United States Court of Appeals,

Eleventh Circuit.

No. 94-4049.

RESTIGOUCHE, INC., a Florida corporation, Plaintiff-Appellant,

v.

TOWN OF JUPITER, a Florida Municipal Corporation, DefendantAppellee.

Aug. 2, 1995.

Appeal from the United States District Court for the Southern

District of Florida. (No. 91-8049-Civ), Donald L. Graham, Judge.

Before HATCHETT and ANDERSON, Circuit Judges, and FAY, Senior

Circuit Judge.

ANDERSON, Circuit Judge:

I. BACKGROUND

Restigouche, Inc. ("Restigouche") owns property the parties

refer to as "Maplewood," located along Indiantown Road in the town

of Jupiter, Florida (the "Town"). In 1988, the Town began a study

of land use along the Indiantown Road Corridor, including the

Maplewood property. At that time, Maplewood was zoned to permit

automobile sales by special exception. In November 1989,

Restigouche applied to the Town for special exception in order to

build an automobile campus on the property. While approval was

pending, the Town completed its study of the Indiantown Road

Corridor, and adopted a comprehensive plan for land use along the

corridor (the "Comprehensive Plan") and specific zoning regulations

applicable to the subdistrict in which the Maplewood property is

located (the "IOZ Regulations"). The IOZ Regulations prohibited

automobile sales in the subdistrict. Subsequently, pursuant to the

IOZ Regulations, the Town denied Restigouche's application to build
an automobile campus on Maplewood.

Restigouche appealed the denial of its application to the Town

Council. After the Town Council denied its appeal, Restigouche

sought state administrative review pursuant to Fla.Stat.Ann. §

163.3213(7) (West 1990). This administrative challenge was also

unsuccessful. Restigouche then filed suit in state court asserting

a number of constitutional and statutory claims. The state court

suit is currently pending. Restigouche has not, however, sought

rezoning, nor has Restigouche requested approval for the 27 other

uses the parties agree are permitted on Maplewood under the IOZ

Regulations.

Restigouche filed the instant action on February 8, 1991

claiming that the IOZ Regulations, as applied to Maplewood, are

unconstitutional. The Town filed a motion for summary judgment on

April 28, 1993, and the motion was fully briefed by June 14, 1993.

In the meantime, the case had been assigned by consent of the

parties to a magistrate judge pursuant to 28 U.S.C. § 636(c). No

hearing was immediately set on the summary judgment motion, and the

parties proceeded with discovery. On November 29, 1993, the

magistrate court telephonically informed the parties that it would

hear argument on the Town's motion for summary judgment at the

pretrial status conference on December 1. Oral argument was heard

on the motion at the status conference on December 1, and the

magistrate court entered an order granting summary judgment in

favor of the Town on December 15.

 In its order granting summary judgment, the magistrate court

determined that Restigouche's challenge to the IOZ Regulations
 1

There are potentially four types of constitutional

challenges to a zoning decision: (1) just compensation taking,

(2) due process taking, (3) substantive due process (also

referred to as arbitrary and capricious due process), and (4)

equal protection. Eide v. Sarasota County, 908 F.2d 716, 720

(11th Cir.1990), cert. denied, 498 U.S. 1120, 111 S.Ct. 1073, 112

L.Ed.2d 1179 (1991). In addition, a substantive due process

challenge may be either "facial" or "as applied." Id. at 722. 

The magistrate court found that Restigouche had abandoned any

equal protection, due process taking, or facial substantive due

process claims. Restigouche does not dispute this finding. 

Thus, all that remains are just compensation takings and as

applied substantive due process claims.

Additionally, Restigouche raises claims it categorizes

as "fails to substantially advance" taking and "justice and

fairness" taking. We do not recognize these as distinct,

viable federal constitutional claims in the zoning context.

Finally, Restigouche argues that its "vested rights"

claims are federal claims in and of themselves. Whether

Restigouche has any "vested rights," i.e. protected property

interests, is relevant to the determination of whether

Restigouche has stated a federal constitutional claim. See,

e.g., Marine One, Inc. v. Manatee County, 877 F.2d 892 (11th

Cir.1989) (rescission of building permit not a taking or

violative of substantive due process because plaintiff had

no vested property interest in possession of building

permit). However, proof of some vested right by itself does

not state a federal claim independent of the constitutional

claims already raised and addressed in this opinion. 

Although some of Restigouche's "vested rights" claims may be

pendent state law claims, their dismissal by the court below

was well within its discretion. 

raised only two claims: (1) that the Town's action in passing and

applying the IOZ Regulations to Maplewood is arbitrary and

capricious as applied (substantive due process); and (2) that the

Town's action prohibiting automobile sales on Maplewood constitutes

a taking.1

 The court found Restigouche's taking claim premature,

and granted summary judgment on Restigouche's substantive due

process claim as a matter of law.

