New Port Largo, Inc. v. Monroe County

TJOFLAT, Chief Judge,

specially concurring:

Because we are bound to follow circuit precedent as established by Corn v. City of Lauderdale Lakes, 904 F.2d 585 (11th Cir.1990) (Corn III), I concur in the judgment of the court.1 I write separately to express my concern that Corn III’s test for determining the accrual date of Fifth Amendment claims for just compensation directly conflicts with the Supreme Court’s decision in Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985).

A.

Williamson held that two determinative events govern the ripeness of a just compensation claim: (1) when the decisionmaker “charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue,” 473 U.S. at 186, 105 S.Ct. at 3116,2 and (2) when “the owner has unsuccessfully attempted to obtain just compensation through the procedures provided by the State for obtaining such compensation,” 3 id. at 195, 105 S.Ct. at 3121 (citing Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 330-31, 106 S.Ct. 662, 664, 88 L.Ed.2d 662 (1986));4 see also *1496MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 348-50, 106 S.Ct. 2561, 2565-66, 91 L.Ed.2d 285 (1986).5 I am concerned only with Corn Ill’s mistreatment of Williamson’s first “final decision” requirement.

By requiring a final decision by the initial decisionmaker, Williamson simply recognized that the decisionmaker’s definitive position on the status of the property establishes both the occurrence and magnitude of the “interfer[ence] with [the property owner’s] reasonable investment-backed expectations.” Williamson, 473 U.S. at 191, 105 S.Ct. at 3119 (citing Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631 (1978)). In MacDonald, Sommer & Frates, the Court reviewed its prior decisions in Williamson, Agins v. Tiburon, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980) (finding takings claim ripe where an application for improvements not sought), and San Diego Gas & Electric Co. v. San Diego, 450 U.S. 621, 101 S.Ct. 1287, 67 L.Ed.2d 551 (1981) (lacking jurisdiction where judgment not final), and concluded that “[o]ur cases uniformly reflect an insistence on knowing the nature and extent of permitted development before adjudicating the constitutionality of the regulations that purport to limit it.” 477 U.S. at 349-52, 106 S.Ct. at 2566-67. MacDonald emphasized that courts need sufficient information concerning the degree of infringement as a prerequisite to deciding whether compensation is due. Id. at 348-49, 106 S.Ct. at 2566. Indeed, MacDonald established that a constitutional injury does not occur until the relevant decisionmaker renders its final determination on “the type and intensity of development legally permitted on the subject property.” Id. at 348, 106 S.Ct. at 2566.

B.

Corn III recognized that a federal claim accrues when the plaintiff knows or has reason to know of the injury that provides the basis of the action, and that a constitutional injury occurs at the same time that the takings claim ripens. 904 F.2d at 588 (citing Norco Constr., Inc. v. King County, 801 F.2d 1143, 1145 (9th Cir.1986)); see also Biddison v. City of Chicago, 921 F.2d 724, 728 & n. 5 (7th Cir.1991) (just compensation claim accrues when it ripens); Norco, 801 F.2d at 1146 (rejecting date ordinance passed as accrual date, and stating “the same considerations that render a [42 U.S.C. § 1983] claim premature prevent accrual of a claim for limitations purposes”); McMillan v. Goleta Water Dist., 792 F.2d 1453, 1457 (9th Cir.1986), (accrual occurs when claim ripe under Williamson, not when a property owner’s rights are interrupted by the regulation), cert. denied, 480 U.S. 906, 107 S.Ct. 1348, 94 L.Ed.2d 519 (1987); cf. Agins, 447 U.S. at 260, 100 S.Ct. at 2141 (mere enactment of ordinance does not constitute taking). When Williamson ’s two-prong test is met, the injury is complete, and the claim accrues for pur*1497poses of the statute of limitations.6 Thus, if a state does not provide adequate procedures through which a property owner may obtain just compensation, the infringement ripens into a constitutional injury when the initial decisionmaker reaches a final determination.

