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

Filing 36

ORDER granting in part and denying in part 14 Motion for Summary Judgment. Defendant Effingham County Board of Commissioners is Dismissed from this action. Plaintiff's procedural-due-process claim will proceed to trial. Signed by Judge J. Randal Hall on 9/21/16. (cmr)

IN THE UNITED
FOR THE

STATES DISTRICT

COURT

SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION

*

DEL-A-RAE,

*

Plaintiff,
v.

*
EFFINGHAM COUNTY

and

BOARD OF

415-259

*

EFFINGHAM COUNTY

CV

*

COMMISSONERS,

*

Defendants.

*

ORDER

Currently

before

summary judgment.

the

(Doc.

Court

14.)

is

Defendants'

motion

for

After careful consideration and

the benefit of oral argument,

the motion is GRANTED in part and

DENIED in part.

I.

This

property

case

in

arises

Effingham

out

Background

of

County.

Plaintiff's

In 2003,

attempt

Plaintiff

to

rezone

Del-A-Rae,

Inc. purchased over 700 acres in Effingham County, and Plaintiff
sold 118

acres

the property,

of that tract in 2004.

it was zoned AR-1,

five acres or more.

Eventually,

When

Plaintiff purchased

which restricted lot sizes to
Plaintiff sought to rezone its

property

because

it

planned

to

develop

a

350-lot

subdivision.

This plan included lots as small as a quarter of an acre.
Under

Effingham

Plaintiff's

County

rezoning request,

went before the County's
recommend

policy

to

the

Board

in

place

the

time

of

an application for rezoning first

zoning board.
of

at

The

Commissioners

zoning board would

("the

the application should be granted or denied.

Board")

whether

In this case,

the

zoning board recommended granting Plaintiff's application.
Once

the

zoning

board

application was presented

made

its

recommendation,

the

to the Board for a "first reading."

According to policy, a first reading was a public hearing on the
matter

where

the

Board

heard

argument

opposition to a proposed rezoning.
first reading,

in

support

of

and

At the conclusion of the

the Board voted to either approve the rezoning

(with or without

conditions)

or deny the rezoning.

This vote,

however, was not a final decision on an application.

The Board

did

reading,"

not

issue

its

final

decision

until

the

"second

which occurred at the next meeting.

The

County

commissioners

and

implemented
their

staff

this

process

could

ensure

so
all

that

the

intended

conditions and stipulations would be a part of a rezoning.

This

process involved adding conditions that were not referenced in
the motion to approve at the first reading.

Applicants, though

they were aware that a second reading would take place, were not

notified of added conditions and were not afforded a hearing on
the

new

conditions.

Rather,

at

the

second

reading,

the

Board

would vote on the final versions of rezonings — often through a

consent

agenda

—

without

discussion

from

the

applicant

or

the

public.

In this case,

Plaintiff's application was presented to the

Board for a first

reading on June

the

from

Board

heard

Plaintiff's

planned

development

and

from

concerns

the development created.

19, 2007.

At

that meeting,

representatives

members

of

the

about

public

a

forty-foot

buffer

for

about

At the end of the hearing,

one of the commissioners moved to approve the rezoning,

to

the

future

development.

conditions were mentioned in the motion,

subject

No

other

and the Board approved

the motion.

Between the first and second readings,
members

added

nine

conditions.

Notably,

the Board and staff
these

new

conditions

included a half-acre lot-size restriction and prevented certain

road access.

2007,

At the second reading, which was held on July 17,

the Board approved the rezoning with the new conditions

through a consent agenda.

Upon

learning about

the

additional

conditions,

Plaintiff

appealed the decision to the Superior Court of Effingham County.

Although the record on the issue is not entirely clear,

proceeding was

apparently stayed because

Plaintiff

this

filed for

bankruptcy.
its

On March 31, 2015,

state-court

September 25,

42

U.S.C.

complaint,

2015.

