Corn v. City of Lauderdale Lakes

                 United States Court of Appeals,

                           Eleventh Circuit.

                             No. 95-4351.

                Herman CORN, Plaintiff-Appellant,

                                  v.

 CITY OF LAUDERDALE LAKES, Howard Craft, Alfonso Gereffi, Jerome
Cohan, Morris Klein, Lyman L. Allen, Louis Greenwald, Harry
Kaufman, Defendants-Appellees.

                           Sept. 23, 1996.

Appeal from the United States District Court for the Southern
District of Florida. (No. 84-6034-CIV-JCP), James C. Paine, Senior
District Judge.

Before COX and BARKETT, Circuit Judges, and BRIGHT*, Senior Circuit
Judge.

     COX, Circuit Judge:

     On this appeal, we address for the fourth time a 20-year-old

dispute between Herman Corn and the City of Lauderdale Lakes,

Florida (the "City"), over the City's refusal to allow Corn to

build a mini-warehouse on his property.        Corn alleges that the

City's actions effected a taking of his property entitling him to

just compensation.   The district court held that there was no

taking of Corn's property.    We affirm in part, but must vacate and

remand in part for the district court to make further factual

findings.

                               I. FACTS1


     *
      Honorable Myron H. Bright, Senior U.S. Circuit Judge for
the Eighth Circuit, sitting by designation.
     1
      A more detailed description of this litigation appears in
our opinion in Corn v. City of Lauderdale Lakes, 997 F.2d 1369
(11th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1400, 128
L.Ed.2d 73 (1994).
A. The Property and Proposed Development

      In 1966, Corn purchased 261 acres of land in an unincorporated

area of Broward County, Florida.         After negotiations with the City

about annexation of the land, Corn submitted a proposed development

plan.   Before annexing Corn's land, the City created a new C-1A

zoning category, incorporating the permissible uses in the existing

C-1   category   and    requiring     that   a   site   development   plan   be

submitted before building permits would be issued.               By ordinance,

the City then formally annexed Corn's land. By separate ordinance,

Ordinance No. 105, the City zoned Corn's land.             Approximately 8.5

acres were zoned C-1A, while Corn's adjacent land was zoned for

residential use.

      Between    1966   and   1977,   Corn   developed    much   of   the   land

according to the development plan originally submitted to the City.

His development expenditures exceeded $100,000. The district court

found that Corn did not prove that these expenditures were aimed at

any specific use of the land, as opposed to general commercial

preparation.     On the portion of his land zoned residential, Corn

first built single family residences and then condominiums.                   In

April 1977, Corn submitted a preliminary site plan (the "Site

Plan") proposing to construct a 67,000 square foot shopping center

and a 900-unit, 103,000 square foot mini-warehouse on the land

zoned C-1A (the "Parcel").       At the time, both uses were permitted

on land zoned C-1 and, hence, on land zoned C-1A.

      Before building his mini-warehouse, Corn had to obtain the

approval of the City Council. The City's Planning and Zoning Board

twice recommended that the City Council approve the Site Plan. The
City Council heard from Corn as well as city residents opposing the

mini-warehouse     project      at    three     public    meetings,        tabling

consideration of the Site Plan at each meeting.

B. The Re-Zoning Ordinances and Moratorium

      Before voting on the Site Plan, the City Council eliminated

mini-warehouses as a use permitted on C-1A property.                 At a public

meeting attended by Corn's attorney, the City Council passed

Ordinance No. 548, eliminating mini-warehouses as a permitted use

on C-1 (and consequently C-1A) land.           The City Council also passed

Ordinance No. 549, re-zoning the Parcel to category B-3, a more

restrictive    zoning    category.       Then    the     City   Council     voted

unanimously to deny approval of the Site Plan.

      The City Council also passed Ordinance No. 552, imposing a

moratorium on the issuance of building permits for C-1 property to

allow the Planning and Zoning Board to conduct a study of the

City's zoning scheme.     In particular, the study was to address the

propriety of situating commercially zoned property adjacent to

residential property.     Originally, the moratorium was to last for

150 days, but it eventually was extended to last almost a year.