The Corn III court erred by improperly expanding Williamson’s final decision requirement so that accrual is postponed until “state review entities” — rather then the initial decisionmakers — “have made a final determination on the status of the subject property.” Corn III, 904 F.2d at 588 (quoting Norco, 801 F.2d at 1145). Hence, under Williamson, a federal takings claim ripens as soon as the initial decisionmaker renders a final decision. In contrast, under Corn III, a federal takings claim ripens only after the property owner has exhausted all legal means of challenging the ordinance, which in both the instant case and Corn III represented litigation that did not address the takings question but instead might have clarified the damages resulting from the taking. Corn Ill’s exhaustion requirement thus postpones the availability of a federal forum for a property owner’s just compensation claims that are ripe under Williamson. Corn III provides, and I intuit, no rational explanation for this extension of Williamson.7

In discussing the preclusive effects of a prior state mandamus proceeding on the plaintiffs just compensation claim, Corn III presented its expanded finality requirement outside of the statute of limitations context:

[ujnder both state and federal law, the taking claim is supplemental to the state proceedings on the propriety of the zoning regulation and is not mature until the propriety or impropriety of the zoning regulation has been finally determined. See, e.g., MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 350, 106 S.Ct. 2561, 2566, 91 L.Ed.2d 285 (1986) (damage action not available until court decides separately filed mandamus action and gives county an opportunity to provide adequate compensation).8

Corn III, 904 F.2d at 587. This language suggests that Corn III simply confused exhaustion of state procedures for obtaining compensation (which Williamson requires) with exhaustion of judicial and administrative review of the regulation itself (which Williamson does not require). Indeed, Williamson specifically rejected the notion that plaintiffs must exhaust state review procedures before their takings claims ripen.

The question whether administrative remedies must be exhausted is conceptually distinct, however, from the question whether an administrative action must be final before it is judicially reviewable.... While the policies underlying the two concepts often overlap, the finality requirement is concerned with whether the initial decision maker has arrived at a definitive position on the issue that inflicts an actual, concrete injury; the exhaustion requirement generally refers to administrative and judicial procedures by which an injured party may seek review of an adverse decision and obtain a remedy if the decision is found to be unlawful or otherwise inappropriate.

Williamson, 473 U.S. at 192-93, 105 S.Ct. at 3119-20 (citations omitted) (emphasis *1498added); see also Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1574 n. 8 (11th Cir.1989); cf. East-Bibb Twiggs Neighborhood Ass’n v. Macon Bibb Planning & Zoning Comm’n, 896 F.2d 1264, 1266 (11th Cir.1989). Resort to state review procedures may provide a remedy, including invalidation of the regulation, and, therefore, may change the amount of just compensation claimed by the property owner. The resolution of state review procedures, however, will not alter that fact that a taking, and thus a constitutional injury, may have occurred. Nevertheless, Corn III requires property owners to engage in protracted, and possibly futile, litigation in state courts before the property owners can repair to federal court to vindicate their federal right to just compensation. With no redeeming quality to support Corn III’s approach, I believe Corn III improperly expanded Williamson’s final decision requirement for purposes of determining the accrual date of a just compensation claim.

C.

Because the state did not provide New Port Largo (NPL) with procedures for obtaining just compensation, demand upon the state would have been futile.9 See ante at 1493-94 & n. 12. NPL’s claim, therefore, accrued when the Monroe County Planning and Zoning Department reached a final determination on the status of the property. This issue cannot be resolved based on the record on appeal.10 But for Corn III, I would have remanded this case to the district court to resolve this issue.

