United States Court of Appeals,
Eleventh Circuit.
No. 94-4049.
RESTIGOUCHE, INC., a Florida corporation, Plaintiff-Appellant,
v.
TOWN OF JUPITER, a Florida Municipal Corporation, Defendant-
Appellee.
Aug. 2, 1995.
Appeal from the United States District Court for the Southern
District of Florida. (No. 91-8049-Civ), Donald L. Graham, Judge.
Before HATCHETT and ANDERSON, Circuit Judges, and FAY, Senior
Circuit Judge.
ANDERSON, Circuit Judge:
I. BACKGROUND
Restigouche, Inc. ("Restigouche") owns property the parties
refer to as "Maplewood," located along Indiantown Road in the town
of Jupiter, Florida (the "Town"). In 1988, the Town began a study
of land use along the Indiantown Road Corridor, including the
Maplewood property. At that time, Maplewood was zoned to permit
automobile sales by special exception. In November 1989,
Restigouche applied to the Town for special exception in order to
build an automobile campus on the property. While approval was
pending, the Town completed its study of the Indiantown Road
Corridor, and adopted a comprehensive plan for land use along the
corridor (the "Comprehensive Plan") and specific zoning regulations
applicable to the subdistrict in which the Maplewood property is
located (the "IOZ Regulations"). The IOZ Regulations prohibited
automobile sales in the subdistrict. Subsequently, pursuant to the
IOZ Regulations, the Town denied Restigouche's application to build
an automobile campus on Maplewood.
Restigouche appealed the denial of its application to the Town
Council. After the Town Council denied its appeal, Restigouche
sought state administrative review pursuant to Fla.Stat.Ann. §
163.3213(7) (West 1990). This administrative challenge was also
unsuccessful. Restigouche then filed suit in state court asserting
a number of constitutional and statutory claims. The state court
suit is currently pending. Restigouche has not, however, sought
rezoning, nor has Restigouche requested approval for the 27 other
uses the parties agree are permitted on Maplewood under the IOZ
Regulations.
Restigouche filed the instant action on February 8, 1991
claiming that the IOZ Regulations, as applied to Maplewood, are
unconstitutional. The Town filed a motion for summary judgment on
April 28, 1993, and the motion was fully briefed by June 14, 1993.
In the meantime, the case had been assigned by consent of the
parties to a magistrate judge pursuant to 28 U.S.C. § 636(c). No
hearing was immediately set on the summary judgment motion, and the
parties proceeded with discovery. On November 29, 1993, the
magistrate court telephonically informed the parties that it would
hear argument on the Town's motion for summary judgment at the
pretrial status conference on December 1. Oral argument was heard
on the motion at the status conference on December 1, and the
magistrate court entered an order granting summary judgment in
favor of the Town on December 15.
In its order granting summary judgment, the magistrate court
determined that Restigouche's challenge to the IOZ Regulations
raised only two claims: (1) that the Town's action in passing and
applying the IOZ Regulations to Maplewood is arbitrary and
capricious as applied (substantive due process); and (2) that the
Town's action prohibiting automobile sales on Maplewood constitutes
a taking.1 The court found Restigouche's taking claim premature,
and granted summary judgment on Restigouche's substantive due
process claim as a matter of law.
In this appeal, Restigouche asserts that its just compensation
taking claim is ripe. The Town, on the other hand, asserts that
1
There are potentially four types of constitutional
challenges to a zoning decision: (1) just compensation taking,
(2) due process taking, (3) substantive due process (also
referred to as arbitrary and capricious due process), and (4)
equal protection. Eide v. Sarasota County, 908 F.2d 716, 720
(11th Cir.1990), cert. denied, 498 U.S. 1120, 111 S.Ct. 1073, 112
L.Ed.2d 1179 (1991). In addition, a substantive due process
challenge may be either "facial" or "as applied." Id. at 722.
The magistrate court found that Restigouche had abandoned any
equal protection, due process taking, or facial substantive due
process claims. Restigouche does not dispute this finding.
Thus, all that remains are just compensation takings and as
applied substantive due process claims.
Additionally, Restigouche raises claims it categorizes
as "fails to substantially advance" taking and "justice and
fairness" taking. We do not recognize these as distinct,
viable federal constitutional claims in the zoning context.
Finally, Restigouche argues that its "vested rights"
claims are federal claims in and of themselves. Whether
Restigouche has any "vested rights," i.e. protected property
interests, is relevant to the determination of whether
Restigouche has stated a federal constitutional claim. See,
e.g., Marine One, Inc. v. Manatee County, 877 F.2d 892 (11th
Cir.1989) (rescission of building permit not a taking or
violative of substantive due process because plaintiff had
no vested property interest in possession of building
permit). However, proof of some vested right by itself does
not state a federal claim independent of the constitutional
claims already raised and addressed in this opinion.
