court referred the matter to a
magistrate judge to conduct an evidentiary hearing on the issue.
On November 3, 1993, the magistrate judge issued a report and
recommendation in which he determined that the complaint was ripe.
The district court rejected the magistrate's recommendation on
February 28, 1994, and dismissed the complaint on the grounds that
Counts V and VI were not ripe for adjudication, and the court thus
lacked jurisdiction over the remaining state law claims. A timely
notice of appeal was filed.
II.
3
Soon after, Tari reopened the nursery.
The only issue before us concerns the ripeness of Counts V
and VI of Tari's amended complaint. "The question of ripeness
"goes to whether the district court had subject matter
jurisdiction.' " Reahard v. Lee County, 30 F.3d 1412, 1415 (11th
Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1693, 131 L.Ed.2d
557 (1995) (quoting Greenbriar Ltd. v. City of Alabaster, 881 F.2d
1570, 1573 (11th Cir.1989)). Thus, we review the issue de novo.
Id., 30 F.3d at 1415.
In an as applied arbitrary and capricious due process claim,
a plaintiff claims that the application of a zoning regulation to
his property is arbitrary and capricious, does not bear a
substantial relation to the public health, safety, morals or
general welfare, and is therefore an invalid exercise of the police
power. Eide v. Sarasota County, 908 F.2d 716, 721 (11th Cir.1990),
cert. denied, 498 U.S. 1120, 111 S.Ct. 1073, 112 L.Ed.2d 1179
(1991). To remedy such a claim, a court can issue an injunction
preventing the unconstitutional application of the regulation to
the plaintiff's property, as well as award damages to compensate
for the effects of the application. Id. at 722. A just
compensation temporary takings claim, on the other hand, seeks
money damages for the value of the property rights taken by the
application of a regulation. Id. at 720. To establish a violation
of the just compensation clause, a property owner "must demonstrate
that his property was "taken,' i.e., that the regulation "goes too
far,' and that there is no provision to award him just
compensation." Id., (citing McDonald, Sommer & Frates v. Yolo
County, 477 U.S. 340, 348, 106 S.Ct. 2561, 2566, 91 L.Ed.2d 285
(1986)).
For either claim to be considered ripe for adjudication, "the
governmental entity charged with implementing the regulations" must
have reached a "final decision regarding the application of the
regulations to the property at issue." 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);4 see Eide, 908 F.2d at
724. A final decision is made when the "initial decisionmaker has
arrived at a definitive position on the issue that inflicts an
actual, concrete injury." Williamson, 473 U.S. at 193, 105 S.Ct.
at 3120. As the Court explained in McDonald, Sommer & Frates in
the context of a just compensation claim, "[a] court cannot
determine whether a regulation has gone "too far' unless it knows
how far the regulation goes." Id., 477 U.S. at 348, 106 S.Ct. at
2566.5 Similarly, in an as applied arbitrary and capricious claim,
"[i]f the authority has not reached a final decision with regard to
the application of the regulation to the landowner's property, the
4
Williamson actually concerned a due process takings claim
rather than an arbitrary and capricious due process claim. The
Court required a final decision so as to ascertain the actual
effect of the regulation on the value of the property. This
rationale does not apply to an as applied arbitrary and
capricious claim. As we explained in Eide, however, a final
decision is also required for an as applied arbitrary and
capricious claim for the alternative reason that we must
determine if the regulation has actually been applied to the
landowner's property. See Eide, 908 F.2d at 724, n. 13.
5
In a just compensation claim, a landowner often must also
have applied for at least one variance to a contested zoning
ordinance because only then could a jury determine whether and to
what extent a landowner was deprived the value of her land.
Reahard, 30 F.3d at 1415. If, however, no final decision has
been made on the application of an ordinance to the property in
the first place, an inquiry into whether the landowner sought a
variance is irrelevant.
landowner cannot assert an as applied challenge to the decision
because, in effect, a decision has not yet been made." Eide, 908
F.2d at 725.6 Of course, requiring a landowner to wait until the
County has made a final decision to apply a zoning ordinance to his
property does not mean that he has to exhaust his administrative
remedies and appeal the final ruling of the initial decisionmaker.
