ANDERSON, Circuit Judge:
The city of Alabaster appeals from a judgment of the district court holding that its rejection of plaintiffs' request for the rezoning of certain property constituted a violation of substantive due process. The district court ordered that the property at issue be rezoned pursuant to plaintiffs' request and awarded $75,000 damages. We find that, as the decision of the City was a final one, this question is ripe for adjudication. Furthermore, we hold that the City's refusal to rezone was not arbitrary and capricious, and hence that plaintiffs suffered no violation of their substantive due process rights. Accordingly, we reverse the judgment of the district court.
In 1970 the city of Alabaster ("City") first adopted a zoning ordinance. The property at issue in this action, consisting of 76 acres,
The 1986 zoning ordinance, which is currently in force, provides for a zoning classification known as "Planned Development District" ("PDD"). A PDD "is a method of development which permits a tract of land to be developed as one lot, rather than separate lots." Zoning Ordinance, City of Alabaster, Article VI, Section 15.1 (1986). The PDD is designed "to encourage coordinated development; to permit higher densities in conjunction with functional open space; to promote efficient use of land; and to promote preservation and enhancement of existing natural landscape features."
In November 1986, Greenbriar, Ltd. and Mary Roensch ("Greenbriar" or "plaintiffs"), the property owners, submitted a preliminary PDD plan to the City, seeking to have the land at issue rezoned from single-family residential to PDD. The plan proposed that the 76 acres be developed with 49.8 acres as apartments and townhouses, 8.1 acres as retail and commercial, 11.1 acres as single-family, and 2.1 acres as a park. Street rights-of-way would require 5.7 acres. Following consultations with members of the City Council, the Planning and Zoning Commission and the City Building Inspector, a public hearing was held before the Planning and Zoning Commission in January, 1987. At the close of the hearing the plan was rejected by a 5-2 vote.
After the proposal underwent additional revisions, a second hearing before the Planning and Zoning Commission was held in March, 1987.
Under Alabaster's zoning ordinance, the City Council has final authority on the question of rezoning; it is not required to accept the recommendation of the Planning and Zoning Commission. If the City Council refuses to rezone an area PDD, the Planning and Zoning Commission must wait at least six months before reconsidering the same rezoning request. If the City Council rezones an area PDD, the developer must submit a final plan to the Planning and Zoning Commission, which then has exclusive control over amendments and modifications to the plan.
Shortly after the City Council vote refusing to rezone the area PDD, plaintiffs filed this action in district court pursuant to 42 U.S.C. § 1983, seeking damages and injunctive relief and alleging that the City's decision deprived them of due process in violation of the Fourteenth Amendment. The complaint contained no allegations of a taking of property without just compensation.
At trial the parties stipulated that the court, rather than the jury, would decide all issues pertaining to damages should the plaintiffs succeed on the question of liability. The court granted the City's motion for a directed verdict as to procedural due process, but denied the motion for a directed verdict as to substantive due process. The court granted Greenbriar's motion for directed verdict on the issue of whether, for purposes of 42 U.S.C. § 1983, the defendants were acting under color of law. At the conclusion of trial, the court submitted to the jury the following special interrogatory:
The jury responded in the affirmative, and the court entered judgment for plaintiffs, ordering the City to amend its zoning map and zoning ordinance to rezone the subject
The City subsequently moved that the court set aside, alter or amend the order and judgment, contending, inter alia, that the court erred in permitting the jury to determine whether the City acted arbitrarily and capriciously. The court denied the motion, holding that the issue was properly submitted to the jury and that the jury's answer to the special interrogatory constituted a permissible view of the evidence and was "fairly debatable." Greenbriar, Ltd. v. City of Alabaster, No. 87-0708 (N.D.Ala. Feb. 3, 1988), at 12-13. The court adopted the jury finding as the ultimate fact and conclusion of law. After a hearing on the evidence as to damages, the court awarded Greenbriar the sum of $75,000.
The City timely appealed from the judgment.
