*

Honorable Floyd R. Gibson, Senior U.S. Circuit Judge for

the Eighth Circuit, sitting by designation. 

 1In New Port Largo, Inc. v. Monroe County, 985 F.2d 1488

(11th Cir.1993) ("NPL I "), we determined that NPL's regulatory

takings claims were not barred by the applicable statute of

limitations. 

United States Court of Appeals,

Eleventh Circuit.

No. 95-4142.

NEW PORT LARGO, INC., a Florida Corporation, Plaintiff-Appellant,

Charles H. Netter, et al., Plaintiffs,

v.

MONROE COUNTY, a political subdivision of the State of Florida,

et al., Defendants-Appellees.

Sept. 25, 1996.

Appeal from the United States District Court for the Southern

District of Florida. (No. 87-10043-CIV-JLK), James Lawrence King,

Judge.

Before EDMONDSON, Circuit Judge, and FAY and GIBSON*

, Senior

Circuit Judges.

EDMONDSON, Circuit Judge:

New Port Largo, Inc. (NPL) appeals the district judge's

rejection, after a bench trial, of the claims that Monroe County

violated NPL's rights under the takings clause and the

"substantive" component of the Fourteenth Amendment's due process

clause. This case was before us on appeal previously.1 Today, we

affirm the district court's rejection of NPL's substantive claims.

I. Background

The facts of this case have been set out in earlier
 2

For a fuller explanation of the facts, see NPL I and the

opinion of the district court on remand, set out at 873 F.Supp.

633 (S.D.Fla.1994). 

proceedings and will not be repeated here at length.2 Instead, we

present the following background relevant to our disposition of

this case.

NPL contends that the rezoning of its beachfront property, a

"breakwater" in Monroe County (the "property"), requires

compensation from the County. NPL purchased the property from a

private trust in 1979, before the contested PA rezoning. The

private trust had acquired the property after the land was dredged

from beneath the water for the purpose of creating a landing strip

that would also shelter some previously existing beachfront lots

from harsh weather. The rezoning from RU-2 (residential duplex

use) to PA (private airport use) in 1980, shortly after NPL's

purchase.

After the property was rezoned to PA, NPL brought suit in

Florida state court in 1986, alleging that the procedures by which

the property was rezoned were invalid according to the County's

Major Development Project Ordinance. NPL also contended that the

rezoning was a taking and violated due process. NPL prevailed in

the effort to invalidate the zoning (as NPL had prevailed in 1984

in a suit by the County contesting the ownership of the property).

Here, NPL asserts that, while the title suit was pending, the

property was illegally occupied by one LaLonde, the operator of a

private airport. NPL contends that LaLonde held over beyond the

end of his lease on the advice of the County, during which time he

paid to the County, and the County accepted, continued payments for
 3

We first note that this case, as we determined in the

previous appeal, is ripe. See NPL I, 985 F.2d at 1494 ("At that

time [January 2, 1986], both events required by Williamson to

establish accrual of the takings claim had occurred.") (citing

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

U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985) (subject matter

jurisdiction over takings cases requires satisfaction of "final

decision" test and "just compensation" test)). 

the use of the property. NPL now seeks to recover the value of the

land during the time the regulation limiting its use was in effect.

NPL sued a number of defendants on a number of theories. Now,

the only remaining defendant is Monroe County, against whom NPL

asserts claims for a temporary taking of property in violation of

the Fifth Amendment and a deprivation of due process in violation

of 42 U.S.C. § 1983. After a bench trial, the district court

granted judgment in full to the County.

II. The Takings Issues

Plaintiff argues several substantive theories in support of

its claim that its property has been taken without compensation in

violation of the Fifth Amendment. NPL contends that Monroe County

(1) effectively deprived NPL of the right to exclude others; (2)

physically occupied NPL's property; (3) deprived NPL of all

economically viable uses of its property; and (4) induced NPL to

rely in good faith on the existing zoning. We reject each of these

contentions in turn.3

A. Deprivation of the Right to Exclude

 NPL argues that the County's action constitutes a deprivation

of the right to exclude. See generally Kaiser Aetna v. United

States, 444 U.S. 164, 179-80, 100 S.Ct. 383, 393, 62 L.Ed.2d 332

(1979) ("[W]e hold that the "right to exclude,' so universally held
to be a fundamental element of the property right, falls within

this category of interests that the government cannot take without

compensation...."). NPL's argument here is that by rezoning to

airport use, thus precluding all use of the property but as a

private airport, the County effectively "circumvent[ed] eminent

domain through its zoning power." The County, according to NPL,

zoned private property so it could only be used for the public

good; in essence, the property would function as publicly owned

property.