Although some of Restigouche's "vested rights" claims may be
pendent state law claims, their dismissal by the court below
was well within its discretion.
both substantive due process and taking claims should have been
dismissed as premature. Restigouche further argues that the
district court granted summary judgment without first giving
Restigouche the 10-day notice required under Fed.R.Civ.P. 56(c).
Finally, Restigouche asserts the district court erred as a matter
of law in granting judgment to the Town because genuine issues of
material fact existed with respect to its substantive due process
claim. We affirm.
II. RIPENESS
Whether Restigouche's claims are ripe is a jurisdictional
issue, which we review de novo. Reahard v. Lee County, 30 F.3d
1412, 1414 (11th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct.
1693, 131 L.Ed.2d 557 (1995). The purpose of the ripeness doctrine
is "to prevent the courts, through avoidance of premature
adjudication, from entangling themselves in abstract
disagreements." Abbott Laboratories v. Gardner, 387 U.S. 136, 149,
87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). Therefore, assuming
that there is sufficient injury to meet Article III's requirement
of a case or controversy, the ripeness inquiry focuses on whether
the claim is sufficiently mature, and the issues sufficiently
defined and concrete, to permit effective decisionmaking by the
court. Johnson v. Sikes, 730 F.2d 644, 648 (11th Cir.1984).
Because substantive due process and taking challenges to the
zoning process scrutinize that process in slightly different ways,
substantive due process and taking claims mature at different
points in the process. Eide v. Sarasota County, 908 F.2d 716, 720-
26 (11th Cir.1990), cert. denied, 498 U.S. 1120, 111 S.Ct. 1073,
112 L.Ed.2d 1179 (1991). An as applied substantive due process
challenge focuses on whether the actual decision to apply the
zoning to the property was "arbitrary and capricious." Thus, such
a claim presents a sufficiently concrete question for review when
the zoning decision has been finally made and applied to the
property. Id. at 724-26. It is undisputed that the IOZ
Regulations have been finally made, and that the Town denied
Restigouche's application to zone Maplewood for automobile sales
pursuant to those regulations. Therefore, Restigouche's
substantive due process claim is ripe. Id. at 725 n. 16.
However, a just compensation taking claim matures later in
the zoning process. One focus of such a taking challenge is
whether a zoning regulation has "gone too far," i.e., has deprived
the owner of all uses that would enable him to derive economic
benefit from the property. Id. at 720-21. Thus, Restigouche's
just compensation taking claim is not ripe before the "local
authority has determined the nature and extent of the development
that will be permitted." Id. at 720. Unlike in the substantive
due process context, this requires more than a final decision to
apply the zoning regulation to the property. Such a taking claim
is not ripe until the property owner has also sought rezoning
and/or variances sufficient to determine the extent of economically
beneficial use which remains under the zoning regime. Id.
Restigouche has not sought rezoning, nor applied for one of the 27
remaining uses permitted on the property under the IOZ Regulations.
Therefore we cannot yet determine whether the IOZ Regulations have
"gone too far" with respect to Restigouche's property, and
Restigouche's taking claim is premature.2
Because Restigouche's just compensation taking claim is not
ripe, the court below properly dismissed it. Because the arbitrary
and capricious due process claim is ripe, we turn now to discuss
it. However, we must first address Restigouche's argument that the
court below violated the 10-day notice requirement of Federal Rule
of Civil Procedure 56(c).3
III. 10-DAY NOTICE REQUIREMENT
Under Federal Rule of Civil Procedure 56(c), the non-moving
party must be given 10-day advance notice that a summary judgment
motion will be taken under advisement. Milburn v. United States,
734 F.2d 762, 765 (1984). After giving the parties only 2 days
notice, the magistrate court entertained argument on the Town's
motion for summary judgment at the December 1, 1993, pretrial
status conference. On December 2, Restigouche filed a motion to
supplement the summary judgment record. On December 15, the
2
To make out a just compensation taking claim, a plaintiff
must also show "that there is no provision to award him just
compensation." Eide 908 F.2d at 720. Thus, a just compensation
taking claim is not ripe until, in addition to seeking rezoning
or variance, the property owner has also exhausted available
state compensation remedies. Id. at 720-21. Because Restigouche
has not made use of the Florida remedies available for receiving
just compensation, see Barima Inv. Co., Inc. v. United States,
771 F.Supp. 1187, 1189 (S.D.Fla.1991) (recognizing that inverse
condemnation action available in Florida state courts), aff'd,
959 F.2d 972 (11th Cir.1992), Restigouche's just compensation
taking claim is also premature on this alternate ground.
