[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
September 18, 2003
No. 02-14294 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 01-03066-CV-2
GREENBRIAR VILLAGE, L.L.C.,
Plaintiff-Appellee-
Cross-Appellant,
versus
MOUNTAIN BROOK, CITY,
Defendant-Appellant-
Cross-Appellee.
________________________
Appeals from the United States District Court
for the Northern District of Alabama
_________________________
(September 18, 2003)
Before BIRCH and HULL, Circuit Judges, and EDENFIELD*, District Judge.
*
Honorable B. Avant Edenfield, United States District Judge for the Southern District of
Georgia, sitting by designation.
PER CURIAM:
In this case, a municipality issued a land disturbance permit for a
residentially-zoned piece of property. The work to be accomplished under the
permit was for the admitted purpose of developing the property commercially, that
is, for a purpose inconsistent with the property’s zoning status at that time, and the
permit did not contain an explicit expiration date. After years of litigation over the
proper scope of the disturbance activity, and, correlatively, years of the property
languishing in a terminally disturbed state, the municipality passed a revised
ordinance that resulted in the permit’s revocation. The landowner claimed
violations of his due process rights.
The question in this case, essentially, is whether constitutional due process
was due. We find that substantive due process concerns are not implicated by the
actions of the City in this case, and so affirm the district court’s decision for the
City on that claim. We find, however, that the district court erred in recognizing a
federally protectable right as to Greenbriar, and, therefore, in holding that the City
violated Greenbriar’s procedural due process rights.
I. BACKGROUND
The factual findings of the district court, following a bench trial, are
essentially undisputed. The crucial portions of those findings follow. Greenbriar
2
Village LLC (“Greenbriar”) owns a 10-acre piece of property at the intersection of
Green Valley Road and U. S. Highway 280 in the city of Mountain Brook,
Alabama (the “City”). This property is zoned for residential use and has been so
zoned since Greenbriar purchased the property in 1990.
Over the last decade, Greenbriar has repeatedly contended that the property
is not suitable for residential use and has used all available avenues to attempt to
convince the City to re-zone the property for commercial activity. In 1992,
Greenbriar applied for and was denied re-zoning of the property for use as an
office development. In 1997, Greenbriar filed a request for re-zoning, again
denied, to support a proposed “Greenbriar Village” shopping center, which would
include retail stores, a grocery store, and a gas station. Greenbriar brought suit to
challenge this denial, but lost in the trial court and eventually abandoned appeal
because of an inadequate transcript.
On 17 February 1998, Greenbriar applied to the City for a land disturbance
permit (the “Permit”), which the City issued on 18 March 1998. The Permit
seemed to authorize the clearing of a commercial site. It is uncontested that
Greenbriar’s entire purpose for obtaining the Permit was to prepare for the
eventuality of the property being re-zoned for commercial use. The Permit itself
contained no expiration date, and the applicable ordinances at the time did not
3
provide for automatic expiration. Greenbriar used the Permit to clear the property,
remove accumulated garbage and, later, move trees and earth. Under the authority
of the Permit, Greenbriar has stockpiled tons of rock and fill material on the
property over the last several years. Greenbriar has never proffered a residential
purpose for clearing the land, and the activity to date on the land does not seem in
any way directed toward that end.
Though the Permit was issued for the clearing of a commercial site, the
City’s attorney, upon realizing the disconnect, specifically informed Greenbriar
that the Permit did not authorize any use contrary to the current zoning status of
the property. The City’s attorney noted that it seemed incongruous for a
landowner to apply for a disturbance permit when the purpose to which he wanted
to put the property had not yet been approved, but he could find no reason under
the zoning scheme to deny a permit for that reason.
In March 1999, Greenbriar applied yet again for re-zoning for commercial
use, and this request was denied yet again in October 1999. Greenbriar again
challenged this denial in state court. During the pendency of this action, the City
ordered Greenbriar to stop work under the Permit, and Greenbriar challenged that
order in a mandamus proceeding in state court. The state court found that the
Permit authorized the clearing activity underway on Greenbriar’s property and
4
directed the City to rescind the stop-work order immediately. Thus, from 1998 to
2001, Greenbriar used the Permit to conduct various land improvement projects on
the property. It is uncontested that, even after three years, the property was in an
unfinished state; no residential use had been advanced through the disturbance
work, and no commercial use had been authorized by the City through re-zoning.
