Tari v. Collier County

United States Court of Appeals,

Eleventh Circuit.

No. 94-2577.

Mathias L. TARI; Helen A. Tari, Plaintiffs-Appellants,

v.

COLLIER COUNTY; Burt L. Saunders; Max A. Hasse, Jr.; Richard
S. Shanahan; Michael J. Volpe, et al., Defendants-Appellees.

July 10, 1995.

Appeal from the United States District Court for the Middle
District of Florida. (No. 89-246-Civ.Ftm-17D), Elizabeth A.
Kovachevich, Judge.

Before DUBINA, Circuit Judge, RONEY and ESCHBACH*, Senior Circuit
Judges.

ESCHBACH, Senior Circuit Judge:

Mathias Tari and his wife ("Tari") brought this action against

Collier County, the Collier County Commissioners in their official

capacities, and the members of the Collier County Code Enforcement

Board in their official capacities ("the County") for the County's

allegedly unconstitutional determination that the Tari's were

operating a fruit tree nursery on their property in violation of a
1
county zoning ordinance. Tari appeals the district court's

determination that this claim was not ripe for adjudication. We

affirm.

I.

In 1981, Tari opened a wholesale and retail fruit tree nursery

business in Collier County. This operation of a nursery on his

*
Honorable Jesse E. Eschbach, Senior U.S. Circuit Judge for
the Seventh Circuit, sitting by designation.
1
Mr. Tari, as personal representative of his wife's estate,
now represents both interests.
property allegedly violated Collier County Zoning Ordinance 82-2.

On February 19, 1989, Tari received a Notice of Violation from a

Collier County Code Enforcement Investigator after two

investigators had purchased a red rose bush from Tari a few days

earlier. The Notice provided that "[a]ll wholesale and retail

operations must cease at the above location and all signs must be

removed IMMEDIATELY upon receipt of this notice." The Notice went

on to state that "[a]ny person who violates this zoning ordinance

or fails to comply with any of the requirements shall upon

conviction thereof be fined, or imprisoned, or both as provided by

law and in addition shall pay all costs and expenses involved in

the case. Each day such a violation continues shall be considered

a separate offense."2 After consulting with an attorney, Tari

closed down the nursery.

Tari then contacted several individuals within the Zoning

Department to investigate the status of his case and to discuss his

options. Investigator William Smith and Code Enforcement Director

Richard Clark both advised Tari in person and over the phone that

if he did not agree with the investigators' interpretation of the

zoning ordinance, he could have the matter reviewed by Kenneth

Baginski, the Collier County Zoning Director. Tari instead asked

County Commissioner Anne Goodnight to investigate the Notice of

Violation. On March 23, 1989, Tari received a letter from

Assistant County Attorney Brenda Wilson informing him that the

County Attorney's Office was researching his matter to provide a

2
The parties dispute whether there was also a written notice
of Tari's right to appeal attached to the Notice of Violation.
legal opinion to Commissioner Goodnight as to whether Tari was

actually in violation of the zoning ordinance. After a series of

phone conversations with Tari, Wilson sent another letter on June

8, 1989 confirming her explanation to Tari of the County's two

alternative methods of enforcing a zoning violation. According to

the letter, one method of enforcement is to prosecute a zoning

violation in County Court as a misdemeanor. Such prosecution,

however, would not take place "until such time as our opinion is

completed and the State Attorney's Office is directed to proceed."

Wilson further explained that the statement on Tari's Notice of

Violation which indicated that each day the nursery remained in

operation was a separate offense "does not mean that fines are

accruing for each day you operate in violation. It simply means

that each day of violation may be separately investigated and

separately cited within an Information...." A second method of

enforcement, according to Wilson's letter, is to take the zoning

violation before the Code Enforcement Board. "All cases brought

before the Code Enforcement Board are based on evidence of prior

violations, but fines are only assessed prospectively. If a

defendant is found to be in violation, an Order to Comply is

entered and fines only begin to run upon non-compliance after the

date set for compliance by the Board. No fines are assessed

retroactively." On July 6, 1989, Wilson submitted her legal

opinion to Commissioner Goodnight in which she concluded that

Tari's use of the property violated the zoning ordinance. After

the County issued a second Notice of Violation and attempted to

schedule a hearing before the Code Enforcement Board, Tari chose to
file suit against the County in state court on October 10, 1989. 3

In his amended complaint, Tari sought damages and an injunction

prohibiting the County from applying the zoning ordinance to his

property.

