United States Court of Appeals,
Eleventh Circuit.
No. 95-9578.
DeKALB STONE, INC., d.b.a. Houseworth Rock Quarry, Plaintiff-
Appellant,
v.
COUNTY OF DeKALB, GEORGIA, a political subdivision of the State
of Georgia; Liane Levetan; Elaine Boyer; Gale Walldorff;
Jackqueline B. Scott, et al., Defendants-Appellees.
Feb. 27, 1997.
Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:95-CV-2077-FMH), Frank M. Hull, Jr.,
District Judge.
Before BIRCH, BLACK and CARNES, Circuit Judges.
PER CURIAM:
Appellant DeKalb Stone, Inc. (DeKalb Stone) seeks to enjoin
DeKalb County from enforcing zoning laws, asserting that
enforcement constitutes an arbitrary and capricious violation of
its substantive due process rights. The district court denied
Appellant's motion for preliminary injunction, finding that a
county executive's arbitrary and capricious deprivation of a
state-created property right does not violate substantive due
process under the Fourteenth Amendment. We affirm.
I. BACKGROUND
Appellant and its predecessors have operated some type of rock
quarry on their property since the turn of this century. In 1956,
the County zoned the property agricultural-residential. In 1963,
the property was rezoned for single family residential use. No
further official action was taken regarding this property until
1989, when Appellant sought a business license to operate the
quarry. The County denied the license because of a lack of
evidence that the quarry was a legal nonconforming use of the
property. Appellant appealed to the Board of Zoning Appeals (BOA),
which found sufficient evidence that the quarry was a legal
nonconforming use. In a one-sentence opinion, the BOA held:
This is to advise that the Board of Appeals, at its meeting of
11/08/89, reached the following decision on the above
application: Approved appeal; overturned administrative
decision that quarry operated at 7262 South Goddard Road is
not a legal non-conforming use (183 acre quarry approved as a
legal non-conforming use).
Upon receiving this determination, Appellant invested in equipment
and construction, preparing to blast and crush rock as part of a
modernized quarrying operation. Notably, neither party appealed
the BOA's finding of a legal nonconforming use.1
In 1990, after residents complained about the blasting, the
County warned Appellant to stop blasting until it obtained a
development permit. The County explained that the blasting and
crushing exceeded the scope of the nonconforming use approved in
the BOA decision. In its negotiations with the County over the
development permit, Appellant agreed to purchase a buffer zone of
70 acres around the quarry. In an apparent change of course, the
County then served Appellant with three summonses to Recorders
1
It is only speculation and has no bearing on the issues in
this appeal, but we note that the parties may have lacked
incentive to appeal because each party perceived that it had
prevailed. The County might have believed the quarry would be
limited to the hand picking of dimensional stone while DeKalb
Stone might have believed that it had approval to conduct general
quarrying operations, including unrestricted blasting and
crushing. A factual dispute remains in this case as to whether
Appellant was engaging in blasting and crushing prior to the BOA
decision so that such activities would have comprised part of the
legal nonconforming use sanctioned by the BOA.
Court for violations of zoning regulations. One summons charged
that Appellant illegally expanded the nonconforming use by
purchasing the 70-acre buffer zone. The County ultimately ordered
Appellant to stop work in the quarry.
Despite the fact that Appellant never intended to quarry the
70-acre buffer zone, the Recorders Court found that the purchase
constituted an illegal expansion of the nonconforming use and fined
Appellant $1000. Shortly after the Recorders Court decision was
issued, the County denied Appellant's application for a development
permit. Appellant did not appeal the denial of the development
permit to the BOA, but it did petition the Georgia Superior Court
for a writ of certiorari from the Recorders Court decision.
Although the Georgia Superior Court granted the writ, Appellant
voluntarily dismissed the state case and filed this federal action.