      The record is ambiguous as to whether the moratorium applied

to   Corn's   property   for    its   entire    duration.       By   its    terms,

Ordinance No. 552 applied to C-1 property;               the Parcel, however,

was re-zoned B-3 by Ordinance No. 549 within a month of the

moratorium's inception.        The parties have proceeded on this appeal

under the assumption that the moratorium nevertheless applied to

the Parcel for its duration and prevented Corn from building

anything on the Parcel during that time.          It is clear that once the
moratorium     expired    on   July   4,   1978,   the   Parcel's   B-3    zoning

classification permitted many uses, including the proposed shopping

center, though not a mini-warehouse.

C. The State Court Litigation

       In August 1977, Corn filed suit in state court, challenging

the City's denial of his Site Plan and the validity of Ordinance

No. 548 (prohibiting storage warehouses on C-1 property), Ordinance

No. 549 (re-zoning Corn's parcel from C-1A to B-3), and Ordinance

No. 552 (imposing the moratorium).            The state circuit court found

that Corn had "certain vested rights in the zoning classification

C-1A ... as applied to [the] property by Ordinance # 105" and that

the City "is estopped to deny [Corn's] rights in such zoning

classification."         (R. 1, Ex. O at 14.)            The court held that

Ordinance No. 548, Ordinance No. 549, and Ordinance No. 552 were

"void and unenforceable" as against Corn or the property because,

in passing the ordinances, the City failed to follow its own notice

and procedural requirements.          (Id. at 13.)       The court ordered the

City to approve Corn's Site Plan when three deficiencies were

corrected, (id. at 14), and to issue Corn building permits, (id. at

15).

       The state circuit court's judgment was stayed while the City

pursued an appeal.        In February 1983, the state court of appeals

affirmed the circuit court's judgment, finding that substantial

evidence supported the circuit court's order equitably estopping

the    City   from   denying approval of the Site Plan.                City    of

Lauderdale       Lakes         v.     Corn,     427       So.2d     239,      243

(Fla.Dist.Ct.App.1983).         Seven months after the appellate court's
mandate issued, Corn submitted a revised site plan to the City.

The City Council refused to approve the plan unless Corn platted

the property, as required by a Broward County platting requirement

enacted since the original Site Plan was submitted.

       A year later, Corn filed in the state circuit court a "Motion

to Enforce Final Judgment," requesting an order requiring the City

unconditionally to approve the revised site plan and issue a

building permit without Corn platting the property.             The City did

not oppose the motion and, in March 1985, the state court granted

Corn relief from the platting requirement.              Finally allowed to

build his mini-warehouse project, Corn decided not to do so.

Instead, he has prosecuted this § 1983 action in federal court for

the last twelve years.

                          II. PROCEDURAL BACKGROUND

       In 1984, Corn filed this action under 42 U.S.C. § 1983 against

the City, the Mayor, the members of the City Council, and the City

Building Official.        In Count One of his complaint, Corn alleges a

taking of his property without just compensation in violation of

the Fifth and Fourteenth Amendments. 2         In Count Two, Corn alleges

that the City's refusal to approve the Site Plan and issue building

permits violated his substantive due process rights. Before trial,

Corn       dismissed   Count   Three,   alleging   procedural   due   process

violations, and Count Four, alleging an equal protection violation.

       The district court dismissed Corn's complaint on ripeness

       2
      The Fifth Amendment's protections apply to the states
through the Fourteenth Amendment. See Chicago, B. & Q.R. Co. v.
City of Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 (1897).
For ease of reference, we refer to Corn's claim as a Fifth
Amendment claim throughout this opinion.
grounds      under    Williamson      County      Regional    Planning    Comm'n   v.

Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985).

This court reversed and remanded.                  Corn v. City of Lauderdale

Lakes, 816 F.2d 1514 (11th Cir.1987).                 On remand, the City moved

for summary judgment based on res judicata and the statute of

limitations.         The district court denied the City's motion but

certified its order for interlocutory appeal under 28 U.S.C. §

1292(b).      We granted permission to appeal and affirmed the denial

of summary judgment.           Corn v. City of Lauderdale Lakes, 904 F.2d

585 (11th Cir.1990).          The case was remanded for trial.

       After a bench trial, the district court found that the City

had acted arbitrarily and capriciously in denying approval of the

Site    Plan.        The   court    held   that    the   denial   violated      Corn's

substantive due process rights and awarded Corn $727,875.02 in

damages.      The court reserved judgment on the Fifth Amendment just

compensation claim (Count One), finding that damages would be the

same as on the substantive due process claim.                  Not satisfied with

the damages award or the district court's dismissal of individual

members of the City Council from the suit, Corn appealed.                   The City

cross-appealed.