In this appeal, Restigouche asserts that its just compensation

taking claim is ripe. The Town, on the other hand, asserts that
both substantive due process and taking claims should have been

dismissed as premature. Restigouche further argues that the

district court granted summary judgment without first giving

Restigouche the 10-day notice required under Fed.R.Civ.P. 56(c).

Finally, Restigouche asserts the district court erred as a matter

of law in granting judgment to the Town because genuine issues of

material fact existed with respect to its substantive due process

claim. We affirm.

II. RIPENESS

 Whether Restigouche's claims are ripe is a jurisdictional

issue, which we review de novo. Reahard v. Lee County, 30 F.3d

1412, 1414 (11th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct.

1693, 131 L.Ed.2d 557 (1995). The purpose of the ripeness doctrine

is "to prevent the courts, through avoidance of premature

adjudication, from entangling themselves in abstract

disagreements." Abbott Laboratories v. Gardner, 387 U.S. 136, 149,

87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). Therefore, assuming

that there is sufficient injury to meet Article III's requirement

of a case or controversy, the ripeness inquiry focuses on whether

the claim is sufficiently mature, and the issues sufficiently

defined and concrete, to permit effective decisionmaking by the

court. Johnson v. Sikes, 730 F.2d 644, 648 (11th Cir.1984).

 Because substantive due process and taking challenges to the

zoning process scrutinize that process in slightly different ways,

substantive due process and taking claims mature at different

points in the process. Eide v. Sarasota County, 908 F.2d 716, 720-

26 (11th Cir.1990), cert. denied, 498 U.S. 1120, 111 S.Ct. 1073,
112 L.Ed.2d 1179 (1991). An as applied substantive due process

challenge focuses on whether the actual decision to apply the

zoning to the property was "arbitrary and capricious." Thus, such

a claim presents a sufficiently concrete question for review when

the zoning decision has been finally made and applied to the

property. Id. at 724-26. It is undisputed that the IOZ

Regulations have been finally made, and that the Town denied

Restigouche's application to zone Maplewood for automobile sales

pursuant to those regulations. Therefore, Restigouche's

substantive due process claim is ripe. Id. at 725 n. 16.

 However, a just compensation taking claim matures later in

the zoning process. One focus of such a taking challenge is

whether a zoning regulation has "gone too far," i.e., has deprived

the owner of all uses that would enable him to derive economic

benefit from the property. Id. at 720-21. Thus, Restigouche's

just compensation taking claim is not ripe before the "local

authority has determined the nature and extent of the development

that will be permitted." Id. at 720. Unlike in the substantive

due process context, this requires more than a final decision to

apply the zoning regulation to the property. Such a taking claim

is not ripe until the property owner has also sought rezoning

and/or variances sufficient to determine the extent of economically

beneficial use which remains under the zoning regime. Id.

Restigouche has not sought rezoning, nor applied for one of the 27

remaining uses permitted on the property under the IOZ Regulations.

Therefore we cannot yet determine whether the IOZ Regulations have

"gone too far" with respect to Restigouche's property, and
 2

To make out a just compensation taking claim, a plaintiff

must also show "that there is no provision to award him just

compensation." Eide 908 F.2d at 720. Thus, a just compensation

taking claim is not ripe until, in addition to seeking rezoning

or variance, the property owner has also exhausted available

state compensation remedies. Id. at 720-21. Because Restigouche

has not made use of the Florida remedies available for receiving

just compensation, see Barima Inv. Co., Inc. v. United States,

771 F.Supp. 1187, 1189 (S.D.Fla.1991) (recognizing that inverse

condemnation action available in Florida state courts), aff'd,

959 F.2d 972 (11th Cir.1992), Restigouche's just compensation

taking claim is also premature on this alternate ground. 

 3

Restigouche does not argue that violation of Rule 56(c)

affects our ripeness inquiry; i.e., Restigouche does not assert

it has been prevented from presenting evidence relevant to the

ripeness analysis. We do not find additional evidence relevant

to the ripeness question in the record and proffered supplemental

materials, nor does Restigouche assert that additional evidence

relevant to ripeness exists. 