In September 2001, and in the context of the above contentiousness, the
City passed Ordinance 1485, which is the crux of the alleged constitutional
violations in this case. Subsection (k) of Ordinance 1485 provided that all permits
issued before 12 July 1999 would expire automatically thirty days after the
effective date of the ordinance. This portion of the ordinance allowed the City to
start on a clean slate, with the end of fully enacting a more internally consistent
permit system. Other portions of Ordinance 1485 amended the municipal code to
require that any land disturbance work be done in anticipation of a currently-
authorized use and to provide that all new permits would expire if work was
suspended or abandoned or, at the outer limit, if two years had passed from
issuance. The City admits that its experiences with Greenbriar were part of the
impetus towards the passage of Ordinance 1485, and it is apparent that the
changes accomplished by that Ordinance would serve to correct the
inconsistencies that allowed Greenbriar to obtain a non-expiring land disturbance
5
permit in anticipation of a non-conforming use in 1999. The district court
specifically found that Greenbriar’s land disturbance Permit “demonstrated to the
City the need for revision of the current ordinances.” Greenbriar Village, L.L.C.
v. City of Mountain Brook, 202 F.Supp. 2d 1279, 1286 (N.D. Ala. 2002).
Furthermore, the district court found that “Ordinance 1485 targeted Greenbriar
and that the City designed Ordinance 1485 to accomplish what its stop-work order
could not do – force Greenbriar to cease work on its property under its existing
valid permit.” Id. After passage of the Ordinance, Greenbriar’s Permit was the
only permit in Mountain Brook that both expired and could not be renewed under
the terms of the new code.
Prior to the passage of Ordinance 1485, notice was sent to all of the
contractors who held land disturbance permits, informing them of the upcoming
council meeting in which the amendment would be discussed and adopted.1 For
1
It is unclear from the record how this notice was served. Gregg Doody, an attorney and
the principal drafter of the ordinance, testified that the city council discussed sending notice to
the parties affected by the ordinance but he did not know the specifics of the notice or whether
the entities received it. Greenbriar Village, 202 F.Supp. 2d at 1287; R3 at 393-94. The letters
submitted as exhibits show only the address of the entity to be notified; there is no indication as
to whether the letters were sent by regular or certified mail or were hand-delivered. Pl. Ex. 39.
The only other record reference to the manner of service is found in a copy of an e-mail sent from
city employee Vicki Thomas to City Manager Sam Gaston in which she provided information he
requested “regarding the mailing information” for contractors holding permits, and asked that
Gaston advise whether he planned “to send mail” to the property owners. Id.; Greenbriar
Village, 202 F.Supp. 2d at 1287.
6
Greenbriar’s Permit, notice was sent to Saiia Construction LLC, the contractor
whose name appears on an increased bond for work on the property, filed in
November 2002. The name of Saiia Construction appears nowhere on the land
disturbance Permit itself. Rather, the only entity identified on the face of the
Permit is Greenbriar. The district court concluded, based on evidence entered at
trial, that “the City specifically chose not to send notice to Greenbriar of the
proposed ordinance by the means customarily used.” Id. at 1287. All preceding
notices and correspondence regarding the Greenbriar property had been sent by
the City to John De Buys, a principal of Greenbriar. Only in this one instance was
notice of a proceeding affecting the property not sent directly to the listed
landowner.
After the enactment of the ordinance, and after the Permit expired by virtue
of the plain language of subsection (k), the City sent a letter directly to De Buys,
informing him that the Permit had expired, but that the City would withhold
application of the ordinance for approximately a month, until 1 December 2001, to
allow Greenbriar time to discuss the matter with City officials. On 1 December
2001, following an exchange of letters between Greenbriar and the City that
ultimately resolved nothing, the Permit expired and all work stopped on the
property, except for emergency environmental work occasioned by heavy rains.
