United States Court of Appeals,

Eleventh Circuit.

No. 94-9215.

BICKERSTAFF CLAY PRODUCTS COMPANY, INC., Plaintiff-Appellee,

v.

HARRIS COUNTY, GEORGIA, By and Through its BOARD OF

COMMISSIONERS; George Elmore; Danny Bridges; Carl C. Hobbs, III;

Wallace Marriner; Warren Popp, Defendants-Appellants.

July 16, 1996.

Appeal from the United States District Court for the Middle

District of Georgia. (No. 94-3-COL), J. Robert Elliott, Judge.

Before TJOFLAT, Chief Judge, CARNES, Circuit Judge, and FAY, Senior

Circuit Judge.

TJOFLAT, Chief Judge:

In this case, a company challenges under several provisions of

state and federal law the decision of a county board of

commissioners to rezone the company's property. The district court

granted injunctive relief in favor of the company, and the county

took this interlocutory appeal. For the reasons that follow, we

affirm in part, reverse in part, and vacate in part.

I.

A.

The property in question is a landlocked 161-acre tract

located in southwest Harris County, Georgia, along Interstate

Highway 185. Appellee Bickerstaff Clay Products, Inc.

("Bickerstaff"), a brick manufacturing company, bought the property

in 1960 because of the property's rich reserves of a mineral used

in the brickmaking process. Bickerstaff uses a form of rock called

weathered mylonite in the manufacture of bricks; the Harris County
 1

The 1984 zoning ordinance was re-enacted almost verbatim in

1988 and again in 1990 to cure alleged procedural defects in the

original ordinance. The zoning of Bickerstaff's property was A-1

in all three ordinances. 

property lies along a vein of such rock. At the time Bickerstaff

purchased the property, it had no immediate need to mine the

weathered mylonite on the property. It conducted several test

drills on the property and dug a trench to determine the extent of

the mylonite deposit, but otherwise did not mine the property.

Instead, Bickerstaff held the property in its mineral reserves for

future use.

In 1984, the governing entity for Harris County, a five-member

Board of Commissioners, enacted a county-wide zoning ordinance,

including a comprehensive land-use plan for the county. The

ordinance provided that initial determinations on zoning matters

such as rezoning requests would be studied by the county planner's

office, which would recommend the denial or granting of the request

to a planning commission. The planning commission would hold a

public meeting on the rezoning request, and then would make

recommendations to the Board of Commissioners, which would have

final authority over all zoning decisions. The 1984 ordinance

zoned Bickerstaff's property A-1, which is the designation given to

vacant property.1

 Under the ordinance, the uses permitted on land

zoned A-1 include general agriculture and forestry; the stated

purpose of the A-1 category is to "preserve land areas suitable for

eventual rezoning."

In 1993, Bickerstaff decided to make use of the mylonite

reserves on the Harris County property. To that end, Bickerstaff
 2

The mining of mylonite does not involve any blasting or

crushing of rock. It is simply a digging operation, whereby the

rock is extracted from the ground using backhoes and then hauled

away in dump trucks. 

applied for a mining permit from the Georgia Environmental

Protection Department. In this application, Bickerstaff indicated

the proposed duration and manner of the mining and explained how

the company would shield surrounding areas from the noise and

visual disturbances attendant to the operation.2 The application

also contained provisions for land reclamation and runoff

containment. In August of 1993, the Department granted Bickerstaff

a permit to mine the property.

While preparing its application to the Environmental

Protection Department, Bickerstaff discovered that the property had

been zoned A-1, and that A-1 zoning would not permit mining. Armed

with state approval of the mining operation, Bickerstaff sought to

have the property rezoned M-2, which would permit mining.

Bickerstaff presented its plan to the Harris County planner, who

found that M-2 zoning was consistent with the county's

comprehensive land-use plan and recommended that the planning

commission approve the rezoning request. Following a public

meeting, however, the planning commission voted to recommend that

the Board of Commissioners deny the rezoning request.

The Board of Commissioners then held a public hearing on

Bickerstaff's application for rezoning. In accordance with the

zoning ordinance, Bickerstaff was allowed to present its proposed

plan for mining its land, and any citizen with an opinion about

Bickerstaff's proposal was allowed to speak. The Board made no
 3

R-1 is the designation given to land that is to be

developed as a residential subdivision containing single-family

lots. 

