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.