7
II. DISCUSSION
Greenbriar contends that the revocation of the Permit violated its rights
under the Due Process Clause of the Fourteenth Amendment to the Constitution.
The district court, following a bench trial, found that Greenbriar’s procedural due
process rights were violated, rejected any substantive due process claim, and
entered an injunction prohibiting the City from using Ordinance 1485 to deprive
Greenbriar of the Permit.2 The City appeals the district court’s finding of a
procedural due process violation, and Greenbriar cross-appeals the rejection of its
substantive due process claim. We review a trial court’s findings of fact for clear
error and its legal conclusions de novo. Georgia Manufactured Hous. v. Spalding
County, 148 F.3d 1304, 1307 (11th Cir. 1998). We do so with a proviso that
zoning decisions, as a general rule, will not usually be found by a federal court to
implicate constitutional guarantees and with a disinclination to sit as a zoning
board of review. See Spence v. Zimmerman, 873 F.2d 256, 262 (11th Cir. 1989).
A. Substantive Due Process
The district court agreed with the City of Mountain Brook that no
2
Greenbriar also presented a claim of denial of equal protection at trial, but the district
court’s rejection of that claim has not been challenged or briefed by Greenbriar on appeal. Thus,
Greenbriar has abandoned that claim, and we, accordingly, do not discuss it. See United States v.
Nealy, 232 F.3d 825, 830-31 (11th Cir. 2000).
8
substantive due process claim could succeed, and we affirm. “The substantive
component of the Due Process Clause protects those rights that are ‘fundamental,’
that is, rights that are ‘implicit in the concept of ordered liberty.” McKinney v.
Pate, 20 F.3d 1550, 1556 (11th Cir. 1994) (en banc). Fundamental rights are those
rights created by the Constitution. DeKalb Stone, Inc. v. County of DeKalb, Ga.,
106 F.3d 956, 959 n.6 (11th Cir. 1997) (per curiam). “Property interests, of
course, are not created by the Constitution. Rather they are created and their
dimensions are defined by existing rules or understandings that stem from an
independent source such as state law.” Board of Regents v. Roth, 408 U.S. 564,
577, 92 S. Ct. 2701, 2709 (1972); see also Vinyard v. Wilson, 311 F.3d 1340,
1356 (11th Cir. 2002). Thus, to the extent that Greenbriar predicates its
substantive due process claim directly on the denial of its state-granted and -
defined property right in the permit, no substantive due process claim is viable.
See McKinney, 20 F.3d at 1560; Morley’s Auto Body, Inc. v. Hunter, 70 F.3d
1209, 1217 n.5 (1995).3
3
The question presented in McKinney was “whether, under the Fourteenth Amendment,
a government employee possessing a state-created property interest in his employment states a
substantive due process claim, rather than a procedural due process claim, when he alleges that
he was deprived of that employment interest by an arbitrary and capricious non-legislative
governmental action.” 20 F.3d at 1553. We held that “[b]ecause employment rights are state-
created rights and are not ‘fundamental’ rights created by the Constitution, they do not enjoy
substantive due process protection.” Id. at 1560. The only exception to this rule is when the
state-created right is deprived in a manner that implicates a fundamental right, for example, when
9
Rather than base its argument on that losing proposition, Greenbriar
contends that the City’s action with respect to its Permit was unconstitutionally
irrational and arbitrary, and that the substantive component of the Due Process
Clause protects generally against arbitrary and irrational action by the government.
We specifically discussed the dangers of broadening the scope of substantive due
process in this fashion in McKinney. See 20 F.3d at 1559; see also DeKalb Stone,
106 F.3d at 959 n.6, 960. According to McKinney, non-legislative deprivations of
state-created rights, which would include land-use rights, cannot support a
substantive due process claim, not even if the plaintiff alleges that the government
acted arbitrary and irrationally. 20 F.3d at 1559. Constitutional due process is
satisfied for these deprivations when proper procedures are employed.4 Id.
a state employee is fired in violation of the First Amendment for expressing his views.
See Beckwith v. City of Daytona Beach Shores, Fla., 58 F.3d 1554, 1563 (11th Cir. 1995).