       We    reversed,      holding    that    the   district     court   erred    in

concluding      that       Corn's   substantive      due     process   rights    were

violated.       Corn v. City of Lauderdale Lakes, 997 F.2d 1369.                   Our

painstaking review of the record revealed that Corn had failed to

prove that the City had acted arbitrarily and capriciously. Id. at

1373.       Indeed, the record affirmatively showed that the City's

decision to prevent Corn from building the 900-unit mini-warehouse
in a residential area was substantially related to the general

welfare.    Id.    We did not address the other component of the

substantive due process claim:       whether Corn was deprived of any

constitutionally    protected    property   interest.      Id.   at   1374.

Because the district court had not ruled on the just compensation

claim, we remanded for further proceedings.       Id. at 1393.

     The City and Corn agreed that the district court did not need

to conduct a new trial on the just compensation claim.                After

receiving status reports from the parties, the district court

entered its Findings of Fact and Conclusions of Law Upon Remand.

The court framed the issue as "whether CORN's property (either his

interest in the land or in the development project) has been taken

without just compensation by virtue of the CITY's ordinances and

actions ..." (R. 273 at 10.)      As to whether Corn's interest in the

land had been taken, the court engaged in an ad hoc analysis of

whether the City's ordinances and actions went "too far" and denied

Corn all or substantially all economically viable use of his land.

(Id. at 13-14 (citing Reahard v. Lee County, 968 F.2d 1131 (11th

Cir.1992)).)

     In analyzing whether the City went too far, the court made the

following   findings   as   to   Corn's   reasonable    investment-backed

expectations:

     In 1977, having attempted no use of the Subject Property for
     11 years, CORN submitted his first preliminary site plan for
     development of the Subject Property and proposed for the first
     time, construction of mini-warehouses. By that time, he had
     completed his build-out of the residential parcels and the
     Subject Property where the mini-warehouses were to be
     constructed was, quite literally, in the back yard of
     residents who had purchased their homes from him. By that
     time, the use CORN proposed to make of the Subject Property
     (i.e. construction of a 900 unit mini-warehouse) was contrary
     to the general welfare concerns about congestion, noise,
     traffic, aesthetics, safety, and property values. See Corn
     997 F.2d at 1386. There was no evidence presented that the
     construction of mini-warehouses was ever CORN's primary
     expectation for the Subject Property or that he had invested
     in items specifically suited for a single development project
     that were rendered unusable, or render the Subject Property
     unusable, for any other purpose for which it could have been
     developed. Any expectations CORN may have had regarding use
     of the Subject Property are not backed by any investment other
     than his original purchase.    Further, because the property
     remained suitable for business development it cannot be said
     on this record that CORN suffered a diminution in
     investment-backed expectations.

(Id. at 15-16.)

     As to the economic impact of the City's ordinances and actions

on Corn's property, the court found:

     the fact that the stated purpose of Ordinance 552 was to
     permit the Planning and Zoning Board to review the CITY's
     commercial zoning scheme in light of its previous suggestion
     that all C-1 property abutting residential property should be
     rezoned, is relevant to this court's finding that Ordinance
     552 did not go too far. The ordinance initially effected a
     reasonable 150 day building moratorium on development of all
     commercial property in the CITY. While the duration of the
     moratorium was later extended, it cannot be said, in light of
     the need to satisfy the reasonable purpose of the ordinance
     and the length of time that CORN's property lay dormant before
     the enactment of it, that the duration of the moratorium was
     unreasonable.   It further cannot be said that either the
     moratorium ordinance or the rezoning ordinances which limited
     CORN's use of the Subject Property to business, a more
     restrictive use than commercial, rendered CORN's property
     "wholly useless." It further cannot be said CORN was deprived
     of all "economically viable use," thereby requiring that he be
     compensated by the CITY. The ordinances went far enough to
     serve their stated purposes but not so far as to justify
     CORN's just compensation claim.

(Id. at 17.)      Thus, the court held that the ordinances did not

effect a taking of Corn's property interest in the Parcel.   (Id. at

17-18.)