§ 1983

Plaintiff voluntarily dismissed

and

Plaintiff's

and alleges

initiated
complaint

that

its procedural-due-process rights,

process

rights,

constituted

a

fees under 42

taking.
U.S.C.

judgment on all
its

violated
It

its

claims.

asserts

Defendants'

claims

actions

violated its

asserts

Defendants

In response,

substantive-due-process

lawsuit

and

a

Accordingly,

Plaintiff's

under

violated

rights,

claim for

and

attorneys'

have moved for summary

Plaintiff

takings

has

abandoned

claims.

It

conceded that Effingham County is the proper Defendant
case.

on

substantive-due-

equal-protection

also

§ 1988.

this

also

in this

the only issues before the Court are whether

procedural-due-process

and

equal-protection

claims

against the County survive summary judgment.

II.

Summary

genuine

judgment

dispute

as

is

Legal Standard

appropriate

to any

material

only

fact

if

and the

entitled to judgment as a matter of law."
56(a).
the

"there

Fed.

is

no

movant

is

R.

Civ.

P.

Facts are "material" if they could affect the outcome of

suit

under

Liberty Lobby,

view the facts

the

Inc.,

governing

substantive

477 U.S. 242,

248

law.

(1986).

Anderson

v.

The Court must

in the light most favorable to the non-moving

party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S.
in

574,
[its]

941

587

(1986),

favor."

F.2d

and must draw "all justifiable inferences

United

1428,

1437

States

(11th

v.

Four

Cir.

Parcels

1991)

(en

of

Real

banc)

Prop.,

(internal

punctuation and citations omitted).

The

Court,

moving

by

motion.

How

party

reference
Celotex

to

carry

Corp.

this

proof at trial.
1115

to

has

the

initial

materials
v.

burden

Catrett,

depends

Fitzpatrick v.

(11th Cir.

1993) .

on

burden

file,
477

the

U.S.

on who

of

showing

basis

317,

bears

323

the

City of Atlanta,

for

the

the

(1986).

burden

of

2 F.3d 1112,

When the non-movant has the burden of

proof at trial, the movant may carry the initial burden in one
of two ways —

by negating an essential

element of the non-

movant1 s case or by showing that there is no evidence to prove a

fact necessary to the non-movant's case.

Clark,

Inc.,

Adickes

Corp.

v.

v.

929 F.2d 604,
S.H.

Kress

Catrett,

606-08

& Co.,

477 U.S.

398

317

See Clark v.

(11th Cir.
U.S.

144

(1986)).

1991)

(explaining

(1970)

and Celotex

Before the Court can

evaluate the non-movant's response in opposition,
consider

whether

the

movant

has

met

Coats &

its

it must first

initial

burden

of

showing that there are no genuine issues of material fact and
that it is entitled to judgment as a matter of law.

City

of Columbus,

curiam).

120

F.3d

248,

254

(11th

Cir.

Jones v.

1997)

(per

A mere conclusory statement that the non-movant cannot

meet the burden at trial is insufficient.

Clark,

929 F.2d at

608.

If —

the

and only if —

non-movant

"demonstrat[ing]
that

may

that

precludes

the movant

avoid

there

summary

is

carries

summary

response

to

the

judgment."

initial burden.

method

If the

negating

a

material

evidence

sufficient

to

by

judgment

Id.

When

the

presents

the

a

issue
the

movant

evidence

non-movant

withstand

"must

directed

material fact,

of

by

fact

non-movant

carried

its

affirmatively

respond

verdict

trial on the material fact sought to be negated."
2 F.3d at 1116.

only

the non-movant must tailor

which

movant

fact,

initial burden,

indeed a material

bears the burden of proof at trial,

its

its

with

motion

at

Fitzpatrick,

If the movant shows an absence of evidence on a

the non-movant must either show that the record

contains evidence that was "overlooked or ignored" by the movant
or

"come

withstand

forward

a

with

directed

additional

verdict

motion

alleged evidentiary deficiency."

cannot

carry

repeating

burden

conclusory

See Morris v.

Rather,

its

the

Ross,

at

trial

on the

contained

663 F.2d 1032,

must

sufficient

Id^ at 1117.

by relying

allegations

non-movant

evidence

1033-34

respond

with

based

on

to

the

The non-movant

pleadings

in

the

or by

complaint.

(11th Cir.