 4Bickerstaff's amended complaint, the pleading before us,

contains eight counts. The complaint is a typical shotgun

pleading, in that some of the counts present more than one

discrete claim for relief. See, e.g., Anderson v. District Bd.

of Trustees, 77 F.3d 364, 366-67 (11th Cir.1996). Moreover, in

some instances one cannot discern, with respect to a given claim

for relief, the substantive rule giving rise to the claim. For

purposes of this appeal, we give Bickerstaff's complaint a

liberal reading, and construe it as presenting the following

claims for relief:

(1) A takings claim pursuant to 42 U.S.C. § 1983 that

seeks just compensation for the full value of the property

under the Fifth and Fourteenth Amendments to the United

States Constitution. (Count one.) This count also seeks an

injunction, under an undisclosed rule of law, prohibiting

the Board from preventing Bickerstaff from mining its

property.

(2) A claim under 42 U.S.C. § 1983 for money damages on

the ground that the Board has violated Bickerstaff's

(unspecified) "substantive rights" under the Fifth and

Fourteenth Amendments. (Count two.) This count also seeks

the same injunctive relief as count one. The district court

appears to have interpreted this allegation as alleging a

decision on the rezoning request at that time, but instead met

privately two weeks later to consider the request. At that

meeting, the Chairman of the Board of Commissioners moved to rezone

the property R-1, which allows only low-density residential

development.3

 Bickerstaff had not requested R-1 zoning, and had no

notice that the Board would consider rezoning the property R-1.

The Chairman's motion passed by a vote of four to one.

B.

Following the Board's decision, Bickerstaff brought this suit

against Harris County, alleging violations of the United States

Constitution, the Georgia Constitution, and state real property

law.4

 Bickerstaff's primary contention is that rezoning the
claim under the substantive component of the Fourteenth

Amendment's Due Process Clause.

(3) A claim under 42 U.S.C. § 1983 for money damages on

the ground that, in reaching its zoning decision, the Board

denied Bickerstaff its right to procedural due process under

the Fifth and Fourteenth Amendments. (Count three.) This

count also seeks the same injunctive relief as count one.

(4) A takings claim under the Georgia Constitution,

Article I, Section I, Paragraph I, and Article I, Section

III, Paragraph I. This claim seeks an injunction

prohibiting the Board from preventing Bickerstaff from

mining its property. (Count four.)

(5) A claim for a declaration that (unspecified)

provisions of the United States and Georgia Constitutions

grant Bickerstaff a "vested right" to mine the property. 

(Count five.) This count seeks in the alternative money

damages for the full value of the property.

(6) A claim that (unspecified) provisions of the United

States Constitution and Georgia law and several provisions

of the Harris County zoning ordinance grant Bickerstaff the

right to mine the property as a "non-conforming use." 

Bickerstaff seeks an injunction prohibiting the Board from

preventing it from mining the property. (Count six.)

(7) A claim that the Board's denial of Bickerstaff's M2 zoning request was "arbitrary and capricious" (under an

unspecified provision of law) and also violates the Harris

County zoning ordinance. Bickerstaff seeks an injunction

prohibiting the Board from preventing Bickerstaff from

mining the property. (Count seven.)

(8) A claim that the Harris County zoning ordinance is

invalid under O.C.G.A. § 36-66-5 (1982), because of

procedural irregularities in the adoption of the ordinance. 

Bickerstaff seeks a declaration that the ordinance is

invalid. (Count eight.)

The district court had subject matter jurisdiction

under 28 U.S.C. §§ 1331 and 1343 to entertain Bickerstaff's

federal constitutional claims. The court entertained

Bickerstaff's state-law claims under its supplemental

jurisdiction. The district court based its injunction only

on the claims described in (1), (2), and (4)-(7) above. 

Accordingly, we do not address the claims described in (3)

and (8). 

property R-1 constituted a taking of Bickerstaff's property because

the rezoning rendered the property virtually useless: the property
 5

Bickerstaff has a 20-foot-wide easement running 3,500 feet

over neighboring land to Georgia Highway 315. Bickerstaff

contends, and the county does not dispute, that a residential

subdivision must have at least one means of ingress and egress,

and that, to accommodate a subdivision entrance, the easement

would need to be at least 60 feet wide. 