     Turning to whether there was a taking of Corn's property with

respect to the proposed development project (the "Project"), the

court first analyzed whether Corn had any property interest in the
Project.    (Id. at 18.)   The court held that Corn had no property

interest in the Project:

     [E]specially considering the fact that even the pre-existing
     zoning category C-1 required CORN to obtain approval of the
     CITY before developing his land, the undersigned concludes
     that the ordinances in question never created a reasonable
     expectation in CORN which rose to the level of a property
     interest in the development of his commercial project. It
     simply cannot be said on this set of fact, that the CITY's
     application of the ordinances and other actions deprived CORN
     of a legitimate claim of entitlement.      CORN never had an
     unbridled right to develop his property in any way he so chose
     so long as it was merely consistent with the zoning
     requirement. Because the CITY had never granted to CORN an
     entitlement to freely develop the property without its prior
     approval, CORN does not have a protected property interest in
     the commercial development project.

(Id. at 20-21.)   Thus, the court entered judgment for the City on

Corn's just compensation claim.    Corn appeals.

                       III. ISSUES ON APPEAL

     We address two issues on this appeal:          (1) whether the

district court erred in finding that there was no taking of Corn's

property interest in the Parcel;      and (2) whether the district

court erred in finding that Corn had no property interest in the

Project.3

                   IV. CONTENTIONS OF THE PARTIES

     Corn argues that because the state circuit court held that the

City could not validly apply the ordinances to the Parcel, the

ordinances necessarily went "too far" and thus effected a taking.


     3
      Corn also contends that, in light of subsequent Supreme
Court precedent, we should revisit our holding on Corn's last
appeal. According to Corn, under the Supreme Court's decision in
Dolan v. City of Tigard, 512 U.S. 374, 114 S.Ct. 2309, 129
L.Ed.2d 304 (1994), we applied the wrong standard in rejecting
Corn's substantive due process claim. Corn's contention is
meritless. Dolan did not address the type of substantive due
process claim asserted by Corn.
Alternatively, Corn contends that the City deprived him of all

economically viable use of the Parcel by rejecting the Site Plan,

imposing the moratorium, appealing the state court judgment, and

insisting that Corn plat the property.             During the moratorium, he

argues, all building or development on the Parcel was prohibited.

Corn concedes that, after the moratorium, he could develop the

Parcel for many other purposes, but contends that he had no legal

obligation to do so.         Since he could not build the Project until

March 1985, and had no obligation to use the Parcel in any other

way, Corn argues that he was deprived of all economically viable

use of the Parcel until March 1985.            By that time, Corn argues, the

Project no longer was commercially practicable, and the alleged

taking thus matured into a permanent taking.

      The City responds that the district court correctly determined

that Corn was not deprived of all economically viable use of the

Parcel.    The City notes that Corn does not dispute that the Parcel

could     be   used    for   many      purposes    other   than   building   a

mini-warehouse.       The City argues that the district court correctly

found that the moratorium did not effect a taking because it lasted

only as long as necessary to study the commercial zoning scheme.

      Corn also contends that the City's denial of permission to

build the Project constituted a taking of the Project.                    Corn

grounds this argument on the state circuit court's holding that he

had certain vested rights in the C-1A zoning classification and

that the City was estopped from denying Corn permission to build

the     Project.      Corn    argues    that    the   state   court   judgment

conclusively establishes his just compensation claim as to the
Project;     in effect, he argues, the state court judgment is a

coupon entitling him to a just compensation award when presented to

a federal court.     All the federal court has to do is determine the

amount of compensation due.

     The City contends that whether Corn had a property interest in

a particular development project is irrelevant to a Fifth Amendment

just compensation claim.         According to the City, Corn's alleged

property interest in the Project properly was the subject of Corn's

substantive    due   process    claim,      but    has    no   place   in   a   just

compensation claim. Even if an interest in a particular project is

a cognizable source of a just compensation claim, the City argues,

Corn had no property interest in the Project because the district

court    correctly   found    that   Corn    had    no    legitimate    claim    of

entitlement to build the mini-warehouse.