The Constitution protects against zoning decisions which take property without just compensation, U.S. Const., Amend. V. The parties here do not deny that final zoning decisions are also subject to substantive due process scrutiny, i.e., such decisions must not be arbitrary and capricious so as to amount to an abuse of governmental power. See Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 121, 71 L.Ed. 303 (1926); Spence v. Zimmerman, 873 F.2d 256, 258-62 (11th Cir.1989); Bello v. Walker, 840 F.2d 1124, 1128-30 (3d Cir.1988); South Gwinnett Venture v. Pruitt, 491 F.2d 5, 7 (5th Cir.) (en banc), cert. denied, 419 U.S. 837, 95 S.Ct. 66, 42 L.Ed.2d 64 (1974). See also Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 3122-23, 87 L.Ed.2d 126 (1985). Whether the violation alleged is a taking without just compensation or a deprivation of substantive due process, the decision of a municipality is not ripe for review unless that decision is final and definite with respect to the property at issue.
In this case, plaintiffs assert only a substantive due process claim; they make no claim that there has been a taking without just compensation. It is clear that resolution of the substantive due process inquiry "depends, in significant part, upon an analysis of the effect the Commission's application of the zoning ordinance and subdivision regulations had on the value of respondent's property and investment-backed profit expectations. That effect cannot be measured until a final decision is made as to how the regulations will be applied to respondent's property." Williamson County, 105 S.Ct. at 3123. Accordingly, before addressing the substantive merits of the City's claim, we must consider whether the City's rejection of Greenbriar's rezoning plan was final.
In determining whether an administrative agency or local government body has reached a final decision regarding the particular land in question, courts have found an absence of finality where property owners did not avail themselves of the opportunities provided by state or federal statute to seek variances or waivers from zoning decisions, see, e.g., Williamson County, 105 S.Ct. at 3117-18; Hodel v. Virginia
Here Greenbriar did not fail to secure any variances which might be available. Unlike in Williamson County and Hodel, there are no variances available under the applicable local law which could change the zoning classification of the property.
Nor is this a case where the property owner failed to submit a plan to the City for consideration. The record is clear that Greenbriar, as required by the zoning ordinance, submitted a preliminary PDD plan to the City in the fall of 1986, modified the plan after consulting with several members of the City Council, and then presented their proposal to the Planning and Zoning Commission on November 3, 1986. The plan was rejected after a full hearing by the Planning and Zoning Commission. After further consultations and additional revisions to the plan, another hearing was held by the Commission, resulting in three tie votes. The plan was sent to the City Council for consideration. Following a public hearing on March 19, 1987, the Council rejected the proposal. The Council had the final authority to decide whether to rezone the area at issue.
Finally, the City argues that our consideration of this claim is barred by the MacDonald"
However, review of the record indicates that both parties agreed that the only permitted alternative development was under the existing classification, R-2 (single family residential). Throughout a full jury trial on liability, followed by a bench trial as to damages, the City never presented evidence that the property at issue could have been developed under more intensive zoning than the existing classification. At the trial on damages, the City had full opportunity and incentive to show that more intensive zoning was permitted, because such evidence would have reduced the damages recoverable by plaintiffs. In these circumstances we can safely assume that no more intensive zoning is permissible. The City has effectively conceded that the only alternative plan of development would have been under the existing zoning. As there is no uncertainty regarding the level of development that would be permitted, cf. MacDonald, 106 S.Ct. at 2568 and n. 8, MacDonald `s reapplication requirement serves no purpose here. We therefore decline to apply it to these facts.
III. SUBSTANTIVE DUE PROCESS
The City contends that the district court erred in denying its motion for a directed verdict on the alleged substantive due process violation, because there existed a "rational basis" for the rejection of Greenbriar's zoning plan. We agree.