 6The Fifth Amendment's prohibition on takings for public use

without just compensation is applied to the states through the

Fourteenth Amendment. See Chicago, B. & Q. R.R. v. Chicago, 166

U.S. 226, 239, 17 S.Ct. 581, 585, 41 L.Ed. 979 (1897). Further

references in this opinion to a takings claim under the Fifth

Amendment mean a takings claim under the Fifth and Fourteenth

Amendments. 

 7

The Georgia Constitution does not have a takings clause. 

Georgia courts recognize takings claims, however, under the

eminent domain provision of Article I, Section III, Paragraph I

("[P]rivate property shall not be taken or damaged for public

purposes without just and adequate compensation being first

paid.") and the due process provision of Article I, Section I,

Paragraph I ("No person shall be deprived of life, liberty, or

property except by due process of law."). See Gradous v. Board

of Comm'rs, 256 Ga. 469, 349 S.E.2d 707, 709 (1986). 

cannot be developed as a residential subdivision because there is

effectively no access to a public roadway.5 According to

Bickerstaff, this taking was in violation of the Fifth and

Fourteenth Amendments to the United States Constitution 6 and

Article I of the Georgia Constitution 7 because the taking was

accomplished (1) pursuant to an invalid exercise of the county's

police power, and (2) without providing Bickerstaff just

compensation. Bickerstaff therefore asked the district court to

award the company just compensation for a temporary taking, in the

event the R-1 zoning was held invalid, or for a permanent taking if

it was not. See First English Evangelical Lutheran Church v. Los

Angeles County, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987)

(recognizing a Takings Clause claim for the temporary deprivation

of all use of private property).
 8

The county provided the district court with no authority

for the proposition that the pendency of the state court suit

barred Bickerstaff's prosecution of this suit, and we know of

none. We read the county's answer on this point as a request

that the district court stay its hand until the state court

proceeding ran its course.

On appeal, the county contends that Bickerstaff's

Takings Clause and substantive due process claims are not

ripe for federal district court adjudication and that,

therefore, the district court should have dismissed them for

want of subject matter jurisdiction. In addition, the

county contends that the court, in the exercise of its

discretion, should have dismissed Bickerstaff's remaining

pendent state law claims. We disagree.

Bickerstaff's federal constitutional claims are not

"frivolous," nor were they asserted "solely for the purpose

of [giving the district court subject matter] jurisdiction." 

Bell v. Hood, 327 U.S. 678, 682-83, 66 S.Ct. 773, 776, 90

L.Ed. 939 (1946). Thus, the district court was not required

to dismiss the pendent state-law claims, and it was within

its discretion to decide the state-law issues. 

In its answer to Bickerstaff's complaint the county denied

that it was liable under any of Bickerstaff's theories of recovery.

As for Bickerstaff's Fifth Amendment claim, the county contended

that the suit was not ripe for federal court review because

Bickerstaff had not pursued its remedies in state court. See

Williamson County Regional Planning Comm'n v. Hamilton Bank, 473

U.S. 172, 186, 105 S.Ct. 3108, 3116, 87 L.Ed.2d 126 (1985). The

county noted that, although Bickerstaff had filed a suit on the

same claims in the Harris County Superior Court, Bickerstaff had

persuaded that court to stay its hand pending the outcome of the

instant case. The county further contended that because the

superior court had jurisdiction over the controversy, the instant

case was barred.8 The district court did not rule on these

contentions and scheduled a bench trial on Bickerstaff's claims for

declaratory and injunctive relief.
The bench trial focused on Bickerstaff's acquisition of the

property, its plans to mine the land, and the circumstances

surrounding the rezoning of the property R-1. After entertaining

the parties' evidence, the court entered an order declaring the R-1

and prior A-1 zoning classifications invalid. The court enjoined

the enforcement of either the R-1 or the A-1 zoning classification

on both state and federal grounds. It concluded that these

measures were "not substantially related to any valid health,

safety or welfare considerations" and thus, under the due process

clauses of both the state and federal constitutions, constituted

invalid exercises of the county's police power. In addition, these

classifications were enacted in derogation of Bickerstaff's right

under Georgia law and the Harris County zoning ordinance to mine

the property as either a vested right or a nonconforming use. The

court thus enjoined the county from applying any zoning

classification to the property other than M-2. Finally, the court

held that the R-1 classification, by rendering Bickerstaff's

property worthless, had effected a taking of the property without

just compensation in violation of the state and federal

constitutions. Proceedings to determine just compensation have

been stayed pending our resolution of this appeal.