                                V. DISCUSSION

A. Whether the City Effected a Taking of the Parcel

        To establish a just compensation claim, a landowner must show

that the challenged regulation (1) does not substantially advance

legitimate state interests, or (2) denies him economically viable

use of his land.     Agins v. City of Tiburon, 447 U.S. 255, 260, 100

S.Ct. 2138, 2141, 65 L.Ed.2d 106 (1980);                 Reahard v. Lee County,

968 F.2d 1131, 1135 (11th Cir.1992).              On the last appeal in this

case, we held that the ordinances substantially advanced legitimate

government interests.        Corn, 997 F.2d at 1373.           Thus, to establish

his just compensation claim with respect to the Parcel, Corn must

show that the ordinances denied him economically viable use of the

Parcel.
        When a landowner temporarily is deprived of all economically

viable use of his land, he is entitled to just compensation for the

temporary taking of his property.               First English Evangelical

Lutheran Church of Glendale v. Los Angeles County, Cal., 482 U.S.

304, 321, 107 S.Ct. 2378, 2389, 96 L.Ed.2d 250 (1987).                     Corn

divides his claim into several time periods, arguing that there was

a temporary taking during the moratorium and until the state court

judgment was affirmed and that the temporary taking ultimately

matured into a permanent taking.            We follow a similar approach,

analyzing whether there was a temporary taking separately from

Corn's permanent taking claim.

       Whether a landowner has been deprived of all or substantially

all economically viable use of his property, either permanently or

temporarily, is an essentially ad hoc inquiry into whether the

regulation goes "too far."           MacDonald, Sommer & Frates v. Yolo

County, 477 U.S. 340, 349, 106 S.Ct. 2561, 2566, 91 L.Ed.2d 285

(1986).    The factfinder must consider (1) the economic impact of

the    regulation;      (2)    its   interference   with      the   landowner's

reasonable investment-backed expectations;              and (3) the character

of the governmental action.          Id.    See also Reahard,       968 F.2d at

1136    (listing     factors   to    be    considered    in   analyzing    just

compensation claim). The district court correctly engaged in an ad

hoc analysis of the relevant factors.            The court concluded that

Corn suffered no diminution in his reasonable investment-backed

expectations and that many economically viable uses of the Parcel

were permitted.

        Except with respect to the moratorium period, the district
court's factual findings are not clearly erroneous.                  Indeed, it is

undisputed that, except during the moratorium, Corn could use the

Parcel for any use permitted in a B-3 zoning category, including to

build the proposed shopping center. We hold, therefore, that there

was no taking of the Parcel after the moratorium expired.

      Corn contends that his case is special and not subject to

traditional takings analysis.           According to Corn, the economic

impact   of    the   ordinances   and   their      effect     on    his   reasonable

investment-backed      expectations     are       irrelevant       because   he    has

obtained a state court judgment holding that the ordinances could

not validly be applied to the Parcel.             Corn fails, however, to cite

any authority for his suggestion that a government automatically is

liable to pay just compensation under the Fifth Amendment whenever

a   zoning    authority   subsequently       is   held   to    be    estopped      from

enforcing a change in zoning.            We know of no such rule.                   The

standard for whether regulation effects a taking is whether the

landowner has been denied all or substantially all economically

viable use of his land.       Reahard, 968 F.2d at 1136.

      Corn's    only   argument   as    to   how    he   has   been       denied   all

economically viable use of the Parcel is that he was not legally

obligated to use the Parcel for any of the permissible economically

viable uses.     Because he could not build the mini-warehouse, and

was not legally required to build anything else, the argument goes,

Corn was left with no economically viable use for the Parcel.

Again, Corn cites no authority for his proposition, and we have

found none.      The standard is not whether the landowner has been

denied those uses to which he wants to put his land;                 it is whether
the landowner has been denied all or substantially all economically

viable use of his land.    See Baytree of Inverrary Realty Partners

v. City of Lauderhill, 873 F.2d 1407, 1410 (11th Cir.1989) (holding

that neither inability to develop exactly what developer wanted,

deprivation of most beneficial use of land, nor severe decrease in

value of property amounts to taking).   Because Corn was not denied

economically viable use of the Parcel after the expiration of the

moratorium, his claim that there was a taking of the Parcel after

the moratorium expired fails.

        As to the moratorium period, however, we must remand to the

district court for further factual findings.     The district court

found that the moratorium:    (1) served a reasonable purpose;   (2)

was reasonable in duration, in light of the length of time that the

Parcel lay dormant before the moratorium;   and (3) did not deprive

Corn of all economically viable use of the Parcel.   The court then

held that the moratorium did not effect a temporary taking of the

Parcel.    The court did not explain, however, whether its holding

was based on the reasonableness of the moratorium, the existence of

economically viable uses of the Parcel during the moratorium, or

both.    Nor did the court make any explicit factual findings as to

what, if any, economically viable uses of the Parcel were available

to Corn during the moratorium.

