South Grand View Development Company Inc v. Alabaster, City of, The

Filing 58

MEMORANDUM OPINION AND ORDER - For the reasons stated above, the Court DENIES the parties motions for summary judgment. (Docs. 46, 48). The Court SETS SGVs Fifth Amendment takings claim for a pretrial conference on Tuesday, September 20, 2017 at 10:00 a.m. in chambers of the undersigned, Room 786, Hugo L. Black United States Courthouse, 1729 5th Avenue North, Birmingham, AL 35203. The Court SETS the case for trial on October 16, 2017. Signed by Judge Madeline Hughes Haikala on 8/28/2017. (KEK)

FILED
2017 Aug-28 AM 09:05
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SOUTH GRANDE VIEW
DEVELOPMENT COMPANY,
INC.,
Plaintiff,
v.
THE CITY OF ALABASTER,
Defendant.

}
}
}
}
}
}
}
}
}
}
}

Case No.: 2:13-cv-02183-MHH

MEMORANDUM OPINION AND ORDER
Before the Court are cross-motions for summary judgment relating to
plaintiff South Grande View Development Company, Inc.’s claim against the City
of Alabaster for unlawful regulatory taking in violation of the Fifth Amendment to
the United States Constitution. (Docs. 46, 48).1 For the reasons stated below, the
Court denies the motions for summary judgment.
I.

SUMMARY JUDGMENT STANDARD
“The court shall grant summary judgment if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” FED. R. CIV. P. 56(a). To demonstrate that there is a genuine
1

The Court has already dismissed South Grande View’s claims for denial of substantive and
procedural due process. (Docs. 21, 28; see Doc. 1, pp. 5–7).

dispute as to a material fact that precludes summary judgment, a party opposing a
motion for summary judgment must cite “to particular parts of materials in the
record, including depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials.” FED. R. CIV.
P. 56(c)(1)(A). “The court need consider only the cited materials, but it may
consider other materials in the record.”

FED. R. CIV. P. 56(c)(3).

When

considering a summary judgment motion, the Court must view the evidence in the
record in the light most favorable to the non-moving party and draw reasonable
inferences in favor of the non-moving party. White v. Beltram Edge Tool Supply,
Inc., 789 F.3d 1188, 1191 (11th Cir. 2015).
“In practice, cross motions for summary judgment may be probative of the
nonexistence of a factual dispute, but this procedural posture does not
automatically empower the court to dispense with the determination whether
questions of material fact exist.” Ga. State Conference of NAACP v. Fayette Cty.
Bd. of Comm’rs, 775 F.3d 1336, 1345 (11th Cir. 2015) (quoting Lac Courte
Oreilles Band of Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341, 349 (7th
Cir. 1983)) (internal quotation marks and brackets omitted).

“If both parties

proceed on the same legal theory and rely on the same material facts . . . the case is
ripe for summary judgment.” NAACP, 775 F.3d at 1345 (quoting Shook v. United
2

States, 713 F.2d 662, 665 (11th Cir. 1983)) (internal quotation marks omitted)
(alteration supplied by NAACP).
II.

BACKGROUND
South Grande View Development Company, Inc.—SGV in this opinion— is

a real estate development company. (Doc. 46, p. 2). In 1994, SGV bought
approximately 140 acres of land in the City of Alabaster for $1.65 million. (Doc.
46, p. 3; Doc. 49, p. 3). When SGV purchased the land, the portion of the land at
issue in this lawsuit was zoned for a mixture of single-family residences (“R-2”),
garden homes (“R-4”), and townhomes (“R-7”). (Doc. 46, p. 4; Doc. 49, p. 3).
Lots zoned R-2 must be 15,000 square feet, and lots zoned R-4 must be 7,000
square feet. (Doc. 47-1, p. 16). With the exception of the portions of SGV’s
property that were zoned R-2 when SGV purchased the land, SGV intended to
develop the land for R-4 lots. (Doc. 46-13, pp. 35–36; Doc. 46, p. 4 n. 4).
Between 2005 and 2007, SGV spent approximately $3.5 million clearing
and grading the property for the development of R-4 lots. (Doc. 46, pp. 3, 6–7; see
Doc. 49, p. 3). The parties dispute whether the grading that SGV performed for the
development of R-4 lots could also support R-2 lots. (Doc. 56, p. 3; Doc. 57, p. 9).
SGV intended to sell the R-4 lots for approximately $35,000.00 each. (Doc. 46, p.
7; Doc. 46-14, p. 18). On December 5, 2011, the city re-zoned SGV’s property for
R-2 lots only. (Doc. 46, p. 11; Doc. 49, p. 4). SGV’s owner, Concetta Givianpour,
3

testified that the property is not topographically suitable for a residential
development of R-2 lots and that, even if it were, there is no market for R-2 lots in
Alabaster. (See Doc. 46-13, pp. 32–33; Doc. 46-14, pp. 2–3). As a result, SGV
contends that the re-zoning constitutes a taking under the Fifth Amendment for
which the City of Alabaster must compensate SGV.
III.