3
Restigouche does not argue that violation of Rule 56(c)
affects our ripeness inquiry; i.e., Restigouche does not assert
it has been prevented from presenting evidence relevant to the
ripeness analysis. We do not find additional evidence relevant
to the ripeness question in the record and proffered supplemental
materials, nor does Restigouche assert that additional evidence
relevant to ripeness exists.
magistrate court denied Restigouche's motion to supplement the
record and granted summary judgment favor of the Town. Restigouche
argues that this sequence of events violated the 10-day notice
rule.
Even if notice was insufficient under Rule 56(c), 4 we find
this error harmless. Donaldson v. Clark, 819 F.2d 1551, 1555 n. 3
(11th Cir.1987) (en banc) (violation of 10-day notice rule harmless
error in limited circumstances). The purpose of the 10-day notice
rule is to give the non-moving party notice and a 10-day window of
opportunity to marshal its resources and present any additional
materials and arguments in opposition to the motion. Id. at 1555.
We are convinced that we have before us, on de novo review of the
summary judgment motion, all of the facts and arguments that
Restigouche would have or could have presented had Restigouche been
given the required notice. The magistrate court denied
Restigouche's December 2, motion to supplement because Restigouche
failed to identify the specific portions of the supplemental
4
We expressly do not decide whether the magistrate court
violated the 10-day notice rule. Although the court heard oral
argument on the summary judgment motion only 2 days after giving
notice, the summary judgment order was rendered more than 10 days
after the parties were telephonically informed that the motion
would be taken under advisement, and also more than 10 days after
the parties were heard in chambers at the pretrial status
conference. In the interim, Restigouche could have taken
advantage of Rules 56(e) and 56(f) to supplement the record, see
Fed.R.Civ.Pro. 56(e) ("The court may permit affidavits to be
supplemented or opposed by depositions, answers to
interrogatories, or further affidavits.") and 56(f) (party may
petition the court for additional time to permit further evidence
to be obtained), and in fact did make a motion to supplement.
Thus, Restigouche arguably had notice and at least 10 days to
present additional materials as required by the 10-day notice
rule. However, we need not decide whether the requirements of
Rule 56(c) were satisfied because we hold that any alleged
violation under the facts of this case is harmless error.
materials which would create material issues of fact. 5 Moreover,
our independent review of the proffered supplemental materials
discloses no genuine issues which would prevent summary judgment.
Finally, Restigouche has now had ample opportunity to marshal facts
and arguments, and does not assert on appeal that there exists
additional evidence, beyond the record and the proffered
supplemental material, which would create material issues of fact.
Because Restigouche has not been deprived of the opportunity to
present facts or arguments which would have precluded summary
judgment in this case, any violation of the 10-day notice rule is
harmless. See Denis v. Liberty Mut. Ins. Co., 791 F.2d 846, 850
(11th Cir.1986) (If the parties made all the arguments and
submitted all documents that they would have presented had they
received proper notice, failure to give required notice is not
reversible error).
IV. SUBSTANTIVE DUE PROCESS
We review the magistrate court's grant of summary judgment de
novo. Vernon v. Resolution Trust Corp., 907 F.2d 1101, 1104 (11th
Cir.1990). Summary judgment is appropriate if the evidence shows
"that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law."
5
The magistrate court did not err in denying this motion to
supplement. The onus was on Restigouche to point to the specific
portions of the proffered material which created a material issue
of fact. See Fed.R.Civ.P. 56(e) ("[A]n adverse party may not
rest upon ... mere allegations or denials ..., but ... must set
forth specific facts showing that there is a genuine issue for
trial."). We do not require trial courts to search the record
and construct every argument that could have been made based upon
the proffered materials. Resolution Trust Corp. v. Dunmar Corp.,
43 F.3d 587, 599 (11th Cir.1995).
Fed.R.Civ.P. 56(c). However, "[t]he mere existence of a factual
dispute will not defeat summary judgment." Haves v. City of Miami,
52 F.3d 918, 921 (11th Cir.1995). To preclude summary judgment,
such factual dispute must be both relevant and genuine, i.e.,
material to an issue affecting the outcome of the case and
supported by evidence sufficient for a reasonable jury to return a
verdict in favor of the non-moving party. Id.
Substantive due process challenges to zoning regulations are
analyzed under the rational basis standard. Greenbriar, Ltd. v.