1981).

affidavits

or

as

otherwise provided by Federal Rule of Civil Procedure 56.
In this

action,

the Clerk of the

Court

gave

Plaintiff

notice of the motion for summary judgment and informed it of the

summary-judgment

rules,

the

materials in opposition,
15.)

Therefore,

Wainwright,

The

the

time

to

file

affidavits

or

other

and the consequences of default.
notice

772 F.2d 822,

satisfied.

right

825

for

requirements

(11th Cir.

filing

of

(Doc.

materials

v.

(per curiam),

1985)

Griffith

are

in

opposition

has

expired, and the motion is now ripe for consideration.

Ill.

Discussion

The County maintains that Plaintiff's

the

claims are barred by

statute

fail

of

limitations

and

that

they

on

the

merits.

The Court addresses these arguments separately below.

1. The County's statute-of-limitations argument fails because
Plaintiff s
state-court
complaint
adequately pleaded
the
claims brought in this case.

As noted above, Plaintiff originally brought this action in

the Superior Court of Effingham County as its appeal
Board's

zoning decision.

action

in

claims

are

March

2015.

time-barred

Plaintiff voluntarily dismissed that
The

(11th

Cir.

1996)

County

because

year statute of limitations.
560

they

contends
are

(applying

Georgia's

O.C.G.A. § 9-2-61,

Plaintiff's

§ 1983's

See Rozar v. Mullis,

two-

85 F.3d 556,

two-year

personal-

claim).

Plaintiff

contends that this action was properly brought

part:

that

outside

injury statute of limitations to a § 1983

renewal statute,

from the

under Georgia's

which provides

in relevant

(a)

When any case has been commenced in either a state

or federal court within the applicable statute of
limitations
and
the
plaintiff
discontinues
or
dismisses the same, it may be recommenced in a court
of

this

state

or

in

a

federal

court

either

within

the

original applicable period of limitations or within
six months
after the discontinuance
or
dismissal,
whichever is later,
subject to the requirement of
payment of costs in the original action as required by
subsection
(d)
of Code
Section
9-11-41;
provided,
however,

if

the

dismissal

or

discontinuance

after the expiration of the applicable
limitation,
this
privilege
of
renewal
exercised only once.

O.C.G.A.

§ 9-2-619(a).

the

running of the statute of limitation in a renewal action,

the

cause

the

action

must

original action."

App. 2001).

be

Burns v.

Georgia

law,

substantially

Dees,

"[t]o

of
be

suspend

of

Under

occurs

period
shall

the

same

557 S.E.2d 32,

as

in

39-40 (Ga. Ct.

And under Georgia's pleading standard,1 it is not

"necessary for a complaint to set forth all of the elements of a
cause

of

action

in

order

failure to state a claim."

(Ga.

Ct.

App.

2011).

to

survive

a

motion

Scott v. Scott,

"If,

within

the

to

dismiss

for

716 S.E.2d 809,

811

framework

of

the

complaint, evidence may be introduced which will sustain a grant
of relief to the plaintiff, the complaint is sufficient."
(citation omitted)
Plaintiff's

Id.

(internal quotation marks omitted).
state-court complaint included a § 1983 claim

and alleged that "Defendants

[]

deprived Plaintiff of rights

guaranteed by the Fifth and Fourteenth Amendments of the United
1

Plaintiff asserts, and the County does not dispute,

that Georgia's

pleading standard applies to suits that originate in state court and are
renewed in federal court.

8

States Constitution and have diminished the value

property on a temporary or permanent basis."

Although

Plaintiff's

reference
allege
and

procedural

a

its

violation
factual

pleaded

state-court complaint

in

of

is

action

this

process

or

Plaintiff's

allegations

Plaintiff's

therefore,
in

due

satisfied
Court,

are

that
and

did not

essentially

the

same

complaint.
properly

County's

it

Amendment
the

37.)

specifically

protection,

Fourteenth

Plaintiff

Plaintiff's

14-3 1

(Doc.

equal

federal-court

of

rights,
as

The

those

Court,

renewed

motion

did

for

this

summary

judgment on this issue is DENIED.

2. The County is not entitled to summary judgment on Plaintiff s
procedural-due-process claim because the deprivation at issue
occurred as a result of an established state procedure.

