Executive 100, Inc. v. Martin County

CLARK, Circuit Judge,

concurring in part, and dissenting in part:

I. INTRODUCTION

“Zoning provides one of the firmest and most basic of the rights of local control.” 1 And, as this court has recognized, it is “not the function of federal district courts to serve as zoning appeals boards.2

The gravamen of the court’s error in permitting appellants’ suit against the county to go forward is its willingness to engage in premature review of the actions of the local zoning authority based on almost nonexistent factual allegations of a constitutional dimension. It cannot be the ease that the role of the federal courts is to review decisions of local zoning authorities where the complaining parties have failed to plead, in a well-pleaded complaint, a substantial federal question. The law governing federal subject matter jurisdiction simply does not permit such exercise of authority. Even as a practical matter, “[ajvailability of federal review of every zoning decision would only serve to further congest an already overburdened federal court system.”3

On the issue of ripeness, it is obvious that if we affirm the skeletal pleadings in this case, we are opening the doors of the federal courts to review virtually all Florida zoning rulings, whether or not final and definitive for purposes of establishing ripeness.4 Therefore, I would hold with the seventh, ninth, and tenth circuits that the Williamson County and MacDonald ripeness test applies with equal force to as-applied arbitrary and capricious due process 5 and equal protection claims. I would dismiss without prejudice all counts of appellants’ complaint for failure sufficiently to allege facts establishing either a constitutional issue or ripeness.

In reaching this conclusion, I recognize that under our liberal pleading requirements, a complaint should not be dismissed unless the plaintiff can prove no set of facts that would entitle her to relief.6 However, it is essential to plead sufficient jurisdictional facts,7 and the complaint in this case completely fails to satisfy this threshold requirement. Based upon the law of this circuit and the failure of appellants to allege facts sufficient to raise a substantial federal question or to establish ripeness, it is clear that appellants have established no right to relief. Therefore, I would affirm on jurisdictional grounds the district court’s dismissal of the complaint.

II. FACTS

Because I disagree with the majority’s rendering of the facts, and its determination of the threshold questions 1) whether appellants have pleaded a substantial federal question and 2) whether appellants’ equal protection and arbitrary and capricious due process claims are ripe, I undertake a separate review of those facts as set forth by the appellants in their pleadings. *1544On review of the district court’s dismissal of the complaint for failure to state a claim, appellants’ allegations are regarded as true.8

On April 1, 1982, Martin County enacted a comprehensive land use plan (Comprehensive Plan or the Plan) setting forth land use designations for all property within Martin County. The Plan contained an amendment procedure permitting property owners to apply for changes in land use designation. A rezoning application must be filed with any amendment sought.

On July 17,1986, appellant Executive 100 purchased property in Martin County at the northwest corner of the intersection of Interstate 95 and County Road 714. At the time appellant purchased this property, it was zoned rural ranchette, a residential designation permitting one unit per five acres. On January 23, 1985, appellant King’s Ridge 239, Inc. (King’s Ridge) also purchased property in Martin County. Its property, located between the Florida Turnpike and Interstate 95 at the intersection of County Road 708, was zoned agricultural when purchased. Significantly, then, pursuant to Martin County’s Comprehensive Plan, appellants’ properties were zoned rural ranchette and agricultural when purchased in early 1985 and 1986 and remain so today.

In September 1987, Executive 100 applied for an amendment to the Comprehensive Plan to change its zoning designation from rural ranchette to light industrial. At the same time, King’s Ridge applied for an amendment to the Plan to have its property rezoned from agricultural to industrial. Appellants each filed the required rezoning application. The Martin County Planning and Zoning Board and the Martin County Commission denied appellants’ applications. Appellants do not allege that they ever reapplied for less ambitious rezoning or, as an alternative to rezoning, sought a greater density allowance or variances from the Comprehensive Plan. They claim only that no other variance or exception procedure exists through which they can urge reconsideration.

Appellants, in their complaint, allege a violation of 42 U.S.C. § 1983 and the Fourteenth Amendment. They claim, generally, that the value of their properties has been significantly diminished and that Martin County’s actions have intimidated potential purchasers from negotiating with appellants for the purchase of the property that is the subject of this action. On their equal protection claims, counts two and seven, they allege that “the Defendants have permitted the owners of other properties, similarly situated in all material respects to the subject property, to develop their properties for non-residential purposes.”9 However, as discussed below, appellants do not allege how these other properties are, in fact, similarly situated or whether the “permitted” non-residential zoning occurred prior to the April 1982 adoption of the Comprehensive Plan.