It has long been established that zoning regulations will not be declared unconstitutional as violative of substantive due process unless they "are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare." Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 121, 71 L.Ed. 303 (1926). "The current test in this circuit as to whether there has been a violation of substantive due process in the context of § 1983 is twofold. First, it must be determined whether there has been a deprivation of a federal constitutionally protected interest, and secondly, whether the deprivation, if any, is the result of an abuse of governmental power sufficient to raise an ordinary tort to the statute of a constitutional violation." Rymer v. Douglas County, 764 F.2d 796, 801 (11th Cir.1985). In light of our disposition of this case on the basis of the second prong of this test, we need not address the first prong.
Turning immediately to the second prong, courts have held that a deprivation of a property interest is of constitutional stature if it is undertaken "`for an improper motive and by means that were pretextual, arbitrary and capricious, and ... without any rational basis.'" Spence v. Zimmerman, 873 F.2d 256, 258 (11th Cir.1989) (quoting Hearn v. City of Gainesville, 688 F.2d 1328, 1332 (11th Cir.1982)). See Anthony v. Franklin County, 799 F.2d 681, 684 (11th Cir.1986) (same). The relevant question for consideration is whether there existed a rational basis for the City's rejection of Greenbriar's plan, or, phrased in the alternative, whether the City's action bore no substantial relation to the general welfare. See Spence v. Zimmerman, 873 F.2d 256, 259 (11th Cir.1989) (finding no violation of substantive due process where the city was not acting with an improper motive or arbitrarily or capriciously without rational basis for its actions); Grant v. Seminole County, Fla., 817 F.2d 731, 735-36 (11th Cir.1987) (applying rational basis standard to substantive due process and equal protection challenges to zoning regulation); Couf v. DeBlaker, 652 F.2d 585, 588 (5th Cir. Unit B 1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1278, 71 L.Ed.2d 462 (1982) (zoning regulation must be sustained against due process challenge "`if it is rationally related to legitimate state concerns and does not deprive the owner of economically viable use of his property.'") (quoting Schad v. Borough of Mount Ephraim, 452 U.S. 61, 68, 101 S.Ct. 2176, 2182, 68 L.Ed.2d 671 (1981)); Stansberry v. Holmes, 613 F.2d 1285, 1288 (5th Cir.), cert. denied, 449 U.S. 886, 101 S.Ct. 240, 66 L.Ed.2d 112 (1980) (referring to "the standard traditionally applied to zoning regulations — whether the regulations are arbitrary and unreasonable, having no rational relationship to a legitimate governmental interest.").
In pressing its contention that the actions of the City with respect to its property were arbitrary and capricious,
However, a planning commission or a City Council is not a judicial forum; it is a legislative body held democratically accountable through precisely the forms of political suasion to which Greenbriar objects. See Couf v. DeBlaker, 652 F.2d at 590 ("Our opinions repeatedly characterize local zoning decisions as `legislative' in nature"); South Gwinnett Venture v. Pruitt, 491 F.2d at 7 ("local zoning is a quasi-legislative procedure, not subject to federal juridical consideration in the absence of arbitrary action"). Council members who evaluate a proposal in light of their constitutents' preferences do not necessarily overlook what Greenbriar contends to be the "merits" of a particular zoning plan.
Coniston Corp., 844 F.2d at 467 (citation omitted), quoting Creative Environments, Inc. v. Estabrook, 680 F.2d 822, 833 (1st Cir.), cert. denied, 459 U.S. 989, 103 S.Ct. 345, 74 L.Ed.2d 385 (1982).
Greenbriar has failed to demonstrate that local officials did not rationally conclude that the PDD proposal was not in the best interest of the community. Greenbriar contends that its proposal for PDD status was compatible with the traffic, public health and other needs of neighboring areas, and that the plan was modified to incorporate, and/or account for, each of the suggestions or objections of City officials and surrounding property owners. However, review of the record indicates that several members of the City Council simply disagreed with Greenbriar's assessment of the plan's compatibility with the surrounding area, that there existed a rational basis for such disagreement, and that modifications to the plan failed to alleviate their concerns.
Council members also noted potential traffic problems posed by the development. Plaintiffs' traffic engineer, Darrell Skipper, testified that existing roadways would not support the proposed development, and that if the property were fully developed as a PDD, traffic would be two and one-half times greater than if the area were developed as zoned for single-family housing.
