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)

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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

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