The County's act of rezoning the property to private airport

was not, in itself, a deprivation of the right to exclude. NPL

nowhere contends that, as a matter of law, the rezoning to private

airport required it to admit the public. Because the property

could have remained dormant, consistent with the PA zoning, NPL

cannot argue that the rezoning was a deprivation of the right to

exclude in the traditional sense.

Thus, NPL presses a more creative argument. In support of its

theory that it was basically forced to invite the public onto its

land, NPL relies on Rippley v. City of Lincoln, 330 N.W.2d 505

(N.D.1983), which found a taking where residential property was

rezoned for "public use." The North Dakota court reasoned that the

rezoning had "the purpose and practical effect of appropriating

private property for public uses without giving the landowners the

constitutionally required compensation." Id. at 508-09.

The Rippley case is unpersuasive as authority for this

particular plaintiff for a number of reasons, but suffice it to say

that the Rippley rezoning allowed only public uses (such as school,
park, sewage treatment plant, and so on). There, the property

would have yielded no revenue unless the City of Lincoln decided to

purchase it. Id. at 508. Otherwise, the Rippley plaintiffs could

use their property only by allowing the public access free of

charge: all residential and commercial uses were prohibited. Id.

Here, regardless of Plaintiff's chances of ever turning a profit,

see below Part II.B, Plaintiff remained free to transact some

business, for profit, with the public at large. Thus, we reject

the argument that the rezoning was a de facto condemnation. The

reasoning of Rippley, even were we to conclude it is persuasive,

does not require compensation here.

Plaintiff's analogies to Nollan v. California Coastal Comm'n,

483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987), and Dolan v.

City of Tigard, 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304

(1994), are also inapposite. In these cases, a state had demanded

that a person open his or her property to public traffic, again

without compensation. That fact distinguishes NPL's situation:

the regulation in this case told NPL how it could use the property

for profit, but did nothing to require NPL to open its property to

the public for use just as the public wished.

B. The Physical Occupation

NPL alleges that the County "commandeered" the property by

"conspiring" with LaLonde, the airport tenant, to ensure his

continued occupation of the property beyond the expiration of his

lease, and by accepting rents from LaLonde, thereby exercising

dominion over property which was actually NPL's. We conclude that

NPL is, at this time, due no compensation on this "physical
 4

We note that the County operates—as an institution of

government—through its legislative enactments, such as zoning. 

The act of "conspiring" with the private occupant of NPL's land

occupation" theory.

 By now it is beyond question that a permanent physical

occupation of private property by the state constitutes a taking

for which a landowner must be compensated. See Lucas v. South

Carolina Coastal Council, 505 U.S. 1003, 1015, 112 S.Ct. 2886,

2893, 120 L.Ed.2d 798 (1992) (takings clause requires compensation

for "regulations that compel the property owner to suffer a

physical "invasion' of his property"); Loretto v. Teleprompter

Manhattan CATV Corp., 458 U.S. 419, 434, 102 S.Ct. 3164, 3175, 73

L.Ed.2d 868 (1982) ("[W]hen the character of the governmental

action is a permanent physical occupation of property, our cases

uniformly have found a taking to the extent of the occupation....")

(citations and internal quotation marks omitted). We point out,

however, that NPL's property has not been physically occupied in

the traditional sense. Loretto is an inapt analogy: the landowner

there could not exclude the cables from his property, at any cost;

here, the airport zoning allowed NPL, if it chose, to let the

property sit completely empty. The County did not directly

physically occupy anything. Cf. id. at 436, 102 S.Ct. at 3176

("[S]uch [a physical] occupation is qualitatively more severe than

a regulation of the use of property....").

 And, we decline now to address NPL's variation on this

theory: that the County effected a physical occupation by

"conspiring" with LaLonde to ensure LaLonde's continued presence on

NPL's land and receiving rents on that land.4 Assuming that the
is not the kind of uniquely governmental act that underlies a

takings claim, ordinarily at least. Therefore, we question

whether acts of "conspiracy" by individual members of a zoning

board are governmental acts, for takings purposes; we also doubt

that the Fifth Amendment requires compensation for these acts. 

