42 USC 1983 & Ripeness

Lecture Series 4

John Keller – Plan 752 Planning Law

Intent of 42 USC 1983• Title 42 USC 1983 provides in relevant part: 

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State of Territory or the District of Columbia, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof, to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit inequity, or other proper proceeding for redress. ...

George Thomas v West Haven

A Comedy in 4 ActsHe’s a Shrewdy

George and Company• THE PLAYERS

– George Thomas – the applicant– Lewis – chair/vice chair of the Planning

Commission– Saldibar – chair/vice chair of the Planning

Commission– Alzelio Guerra – the mayor– Roark – the planner– The Planning Commission – as themselves

Act One• In 1980 Thomas applies to rezone an older building

for use as an amusement• Lewis, the chair, objects to the video arcade noting

that there would be a pool hall and that was enough• Lewis is highly upset by the application but it

eventually wins approval• The center runs for four years and is then closed by

Thomas• Thomas attempts to lease the property for two years

but is unsuccessful

Act Two• In 1986 Thomas applies for rezoning to permit

condominiums and R-5 district• Saldibar is now the chair and Lewis the vice chair• Lewis objects to the hearing because the applicant

did not bring a site plan• Roark points out that a site plan is not needed for a

rezoning• Saldibar again objects that the hearing should be

dismissed because there is not a site plan

Act Two – Scene Two• Lewis notes that the property is a failure. He

says that they gave everything the first time and now he comes back with this shit

• He’s a Shrewdy• After harping about the site plan again Lewis

moves to deny the application with prejudice

Intermission• Thomas sues in district court and wins a new

hearing. The trial judge notes that the planning commission and governing body failed to give Thomas a fair and impartial hearing

Act Three – Scene One• After the plaintiffs' application was called, but prior to

its presentation, Mayor Azelio M. Guerra addresses the commission to remind them of a certain moratorium that recently had been passed

• The moratorium, which had been adopted on August 28,1986, to be effective September 15, 1986, prohibited, for a certain period of time, the granting of zone change requests that would result in changes to R‑5, along with several other zones.

Act Three – Scene Two• The plaintiffs' attorney, Dennis Garvey, was the first to speak.

In light of the decision "[finding] that two of the commissioners who are sitting tonight had predetermined the outcome of the hearing and the reason for the reversal was because of their vote," Garvey requested that alternates be appointed for Lewis and Saldibar.

• Saldibar replied: "Your request is considered and denied." After Lewis expressed his fear that the plaintiffs "could take [them] to court again and [that they would] lose," they sought the advice of the counsel, who recommended that alternates be appointed."

Act Three• At the rehearing Lewis and Saldibar

disqualify themselves but continue to participate in the meeting

• The planning commission again denies the request and is upheld by the governing body

• Thomas goes back to court

The Final Act• The district court finds that:

– The tapes of the hearing indicate that Lewis and Saldibar had an attitude of animosity and disdain for Thomas

– The planning commission acted with malice in considering the applications of Thomas

– On appeal (final) the court returns the matter to the trial court for a hearing on damages after a ruling that Thomas had been denied his constitution rights under the 14th Amendment right to “equal protection”

GJR Investments v County of Escambia FL• Appellee GJR Investments, Inc. is a Texas

corporation that is the owner,of certain real property on Perdido Key in Escambia County, Florida. The property is located in an area designated by Escambia County Ordinance Code (the "Code") 89-6 as a commercial "C-1" zoning district. GJR sought to develop the property as an RV campground despite strident opposition from the residents of Perdido Key

The Maneuvers• In October 1992 GJR filed its first application to

develop the property as a campground. On the advice of the staff of the Escambia County Department of Growth Management Services that the proposed campground was not a "permitted use" in a C-1 district, GJR applied to develop the property as a special exception and planned use development ("PUD"). GJR withdrew its application in December of 1992, upon further advice from the Growth Management Services staff that the application still did not comply with the Code

The Second Application• In May 1993 GJR submitted a second application, this time to

develop the campground as an amusement/recreational facility and a PUD

• The Escambia County Zoning Board of Adjustment denied this application, and GJR appealed to the Escambia County Board of County Commissioners, which affirmed the decision. GJR subsequently appealed the county commissioners' decision to the Florida state courts.

The Third Application• While its appeal was pending, GJR filed a third application, this

time for permission to develop the campground as a permitted use under the Code

• This application also was denied. • GJR files a suit for declaratory judgment, asking the Florida

courts to declare that development of the property as a campground is a permitted use under the Code

• In March 1994, the parties settled the dispute regarding the permit: The county agreed to approve a fourth application from GJR to develop the property as a campground as a permitted use, and in return GJR dismissed both of its pending state lawsuits

And, The Players

• Kenney is an assistant to W.A. "Buck" Lee, an Escambia County Commissioner. Kenney is a resident of Perdido Key who opposed the construction of the campground and was involved in a citizens' group organized to oppose the project GJR Kenney attended a Growth Management Services staff meeting pertaining to GJR's second application, even though attendance at such a meeting does not fall within Kenney's job responsibilities and she had never previously been invited to attend one.