In claiming an arbitrary and capricious denial of due process, counts three and eight, appellants allege that

precluding industrial use of the subject property is arbitrary and unreasonable, has no reasonably debatable relationship to the public health, welfare, safety or morals, is inconsistent with surrounding areas and uses and is more strict or severe than necessary.10

They contend, without elaboration, that “because of its location, size and shape, the subject property is unsuitable for use for residential purposes.” 11

Appellants also allege that until this controversy is resolved, they cannot use, develop or sell the subject properties.12 However, it is unclear from their pleadings how this could be true. The property is zoned agricultural and rural ranchette and was purchased as zoned. There is no allegation as to how the land became unsuitable or impossible to develop between the time it was purchased and the present time. Nor *1545do appellants allege that defendant Martin County prevented them from developing their property consistent with zoning existing at the time of purchase.

Additional facts, pertinent to specific allegations in the complaint, are set forth below.

III. DISCUSSION

A. Failure to Plead a Substantial Federal Question.

The initial question raised on appeal, yet ignored by the court, is whether appellants have alleged a federal question sufficient to invoke federal jurisdiction. “In this regard, a liberal standard guides the trial court in determining whether the question is substantial enough to invoke federal jur-isdiction_ A complaint should be dismissed only where the federal question is so ‘unsubstantial, implausible, foreclosed by prior decisions, or otherwise completely devoid in its merits as not to involve a federal controversy.’ ” 13 Because I agree with the majority that appellants’ due process takings and just compensation claims are not ripe, I address the substantiality of the federal question raised only with regard to the arbitrary and capricious due process and equal protection claims.

1. As Applied Equal Protection Claim. Appellants, in claiming a denial of equal protection, allege unequal administration of a facially neutral zoning plan.14 They claim that appellees intentionally discriminated against them and in favor of other similarly situated property owners in redes-ignating those similarly situated properties for non-residential use while denying appellants’ applications for similar changes in zoning.15

However, a more careful reading of the complaint plainly reveals that appellants have alleged no facts even remotely suggesting how appellants and other landowners were, in fact, similarly situated pri- or to rezoning by the zoning authority of property other than that owned by appellants. Indeed, the only description of the similarity of the parcels in question in relation to other properties is that they are adjacent to Interstate 95. The mere allegation that other landowners are “similarly situated in all material respects” simply cannot, by any stretch of the imagination, constitute a well-pleaded complaint under the Equal Protection Clause of the Fourteenth Amendment.

Indeed, nowhere in the complaint do appellants allege a change as drastic as that at issue here was permitted on similarly situated properties; that is, that property zoned rural ranchette or agricultural under the county’s Comprehensive Plan was subsequently rezoned industrial or light industrial. Nowhere in the complaint do appellants specifically allege how other properties are similar in all material respects to the property that is the subject of this action. And, nowhere in the complaint do appellants allege whether the “permitted” non-residential rezoning of other properties occurred before or after the adoption of the Comprehensive Plan. If, as it appears by the sketchy allegations in appellants’ complaint, the property rezoned by the county (at an unspecified time) in favor of other landowners was not originally zoned as rural ranchette or agricultural, then the property was not similarly situated to appellants’ property for purposes of establishing a denial of equal protection. Thus, for example, a decision by Martin County to permit rezoning of already commercially zoned land for industrial development simply does not result in different treatment of similarly situated properties.

It is beyond question that “[t]he Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.” 16 As this court has recognized with regard to *1546differential treatment of landowners by zoning boards, “[different treatment of dissimilarly situated persons does not violate the equal protection clause.” 17 Because appellants here have failed sufficiently to allege a “classification of similarly situated persons caused by intentional or purposeful discrimination,”18 they cannot claim a denial of equal protection.

Moreover, appellants do not claim that they were denied the change in zoning because they were members of a suspect or even a quasi-suspect group.19 Nor can it be said that the change in zoning was a “fundamental right.”20 Plaintiffs allege merely that in denying their application for rezoning while redesignating the property of others on its own initiative, the Board denied the appellants equal protection by acting arbitrarily and intentionally.21

To succeed on their claim of unconstitutional denial of equal protection, appellants must demonstrate that they were treated differently as the result of actions that did not “rationally advanc[e] a reasonable and identifiable government objective.” 22 Appellants, in this case, however, have failed even to allege facts sufficient to withstand a motion to dismiss their claim of denial of equal protection.

The pleading requirement, as articulated by the majority, would permit any landowner successfully to plead a denial of equal protection every time a zoning authority draws a line at a particular point to require more restrictive use of the property on one side of the line than on the other. However, “[t]he law is well settled that legislated zoning ordinances are permissible, constitutional uses of police power and are not reviewable by district courts unless they are ‘clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.’ ” 23 As this court has stated, it is upon a “factual showing of arbitrariness” that we will inquire whether there is “some basis in fact and law to justify the zoning action as consistent with reasonableness.” 24 Claims that the county’s decisions “in reviewing and denying Plaintiffs’ requests have been made with malice toward the Plaintiff, have been made with reckless disregard for the rights of the Plaintiff, have been arbitrary, have been capricious, willful and wanton,” are not factual allegations.25 Absent factual allegations of arbitrariness, we do not reach the question whether the actions of the zoning authority were reasonable.

