Del-A-Rae, Inc. v. Effingham County et al

Filing 33

ORDER directing parties on issues to be addressed at the scheduled hearing on Defendants' motion for summary judgment for 11:00 a.m. on August 31, 2016. Signed by Judge J. Randal Hall on 08/25/2016. (thb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION

DEL-A-RAE,

Plaintiff,

*

v.

*
EFFINGHAM COUNTY

and

EFFINGHAM COUNTY

BOARD OF

CV 415-259

*
*

COMMISSONERS,
Defendants,

ORDER

The Court has a scheduled hearing on Defendants' motion for

summary judgment for 11:00 a.m. on August 31, 2016.
While

the

parties

raised in the

motion,

hearing argument
Accordingly,

should

the

on

the

be

prepared

Court

Plaintiff's

parties

should

to

discuss

is particularly

(Doc. 32.)
all

interested in

procedural-due-process
be

prepared

matters

to

claim.

thoroughly

address the issues outlined below.

Defendants maintain that Plaintiff's procedural-due-process

claim fails because adequate state-law remedies exist.

A pre-

deprivation hearing is not required when holding such a hearing

would be impracticable.

(11th Cir.

1994).

McKinney v.

In general,

Pate,

20 F.3d 1550,

1562

a pre-deprivation hearing is

impracticable when the deprivation of property is the result of
an intentional

these

or

negligent

situations,

unauthorized,

the

deprivation.

deprivation

see Parratt v.

Id.

at

1562-63.

In

and

is

random

451

Taylor,

typically
U.S.

541

527,

(1981),

and post-deprivation remedies will often provide all the process
an

aggrieved

violation

party

has

not

is

due

occurred

because
until

a

the

procedural-due-process
state

"'refuses

available a means to remedy the deprivation."
at

1563.

When,

however,

the state actor

an established state procedure,

and

post-deprivation

due

See

Rittenhouse

1455

(11th Cir.

In

this

McKinney,

make

20 F.3d

acting pursuant to

a pre-deprivation hearing is not

impracticable,
process.

is

to

v.

remedies

DeKalb

will

Cty.,

not

764

satisfy

F.2d

1451,

1985).

case,

Plaintiff takes

the

position

County established a procedure under which

that

Effingham

it added conditions

to approved rezoning applications without notice and opportunity
to

be

heard

on

the

conditions.

Neither

party,

however,

references O.C.G.A. § 36-66-4, which provides in relevant part:

(a) A local government taking action resulting in a
zoning decision shall provide for a hearing on the
proposed action. At least 15 but not more than 45 days
prior to the date of the hearing, the local government
shall

cause

to

be

published

within

a

newspaper

of

general circulation within the territorial boundaries
of the local government a notice of the hearing. The
notice shall state the time, place, and purpose of the
hearing.

O.C.G.A.

§ 36-66-4.

Procedures Law,
state policy'

"The

express

purpose

§ 36-66-1 et seq. ] is

O.C.G.A.

minimum procedural safeguards

of

[the

Zoning

xto establish as

*to assure that due

process is afforded to the general public when local governments
regulate the uses of property through the exercise of the zoning
power.'"

94

(Ga.

City of Roswell v.

2001)

(Carley,

J.,

Outdoor Sys.,

dissenting)

Inc.,

549 S.E.2d 90,

(quoting

O.C.G.A.

§ 36-

66-2(a)) .

The

parties

Defendants'
were,

the

renders
or

actions
parties

should
were

be
in

should

whether

Defendants'

state

construed

illustrative

as

and the parties

discuss

of

state

prepared

to

address

for

procedure."

of

policy

This

exhaustive

are expected to

whether

law.

If

they

whether

that

procedural-due-process

alleged

"established

to

violation

be

them "unauthorized"

prepared

was

Order

purposes

nonetheless

an

should

be

research

or

not

analysis,

conduct their own research and

analysis in preparation for next week's hearing.

ORDER ENTERED
Augusta,

at

Augusta,

Georgia

this^ z2u^J daY

2016,

HONOR^BE&^J. RANZ)AL HALL
UNITEDBTATES
SOUTHERN

DISTRICT

DISTRICT

JUDGE

OF GEORGIA

of