This case is the latest in the quest of plaintiffs trying unsuccessfully to get their takings claims heard in federal court after complying with the Supreme Court mandate of frst exhausting their state court remedies. Federal statute requiring federal courts to afford full faith and credit to state court decisions, combined with state preclusion doctrines, often have the effect of preventing these federal claims.  

 

 

 

In this case, Agripost subleased a plot of publically owned land from Dade County for the purposes of constructing and operating a waste-disposal plant that could convert waste into agriculturally useful compost.  One of the conditions of the sublease was that Agripost would obtain and maintain an unusual use zoning permit since the land was zoned only for agricultural use. In addition, the subleased was conditioned on Agripost’s continuing to use the land for the waste-conversion plant. Agripost did obtain the unusual use permit, which was conditioned upon Agripost complying with all conditions and requirements of the County Department of Environmental Resources Management (DERM).  The plant was constructed and began operating in 1989.  About a year later, odor emissions caused the DERM to revoke the permit on the grounds that it was a public nuisance.  The revocation was upheld by the zoning appeals board and by the county commission.  Agripost’s lease was thus terminated on its own terms.

 

Agripost sued in State court, and the Court affirmed the administrative decision.  Agripost then brought suit in the federal courts alleging that the revocation of the unusual use permit amounted to a regulatory taking without just compensation. This claim was dismissed on ripeness grounds since Agripost had not pursued their state remedies first.  Agripost went back to the State Courts, seeking damages based on, among other things, inverse condemnation, alleging that the permit revocation denied it all economically viable use of its property. Agripost’s complain sought damages under the 5^th Amendment, but expressly reserved the right to litigate this claim in federal court at the conclusion of the state proceedings. The state appeals court held that Agripost did not have a protected property interest against the revocation of a use permit where it was determined that they were in violation of the permit’s conditions. Agripost then returned to federal court, refilling its 5^th Amendment takings claim.  This time the federal district court dismissed the claim on the grounds of claim or issue preclusion.

 

The 11^th Circuit Court of Appeals began by explaining that the topic of claim and issue preclusion has been particularly troublesome in takings cases brought in federal court because the Full Faith and Credit Statute (28 U.S.C. §1738 ) which holds that if a state has already ruled on a matter it will not be reheard in federal court, combined with the requirement in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985) that plaintiffs must go to state court before going to federal court on issues involving compensation for a putative taking, “might deprive the plaintiff of a chance to litigate his Takings Clause claim in a federal forum, unless there were some exception to the general principles of preclusion…”   Although prior law in the Circuit might have afforded Agripost the right to bring this claim in federal court since they were in state court involuntarily, more recently, in San Remo Hotel, L.P. v. City and County of San Francisco, 545 U.S. 323 (2005), this type of issue reservation was rejected except in the narrow situation where the “antecedent state issue requiring abstention was distinct from the reserved federal issue.”  However, the 11^th Circuit said that San Remo should be read only as an issue preclusion case and not as a claim preclusion case, and therefore the Court accepted arguendo that Agripost successfully reserved its federal constitutional claim, and turned to the question of whether the claim is nonetheless barred by issue preclusion from going forward with that claim.    

 

Under Florida law, the issue preclusion doctrine applies forecloses relitigation where: the parties in both cases are identical; the issues are identical; there was a full and fair opportunity to litigate the issues and they were litigated; and those issues were necessary to the prior litigation.  The Court found all existed in this case. Although Agripost claimed it did not have a full and fair opportunity to litigate its state law takings claim since the court did not permit further discovery and relied extensively on prior litigation, the Court did not buy this because the state court had concluded as a matter of law that Agripost did not have a protected property right when they failed to comply with the terms of the conditional use permit. Since Florida law does not allow Agripost a second bite at the apple, and §1783 does not permit the federal court to second guess the correctness of the state court’s decision on the merits, the federal takings claim failed.   

 

 Agripost, LLC v. Miami-Dade County, Fla., 2008 WL 1790434 (C.A. 11 (Fla.) 4/22/2008).

 

The opinion can be accessed at: http://www.ca11.uscourts.gov/opinions/ops/200516499.pdf