. Under Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), a prior panel’s holdings can only be overruled by the court sitting en banc. Judge Edmondson, in his special concurrence, argues that because application of what he considers to be the "correct" standard to Corn Ill’s facts would require the same result as was reached in that case, the rationale applied in Corn III is merely obiter dictum. It seems odd, however, that when an earlier decision incorrectly states a proposition, the determination of whether that proposition constitutes binding precedent depends on (1) the fortuity of the actual facts in the earlier case as applied to the panel’s "correct" standard, (2) whether those facts are available (so that the "correct” standard can be applied to the earlier case), and (3) the “correct” standard ultimately chosen by a subsequent panel. With Judge Edmondson’s approach, a panel would have a fair chance of being able to ignore, as dictum, propositions with which it disagrees. I cannot believe that such an approach can do justice to the values furthered by the doctrine of stare decisis as expressed in Bonner. I agree with Judge Edmondson that the facts of a case define the controversy to be resolved by the court. I disagree, however, that once these facts are presented, and a standard of law applied to them, a subsequent panel can ignore application of that standard. Com III decided what standard of law applies to determine the accrual of a takings cause of action for statute of limitations purposes. Corn III, therefore, is the law of the circuit and will remain the law unless the court, sitting en banc, corrects the standard which all judges of this panel believe to be erroneous.

. A “final decision” is reached only after the property owner seeks available variances and permits. Cf. Corn v. City of Lauderdale Lakes, 816 F.2d 1514, 1516 (11th Cir.1987) (Corn II) (“Since the subject ordinances called for a complete moratorium on [development of the property], any request for a variance would plainly have been futile.”).

. If the state clearly provides no procedure for seeking compensation, however, the plaintiff need not repair initially to state court in order to satisfy the denial element. Eide v. Sarasota County, 908 F.2d 716, 720 (11th Cir.1990) (denial occurs when "there is no provision to award [the property owner] just compensation”), cert. denied, - U.S. -, 111 S.Ct. 1073, 112 L.Ed.2d 1179 (1991).

. The Williamson Court relied on an analogy to Parratt to support its conclusion that a federal taking can occur only if "the State fails to provide an adequate postdeprivation remedy for the property loss.” See Williamson, 473 U.S. at 195 & n. 14, 105 S.Ct. at 3121 & n. 14. The Parratt analogy suggests that upon return to the federal forum, after exhaustion of the state procedures providing for compensation, the plaintiff can challenge the adequacy of those procedures, but cannot relitigate the merits of the just compensation claim. Peduto v. City of North Wildwood, 878 F.2d 725, 728-29 (3rd Cir.1989) (interpreting Williamson, Fifth Amendment only requires fair procedures); Culebras Enters. v. Rios, 813 F.2d 506, 516 (1st Cir.1987) (the state need only afford "a reasonable, certain *1496and adequate procedure for obtaining compensation”); Fountain v. Metropolitan Atlanta Rapid Transit Auth., 849 F.2d 1412, 1414-15 (11th Cir.1988) (collateral estoppel barred relitigation of just compensation claim). But cf. Fields v. Sarasota Manatee Airport Auth., 953 F.2d 1299, 1307-08 (11th Cir.1992) (applying res judicata, resolution of state court procedure precluded subsequent 42 U.S.C. § 1983 action based on the Just Compensation clause; stated possible exception to res judicata).

Upon return to the federal forum, the plaintiff first challenges the adequacy of the state procedure providing the compensation. If the court determines that such procedure is adequate, the litigation ends. If the court finds that the state procedure is inadequate, however, the court then litigates the merits of the just compensation claim. That is, the court determines whether a taking has occurred, and if so, awards just compensation. As a practical matter, Williamson precludes litigation of the merits of a just compensation claim in federal court unless the state declines to provide adequate procedures through which an aggrieved party might seek compensation.

. The Williamson court also seems to have been influenced by abstention concerns: “If [the property owners] were to seek [variances], a mutually acceptable solution might well be reached with regard to individual properties, thereby obviating any need to address the constitutional questions." Williamson, 473 U.S. at 187, 105 S.Ct. at 3117; cf. Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941); Fountain v. Metropolitan Atlanta Rapid Transit Auth., 678 F.2d 1038, 1046 (11th Cir.1982).

. The continuing wrong doctrine may, as the district court believed, postpone accrual. See ante at 1491-93.

