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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 Acts
He’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