*1547Because I would hold that appellants have failed to allege facts sufficient to raise a substantial federal question, I would dismiss appellants’ equal protection claims. On this basis, I dissent from the majority’s holding that the equal protection claim was sufficiently pled to establish a federal constitutional question.

2. As Applied Arbitrary and Capricious Due Process Claim. Because I find that appellants have failed to establish a constitutionally cognizable deprivation of property, I respectfully dissent from that portion of the court’s opinion reversing the district court’s dismissal of the arbitrary and capricious due process claim.

In reviewing the district court’s dismissal of that portion of the complaint alleging an arbitrary and capricious denial of due process, this court must determine whether, accepting the allegations in the plaintiffs’ complaint as true, the action by the zoning authority is an abuse of governmental power sufficient to allege a constitutional violation.26 “Although 42 U.S.C. § 1983 is a species of tort law, not every violation of state or local law by a governmental body or governmental actor constitutes an invar sion of federally protected rights. Plaintiff in order to prevail must show a constitutional violation.”27 Note, also, that the actions of zoning commissions are entitled to a presumption of constitutional validity.28

To state an arbitrary and capricious due process claim in the context of section 1983, plaintiffs must prove, first, that there has been a deprivation of a federal constitutionally protected interest, and second, that the deprivation, if any, resulted from an abuse of governmental power sufficient “to raise an ordinary tort ... to the stature of a violation of the Constitution.”29

The plaintiffs allege that the value of their property has been diminished significantly by the Board’s denial of their zoning request. Appellants further allege that they cannot sell their property. The majority holds that plaintiffs can establish a property deprivation by showing that this alleged diminution in the value of their property was more than a simple fluctuation in value incident to governmental deci-sionmaking. There is no basis in law for this holding. Under the first prong of the test set forth in Rymer and reiterated in Greenbriar, appellants have failed to show that they were deprived of a constitutionally cognizable property interest without due process of law.

“The Fourteenth Amendment’s procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits.”30 To have a property interest, a person “clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.”31 Similarly, the Supreme Court has recognized that, while zoning, by its nature “interferes” significantly with owners’ uses of property, “[i]t is hornbook law that ‘[mjere diminution of market value or interference with the property owner’s personal plans and desires relative to his property is insufficient to invalidate a zoning ordinance or to entitle him to a variance or rezoning.’ ”32

*1548First Evangelical Lutheran Church v. County of Los Angeles, cited by the majority, does not hold otherwise. In that case, the Supreme Court recognized that “ ‘[a] reduction or increase in the value of property may occur by reason of legislation for or the beginning or completion of a project,’ but ‘[sjuch changes in value are incidents of ownership.’ ” 33 The Court held only that “where the government’s activities have already worked a taking of all use of •property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective.” 34 Similarly, the Court in Penn Central Transportation Co. v. New York City35 previously had recognized that the denial of the most profitable use of property is not a taking. The Court, there, in considering whether refusal by the Landmarks Preservation Commission to approve plans for construction of a building over Grand Central Terminal constituted a taking, emphasized that it could not determine whether a taking had occurred until it knew “that appellants will be denied any use of any portion of the airspace above the Terminal.” 36

To determine whether appellants have a cognizable interest in having their property rezoned industrial, we look to state law.37 Under Florida law, a property owner has no vested interest in either an existing zoning classification or in a zoning classification subsequently sought.38 Similarly, absent a showing that the property as zoned at the time of purchase was not suited for the purpose for which it was zoned, one who has acquired property for a purpose known to be prohibited by the current zoning ordinance cannot contend that a zoning change is needed to prevent confiscation of his property.39 A zoning ordinance is not confiscatory because a single reasonable use is denied.40

This issue is similar to that in United Land Corporation v. Clarke,41 in which developers claimed that the county zoning administration and county attorney denied them due process by refusing to issue a soil erosion permit. The district court dismissed their complaint, holding that plaintiffs had no legitimate claim of entitlement to the permit. The court of appeals, in affirming the district court’s dismissal of the complaint under 42 U.S.C. § 1983, held that where no property interest existed in the issuance of the erosion control permit, action taken by the zoning administration and the county attorney did not infringe the developer’s rights secured by the Fourteenth Amendment.42 United Land Corporation, and the case before this court, should be contrasted with Wheeler v. Pleasant Grove,43 in which plaintiffs, in *1549reliance on a previously obtained and issued land use permit, began construction on the property in question. There, the fifth circuit held that a subsequent ordinance that effectively revoked permission to build was a confiscatory taking of the permit itself because of plaintiffs prior reliance on the issued permit.