But, because of the ripeness concern set out in the text, we pass

over these issues. 

takings clause would mandate compensation for rents unlawfully

received by a governmental entity for land not belonging to it, NPL

has failed to show that a claim of this nature is now ripe.

Specifically, nothing has been called to our attention in the

record to show that NPL, by state law procedures, tried and failed

to get "just compensation" for this rent-taking activity—which we

see as involving a different theory from that underlying the

regulatory "taking" accomplished by the zoning ordinance. See

generally Williamson, 473 U.S. at 195, 105 S.Ct. at 3121 ("[A]

property owner has not suffered a violation of the Just

Compensation Clause until the owner has unsuccessfully attempted to

obtain just compensation through the procedures provided by the

State for obtaining such compensation...."). With no indication

that Florida property law or tort law deny recourse to one whose

property is unlawfully leased by someone, including a government

subdivision, to a third party, we cannot consider whether the Fifth

Amendment would allow some compensation for that act.

C. Deprivation of All Economically Viable Uses

 In addition to physical invasions of property, the Supreme

Court has also accorded "categorical treatment," invariably

requiring compensation, to cases "where regulation denies all

economically beneficial or productive use of land." Lucas, 505

U.S. at 1015, 112 S.Ct. at 2893. Here, the district court found
 5

The state court said that the "The only permitted use in

said zoning district is a private airport.... This rezoning of

this property, now determined to be private, to airport, would

deprive the owner of any reasonable use." 

that under the new zoning ordinance, NPL could still use its

property in several economically viable ways: as a private

airport, and also for the construction of boat slips, a beach club,

or dry storage space for boats. This finding was essentially the

result of the trial judge's decision to credit the testimony of

Defendant's expert about the property's lawful and profitable uses.

 We review the facts for clear error. See Lucas, 505 U.S. at

1020 & n. 9, 112 S.Ct. at 2896 & n. 9 (describing district court's

determination that no economically viable use remained as

conclusion of fact). Here, we conclude from our review of the

record that the district judge's findings were not clearly

erroneous. Therefore, no compensation is due on the ground that

the rezoning left NPL with no economically viable uses of its

property.

 NPL contends, however, that a factual finding by the judge in

the state court action to invalidate the rezoning should have

precluded relitigation of the economically viable uses issue in the

federal district court.5

 "It is now well established that ... a

federal court must give the same full faith and credit to the

records and judicial proceedings of any state court that they would

receive in the state from which they arise." Gjellum v. City of

Birmingham, 829 F.2d 1056, 1060 (11th Cir.1987) (citing 28 U.S.C.

§ 1738). The preclusive effect of state judgments in federal court

is determined, in the first instance, according to principles of
 6

We note also that it is unclear from the state court

opinion that the judge was even addressing the takings claim, and

so it is doubtful that Plaintiffs could succeed in satisfying the

"actually decided" element either. We need not conclusively

resolve this issue, in view of the "necessary and material"

analysis, but we note that in general a federal court will not

confer preclusive effect on a state court order where it is

state law. See Marrese v. American Academy of Orthopaedic

Surgeons, 470 U.S. 373, 380, 105 S.Ct. 1327, 1332, 84 L.Ed.2d 274

(1985) ("This statute [28 U.S.C. § 1738] directs a federal court to

refer to the preclusion law of the State in which judgment was

rendered."). In Florida, "collateral estoppel applies when the

identical parties wish to relitigate issues that were actually

litigated as necessary and material issues in a prior action."

Carson v. Gibson, 638 So.2d 79, 81 (Fla.Dist.Ct.App.1994) (citing

Albrecht v. State, 444 So.2d 8 (Fla.1984)).

 Here, NPL has failed (at the least) to satisfy the "necessary

and material" element of the issue preclusion analysis. The state

court decided that Florida law offered no relief to the victims of

temporary regulatory burdens imposed in good faith and that Monroe

county did act in good faith. See NPL I, 985 F.2d at 1491 & n. 4.