And, Old Buck Lee• Defendant Lee is an Escambia County Commissioner. Lee

neither represented nor resided on Perdido Key, but he spoke out against the project at the Zoning Board hearing on GJR's second application despite the fact that as a county commissioner he would hear any appeal of the Zoning Board's decision

• GJR also alleges that Lee distributed numerous letters from Perdido Key residents opposed to the project to his fellow county commissioners, and only recused himself from the appeal proceeding at GJR's objection

Mr. Wiley C Page• Page is the director and supervisor of the Escambia County

Department of Growth Management Services ("GMS")• GJR alleges that before the submission of its first application

for development Page directed the GMS staff to misrepresent the development requirements for a C-1 district and to inform GJR that it could develop a campground on the property only as a special exception and PUD, not as a permitted use

• GJR also alleges that in response to the significant public outcry against the project, Page directed the GMS staff to review GJR's first application more strictly than other development applications filed in Escambia County

Lisa Minshew• Minshew is an attorney retained by Escambia County for land use

matters• GJR alleges that Minshew initially advised the GMS staff to reject

GJR's application, stating that GJR was an "out-of-state developer" and noting the Perdido Key residents' considerable hostility to the project

• GJR contends that Minshew gave the GMS staff erroneous and misleading instructions regarding the prerequisites for approval of GJR's petition. Further, GJR says it was "standard procedure" to submit incomplete permit applications to the Zoning Board for approval, but Minshew advised the GMS staff not to do so with GJR's incomplete permit application.

GJR Files A shotgun Complaint

• The County Does not have qualified immunity• Conspiracy of the players• Treated unfairly compared to other developers

Appeals Court Rules• At oral argument, counsel for GJR stated that the

events surrounding GJR's attempts to build an RV park on Perdido Key represented the most egregious abuse of zoning law he had seen in his 30-year career. Whether or not that is so, the allegations of this complaint entitle GJR to no relief against these individual defendants.

So Why No Relief?• GJR has a score of allegations and haphazardly

inserts them into the argument as “Constitutional Rights”

• GJR claims it has a right to be free from the abuses of government that are worthy of protection – but does not identify which section of the Constitution they refer to

• In other words, it’s a quick and dirty GIGO type of brief – cast the net and hope you catch something in it

What The Court Saw

Of Butterflies and Buckwheat

Del Monte Dunes• Section 1983 action for an

uncompensated taking• 37 acres of oceanfront located on an old

fuel tank farm• Zoned for HD Residential and would

permit 1,000 units at full density• In 1981 The developer submits a site

plan to develop 344 units

The First Hearing

The First Few Rounds• Planning Commission rejects and says it

would favor 264 units• Late 1983 the developer returns with a plan

for 264 units but once again is rejected and the request is now for 224 units

• Developer returns with a plan for 224 units and is rejected and the request is now for 190 units (late 1984)

The Developer Is Angry

And Then Along Came• In the continuing review concern is shown over

Smith’s Blue Butterfly and the Dune Buckwheat• SBB lives for one week, flies 200 feet, and must land

on a mature Buckwheat stalk• NO SBB found on this site after four years of

searching - limited Buckwheat is found in the “bowl”

The SBB Itself

The Next Hearing The Charge of the Light Brigade

Into the Valley of Death Rode the 500

Nevertheless

• Developer devotes 17.9 acres to open space• Uses 190 units on only 5.1 of the 37.6 acres• BUT, concern over the adjacent public beach,

SBB and the Buckwheat cause the Planning Commission to reject the proposal

Sorrow And Anger

• After five years, five rejected proposals and 19 different site plans the developer sues for relief as an uncompensated taking

• Developer argues that the final outcome was to force all development into the bowl – this contained the sensitive buckwheat stands

A Jury Trial• Case is dismissed by the District Court but

reversed by the Appeal Ct. and returned for re-hearing

• District Court grants JURY trial – How could the City ask for 2/3 of the tract to be set aside for literally public purposes and then turn around and deny the application because of the outcome of its own actions?

The Outcome• Jury finds for Del Monte Dunes on taking and

equal protection• Jury awards 1.45 million - 1994• Appeals Court affirms – 1996• U.S. Supreme Court affirms in May of 1999

by smelling a rat

The Developer’s Attitude

The City’s Attitude

But Who Is Laughing Out Loud?

Current View – Del Monte Dunes