Appellants in this case have not shown that they had a protectible property interest in having their rezoning application approved. Pursuant to Martin County’s Comprehensive Plan, their property was zoned rural ranchette and agricultural when they purchased it, and it remains so today. The purchase price of the property presumably reflected the market value of the property as zoned at the time of purchase. Appellants contention that they cannot use, develop, or sell the properties in question is patently implausible; any hardship resulting from the present zoning designation is self-imposed.

Because appellants allege only that the diminution in property value incident to the Board’s denial of their application for a change in zoning denied them due process of law, appellants have not alleged an infringement of property rights secured by the Fourteenth Amendment. I, therefore, would reject appellants’ attempt to bootstrap their zoning claims into federal court by attempting to state a constitutional violation.

B. Ripeness.

Ripeness, as this court has noted, “goes to whether the district court had subject matter jurisdiction.”44 Thus, yet another threshold inquiry on review is whether, as a jurisdictional issue, appellants’ claims against the county are ripe. On the ripeness issue, we review de novo, as a question of law, the district court’s application of Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City.45

Because I agree that appellants’ due process taking and just compensation claims are premature under the Supreme Court’s decision in MacDonald, Sommer & Frates v. County of Yolo46 and Williamson County, I consider below only whether appellants’ equal protection and arbitrary and capricious due process claims are ripe for review.

The majority relies on a footnote in this court’s recent decision in Eide v. Sarasota County47 to hold that the reapplication requirement of MacDonald “has no bearing on as applied arbitrary and capricious due process claims.”48 However, the landowner in Eide had failed to submit to the zoning authority “even a single plan for the commercial development of his property,” 49 and on this basis was denied relief. Also, “he [had] not submitted a petition to rezone his properties from their present residential zoning to commercial zoning.” 50 The county, therefore, had not been given even a first opportunity to apply the sector plan to the property owner’s property. The fact that Eide had failed to reapply for some change in zoning, then, was irrelevant to the holding of that case. I, therefore, would hold that we are not bound by dicta in the Eide footnote.

I also would reject the reasoning behind the Eide court’s determination that landowners claiming a denial of substantive due process or equal protection need not reapply to the zoning authority to determine what extent of development will be permitted. In so concluding, I adopt the reasoning of the seventh, ninth, and tenth circuits that the finality requirement applied by the Court in MacDonald and Williamson County to takings and just com*1550pensation claims “applies as well to equal protection and due process claims.” 51

The court in Eide, and this court in its reliance on Eide, completely misconstrue the nature of the ripeness inquiry. In Eide, the court reasoned that the MacDonald reapplication requirement does not apply to an as-applied arbitrary and capricious due process claim because the landowner “does not allege the deprivation of all beneficial use of his land, and, therefore, a court does not need the additional determination in order to adjudicate his claim.”52 However, the core of the Supreme Court’s jurisprudence on the ripeness issue is “an insistence on knowing the nature and extent of permitted development before adjudicating the constitutionality of the regulation that purports to limit it.”53 Constitutional challenges of land use decisions, the Court has held, are “ripe for review” when the aggrieved party has received the zoning authority’s “ ‘final, definitive position regarding how it will apply the regulations at issue to the particular land in question.’ ”54 This final and authoritative determination must expose the “nature and extent of permitted development.” 55 Appellants, here, have not yet sought from Martin County a final determination of how their land may be used.

The Fourteenth Amendment requires that “[n]o State shall ... deprive any person of ... property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” 56 Thus, each of appellants’ claims, whether denominated as a takings claim, a denial of equal protection, or arbitrary and capricious denial of due process has as its gravamen the deprivation of a property interest. And, where the question before the court is whether denial of that interest by the zoning board was arbitrary and capricious,

[ujntil it has a final action before it, a court is unable to evaluate whether property was taken and whether the local authorities position was arbitrary. Thus, the Williamson County ripeness test applies with equal force to substantive due process claims.57

Similarly, on the denial of equal protection, it cannot be determined whether the Board acted irrationally in differently treating similarly situated landowners until the complaining landowners have received a “final and authoritative” determination exposing the “nature and extent of permitted development.” 58 As the ninth circuit in St. Clair v. Chico reasoned, after first acknowledging that the same ripeness test applies generally to constitutional challenges of land use regulations,59

The purpose of the ripeness doctrine is to avoid premature judicial review of administrative action. This goal is accomplished by deferring review of a planning commissions’ land use decisions until they represent a “ ‘final, definitive posi*1551tion regarding how it will apply the regulations at issue to the particular land in question.’ ” MacDonald, Sommer & Frates v. County of Yolo, 477 U.S. 340, 351, 106 S.Ct. 2561, 2567, 91 L.Ed.2d 285 (1986) (quoting Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 191, 105 S.Ct. 3108, 3119, 87 L.Ed.2d 126 (1985)). The finality requirement is satisfied only if the planning commission first rejects a “development plan” and then denies a variance from its regulations. E.g., Herrington, 857 F.2d at 569; Kinzli, 818 F.2d at 1454.60