The Due Process Clause of the Fourteenth Amendment provides

that

no

state

shall

"deprive

any person

of

property,

without due process of law." U.S.

§ 1.

succeed

To

plaintiff

must

protected

property

on

show

a

§ 1983

(1)

(2)

state

constitutionally inadequate process.
F.3d 1336,

1347 (11th Cir.

Const,

liberty,

2006).

or

amend. XIV,

procedural-due-process

a deprivation

interest,

life,

claim,

a

of a constitutionally

action,

Arrington v.

and

(3)

Helms,

a
438

Regarding the third element,

M[t]he constitutional violation actionable under § 1983 is not

complete when the deprivation occurs; it is not complete unless
and until the State fails to provide due process.''

Zinermon v.

Burch,

494 U.S.

113,

126

(1990).

Here,

the only disputed issue

is whether Plaintiff was provided the process it was due.2
The

County

postdeprivation

provided
state

that

actors'

state-law

argues

process

state

when

Zimmerman

deprivation

occurs

an

See Parratt v.
actors

See
Co.,

Taylor,

act

pursuant

U.S.

494

422,

because

all

527,

an

do

of

the

540-41

established

not

at

435-36

only

adequately

party

to

U.S.

to

postdeprivation,

451 U.S.

remedies

Zinermon,

455

actions,

aggrieved

postdeprivation

process.
Brush

a

provide

state

entitled

remedies

unauthorized

may

was

state-law

random and

procedure,

adequate

that

When

remedies

But

and

Plaintiff

process.

process it is due.
(1981).

that

130;

(1982).

provide
Logan

v.

Further,

"where the State feasibly can provide a predeprivation hearing

before taking property,

it generally must do

so regardless of

the adequacy of a postdeprivation tort remedy to compensate for
the taking."

2

Zinermon, 494 U.S. at 132.

For the first time at oral argument, the County argued that Plaintiff

did not possess a constitutionally protected property interest in not having
the

additional

conditions

added

to

its

rezoning.

The

Court

declines

to

thoroughly address this argument because the County did not raise it in its
initial brief, its reply brief, or its sur-reply brief.
See Essex Ins. Co.
v. Foley, 827 F. Supp. 2d 1326, 1330 (S.D. Ala. Oct. 31, 2011) ("First, as a

procedural matter,

this

contention

is

not

properly

raised because

articulated it for the first time in its reply brief.").

Briefly,

Essex

however,

the Court notes that the County's argument would fail on the merits.

The

County argued that, because the Board could have denied Plaintiff's rezoning

application, Plaintiff did not possess a property interest in having its
property rezoned.
That may be true, but the argument misses the mark.
Plaintiff

is

not

arguing

that

the

County

could

not

have

denied

the

application.
Instead, Plaintiff maintains that it has a right to not have
its property rezoned with unknown conditions without an opportunity to be
heard on those

conditions.

Essentially,

Plaintiff argues

that

the County

cannot rezone its property without notice and opportunity to be heard.
10

In

prison

Parratt,

an

officials

inmate

brought

a

§ 1983

action

and claimed they violated his procedural-due-

process rights when they negligently lost his mail.
529-31.
the

The

inmate

officials'

such

Supreme
all

acts

cases,

against

Court

the
were

"it

is

determined

process

he

"random and

not

only

was

that
due

state

451 U.S.
law

because

unauthorized."

impracticable,

Id.

but

the Court noted,

"the loss is not a result of

provided

the
at

prison

541.

In

impossible,

provide a meaningful hearing before the deprivation."

at

Id.

to

And,

some established

state procedure and the State cannot predict precisely when the
loss will

In

occur."

Zinermon,

Id.

the

plaintiff

was

admitted

mental-health hospital as a voluntary patient.

to

a

Florida

494 U.S. at 118.

Following his release from the facility, he claimed that he had
been

incompetent

admission.

when

he

Id^ at 123-24.

signed

the

form

for

voluntary

He then brought a § 1983 claim and

argued that the hospital officials violated his procedural-due-

process rights by failing to implement procedural safeguards to
prevent incompetent individuals from being admitted as voluntary
patients.