On November 7, 1989, the case was removed to federal court.

The county moved to dismiss Count V, which alleged an as applied

arbitrary and capricious due process claim and Count VI, which

alleged a just compensation temporary takings claim, of Tari's

complaint on ripeness grounds. According to the County, it had not

made a final decision regarding the zoning violation when the

notice was issued on February 14, 1989 and therefore the district

court lacked subject matter jurisdiction under Williamson County

Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct.

3108, 87 L.Ed.2d 126 (1985). The district court denied this

motion. At the preliminary pretrial conference held on July 7,

1993, the County again raised the issue of ripeness in a motion for

summary judgment, and the district court referred the matter to a

magistrate judge to conduct an evidentiary hearing on the issue.

On November 3, 1993, the magistrate judge issued a report and

recommendation in which he determined that the complaint was ripe.

The district court rejected the magistrate's recommendation on

February 28, 1994, and dismissed the complaint on the grounds that

Counts V and VI were not ripe for adjudication, and the court thus

lacked jurisdiction over the remaining state law claims. A timely

notice of appeal was filed.

II.

3
Soon after, Tari reopened the nursery.
 The only issue before us concerns the ripeness of Counts V

and VI of Tari's amended complaint. "The question of ripeness

"goes to whether the district court had subject matter

jurisdiction.' " Reahard v. Lee County, 30 F.3d 1412, 1415 (11th

Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1693, 131 L.Ed.2d

557 (1995) (quoting Greenbriar Ltd. v. City of Alabaster, 881 F.2d

1570, 1573 (11th Cir.1989)). Thus, we review the issue de novo.

Id., 30 F.3d at 1415.

In an as applied arbitrary and capricious due process claim,

a plaintiff claims that the application of a zoning regulation to

his property is arbitrary and capricious, does not bear a

substantial relation to the public health, safety, morals or

general welfare, and is therefore an invalid exercise of the police

power. Eide v. Sarasota County, 908 F.2d 716, 721 (11th Cir.1990),

cert. denied, 498 U.S. 1120, 111 S.Ct. 1073, 112 L.Ed.2d 1179

(1991). To remedy such a claim, a court can issue an injunction

preventing the unconstitutional application of the regulation to

the plaintiff's property, as well as award damages to compensate

for the effects of the application. Id. at 722. A just

compensation temporary takings claim, on the other hand, seeks

money damages for the value of the property rights taken by the

application of a regulation. Id. at 720. To establish a violation

of the just compensation clause, a property owner "must demonstrate

that his property was "taken,' i.e., that the regulation "goes too

far,' and that there is no provision to award him just

compensation." Id., (citing McDonald, Sommer & Frates v. Yolo

County, 477 U.S. 340, 348, 106 S.Ct. 2561, 2566, 91 L.Ed.2d 285
(1986)).

For either claim to be considered ripe for adjudication, "the

governmental entity charged with implementing the regulations" must

have reached a "final decision regarding the application of the

regulations to the property at issue." See Williamson County

Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 186, 105

S.Ct. 3108, 3116, 87 L.Ed.2d 126 (1985);4 see Eide, 908 F.2d at

724. A final decision is made when the "initial decisionmaker has

arrived at a definitive position on the issue that inflicts an

actual, concrete injury." Williamson, 473 U.S. at 193, 105 S.Ct.

at 3120. As the Court explained in McDonald, Sommer & Frates in

the context of a just compensation claim, "[a] court cannot

determine whether a regulation has gone "too far' unless it knows

how far the regulation goes." Id., 477 U.S. at 348, 106 S.Ct. at

2566.5 Similarly, in an as applied arbitrary and capricious claim,

"[i]f the authority has not reached a final decision with regard to

the application of the regulation to the landowner's property, the

4
Williamson actually concerned a due process takings claim
rather than an arbitrary and capricious due process claim. The
Court required a final decision so as to ascertain the actual
effect of the regulation on the value of the property. This
rationale does not apply to an as applied arbitrary and
capricious claim. As we explained in Eide, however, a final
decision is also required for an as applied arbitrary and
capricious claim for the alternative reason that we must
determine if the regulation has actually been applied to the
landowner's property. See Eide, 908 F.2d at 724, n. 13.
5
In a just compensation claim, a landowner often must also
have applied for at least one variance to a contested zoning
ordinance because only then could a jury determine whether and to
what extent a landowner was deprived the value of her land.
Reahard, 30 F.3d at 1415. If, however, no final decision has
been made on the application of an ordinance to the property in
the first place, an inquiry into whether the landowner sought a
variance is irrelevant.
landowner cannot assert an as applied challenge to the decision