Thus, “regardless of the type of claim, it is generally impossible to determine the extent of the infringement absent a final determination by the relevant governmental body.”61

As this court acknowledged in Eide v. Sarasota County, “[decisions on ripeness issues are fact-sensitive.” 62 In this case, as the majority correctly observes, “the plaintiffs do not allege that they have sought variances or pursued alternative, less ambitious development plans.”63 And, as the ninth circuit in St. Clair explained, “[t]his two-step test can be avoided only if compliance would be futile, and even then only if the property owner first makes at least one “ ‘meaningful application.’ ” 64 Although appellants here allege that there is no other variance or exception procedure available to urge reconsideration,65 they cannot rely on the futility exception because they have failed to make “meaningful application.” 66 A meaningful application, the MacDonald Court noted, does not include a request for “exceedingly grandiose development.” 67 Here, as the majority acknowledges, “less ambitious development plans” could have been pursued. Moreover, “mere allegations by a property owner that it has done everything possible to obtain acceptance of a development proposal will not suffice to prove futility.” 68 Nowhere in their complaint do appellants set forth factual allegations sufficient to plead futility. Thus, for example, they do not allege how, in fact, they are barred from applying for an amendment to the Comprehensive Plan to change their zoning requirements from rural ranchette or agricultural to commercial.

Denial, by the zoning authority, of the extreme rezoning requested by appellants does not preclude less intensive, but still valuable development.69 “The local agencies charged with administering regulations governing property development are singularly flexible institutions; what they take with one hand they may give back with the other.”70 The complaining property owner, therefore, “has a high burden of proving that a final decision has been reached by the agency before it may seek compensatory or injunctive relief in federal court on federal constitutional grounds.”71 Certainly, the property owner must apply for something other than an extreme change in zoning.

To determine at this time whether the action of the Board was arbitrary and capricious would be premature. Such an inquiry would require us to speculate what applications appellants might have filed with the Board and how the Board might have responded to these hypothetical petitions. “It is precisely this type of speculation that the ripeness doctrine is intended to avoid.”72 Because no meaningful application has been submitted, the Board has *1552not been permitted to make a final determination regarding allowable development of the property at issue. Therefore, appellants’ equal protection and as-applied arbitrary and capricious due process claims are not ripe for federal adjudication.73

C. Pendent State Law Claim

United Mine Workers v. Gibbs74 recognized that if a federal claim against a party is dismissed before trial, the pendent state law claim often should be dismissed as well. Because I would dismiss as premature all of the federal claims on appellees’ motion to dismiss, I would hold that appellants’ pendent state law claims also should be dismissed.75

IV. CONCLUSION

Appellants simply have not alleged a substantial federal question. In alleging a denial of substantive due process, appellants cannot, as a matter of law, establish that they have a protectible property interest in having their rezoning application approved. Their equal protection claim also falls because they have failed sufficiently to allege that the county treated them differently than other similarly situated property owners. Neither have they made any “factual showing”76 that the actions of the county in denying their rezoning application were “clearly arbitrary and unreasonable.”77 Therefore, I dissent from that portion of the court’s decision permitting appellants’ equal protection and arbitrary and capricious due process claims to go forward.

I also would hold with the seventh, ninth, and tenth circuits that the Williamson County and MacDonald ripeness test applies to equal protection and arbitrary and capricious due process claims. Appellants in these cases have not alleged that they sought variances or pursued alternative, less ambitious development plans. And, as the Supreme Court’s decision in MacDonald indicates, this is exactly the kind of review the ripeness doctrine was designed to prevent. For the reasons stated above, I dissent from that portion of the court’s *1553opinion permitting appellants’ equal protection and arbitrary and capricious due process claims to go forward. Because all the federal claims drop out, I also would dismiss appellants’ pendent state law claims.

. 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).

. Nasser v. Homewood, 671 F.2d 432, 440 (11th Cir.1982) (citing South Gwinnett Venture v. Pruitt, 491 F.2d 5, 6 (5th Cir.) (en banc), cert. denied 419 U.S. 837, 95 S.Ct. 66, 42 L.Ed.2d 64 (1974)).

. Scudder v. Greendale, 704 F.2d 999, 1003 (7th Cir.1983) (citation omitted).

. See MacDonald, Sommer & Frates v. County of Yolo, 477 U.S. 340, 351, 106 S.Ct. 2561, 2567, 91 L.Ed.2d 285 (1986).