     The district court's factual findings are insufficient for

effective appellate review.     We are unable to determine from the

record whether the district court's conclusion that the Parcel

could be put to economically viable use during the moratorium is

clearly erroneous.   The parties proceed on the assumption that the
moratorium prohibited Corn from building anything on the Parcel.

However, our review of the ordinances reveals that the Parcel was

re-zoned B-3 within a month after the moratorium began, suggesting

that the Parcel thereafter may not have been subject to the

moratorium. It may be that the district court based its conclusion

on a finding that, during the moratorium, Corn could use the Parcel

for any use permitted by the B-3 zoning classification, but any

such finding was not explicit.         Hence, we remand for the court to

make findings as to the economically viable uses of the Parcel

during the moratorium.

     In light of our decision to remand, we need not address Corn's

contention    that    the   district   court      erred   in    considering    the

reasonableness of the moratorium.           According to Corn, there was a

temporary    taking    of    the   Parcel    if    he     was   denied   all    or

substantially all economically viable use of the Parcel during the

moratorium, regardless of the moratorium's reasonableness.                     The

City responds that there was no taking because the moratorium

lasted just long enough to study the City's commercial zoning

scheme.      We need not address this significant constitutional

question of first impression4 at this juncture, as it may turn out

     4
      Neither the Supreme Court nor this circuit has addressed
whether a temporary moratorium on development necessarily effects
a temporary taking. In First English, the Supreme Court assumed
that a county ordinance denied the landowner all use of its
property for a considerable period of years. 482 U.S. at 322,
107 S.Ct. at 2389. The Court held that the ordinance effected a
temporary taking, requiring the county to pay fair value for the
use of the property during that time period. Id. The Court took
pains, however, to limit its holding: "We limit our holding to
the facts presented, and of course do not deal with the quite
different questions that would arise in the case of normal delays
in obtaining building permits, changes in zoning ordinances,
variances, and the like which are not before us." Id. at 321,
that the moratorium did not deprive Corn of all economically viable

use of the Parcel.

B. Whether the City Effected a Taking of the Project

        Corn argues that the state court judgment conclusively

establishes that he had a property right in the Project which was

taken by the City when it denied him permission to build the

mini-warehouse.     He contends that the City's actions denied him of

all economically viable use of the Project, entitling him to just

compensation.     The City responds that, even if Corn had a property

interest in the Project, it is not the type of property interest

cognizable in a just compensation claim.        According to the City,

any property interest in the Project properly was the subject of

Corn's substantive due process claim and may not be relitigated in

the guise of a just compensation claim.

       The district court held that Corn had no property interest in

developing the Project. In so holding, however, the district court

failed to consider the state court's holding that, under Florida

law, Corn had acquired certain vested rights in the Project.

Nevertheless, we need not decide what preclusive effect, if any,

the state court finding of vested rights under state law has in

this    federal   action   for   just   compensation   under   the   Fifth

Amendment. We hold that, regardless of what vested rights Corn may

have had in the Project under Florida law, a denial of permission

to build a particular development project does not, by itself,


107 S.Ct. at 2389 (emphasis added). Unlike the moratorium in
this case, which had a set expiration date, the ordinance in
First English by its terms was indefinite; it would expire only
if declared unconstitutional or repealed.
state a just compensation claim.            To recover just compensation,

Corn must show that the denial of his rights in the Project denied

him all or substantially all economically viable use of the Parcel,

not simply economically viable use of whatever property rights he

had in the Project.5

          The Fifth Amendment prohibits the government from taking

private property for public use without paying just compensation.

The     "private     property"   subject     to      the   Fifth   Amendment's

prohibition,       however,   does   not   include    every   single   property

interest recognized by the law.            Corn correctly notes that the

Supreme Court has recognized that the Just Compensation Clause

protects property interests other than just fee simple ownership of

land.     See, e.g., Dolan v. City of Tigard, 512 U.S. 374, ----, 114

S.Ct. 2309, 2316, 129 L.Ed.2d 304 (1994) (Fifth Amendment protects

right to exclude others); Nollan v. California Coastal Comm'n, 483

U.S. 825, 831, 107 S.Ct. 3141, 3145, 97 L.Ed.2d 677 (1987) (same).