DISCUSSION
The Fifth Amendment prohibits the federal government from taking private

property “for public use, without just compensation.” U.S. CONST. amend. V.
States are subject to the same prohibition by virtue of the Fourteenth Amendment.
See Busse v. Lee Cty., Fla., 317 Fed. Appx. 968, 971 (11th Cir. 2009). In addition
to outright takings of private property, a land regulation that goes “too far” may
violate the Fifth Amendment as a regulatory taking. See, e.g., Pa. Coal Co. v.
Mahon, 260 U.S. 393, 415 (1922) (“[W]hile property may be regulated to a certain
extent, if regulation goes too far it will be recognized as a taking.”).
Regulations that cause permanent physical invasions or completely destroy a
property’s economic value are per se takings, requiring just compensation. See
Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1016 (1992) (a taking occurs when
a “regulation denies all economically beneficial or productive use of land”);
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435–40 (1982)
(holding that permanent, physical invasions of land constitute takings); see also
4

Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 538 (2005) (discussing the two
categories of per se takings). For other land-use regulations, the Supreme Court
has prescribed a collection of ad hoc factors that lower courts must evaluate to
determine if a regulation constitutes a taking. Penn Central Transp. Co. v. City of
New York, 438 U.S. 104, 124 (1978). “The Penn Central factors . . . have served
as the principal guidelines for resolving regulatory takings claims[.]” Lingle, 544
U.S. at 539.
The Penn Central factors require courts to analyze primarily “[t]he
economic impact of the regulation on the claimant, . . . the extent to which the
regulation has interfered with distinct investment-backed expectations[, and] the
character of the governmental action.” Penn Central, 438 U.S. at 124; see also M
& N Materials, Inc. v. Town of Gurley, Ala., 2014 WL 2590473 (N.D. Ala. June
10, 2014) (denying the town’s motion to dismiss because the plaintiff asserted a
valid claim under the Penn Central framework).
SGV concedes that no taking has occurred under Lucas because SGV
retained some economically beneficial use of its land after the city’s re-zoning.
(Doc. 56, pp. 4–5). 2 Thus, for SGV’s takings claim to survive the city’s motion for
summary judgment, the record must reveal a genuine dispute of material fact

2

It is also undisputed that no taking has occurred under Loretto because the city has not
physically invaded SGV’s property. See pp. 4–5, above.
5

regarding whether a taking has occurred under Penn Central. The Court finds such
a dispute in the record.
SGV has presented evidence that the re-zoning had a detrimental economic
impact on its property. Ms. Givianpour testified that the re-zoning rendered the
property valueless because, although she could spend money to develop the
property to conform to the new zoning, “no one [would] buy it.” (Doc. 46-14, pp.
2–3; see also Doc. 46-13, pp. 31–34). SGV also has presented evidence that it
spent money clearing and grading the property in anticipation of the development
of 7,000-square-foot, R-4 lots.

SGV expected to sell the R-4 lots for

approximately $35,000 each. (Doc. 46-14, p. 18; Doc. 56, p. 6). After the rezoning, the lots must be 15,000 square feet. (See Doc. 47-1, p. 16). Even if, as the
city contends, SGV could have developed 15,000-square-foot lots without regrading the property, SGV would have had to raise the price per lot to $90,000 to
reflect the increased size. (Doc. 46-14, p. 3; see Doc. 57, p. 9). Ms. Givianpour
testified that there was no market for $90,000, 15,000-square-foot lots in Alabaster.
(See Doc. 46-14, pp. 2–3, 25–26, 29; Doc. 57, pp. 12–13).
The record contains evidence that contradicts Ms. Givianpour’s testimony
that the re-zoning significantly interfered with SGV’s investment-backed
expectations in the property. Former Alabaster city councilman and Planning and
Zoning Board member Tommy Ryals testified that the work SGV performed in
6

grading the property for R-4 lots “would still be usable and easily converted to an
R-2 classification.” (Doc. 46-11, pp. 25–26). Former Alabaster city planner Harry
Still testified that R-4 and R-7 zoning were inconsistent with the established
developments surrounding SGV’s property. (Doc. 47-6, pp. 17–18). Mr. Still’s
testimony suggests that a market exists in Alabaster for R-2 lots.
The city argues that the Court should enter judgment in its favor because
SGV’s evidence is not sufficient to create a genuine dispute of material fact
regarding the economic impact of the re-zoning on SGV and the extent to which
the re-zoning interfered with SGV’s reasonable investment-backed expectations in
its property. According to the city, SGV’s position suffers from a “complete lack
of evidence” because SGV relies on Ms. Givianpour’s testimony with respect to its
contentions that the property is topographically and demographically ill-suited to
R-2 lots. (Doc. 57, p. 12; see Doc. 46-13, pp. 32–34). The city contends that, in
the absence of “actual engineering evidence” and “any type of marketing analysis,”
SGV’s Penn Central argument fails. (Doc. 57, pp. 12–13).
Neither party has presented expert evidence in this case in support of its
motion for summary judgment. 3 The fact witness testimony conflicts and creates a
question of fact for the jury. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986) (“Credibility determinations, the weighing of the evidence, and the
3

The record does not indicate that SGV has designated Mr. Ryals or Mr. Still as experts in this
case.
7

drawing of legitimate inferences from the facts are jury functions, not those of a
judge.”).

At the summary judgment stage, Ms. Givianpour’s testimony is

sufficient to create a factual dispute regarding the economic impact of the rezoning on SGV and the extent to which the re-zoning interfered with SGV’s
reasonable investment-backed expectations in its property. Therefore, the Court
declines to determine as a matter of law whether the re-zoning constitutes a taking
under the Fifth Amendment; that is a question of fact for a jury.
IV.

CONCLUSION
For the reasons stated above, the Court DENIES the parties’ motions for

summary judgment. (Docs. 46, 48). The Court SETS SGV’s Fifth Amendment
takings claim for a pretrial conference on Tuesday, September 20, 2017 at 10:00
a.m. in chambers of the undersigned, Room 786, Hugo L. Black United States
Courthouse, 1729 5th Avenue North, Birmingham, AL 35203. The Court SETS the
case for trial on October 16, 2017.
DONE and ORDERED this August 28, 2017.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

8