. As our court in Eide v. Sarasota County noted, 908 F.2d 716, 722 n. 9 (11th Cir.1990), most courts describe this claim simply as a substantive due process claim. This terminology, the court noted, "has contributed to the confusion between an arbitrary and capricious due process claim and a due process takings claim.” Id. For clarity and consistency, therefore, I refer to this claim as an "arbitrary and capricious due process" claim. Whatever the label, the issue is the same: “Substantive due process protects a general right of an individual to be free from the abuse of governmental power.” Rymer v. Douglas County, 764 F.2d 796, 802 n. 4 (11th Cir.1985).

. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

. See Ex parte Poresky, 290 U.S. 30, 31-32, 54 S.Ct. 3, 4-5, 78 L.Ed. 152 (1933) ("In the absence of diversity of citizenship, it is essential to jurisdiction that a substantial federal question should be presented.”).

. Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964); Bracewell v. Nicholson Air Services, Inc., 680 F.2d 103, 104 (11th Cir.1982).

. Complaint, ¶ 42.

. Complaint, ¶ 46.

. Complaint, ¶ 47.

. Complaint, ¶ 27.

. Doe v. Public Health Trust, 696 F.2d 901, 907 (11th Cir.1983) (Hatchett, J., specially concurring) (citations omitted).

. See Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 401, 88 L.Ed. 497 (1944); E & T Realty v. Strickland, 830 F.2d 1107, 1112-13 (11th Cir.1987).

. See E & T Realty, 830 F.2d 1107 (claim of unequal administration of facially neutral legislation requires showing of intentional discrimination; mere error or mistake in judgment does not violate equal protection).

. Tigner v. Texas, 310 U.S. 141, 147, 60 S.Ct. 879, 882, 84 L.Ed. 1124 (1940).

. E & T Realty, 830 F.2d at 1109.

. Muckway v. Craft, 789 F.2d 517, 523 (7th Cir.1986).

. See, e.g., Plyler v. Doe, 457 U.S. 202, 216-18, 102 S.Ct. 2382, 2396, 72 L.Ed.2d 786 (1982).

. See, e.g., id.

. See, e.g., Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971); Logan v. Zimmerman Brush Co., 455 U.S. 422, 442, 102 S.Ct. 1148, 1161, 71 L.Ed.2d 265 (Blackmun, J. concurring).

. Schweiker v. Wilson, 450 U.S. 221, 235, 101 S.Ct. 1074, 1083, 67 L.Ed.2d 186 (1981); see also Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (because mental retardation is not a quasi-suspect classification, standard of review is no higher than is normally accorded economic and social legislation).

This circuit has uniformly applied the rationality standard to equal protection challenges of city zoning ordinances and denials of applications for property rezoning. See Grant v. County of Seminole, 817 F.2d 731, 737 (11th Cir.1987); Nasser, 671 F.2d at 441; Couf v. De Blaker, 652 F.2d 585, 588-90 (5th Cir. Unit B 1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1278, 71 L.Ed.2d 462 (1982); Stansberry v. Holmes, 613 F.2d 1285, 1289 (5th Cir.1980); South Gwinnett Venture v. Pruitt, 491 F.2d 5, 6 (5th Cir.) (en banc), cert. denied 419 U.S. 837, 95 S.Ct. 66, 42 L.Ed.2d 64 (1974); Higginbotham v. Barrett, 473 F.2d 745, 747 (5th Cir.1973).

. Grant, 817 F.2d at 736 (emphasis added) (quoting Euclid v. Ambler Realty Co., 272 U.S. 365, 395, 47 S.Ct. 114, 121, 71 L.Ed. 303 (1926)); see also Greenbriar, Ltd. v. Alabaster, 881 F.2d 1570, 1577 (11th Cir.1989); Nasser, 671 F.2d at 440-41; Couf, 652 F.2d at 590; South Gwinnett Venture, 491 F.2d at 7; Higginbotham, 473 F.2d at 747.

. South Gwinnett Venture, 491 F.2d at 7.

. See e.g., Estate of Himelstein v. Ft. Wayne, 898 F.2d 573, 578 (7th Cir.1990) (plaintiffs’ complaint alleging that "[a]U of the Defendants’ acts were done knowingly, willfully and maliciously,” with the intention of depriving plaintiffs of equal protection should be dismissed for failure to allege any facts in support of their claim).

. Rymer v. Douglas County, 764 F.2d 796, 803 (11th Cir.1985).

. Id. at 800 (citing Williams v. Kelley, 624 F.2d 695, 697 (5th Cir.1980), cert. denied, 451 U.S. 1019, 101 S.Ct. 3009, 69 L.Ed.2d 391 (1981)).