4
The point being that the claim that the government acted arbitrary and irrationally can
be easily subsumed and, indeed, is more properly considered a part of a claim that improper
procedures were used in the deprivation. Claiming that the interest was deprived arbitrarily or
irrationally is equivalent to claiming that no fair, unbiased, and meaningful procedures were used
for the deprivation. That type of inquiry falls squarely within what we have defined (and
clarified explicitly in McKinney) as a procedural due process claim.
To say the least, it is surprising that neither party in this case discussed the impact of
McKinney on Greenbriar’s substantive due process claim. All of the Eleventh Circuit precedent
cited by the parties on these types of substantive due process claims mysteriously ends in 1994,
which, curiously, is the same year that an en banc court decided McKinney. Our own research in
the area reveals that many of the cases cited by Greenbriar are flagged as being cast into doubt or
impliedly overruled by McKinney. Indeed, lower courts in this circuit have explicitly applied
McKinney to situations involving the deprivation of land use permits. See, e.g., Malone v.
Parker, 953 F. Supp. 1512, 1515-16 (M.D. Ala. 1996).
10
Even if we were to find that the deprivation of the land disturbance Permit
did implicate constitutional substantive due process protections, the City’s actions
were not so arbitrary or irrational as to compel us to find for Greenbriar. See City
of Cyahoga Falls, Ohio v. Buckeye Community Hope Foundation, , U.S. , ,
123 S. Ct. 1389, 1396 (1996). The avoidance of the harms attendant to half-
completed construction is a constitutionally permissible objective for a
municipality when enforcing its building code. See Spence, 873 F.2d at 260.5
When construction on or development of a property is not completed in an
expeditious manner, all types of costs accrue to the community at large: “rodents,
transients, sand erosion or vandals, injuring the surrounding neighborhood
economically, environmentally, and aesthetically.” Id. For these reasons, a “City
could rationally conclude that the building code did not intend for a building
permit, once issued, to continue indefinitely. Even though there was no time limit
expressed, the City could rationally interpret the Code to require that permitted
construction must be substantially completed within a reasonable time of the
permit’s issuance.” Id.
Greenbriar argues that the City revoked its Permit based on some sort of
5
Spence is a pre-McKinney case that examined the merits of a substantive due process
claim resulting from the deprivation of a building permit. Of course, after McKinney, a factual
situation similar to Spence would be analyzed differently.
11
personal vendetta against it. Certainly, the amendments to the City ordinances did
affect Greenbriar more than any of the other permit holders in the city. Just as
certainly, the disagreements between the City and Greenbriar about the use of the
property were most contentious, and the history of litigation between the parties is
apparent. However, even if we take into account all of these factors, which bear
towards the conclusion that the City targeted Greenbriar specifically by enacting
this ordinance, we still find that their action could not have violated substantive
due process. Even with this evidence that the City targeted Greenbriar out of
animosity, it is equally clear that the City was also motivated in part by a
legitimate desire to enact a comprehensive and internally consistent land use
system. It follows from these reasonable and legitimate governmental objectives
that even if the Permit was a fundamental right protected by substantive due
process, the City’s actions were not constitutionally arbitrary and irrational, and
the rights of the stale permit holder were not violated by revocation. Id. However,
all of this discussion is merely academic, and the core reason that a substantive
due process claim does not exist in this case is that no interest protected by a
fundamental right is being deprived.
B. Procedural Due Process
“Due process” cases typically focus on whether governments can take away
12
property without affording its owner an adequate notice and opportunity to be
heard. See, e.g. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306,
314-16, 70 S. Ct. 652, 657-58 (1950). When courts analyze a procedural due
process claim or its analytically related cousin–substantive due process (it arises
when a government egregiously or arbitrarily deprives one of his property)–they
variously examine three things: (1) whether there is enough of a property interest
at stake to be deemed “protectable”6; (2) the amount of process that should be due
for that protectable right; and (3) the process actually provided, be it before or
after the deprivation. See, e.g., Tri-County Paving, Inc. v. Ashe County, 281 F.3d
430, 436 (4th Cir. 2002).