Williamson, 473 U.S. at 193, 105 S.Ct. at 3119; Greenbriar Ltd.,
881 F.2d at 1574 n. 8. If, however, other actors can still
"participate in the [Zoning] Commission's decisionmaking," then a
final decision has not yet been made. Id.
Applying these legal principles to the instant case, it is
apparent that the County had not made a final decision to apply the
zoning ordinance to Tari's property by sending the Notice of
Violation on February 14, 1989. Despite the language in the Notice
which instructed Tari to cease his operations immediately, it was
made obvious to him that the decision of the Code Enforcement
Investigator to send the Notice, much like the decision of a police
officer to make an arrest, was not a final decision to apply the
6
In Eide, this court in dicta also discussed the possibility
that the final decision requirement would be satisfied for an as
applied arbitrary and capricious claim by "a single arbitrary
act." Id., 908 F.2d at 726. This "depends upon the nature of
the claim, which is often revealed by the remedy sought." Id.
Thus, in Eide the court presented the example of a landowner
whose application for commercial zoning was denied at the
preliminary stages because of his red hair. If the remedy sought
was solely the overturning of that arbitrary decision and an
injunction against similar irrational decisions, then the claim
might be considered ripe. If, however, the remedy sought was an
injunction requiring the grant of commercial zoning, then the
claim could not be considered ripe until a final decision had
been made to deny his application for commercial zoning.
7
zoning ordinance to his property. Smith and Clark both advised
him that the Zoning Director was available to review his case if he
disagreed with the Investigator's interpretation of the zoning
ordinance. Tari ignored this advice. Wilson also told him that
she was preparing a legal opinion for Commissioner Goodnight on
whether Tari's operation of a nursery on his property actually was
a violation of the zoning ordinance. This should have signalled to
him that a final decision had not yet been made. Furthermore,
Wilson informed Tari on the phone and through her June 8, 1989
letter that he would not be subject to any enforcement action until
8
her legal opinion was completed. Wilson testified in her
deposition that she explained to Tari that "he was not prohibited
from operating" during the period in which the County attempted to
reach a final decision. The Notice of Violation, Wilson continued,
"doesn't operate in the nature of an injunction, you must stop as
of this time. If he disagreed with it, then he certainly had the
opportunity to prove that to the Code Enforcement Board." Tari
7
Nor can Tari's as applied arbitrary and capricious due
process claim be considered ripe based upon the "single,
arbitrary act" of sending the Notice of Violation. Rather than
simply requesting an injunction against the issuance of Notices
of Violation in an arbitrary or irrational manner, Tari seeks an
injunction prohibiting the County from applying the zoning
ordinance to his property altogether. Without a final decision
from the County as to whether it considers Tari's operation of
the nursery to be a violation of the zoning ordinance, and, if
so, whether and to what extent it will enforce that violation, we
cannot determine if the zoning ordinance was actually applied to
his property so that the remedy requested would be necessary.
8
Thus, the fact that the Code Enforcement Board may not have
been fully operational until May of 1989 is irrelevant. Until
Wilson concluded her legal opinion in July of 1989 and
recommended that Tari's use of his property be considered a
violation of the ordinance, Tari's case was not ready to be heard
by the Board.
9
again chose to ignore this information. Although the status of
Tari's property was uncertain during this period, it was not
unreasonable for the County to take some time to investigate the
matter before coming to a final decision.10
Tari protests that these procedures, such as contesting the
violation before the Code Enforcement Board, were at best avenues
of appeal.11 If this were true, one would expect fines to relate
back to the original Notice of Violation on February 14, 1989.