. South Gwinnett, 491 F.2d at 7. See also Indialantic v. McNulty, 400 So.2d 1227 (Fla. 5th Dist.Ct.App.1981) (under separation of powers doctrine, zoning decisions are primarily legislative in nature and should be made by zoning authorities accountable to their constituents; courts are not “super" zoning review boards).

. Williams v. Kelley, 624 F.2d 695, 697 (5th Cir.1980); see Rymer, 764 F.2d at 803 (setting forth two-part test); Greenbriar, 881 F.2d at 1577 (applying two-part test to decision of zoning authority denying rezoning request).

. Board of Regents v. Roth, 408 U.S. 564, 576, 92 S.Ct. 2701, 2708, 33 L.Ed.2d 548 (1972) (emphasis added).

. Id. 408 U.S. at 577, 92 S.Ct. at 2709. See also Marine One, Inc. v. Manatee County, 877 F.2d 892, 894 (11th Cir.1989) (threshold determination is whether property owners “have a property interest protected by the Constitution”).

. Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668, 674 n. 8, 96 S.Ct. 2358, 2362 n. 8, 49 *1548L.Ed.2d 132 (1976) (quoting 8 E. McQuillan, Municipal Corporations § 25.44, at 111 (3d ed. 1985); see also Goldblatt v. Hempstead, 369 U.S. 590, 592, 82 S.Ct. 987, 989, 8 L.Ed.2d 130 (1962) (ordinance may lawfully prohibit best and most beneficial use).

. First Lutheran Church, 482 U.S. 304, 320, 107 S.Ct. 2378, 2388, 96 L.Ed.2d 250 (1987) (quoting Danforth v. United States, 308 U.S. 271, 60 S.Ct. 231, 84 L.Ed. 240 (1939)).

. Id. 482 U.S. at 321, 107 S.Ct. at 2389.

. 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978).

. Id. at 137-38, 98 S.Ct. at 2665-66.

. Board of Regents v. Roth, 408 U.S. at 577, 92 S.Ct. at 2709 (property interests are created, not by the Constitution, but by "an independent source such as state law"); Marine One, 877 F.2d at 894.

. See Gainesville v. Cone, 365 So.2d 737, 739 (Fla.App. 1 Dist.1978) (because no property interest existed in continuation of existing zoning or in new zoning classification applied for, city could amend land use plan of such property to conform to prior zoning classification; Epifano v. Town of Indian River Shores, 379 So.2d 966 (Fla.App. 4 Dist.1979) (no vested right to certain zoning).

. Broward County v. Capeletti Bros., Inc., 375 So.2d 313 (Fla. 2d Dist.Ct.App.1979).

. Id. at 315.

. 613 F.2d 497 (4th Cir.1980).

. Id. at 501 (citing Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)); see also Hollywood v. Hollywood Beach Hotel Co., 283 So.2d 867 (Fla.App. 4 Dist.1973), aff'd in part and rev'd in part on other grounds, 329 So.2d 10 (Fla.1976).

. 664 F.2d 99 (5th Cir.1981), cert. denied, 456 U.S. 973, 102 S.Ct. 2236, 72 L.Ed.2d 847 (1982).

. Greenbriar, 881 F.2d at 1573.

. 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985); see East-Bibb Twiggs Neighborhood Association v. Macon Bibb Planning & Zoning Comm’n, 896 F.2d 1264, 1266 (11th Cir.1989) (citing Georgia Power Co. v. Baker, 830 F.2d 163, 165 (11th Cir.1987)); Atlantic Land & Improv. Co. v. United States, 790 F.2d 853, 857 (11th Cir.1986)).

. 477 U.S. 340, 106 S.Ct. 2561, 91 L.Ed.2d 285 (1986).

. 908 F.2d 716, 725 n. 16 (11th Cir.1990).

. Opinion, at 1541.

. Eide, 908 F.2d at 726.

. Id.

. Herrington v. County of Sonoma, 834 F.2d 1488, 1494 (9th Cir.1987). See also Unity Ventures v. County of Lake, 841 F.2d 770, 774-76 (7th Cir.1988); Landmark Land Co. of Oklahoma, Inc. v. Buchanan, 874 F.2d 717, 722 (10th Cir.1989).

Other ninth circuit opinions affirming application of MacDonald and Williamson County to equal protection and as-applied arbitrary and capricious due process claims include Southern Pacific Transp. Co. v. City of Los Angeles, 922 F.2d 498 (9th Cir.1990); Sinaloa Lake Owners Ass'n v. Simi Valley, 882 F.2d 1398, 1404 (9th Cir.1989); St. Clair v. Chico, 880 F.2d 199 (9th Cir.1989); Engel v. Clark County, 878 F.2d 1438 (9th Cir.1989) (table); Hoehne v. County of San Benito, 870 F.2d 529 (9th Cir.1989); Shelter Creek Dev. Corp. v. Oxnard, 838 F.2d 375 (9th Cir.1988); Kinzli v. Santa Cruz, 818 F.2d 1449 (9th Cir.1987).