Id. 124.

The Court found that predeprivation process

was practicable because it was foreseeable that a mental-health

patient
consent.

could

be

incompetent

Id. at 136.

and

Moreover,

unable

to

give

informed

because the officials had been

delegated the broad power to admit patients, "the Constitution
11

imposed

on

them

the

State's

deprivation occur[red]
Id.

at

in

the

but,

The deprivation,

sense

that

an

it

was

was

instead,

a

therefore,

not

to

see

that

no

an

act

was "unauthorized only

sanctioned

depriv[ation]

official's

(citation omitted)
In Messick v.

duty

without adequate procedural protections."

135.

rights ... by
138

concomitant

abuse

of

of

his

by

state

law,

constitutional

position."

Id.

at

(internal quotation marks omitted).

Leavins,

811 F.2d 1439

(11th Cir.

1987),

the

Eleventh Circuit applied the above principles to the actions of

city employees.

There,

the plaintiffs purchased a barge that

was located on city property and began renovating it.

1440-41.
clear

During this time,

the

land

on

which

Id.

at

the city decided that it wanted to
the

barge

sat.

Eventually,

without notifying the plaintiffs,

the barge.

Id.

Id.

at

1441.

the city burned

The plaintiffs sued and claimed that the city

deprived them of their property interest in the barge without
due process.

Id.

City policy dictated that once city employees

determined that property was worthless and abandoned, they could

destroy the property without any attempt to notify potential
owners.

actions

Id.

at

1442.

The

court

found

that

the

defendants'

fell within an established state procedure because the

employees burned the barge under the authority of the city and

predeprivation process was feasible because the defendants could
have put written notice on the barge.
12

Id. at 1442-43.

Here,
were

the

random

remedies

due.

Court

and

would

First,

unpersuaded

unauthorized,

not

at

is

have

oral

that

and

provided

the

postdeprivation

Plaintiff

argument,

County's

the

the

County

actions

state-law

process

conceded

it

was

that

its

practice did not directly violate state law, so its actions were
not

unauthorized

in

that

sense.

Rather,

it

implemented

policy as part of its delegated zoning authority.

therefore,

of

property

interests

494 U.S. at 135.

without

due

at

1442,

occurred

process.

See

Accordingly, this deprivation, which

took place under the authority of the County,
F.2d

The County,

had a duty to ensure that its policy did not deprive

applicants
Zinermon,

this

as

a

result

of

an

see Messick,
established

811

state

procedure.

Further,

predeprivation process was not impracticable:

the

Board could have given applicants an opportunity to be heard on
additional

conditions

second reading.

before

the

commissioners

At oral argument,

voted

at

the

the County argued that it

would unduly burden local governments to expect them to hold

public

hearings

applications.

it

they

Even

predeprivation
because

whenever

is

assuming

hearing

does

inconvenient;

add
this

not
it

deprivation is unforeseeable.

conditions
to

become
is

be

to

true,

rezoning
holding

impracticable

impracticable

See Parratt,

merely

when

451 U.S.

a

the

at 541

(discussing that when a deprivation occurs because of random and
13

unauthorized

established

actions,

state

"the

loss

procedure

is

and

not

the

a

result

State

of

cannot

some

predict

precisely when the loss will occur").
Although

availability
that

the

the

of

first

bulk

state-law
and

second

process it was due.
merits.

of

its

argument

remedies,
readings

the

is

focused

County

provided

on

also

the

contends

Plaintiff

all

the

This argument fails procedurally and on the

Procedurally,

this

argument

fails

because

the

County

raised it for the first time in its reply brief.

See Essex Ins.

Co. v.

Ala.

2011) .

Foley,

827

F.

Supp.

2d 1326,

And the merits of this

1330

(S.D.

Oct.

argument are disingenuous.

31,
The

County claims that "the second reading of the zoning amendment

provided Del-A-Rae with both notice and the opportunity to be
heard which it claims it was not given."

this

statement

is undeniably

establishes that

were

not

reading.

given

rezoning

the

false.

Record

applicants

opportunity

to

(Doc. 26 at 11.)