But Corn cites no authority holding that a denial of rights in a

particular development project requires just compensation when, as

here, the denial substantially advances legitimate governmental

interests and does not deny the landowner all or substantially all

economically viable use of his land.

      The Supreme Court's decisions suggest that a just compensation

claim turns on the remaining economically viable uses of the land

itself rather than on the ability to take advantage of a particular


      5
      The Supreme Court has expressed no view on the proper test
to be applied to a takings claim based on a vested rights theory.
Williamson County Regional Planning Comm'n, 473 U.S. at 191 n.
12, 105 S.Ct. at 3119 n. 12.
right relative to the land.   In Penn Central Transp. Co. v. City of

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

example, the Court rejected the type of narrow focus on particular

rights urged by Corn, characterizing as "quite simply untenable"

the suggestion that a taking is established simply by showing that

a landowner has been denied the ability to exploit a particular

property interest.   Id. at 130, 98 S.Ct. at 2662.   The landowner in

Penn Central argued that New York City had deprived it of any

gainful use of the valuable air rights above Grand Central Station

and that, regardless of the value of the remainder of the parcel,

the city had taken its right to the airspace, entitling it to just

compensation measured by the fair market value of the air rights.

Rejecting this argument, the Court noted:

     "Taking" jurisprudence does not divide a single parcel into
     discrete segments and attempt to determine whether rights in
     a particular segment have been entirely abrogated.          In
     deciding whether a particular governmental action has effected
     a taking, this Court focuses rather both on the character of
     the action and on the nature and extent of the interference
     with rights in the parcel as a whole....

Id. (emphasis added).   See also Andrus v. Allard, 444 U.S. 51, 65-

66, 100 S.Ct. 318, 327, 62 L.Ed.2d 210 (1979) ("But the denial of

one traditional property right does not always amount to a taking.

At least where an owner possesses a full "bundle" of property

rights, the destruction of one "strand" of the bundle is not a

taking, because the aggregate must be viewed in its entirety.")

     It is true that the Supreme Court has found a taking when

economically viable uses of the land itself remain.     Those cases,

however, generally have involved either a physical invasion of the

land, see, e.g., Loretto v. Teleprompter Manhattan CATV Corp., 458
U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982);          Kaiser Aetna v.

United States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979),

or destruction of a fundamental attribute of ownership, see, e.g.,

Nollan, 483 U.S. 825, 107 S.Ct. 3141 (right to exclude others);

Kaiser Aetna, 444 U.S. 164, 100 S.Ct. 383 (same).         Here, of course,

Corn's land has not been physically invaded, and Corn does not

contend that the right to build a mini-warehouse is a fundamental

attribute of ownership or "one of the most essential sticks in the

bundle of rights that are commonly characterized as property."

Dolan, 512 U.S. at ----, 114 S.Ct. at 2316 (quoting Kaiser Aetna,

444 U.S. at 176, 100 S.Ct. at 391).

       Corn correctly notes that the property rights protected by

the Fifth Amendment are created and defined by state law.               See

Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1030, 112

S.Ct. 2886, 2901, 120 L.Ed.2d 798. He errs, however, in suggesting

that the Fifth Amendment requires the payment of just compensation

for   every   deprivation   of   a   right   recognized   by   state   law.

"Property" as used in the Just Compensation Clause is defined much

more narrowly than in the due process clauses.       Pittman v. Chicago

Bd. of Educ., 64 F.3d 1098, 1104 (7th Cir.1995), cert. denied, ---

U.S. ----, 116 S.Ct. 2497, 135 L.Ed.2d 189 (1996);          Pro-Eco, Inc.

v. Board of Comm'rs of Jay County, Ind., 57 F.3d 505, 511 n. 6 (7th

Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 672, 133 L.Ed.2d 522

(1995).   See also Scott v. Greenville County, 716 F.2d 1409, 1421-

22 & n. 20 (4th Cir.1983) (entitlement to building permit is

property protected by due process clause but not by Fifth Amendment

takings doctrine).   Thus, while certain property interests may not
be taken without due process, they may be taken without paying just

compensation.        We think that Corn's right in the Project is such an

interest.6
      Corn contends that this circuit has held that a denial of

vested rights in a development project may entitle a developer to

just compensation under the Fifth Amendment.                    According to Corn,