. Eide, 908 F.2d at 725 n. 16.

. MacDonald, 477 U.S. at 351, 106 S.Ct. at 2567-68.

. Id. (quoting Williamson County, 473 U.S. at 191, 105 S.Ct. at 3119) (emphasis added).

. Id., 106 S.Ct. at 2567; see also Norco Construction, Inc. v. King County, 801 F.2d 1143, 1145-46 (9th Cir.1986).

. U.S. Const.Amend. XIV, § 1.

. Landmark Land Co. of Oklahoma, Inc. v. Buchanan, 874 F.2d 717, 722 (10th Cir.1989) (citing Williamson County, 473 U.S. at 199-200, 105 S.Ct. at 3123; Herrington v. Sonoma County, 857 F.2d 567, 569 (9th Cir.1988); Norco Const. Co., 801 F.2d at 1145)).

. MacDonald, 477 U.S. at 350, 106 S.Ct. at 2566-67.

.880 F.2d 199, 202 (9th Cir.1989).

. Id. at 202-03.

. Sinaloa Lake Owners Ass’n, 882 F.2d at 1404.

. 908 F.2d 716, 727 (11th Cir.1990).

. Opinion, at 1541.

. 880 F.2d at 203; see also Herrington, 834 F.2d at 1495.

. Complaint, ¶¶ 19-20, 22-23.

. Herrington, 857 F.2d at 569; Kinzli, 818 F.2d at 1454-55.

.477 U.S. at 353 n. 9, 106 S.Ct. at 2568 n. 9.

. Herrington, 834 F.2d at 1496.

. MacDonald, 477 U.S. at 353, 106 S.Ct. at 2569.

. Id. at 350, 106 S.Ct. at 2567.

. Hoehne v. County of San Benito, 870 F.2d 529, 532 (9th Cir.1989).

. Southern Pacific Transp. Co. v. City of Los Angeles, 922 F.2d 498, 504 (9th Cir.1990).

.It is clear that appellants need not have pursued state remedies in order for their arbitrary and capricious due process or equal protection claims to be ripe. First, the issue in not one of exhaustion of state remedies. See Williamson County, 473 U.S. at 192, 105 S.Ct. at 3119 ("the question whether administrative remedies must be exhausted is conceptually distinct ... from the question whether an administrative action must be final before it is judicially reviewable”); id. at 193, 105 S.Ct. at 3120 ("While it appears that the State provides procedures by which an aggrieved property owner may seek a declaratory judgment regarding the validity of zoning and planning actions taken by county authorities, ... respondent would not be required to resort to those procedures before bringing its § 1983 action, because those procedures clearly are remedial.”). The requirement in Williamson County that appellants exhaust available state compensation remedies before pursuing their claim in federal court derives not from any exhaustion requirement but from "the special nature of the Just Compensation Clause.” Williamson County, 473 U.S. at 196 n. 14, 105 S.Ct. at 3121 n. 14. As the ninth circuit has explained, this requirement "states only that the just compensation clause cannot be violated until the state has subsequently declined to pay for the taking; it has no application to other types of constitutional claims, even where those claims arise out of facts that also give rise to a taking claim.” Sinaloa Lake Owners Ass'n, 882 F.2d at 1404. See also Eide, 908 F.2d at 725-26 n. 16 ("[T]he just compensation hurdle applied in the just compensation claim context does not apply to arbitrary and capricious due process claims_ The reason for this is that an arbitrary and capricious act by a government is unconstitutional even if the government pays just compensation.”). The injury has occurred regardless of the availability of a state procedure for compensation of that injury. In fact, the Supreme Court in Williamson County explicitly distinguished procedural due process claims from takings claims reasoning that due process may be violated regardless of the availability of post-deprivation remedies. 473 U.S. at 195-96 n. 14, 105 S.Ct. at 3121 n. 14.

Again, however, because appellants have not satisfied the finality requirement, we need not reach the question whether they also must satisfy the just compensation requirement.

. 383 U.S. 715, 726, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966).

. See also Landmark Land Co. of Oklahoma, Inc. v. Buchanan, 874 F.2d 717, 725 (10th Cir.1989) (given early stage at which the federal claims are dismissed, pendent state law claims also should be dismissed).

. South Gwinnett Venture v. Pruitt, 491 F.2d 5 (5th Cir.) (en banc), cert. denied, 419 U.S. 837, 95 S.Ct. 66, 42 L.Ed.2d 64 (1974).

. Euclid v. Ambler Realty Co., 272 U.S. 365, 395, 47 S.Ct. 114, 121, 71 L.Ed. 303 (1926).