-

be

evidence

including

heard

at

But

clearly

Plaintiff -

the

second

Accordingly, the Court rejects this argument.

Because

there

is

sufficient

evidence

that

the

County

deprived Plaintiff of a property interest without due process,
the County's motion on this issue is DENIED.

14

3. Plaintiff's equal-protection claim fails
presented sufficient comparator evidence.

Plaintiff

The

County

asserts

argues

a

that

class-of-one

this

sufficient evidence that

it

claim

because

it

has

equal-protection

fails

because

not

claim.

there

is

not

treated similarly situated property

differently.

The Court agrees with the County.

A class-of-one

claim,

was

in

which

first

Willowbrook v. Olech,

to

prove

from

that

others

basis

for

it

528 U.S.

"has

similarly

the

specifically

been

562

(2000),

in

that

Village

of

requires a plaintiff

intentionally

situated and

difference

recognized

treated

there

treatment."

Id.

is
at

differently

no

rational

564.

To

be

considered similarly situated, the proposed comparator "must be

prima facie identical in all relevant respects."
Rainbow City,

this standard,
same

size,

434 F.3d 1306,

1314

(11th Cir.

an

equivalent

impact

require the same zoning variances.''

Here,

2006).

To meet

a comparator development generally must be "the

have

496 F.3d 1189,

Campbell v.

1204

(11th Cir.

on

the

community,

Griffin Indus,

v.

and

Irvin,

2007).

as comparator evidence,

Plaintiff points to another

proposed development known as The Hedges.

The Hedges, which was

never completed, was intended to be developed on the 118 acres
of

the

original

tract

included 104 lots.

comparator

standard

that

Plaintiff

sold

and

would

have

According to Plaintiff, The Hedges meets the

because

it

15

was

a

planned

residential

development

that

was

not

subject

to

a

half-acre

lot-size

requirement.

The
respect

Court
to

is

the

unpersuaded

lot-size

for

two

requirement,

reasons.

the

First,

with

Board approved a site

plan for The Hedges that did not include lot sizes smaller than
half

an

dispute,

acre.

does

not

that the approval of the site plan was binding on

the

developers.
smaller

The

So

than

County

The

half

Hedges
an

many

been

homes

as

The

essentially

impact

F.3d at 1204.
on this

on

and

have

Plaintiff

contained

Moreover,

because

lot

sizes

Plaintiff's

designed to contain roughly three times

the

equivalent

could not

acre.

planned development was
as

maintains,

Hedges,
same

the

Accordingly,

the

size

two
and

community.

projects
would

See

would

not

not

have

Griffin

have

had

Indus.,

an

496

the Court GRANTS the County's motion

issue.

4. The County is not entitled to summary judgment on Plaintiff's
claim for attorneys' fees because Plaintiff's procedural-dueprocess claim survives summary judgment.
The
fees

County

under

42

U.S.C.

prevailing party.
sufficient

argues

§ 1988

But,

evidence

that

issue

fails

for

its

claim

because

as noted above,

survive summary judgment.
this

Plaintiff's

for

Plaintiff

is DENIED.

16

is

not

a

Plaintiff has presented

procedural-due-process

Accordingly,

attorneys'

claim

to

the County's motion

on

IV.

First,

as

noted

Conclusion

above,

Plaintiff

has

abandoned

substantive-due-process claim and its takings claim.
therefore,

GRANTS

summary

judgment

on

these

its

The Court,

claims.

Second,

because Plaintiff has abandoned its claims against the Effingham
County Board of Commissioners,
this action.

Finally,

this

Defendant

is DISMISSED from

the Court GRANTS the County's motion with

respect to Plaintiff's equal-protection claim,
County's

process

motion

with

respect

claim and its claim

to

and it DENIES the

Plaintiff's

for attorneys'

procedural-due-

fees.

Plaintiff's

procedural-due-process claim will proceed to trial.
ORDER

ENTERED

at

Augusta,

Georgia

this

£>C <

daY

September, 2016.

HONORABLE J.
UNITED STATES

RANDAL HALL
DISTRICT

JUDGE

SOUTHERN DISTRICT OF GEORGIA

17

of