Sometimes courts can moot the examination of one or two of those
analytical components by passing on another. Thus, in a substantive due process
case, the Supreme Court did not did not decide whether aggrieved parties
possessed a property interest because the challenged government conduct was
6
As the Second Circuit explained (viewing this issue through the prism of a substantive
due process claim):
Before a plaintiff seeks to prove that a state official’s denial of a permit deprived
him of a property right in the permit in violation of the standards of substantive
due process . . . he must first establish that he has a federally protectable property
right in the permit. This requires a demonstration that [at the time of the
municipality’s alleged due process violation,] he had a clear entitlement to the
permit under state law.
Natale v. Town of Ridgefield, 170 F.3d 258, 263 (2d Cir. 1999) (emphasis added).
13
simply not “egregious or arbitrary.” City of Cuyahoga Falls, ___ U.S. at ___, 123
S. Ct. at 1396. Similarly, in Tri-County Paving, the court assumed a property
interest existed, but concluded that the aggrieved party there failed to exploit
available remedies which basically waives one’s right to complain. 281 F.3d at
437-38. Finally, in Bryan v. City of Madison, Miss., 213 F.3d 267 (5th Cir. 2000),
the court found that a developer’s contract to purchase land did not create a
protected property right for purposes of his due process claims. Id. at 275-76. It
did not, therefore, consider the amount of process due or the process provided.
Here, we need not consider whether the district court correctly decided that
the City failed to provide Greenbriar with adequate due process. Instead, we
examine whether Greenbriar held a federally protectable property right in the first
place, because no procedural due process claim exists until a sufficiently certain
property right under state law is first shown. Both Greenbriar and the district
court focused on the City code–specifically, the code’s gaps and the City’s
subsequent gap-repair efforts–to support the existence of Greenbriar’s estoppel-
based property right. See Greenbriar Village, 202 F. Supp. 2d at 1290 (finding
that Greenbriar’s “property rights under applicable Alabama law rests in the
doctrine of equitable estoppel”); id. at 1291-92 (finding that Greenbriar made
expenditures in reliance on the City’s land-disturbance permit and that Greenbriar
14
did not obtain the permit in bad faith). There is no dispute that Greenbriar
exploited an admitted gap in the City’s code, ultimately obtaining from the district
court a de facto commercial zoning change merely because the City was lax in
maintaining a gap in its code, and, later, a little too tricky in notifying Greenbriar
of its legislative efforts to eliminate it by sending notice to a Greenbriar principal,
rather than to Greenbriar at its corporate address.7
Greenbriar thus advanced a property right derived from: (1) the City’s error
in creating a gap in its code; (2) the City’s failure to timely halt Greenbriar’s
exploitation of it; (3) Greenbriar’s gamble (by engaging in commercial-scale
clearing of residentially zoned land) that it one day would successfully pressure
the City to rezone the subject land to its liking; (4) Greenbriar’s exploitation of an
open-ended (time-wise) land-disturbance permit to artificially create “detrimental
reliance” on a future-but-not-guaranteed commercial rezoning); and (5) the City’s
legally inartful efforts to repair the gap (efforts which led to this § 1983 action and
the lower court’s permanent injunction). All of that occurred on a land-
disturbance permit that was so open-ended that Greenbriar itself conceded that
7
The injunction, after all, is permanent and, in the future, Greenbriar undoubtedly will
point to its land-clearing expenditures as “vesting” additional estoppel-based property rights,
thereby demanding, via mandamus, a commercial zoning change.
15
courts should simply fill in its gaps (that the Permit was valid for “a reasonable
time”). See id. at 1298.
Greenbriar therefore, at most, held an uncertain property right when the City
violated its zoning-notice procedures. It was not “certain” until after the alleged
due process deprivation occurred. Indeed, the “by-estoppel” property right was
not even recognized until the district court announced it, and even at that on legal
grounds different from those Greenbriar itself proffered. See id at 1290.