Reversal of the County's decision would relieve Tari of any
penalties, but affirmance would place him in the same position he
was in when the Notice of Violation was issued. A review of the
Code Enforcement Board procedure, as explained to Tari in the June
8, 1989 letter, reveals a much different situation. According to
9
Tari testified at the evidentiary hearing that he did not
reopen his nursery because he "was concerned about the heavy
fines." Yet, Wilson's June 8, 1989 letter assured Tari that no
fines were accruing, and that the Code Enforcement Board would
only assess fines prospectively for violations occurring after it
had made its decision that a violation did indeed exist.
10
Thus, Tari's decision to shut down his nursery in the face
of the Notice of Violation cannot convert this matter into a ripe
claim. "[I]n the context of takings cases, courts have held that
a short term delay in the development or use of property is not
unreasonable" Kawaoka v. City of Arroyo Grande, 17 F.3d 1227,
1223 (9th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 193, 130
L.Ed.2d 125 (1994). See Agins v. Tiburon, 447 U.S. 255, 263 n.
9, 100 S.Ct. 2138, 2143 n. 9, 65 L.Ed.2d 106 (1980) ("Mere
fluctuations in value during the process of governmental
decisionmaking, absent extraordinary delay, are "incidents of
ownership.' ").
11
Apparently, Tari never really considered taking his case
before the Code Enforcement Board in the first place. "Mr. Tari
told me several times that he did not intend to go before the
Code Enforcement Board because the Code Enforcement Board had no
authority over him, that it was improperly created; that it was
beyond their scope; and ... that he would go into court; that
he would litigate this." (Wilson Deposition at 25).
Wilson, "fines are only assessed prospectively," even though cases
are based on evidence of prior violations. "If a defendant is
found to be in violation, an Order to Comply is entered and fines
only begin to run upon non-compliance after the date set for
compliance by the Board." The Code Enforcement Board, therefore,
had the power to actually decide in the first instance whether a
landowner had violated a zoning ordinance. It functioned as the
initial decisionmaker on any zoning matter which came before it.
Despite the strong language in the Notice of Violation
instructing Tari to shut down his nursery, we cannot conclude that
this Notice constituted a final decision by the County.12 "Zoning
provides one of the firmest and most basic of the rights of local
control." Stansberry v. Holmes, 613 F.2d 1285, 1288 (5th Cir.),
cert. denied, 449 U.S. 886, 101 S.Ct. 240, 66 L.Ed.2d 112 (1980).
Under the circumstances of this case, if a local investigator's
issuance of a citation was all that was necessary for a claim to
12
Tari's just compensation claim is not ripe for the
additional reason that he failed to satisfy the second hurdle
outlined in Williamson and pursue an inverse condemnation claim
in state court. Id., 473 U.S. at 194, 105 S.Ct. at 3120. In
First English Evangelical Lutheran Church v. County of Los
Angeles, 482 U.S. 304, 319, 107 S.Ct. 2378, 2388, 96 L.Ed.2d 250
(1987), the Court held that a state must provide just
compensation where a land regulation temporarily deprives a
landowner of the value of his property. To the extent that there
was some confusion in Florida courts as to whether such a remedy
existed before Joint Ventures, Inc. v. Department of Transp., 563
So.2d 622, 624 (Fla.1990), see Reahard, 30 F.3d at 1417, this
court "has held that a Florida property owner must pursue a
reverse condemnation remedy in state court before his federal
takings claim will be ripe, even where that remedy was recognized
after the alleged taking occurred." Id., (citing Executive 100,
Inc. v. Martin County, 922 F.2d 1536, 1542 (11th Cir.1991), cert.
denied, 502 U.S. 810, 112 S.Ct. 55, 116 L.Ed.2d 32 (1991)). In
any event, the question should have been resolved by First
English, which was issued long before the alleged taking in this
case.
ripen, the federal courts would become "master zoning boards" in
disputes which are best handled at the local level. The
governmental entity charged with implementing the zoning ordinances
must be given an opportunity to make a final decision as to whether
to apply an ordinance to a landowner's property before the
landowner can complain of that decision in a federal forum.
III.
For the above reasons, the judgment of the district court is
AFFIRMED.