Following the district court's entry of the injunctive relief

described above, the county took this interlocutory appeal. We

have jurisdiction under 28 U.S.C. § 1292(a)(1) (1994). We review

the district court's factual findings for clear error.

Fed.R.Civ.P. 52(a). Questions of law and mixed questions of law

and fact are reviewed de novo. See Nadler v. Mann, 951 F.2d 301,
 9

We are mindful of the doctrine that a federal court should

not pass on federal constitutional issues unless necessary to its

decision. See Ashwander v. Tennessee Valley Auth., 297 U.S. 288,

347, 56 S.Ct. 466, 482, 80 L.Ed. 688 (1936) (Brandeis, J.,

concurring) ("The Court will not pass upon a constitutional

311 (11th Cir.1992).

II.

As noted, the district court's injunction addressed three

zoning classifications: A-1, R-1, and M-2. The court invalidated

the A-1 and R-1 classifications and ordered the Board to apply the

M-2 classification to the property. We summarily vacate the aspect

of the court's injunction that prohibits the Board from applying

any zoning classification to the property except M-2. The court

cited no authority, state or federal, for such action—which, in

effect, usurped the Board's legislative function—and Bickerstaff

has cited us to none.

In the discussion that follows, we address first the court's

decision to strike down the A-1 zoning and conclude that

Bickerstaff's challenge to that zoning is time barred. Turning

next to the Board's decision to zone the property R-1, we conclude

that the court had no basis for invalidating the decision on the

ground that Bickerstaff had acquired a right to mine the property

as either a vested right or a nonconforming use under Georgia law.

The court's alternative holding—that, under Georgia law, the

Board's decision constituted a taking without just compensation—is,

however, correct. We therefore affirm the court's decision

invalidating the R-1 zoning. We vacate, though, the court's

holding that the Board's decision also violated the United States

Constitution, because Bickerstaff's federal claim is not ripe.9
question although properly presented by the record, if there is

also present some other ground upon which the case may be

disposed of."). We believe that it is prudent to discuss the

federal constitutional claims in this case because the damages

issue remains to be litigated. If we do not decide the federal

constitutional claims, then the district court, in framing the

issues for the damages trial, will likely provide for recovery

under the Fifth Amendment Takings Clause and the substantive

component of the Fourteenth Amendment's Due Process Clause. If

the district court submitted those claims to the jury, and an

appeal followed, we would likely be required to reach the federal

claims. We believe it judicious to reach them now. 

 10On appeal, Bickerstaff's brief is silent on these points

and thus appears to concede them. 

A.

 Bickerstaff cannot challenge the county's original decision

to zone the property A-1. The property has been zoned A-1 since

1984, and Bickerstaff is barred from challenging this zoning not

only by the applicable statute of limitations, see O.C.G.A. § 50-

14-1(b), but also by the doctrine of laches.10 The provision of the

district court's injunction invalidating the A-1 zoning is

accordingly vacated.

B.

We consider now the merits of the remaining state-law grounds

for the district court's invalidation of the R-1 zoning. They are:

(1) that Bickerstaff had acquired a right to mine the property as

a nonconforming use within the meaning of the Harris County zoning

ordinance; (2) that Bickerstaff had acquired a "vested right"

under the Georgia common law to mine the property; and (3) that

the Board's R-1 rezoning of the property (and its refusal to rezone

the property M-2) constituted a taking without just compensation in

violation of the Georgia Constitution.

1.
The Harris County zoning ordinance defines a nonconforming use

as "[a] building, structure or use of land existing at the time of

enactment of this ordinance and which does not conform to the

regulations of the district in which it is situated." The court

found that Bickerstaff's intention to mine the property was a "use

of land" that existed at the time the zoning ordinance was enacted,

because the ordinance defines "use" as "[t]he specific purpose for

which land or building is designed, arranged, intended, or for

which it is or may be occupied or maintained" (emphasis added).

