*

Honorable Jerome Farris, Senior U.S. Circuit Judge for the Ninth Circuit, sitting by

designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 95-3698.

VILLAS OF LAKE JACKSON, LTD.; Richard L. Pelham; Equity Resources, Inc.; Lake

Jackson, Ltd.; Plaintiffs-Appellants,

Public Bank, a Florida banking corporation, Intervenor-Plaintiff,

v.

LEON COUNTY, Defendant-Appellee.

Sept. 8, 1997.

Appeal from the United States District Court for the Northern District of Florida. (No. TCA 89-CV40247), William C. Sherrill, Jr., Magistrate.

Before BIRCH, Circuit Judge, and RONEY and FARRIS*

, Senior Circuit Judges.

RONEY, Senior Circuit Judge:

The plaintiff landowners here are attempting to establish a constitutional cause of action

against the County because the rezoning of the landowners' real property took away their right to

build high-density apartment complexes. On summary judgment, in a comprehensive and

well-reasoned 62-page opinion, the Magistrate Judge to whom the case was submitted held that

(1) the due process taking claim fails because there is no such federal cause of action

independent of a claim for relief under the Takings Clause of the Constitution,

(2) the arbitrary and capricious due process claim fails because the ordinances challenged

are rationally related to a legitimate governmental interest, and

(3) the equal protection claim fails for lack of evidence.

We affirm.

As to the other two counts of the complaint alleging two additional causes of action, (a)

landowners do not appeal the dismissal of their Takings Clause claim on ripeness grounds, or (b)

the refusal of the district court to exercise supplemental jurisdiction over their state law inverse

condemnation claim.
2

The most significant holding on this appeal is that, other than a due process claim based on

arbitrary and capricious action, there is no "substantive due process takings" cause of action

available in such a case, separate and apart from a cause of action under the Takings Clause of the

United States Constitution. This decision is based upon Supreme Court cases which overtake some

suggestions made in prior Eleventh Circuit opinions as dictum, but is not contrary to any prior

holdings of this Circuit and is in accord with our most recent decisions.

In 1972 and 1973, landowners, including some predecessors in title to the current appellants,

purchased 165 acres of land on the shore of a large lake in Leon County. Of the 165 acres, all

buildable property has been developed except for the tract at issue in this case, asserted to comprise

13 or 30 acres. In 1989, based on concerns for the impact of overdevelopment on the lake, Leon

County rezoned the tract from an intense development category allowing apartment complexes of

43.6 units per acre to single family housing. Thus, by this "rezoning," the landowners were deprived

of the right to build high density apartment houses, a right they alleged was "vested" under state law

because of their reliance upon prior regulatory activity of the County.

(1) "DUE PROCESS TAKINGS" CLAIM

The Takings Clause of the Fifth Amendment provides: "nor shall private property be taken

for public use, without just compensation." U.S. Const. amend. V. In this appeal, the landowners

frame this claim, not under that provision, but as one for a "due process taking" alleged as a species

of substantive due process noted by prior opinions of this Court. See Bickerstaff Clay Products Co.

v. Harris County, Georgia, 89 F.3d 1481, 1490 n. 16 (11th Cir.1996); Restigouche, Inc. v. Town of

Jupiter, 59 F.3d 1208, 1211 n. 1 (11th Cir.1995); Tari v. Collier County, 56 F.3d 1533 (11th

Cir.1995); Reahard v. Lee County, 30 F.3d 1412, 1415 n. 7 (11th Cir.1994); Corn v. City of

Lauderdale Lakes, 997 F.2d 1369, 1374 (11th Cir.1993); Reahard v. Lee County, 968 F.2d 1131,

1135 (11th Cir.1992); Executive 100, Inc. v. Martin County, 922 F.2d 1536, 1540 n. 11 (11th

Cir.1991); Eide v. Sarasota County, 908 F.2d 716, 721 (11th Cir.1990).
3

In essence, landowners argue that under the due process clause they may challenge the taking

that occurs when a specifically recognized property right, vested under state law, is taken

away—even though they might still retain enough use of the property to avoid a taking under the

Takings Clause if you considered the parcel as a whole—because the due process clause protects

each of those specific, finite, property rights in the entire bundle of rights associated with a piece

of property.

 Recent Supreme Court "takings" jurisprudence and the well established contours of

substantive due process law dictate, however, that if a challenge to a "regulatory taking" states a

claim upon which relief may be granted at all, it is a cause of action under the Takings Clause,

subject to the ripeness prerequisite of exhaustion of the state-court inverse condemnation remedy.

See Bickerstaff, 89 F.3d at 1489 n. 15 (noting that landowner's claim under the Takings Clause

subsumed and was broader than his substantive due process claim). There is no independent

"substantive due process taking" cause of action. The only substantive due process claim is for

arbitrary and capricious conduct.

In Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 160, 67 L.Ed. 322

(1922), the Court held a land-use regulation to be invalid on a challenge in equity, Justice Holmes

writing that "while property may be regulated to a certain extent, if regulation goes too far it will be

recognized as a taking." It is this language that has given rise to some rhetoric, but no holding, that

a regulation that "goes too far" gives rise to a substantive due process takings claim. See Williamson

County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 185, 105 S.Ct.

3108, 3116, 87 L.Ed.2d 126 (1985); Eide v. Sarasota County, 908 F.2d 716, 721 (11th Cir.1990).

In Eide, a case heavily relied upon by plaintiffs, we had mentioned "due process takings" as

one of four potential challenges a landowner could bring against an adverse zoning decision. As

distinguished from a just compensation claim, we stated that a successful due process takings suit,

for instance, would "result in an invalidation of the local authority's application of the regulation

and, perhaps, actual damages, whereas a just compensation claim is remedied by monetary
4

compensation for the value taken." 908 F.2d at 721. We cited Williamson as "recognizing such a

due process claim, but holding the claim to be premature." Id. The cited discussion in Williamson

arose before the Supreme Court had resolved the debate over whether the remedy for the

constitutional prohibition against regulatory takings arose from the Due Process Clause or the

Takings Clause. Eide, in noting the possible distinction between these two theories which it

specifically did not resolve, footnoted that

[t]his distinction may be academic if the Supreme Court decides that a non-physical "taking"

claim is properly redressed by only the Just Compensation Clause or only the Due Process

clause.

908 F.2d at 721 n. 8.

The notion of due process as an independent ground has now been refuted, however, by at

least two Supreme Court cases which, read together, firmly place all the constitutional constraints

on regulatory takings recognized by this Court under the Takings Clause alone. First English

Evangelical Lutheran Church of Glendale v. Los Angeles County, 482 U.S. 304, 107 S.Ct. 2378, 96

L.Ed.2d 250 (1987), held that a landowner could receive just compensation for a temporary taking

under the Takings Clause. That holding confirmed that a challenge to a land-use regulation as

confiscatory falls under the Takings Clause.

It has ... been established doctrine at least since [Mahon] that "[t]he general rule at least is,

that while property may be regulated to a certain extent, if regulation goes too far it will be

recognized as a taking." While the typical taking occurs when the government acts to

condemn property in the exercise of its power of eminent domain, the entire doctrine of

inverse condemnation is predicated on the proposition that a taking may occur without such

formal proceedings.

....

[T]he need for preserving a degree of freedom in the land-use planning function ... must be

evaluated in the light of the command of the Just Compensation Clause of the Fifth

Amendment.

....

It is axiomatic that the Fifth Amendment's just compensation provision is "designed to bar

Government from forcing some people alone to bear public burdens which, in all fairness

and justice, should be borne by the public as a whole."

....
5

Where this burden results from governmental action that amounted to a taking, the Just

Compensation Clause of the Fifth Amendment requires that the government pay the

landowner for the value of the use of the land during this period. Invalidation of the

ordinance or its successor ordinance after this period of time, though converting the taking

into a "temporary" one, is not a sufficient remedy to meet the demands of the Just

Compensation Clause.

Id. at 316-19 (citations omitted) (emphasis added).

First English established that the Takings Clause challenge carries the full range of remedies

for confiscatory regulation: if the regulation is not for a public purpose, it may be invalidated, and

just compensation awarded for a temporary taking; if the regulation serves a valid public purpose,

yet still goes so far in diminishing the landowner's interests as to constitute a taking, just

compensation may be awarded running from the regulation's effective date; if the government has

or decides to terminate the regulation, that award compensates the landowner's injury over a

temporary period; if not, a permanent taking is compensated. "Once a court determines that a taking

has occurred, the government retains the whole range of options already available—amendment of

the regulation, withdrawal of the invalidated regulation, or exercise of eminent domain." Id. at 316.

In Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d

798 (1992), the Court reviewed the evolution of takings jurisprudence and recognized that the

Mahon standard of "goes too far" expressed a requirement of the Takings Clause, id. at 1028, n. 15

("Justice Blackmun is correct that early constitutional theorists did not believe the Takings Clause

embraced regulations of property at all, but even he does not suggest (explicitly at least) that we

renounce the Court's contrary conclusions in Mahon. Since the text of the clause can be read to

encompass regulatory as well as physical deprivations ... we decline to do so." (citations omitted)).

See also Suitum v. Tahoe Regional Planning Agency, --- U.S. ----, 117 S.Ct. 1659, 137 L.Ed.2d 980

(1997) (citing Mahon for the proposition that a regulation that goes too far results in a taking under

the Fifth Amendment).

Lucas and First English confirm that "goes too far" means so far that the regulation

constitutes a Takings Clause taking under one of the various standards set forth in recent Supreme

Court decisions, not a substantive due process violation. Cf. e.g., Lucas (per se taking by physical
6

invasion or deprivation of all economically viable use); Penn Central Transp. Co. v. City of New

York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978) (ad hoc balancing of public and private

interests).