because, in effect, a decision has not yet been made." Eide, 908

F.2d at 725.6 Of course, requiring a landowner to wait until the

County has made a final decision to apply a zoning ordinance to his

property does not mean that he has to exhaust his administrative

remedies and appeal the final ruling of the initial decisionmaker.

Williamson, 473 U.S. at 193, 105 S.Ct. at 3119; Greenbriar Ltd.,

881 F.2d at 1574 n. 8. If, however, other actors can still

"participate in the [Zoning] Commission's decisionmaking," then a

final decision has not yet been made. Id.

Applying these legal principles to the instant case, it is

apparent that the County had not made a final decision to apply the

zoning ordinance to Tari's property by sending the Notice of

Violation on February 14, 1989. Despite the language in the Notice

which instructed Tari to cease his operations immediately, it was

made obvious to him that the decision of the Code Enforcement

Investigator to send the Notice, much like the decision of a police

officer to make an arrest, was not a final decision to apply the

6
In Eide, this court in dicta also discussed the possibility
that the final decision requirement would be satisfied for an as
applied arbitrary and capricious claim by "a single arbitrary
act." Id., 908 F.2d at 726. This "depends upon the nature of
the claim, which is often revealed by the remedy sought." Id.
Thus, in Eide the court presented the example of a landowner
whose application for commercial zoning was denied at the
preliminary stages because of his red hair. If the remedy sought
was solely the overturning of that arbitrary decision and an
injunction against similar irrational decisions, then the claim
might be considered ripe. If, however, the remedy sought was an
injunction requiring the grant of commercial zoning, then the
claim could not be considered ripe until a final decision had
been made to deny his application for commercial zoning.
 7
zoning ordinance to his property. Smith and Clark both advised

him that the Zoning Director was available to review his case if he

disagreed with the Investigator's interpretation of the zoning

ordinance. Tari ignored this advice. Wilson also told him that

she was preparing a legal opinion for Commissioner Goodnight on

whether Tari's operation of a nursery on his property actually was

a violation of the zoning ordinance. This should have signalled to

him that a final decision had not yet been made. Furthermore,

Wilson informed Tari on the phone and through her June 8, 1989

letter that he would not be subject to any enforcement action until
8
her legal opinion was completed. Wilson testified in her

deposition that she explained to Tari that "he was not prohibited

from operating" during the period in which the County attempted to

reach a final decision. The Notice of Violation, Wilson continued,

"doesn't operate in the nature of an injunction, you must stop as

of this time. If he disagreed with it, then he certainly had the

opportunity to prove that to the Code Enforcement Board." Tari

7
Nor can Tari's as applied arbitrary and capricious due
process claim be considered ripe based upon the "single,
arbitrary act" of sending the Notice of Violation. Rather than
simply requesting an injunction against the issuance of Notices
of Violation in an arbitrary or irrational manner, Tari seeks an
injunction prohibiting the County from applying the zoning
ordinance to his property altogether. Without a final decision
from the County as to whether it considers Tari's operation of
the nursery to be a violation of the zoning ordinance, and, if
so, whether and to what extent it will enforce that violation, we
cannot determine if the zoning ordinance was actually applied to
his property so that the remedy requested would be necessary.
8
Thus, the fact that the Code Enforcement Board may not have
been fully operational until May of 1989 is irrelevant. Until
Wilson concluded her legal opinion in July of 1989 and
recommended that Tari's use of his property be considered a
violation of the ordinance, Tari's case was not ready to be heard
by the Board.
 9
again chose to ignore this information. Although the status of

Tari's property was uncertain during this period, it was not

unreasonable for the County to take some time to investigate the

matter before coming to a final decision.10

Tari protests that these procedures, such as contesting the

violation before the Code Enforcement Board, were at best avenues

of appeal.11 If this were true, one would expect fines to relate

back to the original Notice of Violation on February 14, 1989.