 In Georgia, however, "mere preliminary work not of a

substantial nature does not constitute a nonconforming use;

neither does a use which is merely contemplated for the future but

unrealized as of the effective date of the regulation." Rainwater

v. Coweta County Bd. of Zoning Appeals, 123 Ga.App. 467, 181 S.E.2d

540, 541 (1971). Bickerstaff's drilling and testing on the

property more than thirty years ago—to determine the extent of the

mylonite vein—cannot be characterized as anything but preliminary,

and its intention to mine the property was, in 1984 (when the

Harris County zoning ordinance was enacted), a "use ... merely

contemplated for the future." Extending a nonconforming use to an

owner's unrealized intentions for his property would mean that any

property owner, whenever confronted with unfavorable zoning, could

claim a nonconforming use by stating that he had always intended to

use the property as, for instance, a shopping center, or an

apartment complex, or an office park. Bickerstaff has not acquired

the right to mine the property as a nonconforming use, and we

reverse the district court's conclusion to the contrary.
 11The Georgia courts have applied the vested rights doctrine

in cases where a property owner has materially changed his

position in reliance on a zoning ordinance and government

assurances that a building permit will issue. See, e.g., Barker

v. County of Forsyth, 248 Ga. 73, 281 S.E.2d 549, 552 (1981); 

Cohn Communities, 359 S.E.2d at 889. Whether the Georgia courts

would extend the vested rights doctrine to cases such as

Bickerstaff's is an open question. We need not reach the

question because, as explained in the text, Bickerstaff has

failed to meet the doctrine's requirements. 

2.

Bickerstaff contends, and the district court held, that it has

a "vested right" to mine the property—a right that the Board is

powerless to limit. This right supposedly arose from the company's

preliminary drilling and testing of the soil on the property. We

do not believe that Georgia's vested rights doctrine extends that

far.

 The doctrine of vested rights that the district court applied

in this case is derived from the principle of equitable estoppel.

See Cohn Communities, Inc. v. Clayton County, 257 Ga. 357, 359

S.E.2d 887, 889 (1987). The doctrine applies when a "landowner,

relying in good faith, upon some act or omission of the government,

has made a substantial change in position or incurred such

extensive obligation and expenses that it would be highly

inequitable and unjust to destroy the rights he has acquired."11

Id.

 Bickerstaff has established none of these elements. While

Bickerstaff's expenditures for the test drills may have risen to

the level of "extensive obligation[s] and expenses," Harris County

made no representations on which Bickerstaff could have relied or

did rely. At no time between Bickerstaff's purchase of the
property and the company's application for rezoning did any Harris

County official promise Bickerstaff that the property would be

zoned for mining. We therefore reverse the district court's

holding that Bickerstaff has acquired a vested right to mine the

property under Georgia law.

3.

 In order to determine whether a zoning ordinance has effected

a taking without just compensation in violation of the Georgia

Constitution, see Ga. Const. art. I, § III, par. I, and note 7

supra, courts employ a balancing test. In the words of the Georgia

Supreme Court, a court must "weigh[ ] the benefit to the public

against the detriment to the individual." Gradous v. Board of

Comm'rs, 256 Ga. 469, 349 S.E.2d 707, 709 (1986). In practical

terms, the balancing test means that an aggrieved landowner must

show that the zoning decision "presents a significant detriment to

the landowner and is insubstantially related to the public health,

safety, morality, and welfare." Id., 349 S.E.2d at 709-10.

 The district court found that the application of the R-1

zoning classification to Bickerstaff's property rendered the

property virtually worthless. We agree that the rezoning of

Bickerstaff's property R-1 deprives the property of all reasonable

economic use. Thus, Bickerstaff has proven the first part of its

Georgia takings claim: that the zoning "presents a significant

detriment to" Bickerstaff.

The district court further concluded that the R-1 zoning was

not substantially related to the public health, safety, morality,

or welfare, and was thus an invalid exercise of the county's police
power. Although there is no formula for determining when

government action exceeds the police power, the Georgia Supreme

Court has held that a zoning decision that "completely fails to

scrutinize the merits of the land in question and the impact of the

decision upon the landowner's property rights" is an invalid

exercise of the police power. Barrett v. Hamby, 235 Ga. 262, 219

S.E.2d 399, 402 (1975).