A.A. Profiles, Inc. v. City of Fort Lauderdale, 850 F.2d 1483 (11th

Cir.1988), cert. denied, 490 U.S. 1020, 109 S.Ct. 1743, 104 L.Ed.2d

180 (1989), and Wheeler v. City of Pleasant Grove, 664 F.2d 99 (5th

Cir.1981), cert. denied, 456 U.S. 973, 102 S.Ct. 2236, 72 L.Ed.2d

847   (1982),    establish      that      a   landowner   is    entitled       to   just

compensation         when   denied    a    property   interest       in   a   project,

regardless      of    whether   the       land   itself   may   be    put     to    other

economically viable uses.            The City contends thatA.A. Profiles and

Wheeler are better viewed as due process cases rather than as just


      6
      Our holding that, to recover just compensation, Corn must
show that he was denied economically viable use of the Parcel, as
opposed to the Project, is compelled by practical considerations
as well. Corn's position would require the government "to
regulate by purchase." Andrus, 444 U.S. at 65, 100 S.Ct. at 326.
Government would be required to pay just compensation whenever it
deprived someone of a property interest, regardless of whether
the deprivation violated due process or any other constitutional
rights. Indeed, the due process clause would become superfluous
with respect to government deprivations of property interests.
No longer would plaintiffs have to show that the government's
actions were arbitrary and capricious or procedurally deficient;
showing deprivation of the property right alone would suffice to
recover just compensation.

           In this case, we need not identify the line between
      property rights protected by the Just Compensation Clause
      and those protected only by due process and other
      constitutional guarantees. We hold only that a denial of
      Corn's rights in the Project does not require just
      compensation because economically viable uses of the Parcel
      remain.
compensation cases.

       Plaintiff in A.A. Profiles planned to operate a wood-chipping

business on its land.        Plaintiff received the necessary approvals

from the city commission, completed the purchase of the land,

obtained building permits, and commenced construction on the land.

Id. at 1485.       Subsequently, the city withdrew its approval, issued

a stop work order, and re-zoned the land.             Id.    Plaintiff alleged

that the city's actions violated the prohibition against taking

private property without just compensation and procedural due

process.     Id.     We framed the issue as whether the city's actions

substantially advanced a legitimate state interest.                 Id. at 1478.

In    finding      that   they   did    not,   we   relied    heavily   on     our

"indistinguishable" decision in Wheeler.            In Wheeler, we held that

a    city   ordinance     prohibiting    the   plaintiff     from   building    an

apartment complex for which it had already received a building

permit was arbitrary and capricious and therefore violated due

process.     Id. at 100.     We also characterized the city ordinance in

Wheeler as a "confiscatory measure," and noted that a regulatory

undertaking that is "confiscatory" is a taking.               Id.

       Though the City correctly notes that the government action in

both A.A. Profiles and Wheeler violated due process, we agree with

Corn that both cases hold that a denial of rights in a development

project may give rise to a just compensation claim as well as to a

due process claim.         But we cannot agree with Corn's suggestion

that, under A.A. Profiles and Wheeler, a developer establishes a

just compensation claim simply by showing denial of a vested right

in a particular development project.           We based our holding in both
cases on the first prong of a just compensation claim, holding that

the    government   action   failed   to   advance    a   legitimate   state

interest.    A.A. Profiles, 850 F.2d 1487-88;         Wheeler, 664 F.2d at

100.    We did not mention the "economically viable use" prong of a

just   compensation   claim.    Neither     A.A.     Profiles   nor   Wheeler

addresses the issue in this case:           whether government actions

substantially advancing legitimate state interests effect a taking

when they deny economically viable use of a particular development

right but allow the land itself to be used for many economically

viable uses.

       For the reasons discussed above, we hold that the government

does not effect a taking when its actions substantially advance

legitimate state interests and leave economically viable uses of

the land itself.    Thus, Corn may recover just compensation only to

the extent that he was denied economically viable use of the

Parcel;   he may not recover just compensation for any denial of his

rights in the Project that did not also deny him economically

viable use of the Parcel.

                               VI. CONCLUSION

       We vacate the district court's judgment on Corn's claim that

the moratorium effected a temporary taking of the Parcel because

the district court's findings are not sufficient for effective

appellate review. We remand for the district court to make further

factual findings on that claim.            In all other respects, the

district court's judgment is affirmed.

       AFFIRMED IN PART;     VACATED and REMANDED IN PART.