Appellant now seeks a declaratory judgment that it has the
right to continue its blasting and crushing as part of the quarry's
legal nonconforming use. In addition, it seeks a preliminary
injunction barring the County from enforcing the zoning
regulations.2 The district court denied Appellant's motion for
preliminary injunction on the ground that Appellant did not show a
substantial likelihood of success on the merits because no
substantive due process claim is cognizable when an executive
official arbitrarily and capriciously deprives a plaintiff of a
2
At oral argument, the parties indicated that discovery
continued in anticipation of a hearing regarding a permanent
injunction.
state-created property right.3
II. STANDARD OF REVIEW
This Court has recently summarized the mixed standard to be
applied when reviewing the grant or denial of a preliminary
injunction:
We review the factfindings of the district court, to the
extent they are properly presented on appeal, under the
clearly erroneous standard. The district court's application
of the law is subject to de novo review. We review the
district court's grant of injunctive relief for abuse of
discretion, meaning we must affirm unless we at least
determine that the district court has made a "clear error of
judgment," or has applied an incorrect legal standard.
SunAmerica Corp. v. Sun Life Assurance Co. of Can., 77 F.3d 1325,
1333 (11th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 79, 136
L.Ed.2d 37 (1996) (citations omitted).
III. DISCUSSION
Appellant asserts that the County arbitrarily and
capriciously denied its substantive due process right by enforcing
zoning regulations against it, thereby depriving it of the legal
nonconforming use of its property.4 The arbitrary and capricious
3
The district court also found that Appellant had abandoned
any procedural due process argument for the purpose of the motion
for preliminary injunction. While the district court addressed
the procedural due process argument, Appellant does not raise
that issue on appeal.
4
Appellant makes three other arguments which require only
minimal discussion. First, Appellant argues that its "vested
property interests are protected against confiscation by DeKalb
County under the Fifth Amendment." This is not a takings case,
however, because Appellant never argued that it was deprived of
all economic use of its property interest.
Second, Appellant argues that the County is barred from
relitigating the question of whether it has the right to
blast and crush under the BOA decision. Appellees correctly
note that whereas the issue before the BOA was the existence
of a legal nonconforming use, this case is about the scope
cause of action stems from the Fourteenth Amendment which commands:
"No state shall ... deprive any person of life, liberty, or
property, without due process of law...." U.S. Const. amend. XIV,
§ 1. The Supreme Court has interpreted this clause to provide two
distinct guarantees: substantive due process and procedural due
process. Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 983,
108 L.Ed.2d 100 (1990). Substantive due process includes both the
protections of most of the Bill of Rights, as incorporated through
the Fourteenth Amendment, and also the more general protection
against "certain arbitrary, wrongful government actions regardless
of the fairness of the procedures used to implement them." Id.
(quoting Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662,
665, 88 L.Ed.2d 662 (1986)) (internal quotation marks omitted);
see also Collins v. City of Harker Heights, 503 U.S. 115, 125, 112
S.Ct. 1061, 1068, 117 L.Ed.2d 261 (1992).
In analyzing Appellant's claim that the County's arbitrary
and capricious actions are barred by substantive due process, we
begin by considering the nature of the right of which Appellant has
allegedly been deprived.5 Appellant states that it has been
of that use. As a result, a factual dispute remains as to
the meaning of the word "quarry" as intended by the BOA.
Res judicata does not apply here.
Finally, Appellant argues that the district court
misconstrued the zoning ordinance with respect to provisions
barring expansion of a nonconforming use. Consideration of
this issue, like all state law issues raised in this case,
becomes unnecessary in light of our holding that Appellant
has presented no federal cause of action.
5
As the district court noted, the exact nature of
Appellant's claimed property interest is not clear. For purposes
of this appeal, we assume without deciding that Appellant
possessed some type of protected property interest. As a result,
deprived of the right to use its land as a nonconforming use under
existing zoning laws. It is well established that land use rights,
as property rights generally, are state-created rights. Board of
Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct.
2701, 2709, 33 L.Ed.2d 548 (1972); Spence v. Zimmerman, 873 F.2d
256, 258 (11th Cir.1989). The district court properly held that
any property right possessed by Appellant was a state-created land
use right.6
Also fundamental to an understanding of this issue is the fact
that enforcement of existing zoning regulations is an executive,
not legislative, act. We have previously held that a "legislative
act involves policy-making rather than mere administrative
application of existing policies. Acts of zoning enforcement
rather than rulemaking are not legislative." Crymes v. DeKalb
County, 923 F.2d 1482, 1485 (11th Cir.1991) (citations omitted).
