United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
MADELINE HUGHES HAIKALA, UNITED STATES DISTRICT JUDGE.
the Court are cross-motions for summary judgment relating to
plaintiff South Grande View Development Company, Inc.'s
claim against the City of Alabaster for unlawful regulatory
taking in violation of the Fifth Amendment to the United
States Constitution. (Docs. 46, 48). For the reasons stated
below, the Court denies the motions for summary judgment.
SUMMARY JUDGMENT STANDARD
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). To demonstrate that there is a genuine
dispute as to a material fact that precludes summary
judgment, a party opposing a motion for summary judgment must
cite “to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials.”
Fed.R.Civ.P. 56(c)(1)(A). “The court need consider only
the cited materials, but it may consider other materials in
the record.” Fed.R.Civ.P. 56(c)(3). When considering a
summary judgment motion, the Court must view the evidence in
the record in the light most favorable to the non-moving
party and draw reasonable inferences in favor of the
non-moving party. White v. Beltram Edge Tool Supply,
Inc., 789 F.3d 1188, 1191 (11th Cir. 2015).
practice, cross motions for summary judgment may be probative
of the nonexistence of a factual dispute, but this procedural
posture does not automatically empower the court to dispense
with the determination whether questions of material fact
exist.” Ga. State Conference of NAACP v. Fayette
Cty. Bd. of Comm'rs, 775 F.3d 1336, 1345 (11th Cir.
2015) (quoting Lac Courte Oreilles Band of Lake Superior
Chippewa Indians v. Voigt, 700 F.2d 341, 349 (7th Cir.
1983)) (internal quotation marks and brackets omitted).
“If both parties proceed on the same legal theory and
rely on the same material facts . . . the case is ripe for
summary judgment.” NAACP, 775 F.3d at 1345
(quoting Shook v. United States, 713 F.2d
662, 665 (11th Cir. 1983)) (internal quotation marks omitted)
(alteration supplied by NAACP).
Grande View Development Company, Inc.-SGV in this opinion- is
a real estate development company. (Doc. 46, p. 2). In 1994,
SGV bought approximately 140 acres of land in the City of
Alabaster for $1.65 million. (Doc. 46, p. 3; Doc. 49, p. 3).
When SGV purchased the land, the portion of the land at issue
in this lawsuit was zoned for a mixture of single-family
residences (“R-2”), garden homes
(“R-4”), and townhomes (“R-7”). (Doc.
46, p. 4; Doc. 49, p. 3). Lots zoned R-2 must be 15, 000
square feet, and lots zoned R-4 must be 7, 000 square feet.
(Doc. 47-1, p. 16). With the exception of the portions of
SGV's property that were zoned R-2 when SGV purchased the
land, SGV intended to develop the land for R-4 lots. (Doc.
46-13, pp. 35-36; Doc. 46, p. 4 n. 4).
2005 and 2007, SGV spent approximately $3.5 million clearing
and grading the property for the development of R-4 lots.
(Doc. 46, pp. 3, 6-7; see Doc. 49, p. 3). The
parties dispute whether the grading that SGV performed for
the development of R-4 lots could also support R-2 lots.
(Doc. 56, p. 3; Doc. 57, p. 9). SGV intended to sell the R-4
lots for approximately $35, 000.00 each. (Doc. 46, p. 7; Doc.
46-14, p. 18). On December 5, 2011, the city re-zoned
SGV's property for R-2 lots only. (Doc. 46, p. 11; Doc.
49, p. 4). SGV's owner, Concetta Givianpour, testified
that the property is not topographically suitable for a
residential development of R-2 lots and that, even if it
were, there is no market for R-2 lots in Alabaster.
(See Doc. 46-13, pp. 32-33; Doc. 46-14, pp. 2-3). As
a result, SGV contends that the re-zoning constitutes a
taking under the Fifth Amendment for which the City of
Alabaster must compensate SGV.
Fifth Amendment prohibits the federal government from taking
private property “for public use, without just
compensation.” U.S. Const. amend. V. States are subject
to the same prohibition by virtue of the Fourteenth
Amendment. See Busse v. Lee Cty., Fla., 317
Fed.Appx. 968, 971 (11th Cir. 2009). In addition to outright
takings of private property, a land regulation that goes
“too far” may violate the Fifth Amendment as a
regulatory taking. See, e.g., Pa. Coal Co. v.
Mahon, 260 U.S. 393, 415 (1922) (“[W]hile property
may be regulated to a certain extent, if regulation goes too
far it will be recognized as a taking.”).
that cause permanent physical invasions or completely destroy
a property's economic value are per se takings,
requiring just compensation. See Lucas v. S.C. Coastal
Council, 505 U.S. 1003, 1016 (1992) (a taking occurs
when a “regulation denies all economically beneficial
or productive use of land”); Loretto v.
Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435-40
(1982) (holding that permanent, physical invasions of land
constitute takings); see also Lingle v. Chevron
U.S.A., Inc., 544 U.S. 528, 538 (2005) (discussing the
two categories of per se takings). For other
land-use regulations, the Supreme Court has prescribed a
collection of ad hoc factors that lower courts must
evaluate to determine if a regulation constitutes a taking.
Penn Central Transp. Co. v. City of New York, 438
U.S. 104, 124 (1978). “The Penn Central
factors . . . have served as the principal guidelines for
resolving regulatory takings claims[.]”
Lingle, 544 U.S. at 539.
Penn Central factors require courts to analyze
primarily “[t]he economic impact of the regulation on
the claimant, . . . the extent to which the regulation has
interfered with distinct investment-backed expectations[,
and] the character of the governmental action.”
Penn Central, 438 U.S. at 124; see also M &
N Materials, Inc. v. Town of Gurley, Ala., 2014 WL
2590473 (N.D. Ala. June 10, 2014) (denying the town's
motion to dismiss because the plaintiff asserted a valid
claim under the Penn Central framework).
concedes that no taking has occurred under Lucas
because SGV retained some economically beneficial use of its
land after the city's re-zoning. (Doc. 56, pp.
4-5). Thus, for SGV's takings claim to
survive the city's motion for summary judgment, the
record must reveal a genuine dispute of material fact
regarding whether a taking has occurred under Penn
Central. The Court finds such a dispute in the record.
presented evidence that the re-zoning had a detrimental
economic impact on its property. Ms. Givianpour testified
that the re-zoning rendered the property valueless because,
although she could spend money to develop the property to
conform to the new zoning, “no one [would] buy
it.” (Doc. 46-14, pp. 2-3; see also Doc.
46-13, pp. 31-34). SGV also has presented evidence that it
spent money clearing and grading the property in anticipation
of the development of 7, 000-square-foot, R-4 lots. SGV
expected to sell the R-4 lots for approximately $35, 000
each. (Doc. 46-14, p. 18; Doc. 56, p. 6). After the
re-zoning, the lots must be 15, 000 square feet.
(See Doc. 47-1, p. 16). Even if, as the city
contends, SGV could have developed 15, 000-square-foot lots
without re-grading the property, SGV would have had to raise
the price per lot to $90, 000 ...