. The Ninth Circuit’s Norco decision, from which Com III adopted its expanded Williamson test, also provides no explanation. See generally Norco, 801 F.2d at 1145-46.

. The Corn III court incorrectly relied on MacDonald for the proposition that a federal cause of action is not available until after the state court determines the status of the property. In MacDonald, a separate mandamus action was pending in state court. Both the MacDonald majority and dissent, however, concentrated on whether the initial decisionmaker — rather than the state’s judiciary — had reached a definitive position on the status of the property. See MacDonald, 477 U.S. at 353 n. 8, 106 S.Ct. at 2568 n. 8 ("The implication is not that future applications [for permits] would be futile, but that a meaningful application has not yet been made.”); id. at 358, 105 S.Ct. at 2571 (White, J., dissenting) ("considered for takings purposes only the actual regulatory decision that had been made by the governmental decisionmaker”).

. For purposes of determining whether a state provides adequate procedures for obtaining just compensation, it is unclear whether we should look to the availability of just compensation remedies (1) on the date of the taking (i.e., when both Williamson elements can be satisfied), Williamson, 473 U.S. at 194, 105 S.Ct. at 3120 ("all that is required is that a reasonable, certain and adequate provision for obtaining compensation exist at the time of the taking" (references and internal quotations omitted, emphasis added)); Sinaloa Lake Owners Ass'n v. City of Simi Valley, 882 F.2d 1398, 1402 (9th Cir.1989) (for physical takings, date ordinance passes), cert. denied, 494 U.S. 1016, 110 S.Ct. 1317, 108 L.Ed.2d 493 (1990), or, viewing Williamson ’s two prongs as essential elements of the cause of action, (2) at any time during the pendency of the claim in federal court, see Executive 100, Inc. v. Martin County, 922 F.2d 1536 (11th Cir.) (without citation to Eleventh Circuit precedent suggesting that Florida did not provide an adequate remedy at the time of the alleged taking of Executive 100’s property, applied current Florida law to find that an adequate remedy existed and, therefore, that Executive 100’s takings claim was not ripe), cert. denied, — U.S. -, 112 S.Ct. 55, 116 L.Ed.2d 32 (1991); cf. Greenbriar, 881 F.2d at 1573 n. 7 ("ripeness [of a just compensation claim] goes to whether the district court had subject matter jurisdiction to hear the case”).

. The record suggests two possible scenarios. The first scenario assumes that NPL could have, but did not, seek available variances or permits. See Fla.Stat. § 333.07(1), (2) (1989). Until NPL sought such relief, and that relief was denied, NPL's takings claims could not have accrued. Yet, the affect of the state circuit court's order quashing the zoning ordinance was to reinstate the prior, residential duplex zoning classification. With no further clarification possible, Williamson's final decision requirement was satisfied. Under this scenario, therefore, NPL’s takings claims would have accrued on the date of the circuit court’s order, and, its claims would have been timely.

The second scenario assumes that it would have been futile for NPL to seek a variance or permit. This possibility is suggested by the state circuit court’s "Final Summary Judgment” which found that the ordinance "enacted by defendant ... only permitted use [of the property] as a private airport.” Record, vol. 5, at 1, no. 158-22. Moreover, Florida law restricts the availability of variances and permits to uses which do not create "airport hazards.” Fla.Stat. § 333.07(l)(a); see also id. § 333.01(3) (defining "Airport hazard”); id. § 333.02 ("Airport hazards contrary to public interest”); id. § 333.-07(2)(a) (variances must not be contrary to the public interest). Given the small size of the property, I cannot imagine how a residential development could coexist with an operating airport without creating such a hazard. If it would have been futile to seek a variance or permit, NPL’s takings claims would have ripened when the planning authorities rezoned NPL’s property, see Corn II, 816 F.2d at 1516, and assuming the district court correctly applied the “continuing wrong doctrine”, the statute of limitations would bar NPL's federal •claims.