The county has presented no evidence indicating that the Board

evaluated prospective uses for the property, conducted a study of

the possible impact mining would have on neighboring property, or

even considered the probable effect that R-1 zoning would have on

the value of Bickerstaff's property. The members of the Board

testified at trial that they thought the R-1 zoning was in the

"best interests" of the county, but they offered no justification

for this conclusion.

 The exercise of the police power is not without limits.

Where, as here, the governing entity "completely fail[s] to

scrutinize" the balance between the public interest in the

contemplated zoning and the impact of the zoning on the property,

the entity's decision is beyond its police power. It is clear that

the R-1 zoning had a significant detrimental effect on the value of

Bickerstaff's property and that the Board had only vague and

unsubstantiated conclusions to justify the zoning. Therefore, the

rezoning of Bickerstaff's property constituted a taking of the

property in violation of the Georgia Constitution.

III.

The district court also held that the Board's decision to
 12The district court erred in holding that any zoning

classification that is an invalid exercise of the police power

constitutes a Fifth Amendment taking. To constitute such a

taking, the zoning classification must render the property

worthless. See Agins v. Tiburon, 447 U.S. 255, 260-63, 100 S.Ct.

2138, 2141-43, 65 L.Ed.2d 106 (1980) (stating that government

action that deprives a landowner of only part of the value of his

property is not a taking prohibited by the Fifth Amendment). Due

to our disposition of Bickerstaff's Takings Clause claim,

however, this error is of no moment. 

 13A taking within the meaning of the amendment may occur in

one of two ways. First, the government, exercising its power of

eminent domain, may institute a proceeding to condemn the

landowner's property for a public use. Second, a taking may

occur when the government, exercising its police power, enacts a

measure—here, a zoning classification—that effectively condemns

the landowner's property without paying for it. When the

government has not instituted an eminent domain proceeding, the

only way a property owner can vindicate his Takings Clause rights

is to institute an inverse condemnation proceeding. This is what

rezone Bickerstaff's property R-1 was invalid under the Takings

Clause of the Fifth Amendment and the substantive component of the

Due Process Clause of the Fourteenth Amendment. The court so held

because it found that the zoning decision (1) effectively condemned

Bickerstaff's property for a purpose not within the county's police

power to pursue and (2) failed to provide Bickerstaff just

compensation.12 In concluding that these two elements made out a

claim under both the Takings Clause and the Due Process Clause, the

district court did not consider whether the Bickerstaff's takings

claim subsumed its substantive due process claim. We hold that it

does.

A.

 The Takings Clause of the Fifth Amendment prohibits

government from condemning "private property ... for public use,

without just compensation." The clause applies in any case in

which government action renders private property worthless.13 See
Bickerstaff has done in this case. 

 14The district court reached the public use issue and

resolved it in favor of Bickerstaff. The court erred in doing

so, however, because, as we explain in part III.B., infra,

Bickerstaff's takings claim is not ripe. 

 15It is not necessary that Bickerstaff prevail on the public

use issue in order to obtain just compensation for the loss of

use of its property. If Bickerstaff succeeds in having the R-1

zoning classification declared invalid, its loss of use will be

for a temporary term—from the date the R-1 classification became

operative to the date of its invalidation. See First English

Evangelical Lutheran Church v. Los Angeles County, 482 U.S. 304,

107 S.Ct. 2378, 96 L.Ed.2d 250 (1987). If Bickerstaff's public

use challenge fails, its loss of use will be permanent and it

will recover as just compensation the full value of the property.

With respect to this second scenario, Bickerstaff's

Takings Clause and Due Process Clause claims differ. If, in

the prosecution of the due process claim, the zoning

classification were upheld, Bickerstaff would be entitled to

no damages—notwithstanding the complete taking of its

property. Damages for a taking occasioned by the

application of a valid zoning classification would be

recoverable only under the Takings Clause. It thus becomes

apparent that Bickerstaff's claim under the Takings Clause

not only subsumes its substantive due process claim, as we

point out infra, but is broader than that claim. 