(“Although Greenbriar also asserts that its property rights spring from the issuance
to it of a [state pollution-discharge] Permit and because of its inherent ‘bundle of
property rights,’ . . . this court finds that the most solid basis for Greenbriar’s
vested property rights under applicable Alabama state law rests in the doctrine of
equitable estoppel.”). Further, Greenbriar relied on land use procedures to derive
its property right.
Our sister circuits have held that uncertainty in the existence of a property
right, especially one based on the exploitation of municipal code procedures that
otherwise accorded no right to develop the property in question, does not add up
to a federally protectable property claim. See Natale v. City of Ridgefield, 170
F.3d 258, 263 n.1, 264 (2d Cir. 1999) (A plaintiff seeking “to establish a federally
protectable property interest in a state or local permit for which [he] has applied, . .
16
. must show that, at the time the permit was denied, there was no uncertainty
regarding his entitlement to it under applicable . . . law, and the issuing authority
had no discretion to withhold it in his particular case”; such interest is defeated by
uncertainty “as to the meaning of [the] law.”). The determining factor in such
cases may be whether the permit-issuing government authority lacks discretion to
deny the permit on which the plaintiff bases his property right. Id. at 263
(“[E]ntitlement turns on whether the issuing authority lacks discretion to deny the
permit, i.e , is required to issue it upon ascertainment that certain objectively
ascertainable criteria have been met”); see also Crown Point I, L.L.C. v.
Intermountain Rural Elec. Ass’n, 319 F.3d 1211, 1217 (10th Cir. 2003) (“[W]hen
a party challenges a land use decision by a governing body on due process
grounds, the proper inquiry is whether that body had limited discretion in granting
or denying a particular zoning or use application”). However, such “uncertainty”
is not limited to discretion-based permit issuances:
There is no reason, however, to restrict the “uncertainty” that
will preclude existence of a federally protectable interest to the
uncertainty that inheres in an exercise of discretion. Uncertainty as to
the meaning of applicable law also suffices. Indeed, if uncertainty as
to the law did not preclude recognition of a federally protectable
property interest, permit claimants would regularly be entitled to
present to federal courts their disputes concerning the interpretation
of local and state land use regulations. Just as federal courts are not
to be turned into zoning boards of appeals, they are also not be
17
substituted for state courts as adjudicators of the meaning of zoning
and other land use regulations.
Natale, 170 F.3d at 263 (citation and footnote omitted).
Here, there existed a reasonable debate over the meaning of Alabama law
used to recognize the Greenbriar property right that it seeks to elevate to a
federally protectable level. That debate or “uncertainty” existed all the way
through to the briefing stage in the district court, so it certainly existed when the
City violated its zoning-notice procedures. The district court literally found that
the property right came to exist over time, after the land-disturbance permit was
issued, as Greenbriar developed a detrimental reliance interest in the permit. Even
at that, the court only defined that property right’s broad contours and failed to say
when the permit expired or when the undefined “reasonable time” would end.
Greenbriar, 202 F. Supp. 2d at 1292.
As with Natale, Greenbriar therefore lacked a federally protectable property
interest. Greenbriar’s “entitlement to the permit[] sought turned ultimately on the
resolution of the parties’ [] law dispute as to whether [Greenbriar] had . . . rights.”
Natale, 170 F.3d 263; see also id. at 264 (property owner lacked protectable
property interest where the law became clear only after a state court’s “refined
analysis of two state statutes and a state Supreme Court decision”).
18
Although Natale’s rationale traveled on a substantive due process claim, we
conclude that it is appropriately applied to the procedural due process claim
advanced here, as we see no supportable distinction directing us otherwise. The
common and key thread to these cases is the uncertainty of the property right, thus
rendering it unprotectable under established federal due process doctrine. We,
therefore, conclude that the district court erred in recognizing a federally
protectable right under § 1983 and thus in holding that the City violated
Greenbriar’s procedural due process rights.
III. CONCLUSION
We affirm the district court’s decision in favor of the City on Greenbriar’s
substantive due process claim but reverse the district court’s judgment for
Greenbriar on its procedural due process claim. We therefore AFFIRM IN PART
and REVERSE IN PART the district court’s judgment, and REMAND with
direction to the district court to vacate its judgment.
19