The question therefore becomes whether a substantive due
process cause of action exists where an executive actor deprived
Appellant of a state-created property right. Appellant cites no
we do not reach Appellant's vested rights argument, nor any other
argument regarding the existence of a property right.
6
Appellant also argues that "the right to freely use one's
property is fundamental and implicit in the concept of ordered
liberty." It is true that property rights have been important
common law rights throughout history and that they are protected
in many situations by procedural due process. Nevertheless,
common law rights are not equivalent to fundamental rights, which
are created only by the Constitution itself. See, e.g., Regents
of Univ. of Mich. v. Ewing, 474 U.S. 214, 229, 106 S.Ct. 507,
515, 88 L.Ed.2d 523 (1985) (Powell, J., concurring); McKinney v.
Pate, 20 F.3d 1550, 1556 (11th Cir.1994) (en banc), cert. denied,
--- U.S. ----, 115 S.Ct. 898, 130 L.Ed.2d 783 (1995). Any right
in the nonconforming use is a state-created right. As a result,
Appellant's fundamental rights argument fails.
authority to support the existence of such a claim, and we find
considerable authority to the contrary. This Court held en banc
that a plaintiff did not present a substantive due process claim
when he alleged an executive deprivation of a state-created right.
McKinney v. Pate, 20 F.3d 1550 (11th Cir.1994) (en banc), cert.
denied, --- U.S. ----, 115 S.Ct. 898, 130 L.Ed.2d 783 (1995). In
McKinney, an employee alleged that the county arbitrarily and
capriciously deprived him of his substantive due process right to
employment when it fired him. Id. at 1554-55. McKinney admitted
that he was provided a procedurally adequate pre-termination
hearing, but charged that the hearing was fundamentally biased
because of conflicts with other city officials. Id. at 1555. In
analyzing McKinney's claim, the Court first noted that any property
interest in employment was a state-created right. Id. at 1556.
The Court held that rights created by state law (e.g., tort and
employment law) are protected by procedural, not substantive, due
process because substantive due process protects only rights
created by the Constitution. Id. Consequently, McKinney presented
no substantive due process claim. See also Collins, 503 U.S. at
128, 112 S.Ct. at 1070; Regents of the Univ. of Mich. v. Ewing,
474 U.S. 214, 226, 106 S.Ct. 507, 514, 88 L.Ed.2d 523 (1985);
Bishop v. Wood, 426 U.S. 341, 349-50, 96 S.Ct. 2074, 2079-80, 48
L.Ed.2d 684 (1976).
We recently reiterated this logic in the context of state
education rights. C.B. ex rel. Breeding v. Driscoll, 82 F.3d 383
(11th Cir.1996). In accordance with school board policy and
procedures, several students were suspended after telephone
conferences with parents. Id. at 385-87. The Court held that
because the decision to suspend a student is an executive act, any
deprivation of the state-created right to attend school is
protected only by the guarantee of procedural due process. Id.
Moreover, we have briefly addressed the unavailability of this
cause of action in the context of state-created property rights.
Where a property owner alleged that town executives arbitrarily and
capriciously refused to issue a certificate of occupancy—another
variety of state-created land use right—we held that no substantive
due process claim had been stated. Boatman v. Town of Oakland, 76
F.3d 341, 346 (11th Cir.1996); see also Kauth v. Hartford Ins. Co.
of Ill., 852 F.2d 951, 956-58 (7th Cir.1988). As in McKinney,
Breeding, and Boatman, Appellant has alleged an executive violation
of a state-created property right, not a deprivation of any
constitutional right.
IV. CONCLUSION
Federal courts must not usurp the roles of agencies, review
boards, and state courts in reviewing the wisdom of executive
actions. We conclude that the district court did not abuse its
discretion in denying the preliminary injunction and discern no
legal or factual error. Precedent and logic demonstrate that the
cause of action pled by Appellant does not exist; therefore,
Appellant cannot show a substantial likelihood of success on the
merits. The district court properly denied the motion for
preliminary injunction.
AFFIRMED.