Additional opposition to the proposal was grounded in its impact upon a school system which was already nearing capacity. Finally, opponents of PDD expressed concern that the proposal would place increased demands on the City's sewer system.
In sum, review of the record indicates that neighborhood representatives offered several reasons for their opposition to the proposed development, and that Council members properly took those views into account in undertaking their own evaluations of the proposal. Greenbriar has failed to show that Council members acted irrationally or arbitrarily in rejecting the PDD rezoning plan. To the contrary, we conclude that the record clearly reflects a rational basis for the City's decision not to rezone the subject property.
We conclude that the City's denial of Greenbriar's rezoning request was not arbitrary and capricious. Accordingly, the plaintiffs have not shown a deprivation of substantive due process. The judgment of the district court is
Greenbriar contends that, as the ripeness question was not raised in the district court, we may not address it. However, ripeness goes to whether the district court had subject matter jurisdiction to hear the case. The question of ripeness, like other questions determinative of subject matter jurisdiction, may be raised sua sponte by an appellate court. See Shelter Creek Development Corporation v. City of Oxnard, 838 F.2d 375, 377 (9th Cir.), cert. denied, 109 S.Ct. 134, 102 L.Ed.2d 106 (1988); Duke City Lumber Co. v. Butz, 539 F.2d 220, 221 n. 2 (D.C.Cir.1976) (per curiam), cert. denied, 429 U.S. 1039, 97 S.Ct. 737, 50 L.Ed.2d 751 (1977).
Under Patsy v. Florida Board of Regents, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982), there is no requirement that a plaintiff exhaust administrative remedies before bringing a § 1983 action. Thus, exhaustion of administrative remedies is not required either for a takings claim or for a substantive due process claim. However, "[t]he question whether administrative remedies must be exhausted is conceptually distinct ... from the question whether an administrative action must be final before it is judicially reviewable." Williamson County, 105 S.Ct. at 3119. See A.A. Profiles, Inc. v. City of Fort Lauderdale, 850 F.2d 1483, 1487 (11th Cir.1988), cert. denied, 490 U.S. 1020. 109 S.Ct. 1743, 104 L.Ed.2d 180 (1989). Plaintiffs presenting takings and/or substantive due process claims must demonstrate that the challenged decision or regulation is final.
The other type of procedure to be distinguished from variances — i.e. allowing a property owner to obtain compensation for a taking — is relevant only to the takings analysis, not to determine whether a zoning board decision comports with constitutional requirements of substantive due process. "[B]ecause the Constitution does not require pretaking compensation, and is instead satisfied by a reasonable and adequate provision for obtaining compensation after the taking, the State's action ... is not `complete' until the State fails to provide adequate compensation for the taking." Williamson County, 105 S.Ct. at 3121. Thus, "if a State provides an adequate remedy for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation." Id., 105 S.Ct. at 3121. A property owner has been denied substantive due process, however, the moment a governmental decision affecting his property has been made in an arbitrary and capricious manner, regardless of whether he is later compensated for that violation. "The remedy for a regulation that goes too far, under the due process theory, is not `just compensation,' but invalidation of the regulation, and if authorized and appropriate, actual damages." Id., 105 S.Ct. at 3122.
This court in dictum has suggested that, "in holding that the claim [at issue] was premature under either" a Just Compensation or a Due Process theory, "the Supreme Court [in Williamson County] implicitly ruled that the same ripeness test must be applied to both claims." Corn v. City of Lauderdale Lakes, 816 F.2d 1514, 1516 n. 2 (11th Cir.1987). The plaintiff in Corn presented only a takings claim, and not a substantive due process claim. Thus, it was unnecessary for the court there to determine the ripeness requirements for claims of the latter category. To the extent that the dictum in Corn may be interpreted to state that both finality and denial of just compensation are requirements for a substantive due process claim, such an implication is expressly rejected.