Restigouche's taking claim is premature.2

Because Restigouche's just compensation taking claim is not

ripe, the court below properly dismissed it. Because the arbitrary

and capricious due process claim is ripe, we turn now to discuss

it. However, we must first address Restigouche's argument that the

court below violated the 10-day notice requirement of Federal Rule

of Civil Procedure 56(c).3

III. 10-DAY NOTICE REQUIREMENT

Under Federal Rule of Civil Procedure 56(c), the non-moving

party must be given 10-day advance notice that a summary judgment

motion will be taken under advisement. Milburn v. United States,

734 F.2d 762, 765 (1984). After giving the parties only 2 days

notice, the magistrate court entertained argument on the Town's

motion for summary judgment at the December 1, 1993, pretrial

status conference. On December 2, Restigouche filed a motion to

supplement the summary judgment record. On December 15, the
 4

We expressly do not decide whether the magistrate court

violated the 10-day notice rule. Although the court heard oral

argument on the summary judgment motion only 2 days after giving

notice, the summary judgment order was rendered more than 10 days

after the parties were telephonically informed that the motion

would be taken under advisement, and also more than 10 days after

the parties were heard in chambers at the pretrial status

conference. In the interim, Restigouche could have taken

advantage of Rules 56(e) and 56(f) to supplement the record, see

Fed.R.Civ.Pro. 56(e) ("The court may permit affidavits to be

supplemented or opposed by depositions, answers to

interrogatories, or further affidavits.") and 56(f) (party may

petition the court for additional time to permit further evidence

to be obtained), and in fact did make a motion to supplement. 

Thus, Restigouche arguably had notice and at least 10 days to

present additional materials as required by the 10-day notice

rule. However, we need not decide whether the requirements of

Rule 56(c) were satisfied because we hold that any alleged

violation under the facts of this case is harmless error. 

magistrate court denied Restigouche's motion to supplement the

record and granted summary judgment favor of the Town. Restigouche

argues that this sequence of events violated the 10-day notice

rule.

 Even if notice was insufficient under Rule 56(c), 4

 we find

this error harmless. Donaldson v. Clark, 819 F.2d 1551, 1555 n. 3

(11th Cir.1987) (en banc) (violation of 10-day notice rule harmless

error in limited circumstances). The purpose of the 10-day notice

rule is to give the non-moving party notice and a 10-day window of

opportunity to marshal its resources and present any additional

materials and arguments in opposition to the motion. Id. at 1555.

We are convinced that we have before us, on de novo review of the

summary judgment motion, all of the facts and arguments that

Restigouche would have or could have presented had Restigouche been

given the required notice. The magistrate court denied

Restigouche's December 2, motion to supplement because Restigouche

failed to identify the specific portions of the supplemental
 5

The magistrate court did not err in denying this motion to

supplement. The onus was on Restigouche to point to the specific

portions of the proffered material which created a material issue

of fact. See Fed.R.Civ.P. 56(e) ("[A]n adverse party may not

rest upon ... mere allegations or denials ..., but ... must set

forth specific facts showing that there is a genuine issue for

trial."). We do not require trial courts to search the record

and construct every argument that could have been made based upon

the proffered materials. Resolution Trust Corp. v. Dunmar Corp.,

43 F.3d 587, 599 (11th Cir.1995). 

materials which would create material issues of fact.5 Moreover,

our independent review of the proffered supplemental materials

discloses no genuine issues which would prevent summary judgment.

Finally, Restigouche has now had ample opportunity to marshal facts

and arguments, and does not assert on appeal that there exists

additional evidence, beyond the record and the proffered

supplemental material, which would create material issues of fact.

Because Restigouche has not been deprived of the opportunity to

present facts or arguments which would have precluded summary

judgment in this case, any violation of the 10-day notice rule is

harmless. See Denis v. Liberty Mut. Ins. Co., 791 F.2d 846, 850

(11th Cir.1986) (If the parties made all the arguments and

submitted all documents that they would have presented had they

received proper notice, failure to give required notice is not

reversible error).

IV. SUBSTANTIVE DUE PROCESS

 We review the magistrate court's grant of summary judgment de

novo. Vernon v. Resolution Trust Corp., 907 F.2d 1101, 1104 (11th

Cir.1990). Summary judgment is appropriate if the evidence shows

"that there is no genuine issue as to any material fact and that

the moving party is entitled to judgment as a matter of law."
 6

Haves involves an equal protection challenge to a zoning

ordinance. However, the rational basis inquiry is the same for

equal protection and substantive due process challenges to

zoning. Grant v. Seminole County, Fla., 817 F.2d 731, 735 (11th

Cir.1987) (analyzing plaintiff's equal protection and due process

challenges to zoning ordinance under same rational basis

standard); see also In re Wood, 866 F.2d 1367, 1371 (11th

Cir.1989) (The standard for evaluating substantive due process

challenges to social and economic legislation, the "rational

basis test," "is virtually identical to the "rational

relationship' test for evaluating equal protection claims."). 