City of Alabaster, 881 F.2d 1570, 1577 (11th Cir.1989). Under this
standard, a zoning decision will be upheld if it has a "rational
relationship with a legitimate general welfare concern." Corn v.
City of Lauderdale Lakes, 997 F.2d 1369, 1388 (11th Cir.1993),
cert. denied, --- U.S. ----, 114 S.Ct. 1400, 128 L.Ed.2d 73 (1994).
Our recent Haves v. City of Miami decision sets out a two-step
procedure determining whether a zoning decision survives such
rational basis scrutiny. 52 F.3d at 921-24. 6 "The first step in
determining whether legislation survives rational-basis scrutiny is
identifying a legitimate government purpose—a goal—which the
enacting government body could have been pursuing." Id. at 921
(emphasis in original). The Town asserts that the Comprehensive
6
Haves involves an equal protection challenge to a zoning
ordinance. However, the rational basis inquiry is the same for
equal protection and substantive due process challenges to
zoning. Grant v. Seminole County, Fla., 817 F.2d 731, 735 (11th
Cir.1987) (analyzing plaintiff's equal protection and due process
challenges to zoning ordinance under same rational basis
standard); see also In re Wood, 866 F.2d 1367, 1371 (11th
Cir.1989) (The standard for evaluating substantive due process
challenges to social and economic legislation, the "rational
basis test," "is virtually identical to the "rational
relationship' test for evaluating equal protection claims.").
Plan and IOZ Regulations reflect its concern with preserving and
establishing an aesthetically-pleasing corridor along Indiantown
Road, and its goal of creating an identifiable, traditional
downtown. It is well settled that the maintenance of community
aesthetics is a legitimate government purpose. Id. at 922-23
(Prevention of "visual intrusions" created by houseboats a
legitimate governmental goal); see also Corn, 997 F.2d at 1387
("[T]he Supreme Court and this court have repeatedly held ...
noise, traffic, congestion, safety, aesthetics, valuation of
adjoining land, and effect on city services ... are rational and
permissible bases for land use restrictions.").
"The second step of rational-basis scrutiny asks whether a
rational basis exists for the enacting government body to believe
that the legislation would further the hypothesized purpose. "The
proper inquiry is concerned with the existence of a conceivably
rational basis, not whether that basis was actually considered by
the legislative body.' " Id. at 922 (quoting Panama City Medical
Diagnostic, Ltd. v. Williams, 13 F.3d 1541, 1547 (11th Cir.)
(emphasis in original), cert. denied, --- U.S. ----, 115 S.Ct. 93,
130 L.Ed.2d 44 (1994)). To further the goal of creating a
traditional main street, the Town sought to encourage retail uses
along Indiantown Road which would serve the everyday needs of
nearby residents, promote pedestrian traffic, and have a character
consistent with the neighboring residential developments. The Town
could have reasonably believed that the purchase of an automobile
is not an everyday need, that the typically large lot of an
automobile dealership might break up the pedestrian flow between
retail establishments, and that such dealerships might disrupt the
planned residential character of the street with bright lights, red
flags and flashy signage. Thus, we readily conclude that the
prohibition of car dealerships could rationally further the Town's
legitimate aesthetic purposes and its goal of creating a
traditional downtown.
As long is there is "plausible, arguable legitimate purpose"
for the application of the IOZ regulations to Maplewood, summary
judgment is appropriate unless Restigouche can demonstrate that the
Town could not possibly have relied on that purpose. Haves, 52
F.3d at 923. Although Restigouche points to several factual
disputes, none of these disputes are material to this issue.
Restigouche's argument, in essence, is that the evidence creates
factual disputes over: (1) whether the Town's aesthetic goals can
be achieved without banning car sales on the Maplewood property;
and (2) whether the IOZ Regulations permit other uses that are just
as aesthetically displeasing, and inconsistent with the other
stated purposes of the Comprehensive Plan, as car dealerships.7
However, that there are other, even more effective, ways to further
the Town's legitimate purpose does not create a material issue as
to whether the chosen method, prohibition of car sales in the
Indiantown Road Corridor, furthers that purpose. Thus, the
7
Restigouche also implies that the facts underlying its
pendent state law estoppel claim are so egregious as to rise to
the level of a constitutional claim. We conclude that
Restigouche's proffered evidence falls far short. For example,
although we have assumed arguendo some sort of vested right,
Restigouche concedes that the zoning regulations at the time of
Restigouche's application required a special exception for
Restigouche's intended use.
magistrate judge did not err in granting summary judgement in favor
of the Town.
V. CONCLUSION
For the foregoing reasons, we affirm the magistrate court's
grant of summary judgment in favor of the Town and against
Restigouche.
AFFIRMED.