In the instant case, plaintiffs have raised only a substantive due process claim to the City zoning action. Accordingly, we must consider only whether the City decision denying plaintiffs permission to develop a PDD was final.
Moreover, Greenbriar could not have sought a variance from a local board of zoning adjustment, because under Alabama law that body may grant variances only to prevent an unnecessarily harsh result of an existing ordinance, not to amend or modify the ordinance so as to rezone a tract of land. See Ala.Code § 11-52-80(d)(3) (1985) (authorizing variance from the terms of an ordinance where "a literal enforcement of the provisions of the ordinance will result in unnecessary hardship and so that the spirit of the ordinance shall be observed and substantial justice done").
We note that, unlike here, in Williamson County the applicable "regulations clearly indicated that unless a developer applied for a variance in writing and upon notice to other property owners, `any condition shown on the plat which would require a variance will constitute grounds for disapproval of the plat.'" 105 S.Ct. at 3118 (quoting regulations). Moreover, the Court in Williamson County observed that "variances could have been granted to resolve at least five of the Commission's eight objections to the plat." 105 S.Ct. at 3117.
The Hodel Court similarly took account of "the opportunities provided by the [Surface Mining] Act to obtain administrative relief by requesting either a variance from the approximate-original-contour requirement of § 515(d) or a waiver from the surface mining restrictions in § 522(e). If appellees were to seek administrative relief under these procedures, a mutually acceptable solution might well be reached with regard to individual properties, thereby obviating any need to address the constitutional questions." 101 S.Ct. at 2371.
We note that in A.A. Profiles and Corn, the court was confronted with takings claims, which must demonstrate that all or substantially all beneficial use of the property has been denied. In such a case, the showing that the City has placed a complete moratorium on further development of the property may conclusively demonstrate the all-encompassing prohibition required. By contrast, where, as here, plaintiffs have alleged a violation of substantive due process, a showing of arbitrary and capricious behavior may be made even in the absence of a complete moratorium on development.
Where substantive due process violations have been alleged in other contexts, this court has made clear that it is for the judge to decide whether governmental actions so offend standards of decency and fairness as to implicate constitutional protections. Thus, where police misconduct of a prisoner is alleged, "`[i]n determining whether the constitutional line has been crossed, a court must look to such factors as ... [listing factors]....'" Gilmere v. City of Atlanta, 774 F.2d 1495, 1500-01 (11th Cir.1985) (en banc), cert. denied, 476 U.S. 1115, 106 S.Ct. 1970, 90 L.Ed.2d 654 (1986), quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973) (emphasis added).
To be sure, it is proper for the jury to make subsidiary fact findings upon which the court may ultimately rest its determination of arbitrariness. See, e.g., Barnett v. Housing Authority of City of Atlanta, 707 F.2d 1571, 1577-78 (11th Cir.1983); Hearn v. City of Gainesville, 688 F.2d 1328, 1332-33, 1336 (11th Cir.1982). However, the ultimate question of whether substantive due process has been violated is for the judge.
Plaintiffs cite Bellow v. Walker, 840 F.2d 1124 (3rd Cir.), cert. denied, 488 U.S. 851, 109 S.Ct. 134, 102 L.Ed.2d 107 (1988), for the proposition that the determination of arbitrariness is a question of fact. We do not agree that Bello stands for the stated proposition. The court in Bello, reversing a grant of summary judgment for defendant municipality, held that the developer plaintiffs had made out a claim of denial of substantive due process. The court noted:
840 F.2d at 1129-30. We interpret the above language to mean that the question of what motivated the denial of a zoning plan or building permit — whether "partisan political or personal reasons" or "plaintiffs' failure to build in numerical sequence" — is a subsidiary fact for the jury. However, the ultimate issue was decided by the court as a question of law: "[t]hese actions can have no relationship to any legitimate governmental objective, and, if proven, are sufficient to establish a substantive due process violation." Id. (emphasis added).
For similar reasons, we also decline to address the City's claim that the district court erred in allowing plaintiff's land use expert testimony that the denial of PDD rezoning was arbitrary and capricious.