This Court in recent decisions has likewise abandoned the distinction between takings claims

and a due process takings theory. In Corn v. City of Lauderdale Lakes, 95 F.3d 1066 (11th

Cir.1996), we noted that the Takings Clause provides the basis for both just compensation and

invalidation of a regulation. Id. at 1072-75. In Bickerstaff, we held that the landowner'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 R-1 zoning classification lies solely under the Takings Clause." 89 F.3d at 1490.

 Any constitutional claim, apart from an arbitrary and capricious challenge, challenging the

regulatory deprivation of a single use of real property alleged to be vested under state law must be

considered in light of the remaining use of the property as a whole. The Supreme Court has

construed the Takings Clause beyond its original application to formal government expropriations

to now define and protect a more general property right that constrains excessive land-use

regulation. In doing so the Court has consistently held that that constitutional right against excessive

regulation does not encompass separate protection of individual strands in the bundle of property

rights as landowners here have claimed. See and compare Andrus v. Allard, 444 U.S. 51, 65, 100

S.Ct. 318, 326-27, 62 L.Ed.2d 210 (1979) ("[W]here an owner possesses a full "bundle' of property

rights, the destruction of one "strand' of the bundle is not a taking, because the aggregate must be

viewed in its entirety.") with Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 434,

102 S.Ct. 3164, 3175, 73 L.Ed.2d 868 (1982) ("[A] permanent physical occupation of another's

property ... is perhaps the most serious form of invasion of an owner's property interests ... [because]

the government does not simply take a single "strand' from the "bundle' or property rights: it chops
7

through the bundle, taking a slice of every strand"). There is no separate cause of action under the

due process clause of the Constitution. See Dolan v. City of Tigard, 512 U.S. 374, 384 n. 5, 114

S.Ct. 2309, 2316, 129 L.Ed.2d 304 (1994) (holding that conditioning building permit on the

landowner dedicating portion of land for improvement of storm drainage system was not

confiscatory but that also requiring dedication of public pathway was; the Court rejected the

suggestion of the dissent that the case was grounded in substantive due process as opposed to the

Takings Clause or that it was "resurrect[ing] a species of substantive due process analysis that it

firmly rejected decades ago," id. at 405, 114 S.Ct. at 2326 (Stevens, J., dissenting)). The district

court so held, and properly entered summary judgment for the defendant for failure to state a cause

of action in the count of the complaint alleging a substantive due process claim.

(2) ARBITRARY AND CAPRICIOUS DUE PROCESS 

 A landowner's vested rights created by state law may indeed constitute property subject to

the arbitrary and capricious substantive due process protections under the federal Constitution, see

The Reserve, Ltd. v. Town of Longboat Key, 17 F.3d 1374, 1379-80 (11th Cir.1994) (citing Board

of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972)), cert. denied,

513 U.S. 1080, 115 S.Ct. 729, 130 L.Ed.2d 633 (1995). Assuming without deciding that the

landowners had established a state-created property right in the development project and that the

district court was correct in classifying the down-zoning as a legislative rather than an executive act,

this claim must fail because the undisputed evidence of the County's interest in protecting the water

quality at the lake and the rational relation of the zoning to that goal fully supports the decision that

a finding that the rezoning was arbitrary and capricious is precluded.

(3) EQUAL PROTECTION

 Given the undisputed evidence of the unique aspects of the tract as contrasted to other

assertedly similarly situated properties and the lack of evidence of invidious discrimination, see

East-Bibb Twiggs Neighborhood Ass'n v. Macon Bibb Planning & Zoning Comm'n, 888 F.2d 1573,
8

1576 (11th Cir.1989), the district court correctly entered summary judgment for the County on

landowners' equal protection claim.

CONCLUSION

 Any constitutional right based upon a zoning regulation governing a specific use of real

property, to the extent the claim is based upon the deprivation of the right to use the property itself

for that specific purpose, is protectable, if it is a right for which the Constitution gives protection at

all, by only these causes of action:

1. A procedural due process claim challenging the procedures by which the regulation was

adopted. No such challenge is made on this appeal.

2. A substantive due process claim based upon the arbitrary and capricious action of the

government in adopting the regulation. The district court properly held that the challenged action

of the County was not arbitrary and capricious.

3. A Takings Clause claim which may seek not only just compensation, if the regulation

amounts to a taking, but may seek invalidation and injunctive relief if the regulation exceeds what

the government body may do under the Takings Clause of the Constitution. The decision that this

claim was not ripe is not a part of this appeal.

4. Claims under some other constitutional provision that give the landowner a protectable

right, not specifically involved with the real property right itself. The district court properly entered

summary judgment for the defendant on the claim alleging a violation of the Equal Protection Clause

of the Constitution.

 There is no substantive due process "takings" claim that would protect a specific property

right not already protected by the Takings Clause. In other words, if the right to the specific use of

the property is not protected by the Takings Clause, either as to just compensation or invalidation,

it is not protected by the Constitution of the United States, except as set forth above.

AFFIRMED.