Thus, whether or not there remained economically viable uses, an

independent and sufficient legal basis for the state court's

holding that no compensation was due existed: Florida law provided

no remedy. Given this legal conclusion, there was no need for the

state court to decide whether or not economically viable uses had

existed. Because NPL has failed to satisfy the "necessary and

material" requirement, Defendants were properly permitted to

introduce in the district court testimony on other economically

viable uses.6 We affirm the district court's determination that
unclear what the state court actually decided. See PaineWebber

Inc. v. Farnam, 870 F.2d 1286, 1287 (7th Cir.1989) ("We now hold

that the vagueness of the state court order renders ...

collateral estoppel doctrine[ ] ... inapplicable."). The state

court order here is vague because there is no discussion of what

is an economically viable use for takings purposes and because,

as noted above, Florida's lack of remedy caused factual findings

on economically viable uses to be unimportant—making it unlikely

that the state court was doing more than making a passing

observation.

In addition, because we conclude the Florida courts

would not accord preclusive effect, it is unnecessary to

consider whether an exception to section 1738 would defeat

the state law grant of preclusion. See generally Marrese,

470 U.S. at 383, 105 S.Ct. at 1333 ("The issue whether there

is an exception to § 1738 arises only if state law indicates

that litigation of a particular claim or issue should be

barred in the subsequent federal proceeding."). 

other economically viable uses of the property existed.

D. Good Faith Reliance

 NPL argues that it acted "in good faith reliance upon the

existing residential zoning," and, therefore, the County was

equitably estopped from rezoning the property to preclude

residential development (or required to pay compensation if it did

so rezone). NPL relies chiefly on Wheeler v. City of Pleasant

Grove, 664 F.2d 99 (5th Cir. Unit B. 1981), and A.A. Profiles, Inc.

v. City of Fort Lauderdale, 850 F.2d 1483 (11th Cir.1988). NPL's

argument is essentially that it spent a great sum of money to

purchase the property, which it would not have done but for the

residential zoning.

NPL's argument fails. Both Wheeler and A.A. Profiles

contained a critical element that is missing from the facts of this

case. In both cases, the local government took affirmative

steps—by granting a permit or passing a specific resolution

approving the project later precluded by rezoning—beyond the mere
 7

Because we reject each of Plaintiff's takings arguments on

the merits or on ripeness grounds, we need not discuss the

contention that the district court erred in its calculation of

the applicable takings period. Also, we need not address the

controversy over the import of NPL's sale of the property in 1982

to its principals (in what NPL referred to at argument as a

"business divorce"). See generally NPL I at 1490-91. The

takings period allegedly lasted from 1980 (the rezoning) to 1986

(the invalidation of the rezoning). NPL was the owner during the

earlier part of this period and, thus, has standing here. 

Perhaps the sale of the property could have shortened the takings

period for NPL (and so reduced NPL's potential damages), but we

need not address this issue because we conclude that as a matter

of law there was no violation of the Fifth Amendment and no

damages are to be awarded. 

creation of the earlier zoning map. The panel in A.A. Profiles

noted, "Wheeler is indistinguishable from this case. The original

resolution [approving the project] granted appellant a property

interest...." 850 F.2d at 1488 (footnote omitted).

 Here, Plaintiff failed to allege any affirmative act by the

County sufficient to grant a commensurate "property interest."

Plaintiff merely alleges that it paid a lot of money for property

that the zoning plats indicated was suitable for residential

development. That in itself is insufficient to invoke the rule of

Wheeler and A.A. Profiles. Cf. A.A. Profiles, 850 F.2d at 1488

("We note also that although the taking did not occur simply

because appellant expended a great amount of money to begin the

project, this expenditure in reliance on the resolution underscores

the importance of the original resolution."). Because there is no

general constitutional right to be free from all changes in

land-use laws, see Lakeview Development Corp. v. City of South Lake

Tahoe, 915 F.2d 1290, 1295 (9th Cir.1990), NPL must do more than

rely on the original zoning to establish an equitable estoppel. It

has not done so, and is entitled to no compensation.7
 8

NPL apparently argued below that its procedural due process

rights were violated, but makes no such argument here. 