Fed.R.Civ.P. 56(c). However, "[t]he mere existence of a factual

dispute will not defeat summary judgment." Haves v. City of Miami,

52 F.3d 918, 921 (11th Cir.1995). To preclude summary judgment,

such factual dispute must be both relevant and genuine, i.e.,

material to an issue affecting the outcome of the case and

supported by evidence sufficient for a reasonable jury to return a

verdict in favor of the non-moving party. Id.

 Substantive due process challenges to zoning regulations are

analyzed under the rational basis standard. Greenbriar, Ltd. v.

City of Alabaster, 881 F.2d 1570, 1577 (11th Cir.1989). Under this

standard, a zoning decision will be upheld if it has a "rational

relationship with a legitimate general welfare concern." Corn v.

City of Lauderdale Lakes, 997 F.2d 1369, 1388 (11th Cir.1993),

cert. denied, --- U.S. ----, 114 S.Ct. 1400, 128 L.Ed.2d 73 (1994).

Our recent Haves v. City of Miami decision sets out a two-step

procedure determining whether a zoning decision survives such

rational basis scrutiny. 52 F.3d at 921-24.6

 "The first step in

determining whether legislation survives rational-basis scrutiny is

identifying a legitimate government purpose—a goal—which the

enacting government body could have been pursuing." Id. at 921

(emphasis in original). The Town asserts that the Comprehensive
Plan and IOZ Regulations reflect its concern with preserving and

establishing an aesthetically-pleasing corridor along Indiantown

Road, and its goal of creating an identifiable, traditional

downtown. It is well settled that the maintenance of community

aesthetics is a legitimate government purpose. Id. at 922-23

(Prevention of "visual intrusions" created by houseboats a

legitimate governmental goal); see also Corn, 997 F.2d at 1387

("[T]he Supreme Court and this court have repeatedly held ...

noise, traffic, congestion, safety, aesthetics, valuation of

adjoining land, and effect on city services ... are rational and

permissible bases for land use restrictions.").

"The second step of rational-basis scrutiny asks whether a

rational basis exists for the enacting government body to believe

that the legislation would further the hypothesized purpose. "The

proper inquiry is concerned with the existence of a conceivably

rational basis, not whether that basis was actually considered by

the legislative body.' " Id. at 922 (quoting Panama City Medical

Diagnostic, Ltd. v. Williams, 13 F.3d 1541, 1547 (11th Cir.)

(emphasis in original), cert. denied, --- U.S. ----, 115 S.Ct. 93,

130 L.Ed.2d 44 (1994)). To further the goal of creating a

traditional main street, the Town sought to encourage retail uses

along Indiantown Road which would serve the everyday needs of

nearby residents, promote pedestrian traffic, and have a character

consistent with the neighboring residential developments. The Town

could have reasonably believed that the purchase of an automobile

is not an everyday need, that the typically large lot of an

automobile dealership might break up the pedestrian flow between
 7

Restigouche also implies that the facts underlying its

pendent state law estoppel claim are so egregious as to rise to

the level of a constitutional claim. We conclude that

Restigouche's proffered evidence falls far short. For example,

although we have assumed arguendo some sort of vested right,

Restigouche concedes that the zoning regulations at the time of

Restigouche's application required a special exception for

Restigouche's intended use. 

retail establishments, and that such dealerships might disrupt the

planned residential character of the street with bright lights, red

flags and flashy signage. Thus, we readily conclude that the

prohibition of car dealerships could rationally further the Town's

legitimate aesthetic purposes and its goal of creating a

traditional downtown.

 As long is there is "plausible, arguable legitimate purpose"

for the application of the IOZ regulations to Maplewood, summary

judgment is appropriate unless Restigouche can demonstrate that the

Town could not possibly have relied on that purpose. Haves, 52

F.3d at 923. Although Restigouche points to several factual

disputes, none of these disputes are material to this issue.

Restigouche's argument, in essence, is that the evidence creates

factual disputes over: (1) whether the Town's aesthetic goals can

be achieved without banning car sales on the Maplewood property;

and (2) whether the IOZ Regulations permit other uses that are just

as aesthetically displeasing, and inconsistent with the other

stated purposes of the Comprehensive Plan, as car dealerships.7

However, that there are other, even more effective, ways to further

the Town's legitimate purpose does not create a material issue as

to whether the chosen method, prohibition of car sales in the

Indiantown Road Corridor, furthers that purpose. Thus, the
magistrate judge did not err in granting summary judgement in favor

of the Town.

V. CONCLUSION

For the foregoing reasons, we affirm the magistrate court's

grant of summary judgment in favor of the Town and against

Restigouche.

AFFIRMED.