Agins v. Tiburon, 447 U.S. 255, 260-63, 100 S.Ct. 2138, 2141-43, 65

L.Ed.2d 106 (1980); Lucas v. South Carolina Coastal Council, 505

U.S. 1003, 1014-16, 112 S.Ct. 2886, 2893, 120 L.Ed.2d 798 (1992)

(government action effectively condemns a landowner's property if

it denies him "all economically beneficial or productive use" of

his property). Bickerstaff contends, and has established, that the

R-1 zoning classification rendered its property worthless, and it

seeks "just compensation" for its loss. Bickerstaff also contends

that this "taking" was not for a "public use." Depending on the

resolution of the public use issue,14 Bickerstaff will be entitled

to just compensation for either the temporary or permanent loss of

use of the property.15
 The substantive component of the Due Process Clause prohibits

a government entity from applying to property a zoning

classification that bears no relationship to the "public health,

safety, morals, or general welfare" and thus is beyond the

government's police power. See Village of Euclid v. Ambler Realty

Co., 272 U.S. 365, 395, 47 S.Ct. 114, 121, 71 L.Ed. 303 (1926). A

person whose property is affected by such a classification may

challenge the measure and, if successful, may recover damages for

any injury the classification may have caused him while it was

operative. Here, Bickerstaff contends that the application of the

R-1 zoning classification to its property is an invalid exercise of

the county's police power and has rendered the property worthless.

If Bickerstaff ultimately prevails on this issue, it may recover in

damages the value of its temporary loss of use of the property.

 This discussion makes it apparent that Bickerstaff's Takings

Clause claim and its substantive due process claim are identical if

the challenges to the validity of the R-1 zoning classification

itself are evaluated under the same standard. That is, the claims

are identical if the scope of "public use" under the Takings Clause

and the scope of "police power" under the substantive component of

the Due Process Clause are the same. The Supreme Court's decision

in Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 240, 104 S.Ct.

2321, 2329, 81 L.Ed.2d 186 (1984), indicates that they are.

Midkiff involved a landowner's challenge to the validity of an

Hawaii statute that provided for the condemnation of private land

and the sale of such land to the landowners' lessees. The

landowners mounted their challenge under the "public use" component
of the Takings Clause. They claimed that "the taking of [their]

property for the purpose of reselling it to [their] lessees [was]

not for a public purpose and hence violative of the Fifth Amendment

command: "[N]or shall private property be taken for public use,

without just compensation.' " Midkiff v. Tom, 483 F.Supp. 62, 65

(D.Haw.1979).

In rejecting the landowner's challenge, the Supreme Court

compared the scopes of "public use" under the Takings Clause and

"police power" under the Due Process Clause. The Court concluded

that "the public use requirement is ... coterminous with the scope

of a sovereign's police powers." Midkiff, 467 U.S. at 240, 104

S.Ct. at 2329; see also National R.R. Passenger Corp. v. Boston &

Maine Corp., 503 U.S. 407, 422, 112 S.Ct. 1394, 1404, 118 L.Ed.2d

52 (1992) ("We have held that the public use requirement of the

Takings Clause is coterminous with the regulatory power.").

Bickerstaff's Takings Clause and substantive due process challenges

to the validity of the R-1 classification are therefore evaluated

under the same standard.

Accordingly, Bickerstaff's Takings Clause claim subsumes its

substantive due process claim unless it can be said that the

Framers of the Bill of Rights, in addition to providing the

substantive rights contained in the Takings Clause, meant to

replicate by implication those same rights in the Due Process

Clause. We do not believe that such duplication was intended. We

therefore hold that Bickerstaff's challenge to the validity of the
 16A reading of dicta in Eide v. Sarasota County, 908 F.2d

716 (11th Cir.1990), cert. denied, 498 U.S. 1120, 111 S.Ct. 1073,

112 L.Ed.2d 1179 (1991), may suggest at first blush that, in a

case such as this where the zoning classification renders the

property worthless, inverse condemnation claims under the Takings

Clause and the substantive component of the Due Process Clause

are not identical. See id. at 720-21.