III. The Substantive Due Process Issues

 NPL argues the property was so patently unsafe for use as an

airport that the rezoning constituted a violation of their

"substantive" rights under the due process clause.8 To prove a due

process violation, NPL must show that the rezoning was "clearly

arbitrary and unreasonable, having no substantial relation to the

public health, safety, morals, or general welfare." Village of

Euclid v. Ambler Realty Co., 272 U.S. 365, 395, 47 S.Ct. 114, 121,

71 L.Ed. 303 (1926).

Nothing clearly arbitrary and unreasonable has been shown

about the zoning here. The record at trial established beyond

question that, first, the properties in question were created for

use as an airport (NPL's counsel admitted as much at argument), and

second, that the strip did in fact function as an airport for some

time both before the rezoning (that is, the land's historical use

was as an airport) and after. Knowledge of these facts, which we

presume the zoning entities to have had, is sufficient in itself

for us to conclude that local officials violated no substantive due

process right by the rezoning effort. See South Gwinnett Venture

v. Pruitt, 491 F.2d 5, 7 (5th Cir.1974) (en banc) ("A zoning

commission is a quasi-legislative body.... Its actions are

entitled to a presumption of validity."). The Federal Constitution

does not empower courts to sit just to second-guess legislative

judgments on technical matters like airport safety. The

substantive due process claim fails.
We note in addition that NPL's argument—that the airport

zoning was irrational because of safety concerns—refers only to the

existing, not the possible, uses of the property as an airport.

Appellants fail to press the assertion that no safe runway ever

could be constructed on the property. For these reasons, judgment

on the substantive due process claim was properly awarded to

Defendants.

IV. The Jury Trial Issues

NPL contends that contested factual issues required the

empaneling of a jury on both the Fifth Amendment takings claim and

the Fourteenth Amendment substantive due process claim. We reject

these arguments.

 No jury trial was required for the substantive due process

claim. This court addressed the division of labor between judge

and jury on substantive due process claims for zoning cases in

Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570 (11th

Cir.1989). There, we held that "the ultimate issue of whether a

zoning decision is arbitrary and capricious is a question of law to

be determined by the court." Id. at 1578. We went on to point

out, however, that "subsidiary facts" in the substantive due

process analysis, such as what motivated the denial of a building

permit, "are properly for the factfinder." Id. at 1578 & n. 15.

Thus, certain questions in substantive due process zoning cases may

on occasion require the empaneling of a jury.

 NPL, however, cannot complain here that material "subsidiary

facts" were improperly decided by the judge, because there were no

material facts in contention below. In substantive due process
 9

In fact, counsel for NPL originally represented to the

district court that "the issues relating to taking other than

damages are for the Court. The damages issue is for the jury." 

challenges to zoning laws, we recognize, as noted above:

A zoning commission is a quasi-legislative body.... Its

actions are entitled to a presumption of validity. The only

question which federal district courts may consider is whether

the action of the zoning commission is arbitrary and

capricious, having no substantial relation to the general

welfare.

South Gwinnett Venture v. Pruitt, 491 F.2d 5, 7 (5th Cir.1974) (en

banc), quoted in Greenbriar, 881 F.2d at 1577 n. 14. In the light

of the great deference accorded the quasi-legislative body in

zoning cases, that NPL's property was actually conceived as and

later used as an airport before the PA rezoning precludes, as a

matter of law, a determination that the PA rezoning was an act so

dangerous as to be clearly arbitrary and unreasonable. See

generally Hoeck v. City of Portland, 57 F.3d 781, 786 (9th

Cir.1995) (concluding that "as a matter of law, no reasonable jury

could find that the City has acted in an [sic] clearly arbitrary

and unreasonable manner") (applying rule of Village of Euclid, 272

U.S. at 395, 47 S.Ct. at 121). Because no material, subsidiary

fact was in issue, the trial judge was justified in resolving the

substantive due process issue himself.

 On the regulatory takings claim NPL has asserted, but failed

to support with any case, the proposition that subsidiary facts

must be decided by a jury.9 We have discovered no indication that

the rule in regulatory takings cases differs from the general

eminent domain framework, in which issues pertaining to whether a

taking has occurred are for the court, while damages issues are the
province of the jury. In United States v. Reynolds, 397 U.S. 14,

18, 90 S.Ct. 803, 806, 25 L.Ed.2d 12 (1970), for example, the

Supreme Court noted that "it has long been settled that there is no

constitutional right to a jury in eminent domain proceedings."

And, contrary to NPL's contention, a recent panel opinion of this

court (since vacated) noted, we think correctly, that no jury

factfinding is required in regulatory takings cases. See

Resolution Trust Corp. v. Town of Highland Beach, 18 F.3d 1536,

1550 (11th Cir.1994), vacated, 42 F.3d 626 (11th Cir.1994) ("[T]he

court determines all issues, legal and factual, in an inverse

condemnation suit, save the question of just compensation....").

We agree with the district judge's determination that no jury had

to be empaneled for the regulatory takings claim.

Because the district court committed no reversible error, the

judgment below is AFFIRMED.