Reversal of the County's decision would relieve Tari of any

penalties, but affirmance would place him in the same position he

was in when the Notice of Violation was issued. A review of the

Code Enforcement Board procedure, as explained to Tari in the June

8, 1989 letter, reveals a much different situation. According to

9
Tari testified at the evidentiary hearing that he did not
reopen his nursery because he "was concerned about the heavy
fines." Yet, Wilson's June 8, 1989 letter assured Tari that no
fines were accruing, and that the Code Enforcement Board would
only assess fines prospectively for violations occurring after it
had made its decision that a violation did indeed exist.
10
Thus, Tari's decision to shut down his nursery in the face
of the Notice of Violation cannot convert this matter into a ripe
claim. "[I]n the context of takings cases, courts have held that
a short term delay in the development or use of property is not
unreasonable" Kawaoka v. City of Arroyo Grande, 17 F.3d 1227,
1223 (9th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 193, 130
L.Ed.2d 125 (1994). See Agins v. Tiburon, 447 U.S. 255, 263 n.
9, 100 S.Ct. 2138, 2143 n. 9, 65 L.Ed.2d 106 (1980) ("Mere
fluctuations in value during the process of governmental
decisionmaking, absent extraordinary delay, are "incidents of
ownership.' ").
11
Apparently, Tari never really considered taking his case
before the Code Enforcement Board in the first place. "Mr. Tari
told me several times that he did not intend to go before the
Code Enforcement Board because the Code Enforcement Board had no
authority over him, that it was improperly created; that it was
beyond their scope; and ... that he would go into court; that
he would litigate this." (Wilson Deposition at 25).
Wilson, "fines are only assessed prospectively," even though cases

are based on evidence of prior violations. "If a defendant is

found to be in violation, an Order to Comply is entered and fines

only begin to run upon non-compliance after the date set for

compliance by the Board." The Code Enforcement Board, therefore,

had the power to actually decide in the first instance whether a

landowner had violated a zoning ordinance. It functioned as the

initial decisionmaker on any zoning matter which came before it.

Despite the strong language in the Notice of Violation
instructing Tari to shut down his nursery, we cannot conclude that

this Notice constituted a final decision by the County.12 "Zoning

provides one of the firmest and most basic of the rights of local

control." 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).

Under the circumstances of this case, if a local investigator's

issuance of a citation was all that was necessary for a claim to

12
Tari's just compensation claim is not ripe for the
additional reason that he failed to satisfy the second hurdle
outlined in Williamson and pursue an inverse condemnation claim
in state court. Id., 473 U.S. at 194, 105 S.Ct. at 3120. In
First English Evangelical Lutheran Church v. County of Los
Angeles, 482 U.S. 304, 319, 107 S.Ct. 2378, 2388, 96 L.Ed.2d 250
(1987), the Court held that a state must provide just
compensation where a land regulation temporarily deprives a
landowner of the value of his property. To the extent that there
was some confusion in Florida courts as to whether such a remedy
existed before Joint Ventures, Inc. v. Department of Transp., 563
So.2d 622, 624 (Fla.1990), see Reahard, 30 F.3d at 1417, this
court "has held that a Florida property owner must pursue a
reverse condemnation remedy in state court before his federal
takings claim will be ripe, even where that remedy was recognized
after the alleged taking occurred." Id., (citing Executive 100,
Inc. v. Martin County, 922 F.2d 1536, 1542 (11th Cir.1991), cert.
denied, 502 U.S. 810, 112 S.Ct. 55, 116 L.Ed.2d 32 (1991)). In
any event, the question should have been resolved by First
English, which was issued long before the alleged taking in this
case.
ripen, the federal courts would become "master zoning boards" in

disputes which are best handled at the local level. The

governmental entity charged with implementing the zoning ordinances

must be given an opportunity to make a final decision as to whether

to apply an ordinance to a landowner's property before the

landowner can complain of that decision in a federal forum.

III.

For the above reasons, the judgment of the district court is

AFFIRMED.