We do not read Eide as drawing such a distinction. In

posing a hypothetical Takings Clause claim, the Eide panel

assumed sub silentio that the landowner was not questioning

the public purpose, that is, the "public use," behind the

zoning classification. In posing the hypothetical

substantive due process claim, though, the panel assumed

expressly that the landowner was questioning such public

purpose. Were the panel to have assumed that, in both

cases, the landowner questioned the public purpose behind

the classification, we are satisfied that it would have

reached the same conclusion we reach today.

Eide describes a second specie of substantive due

process claims which is not presented in this case: a claim

that a regulatory measure exceeds the government's police

power but has not effected a taking. Eide refers to such a

claim as "an "arbitrary and capricious due process' claim." 

Id. at 721-22. Because the regulatory measure has not

rendered the property worthless, this type of substantive

due process claim is not foreclosed by the Takings Clause. 

R-1 zoning classification lies solely under the Takings Clause.16

B.

 The foregoing discussion makes clear that the only federal

constitutional ground supporting the district court's injunction is

Bickerstaff's Fifth Amendment takings claim. That claim, however,

is not ripe. See Williamson County Regional Planning Comm'n v.

Hamilton Bank, 473 U.S. 172, 186, 105 S.Ct. 3108, 3116, 87 L.Ed.2d

126 (1985). A Takings Clause claim does not become ripe unless the

state provides no remedy to compensate the landowner for the

taking. A property owner cannot claim a violation of the Clause

unless the state provides the landowner no procedure (such as an

action for inverse condemnation) for obtaining just compensation.
Williamson, 473 U.S. at 195, 105 S.Ct. at 3121.

 Bickerstaff contends that Georgia provides it no judicial

mechanism for obtaining just compensation in this case;

accordingly, its Takings Clause claim is ripe. We disagree. Under

Georgia law, a landowner may bring suit under the eminent domain

and due process provisions of the Georgia Constitution, Ga. Const.

art. I, § I, par. I and § III, par. I, to enjoin the enforcement of

a zoning classification that effects a "taking" of his property.

See, e.g., Gradous v. Board of Comm'rs, 256 Ga. 469, 349 S.E.2d 707

(1986). We find no Georgia cases denying a landowner just

compensation for the temporary loss of use of his property while

burdened with an invalid zoning classification; nor do we find any

cases denying a landowner just compensation where a valid zoning

classification effectively condemns his property. See, e.g., EastBibb Twiggs Neighborhood Ass'n v. Macon Bibb Planning & Zoning

Comm'n, 888 F.2d 1573 (11th Cir.1989), aff'g 662 F.Supp. 1465

(M.D.Ga.1987), amended and superseded, 896 F.2d 1264 (11th

Cir.1989); see also Calibre Spring Hill, Ltd. v. Cobb County, 715

F.Supp. 1577, 1581 (N.D.Ga.1989). First English Evangelical

Lutheran Church v. Los Angeles County, 482 U.S. 304, 107 S.Ct.

2378, 96 L.Ed.2d 250 (1987) holds that a state deprives a landowner

of his rights under the Takings Clause if it denies him just

compensation in either of these situations. We assume that the

Georgia courts will follow the holding of First English.

 We therefore do not hold that the Harris County Superior

Court will not as a matter of Georgia law recognize Bickerstaff's

takings claim and provide the company just compensation for either
a temporary or a permanent taking. We hold, instead, that because

the superior court will entertain Bickerstaff's claim for inverse

condemnation, Bickerstaff's Fifth Amendment takings claim is not

ripe for federal district court review.

IV.

In conclusion, we affirm the district court's injunction that

invalidates the application of the R-1 zoning classification to

Bickerstaff's property, but we do so on only one ground: the

classification constitutes a taking of Bickerstaff's property in

violation of the Georgia Constitution. We vacate the portions of

the injunction invalidating the A-1 zoning classification and

ordering the Board to apply the M-2 classification to the property.

Finally, we vacate the portion of the injunction that is based on

Bickerstaff's Takings Clause and substantive due process claims.

We direct the court to dismiss Bickerstaff's Takings Clause claim

as not ripe and to dismiss the substantive due process claim

because it states no case for relief.

We note that the district court has retained jurisdiction to

try Bickerstaff's claim for money damages for the temporary loss of

use of its property from the effective date of the Board's R-1

zoning decision to the receipt of our mandate. That claim shall be

tried under Georgia law.

SO ORDERED.