Posted by: Patricia Salkin | October 23, 2016

11th Circuit Court of Appeals Dismissed Takings and Due Process Claims Arising from Zoning Officer’s Determination that Owners Would Need a Special Exception in Order to Continue as a Poultry Farm

Harold and Kathy Owens owned and operated a cattle and poultry farm on the Property prior to and following a 2001 amendment, which required a special exception permit for poultry. The Owens sold the Property to the Ethertons, who continued to operate the poultry and cattle farm. The Ethertons decided to sell the Property in January 2014; however, in June 2014, potential buyers Dale and Sherri Jones contracted to purchase the Property from the Ethertons for $850,000. In July 2014, Richard Gibson, the City’s Revenue and Zoning Officer, informed the Joneses that they would have to apply for a special exception in order to raise chickens on the Property. As a result, the Joneses became no longer interested in the Property, and the Ethertons released them from their contract.

In August and September 2014, the Ethertons met with City officials including Zoning Officer Gibson, Mayor Nick Jones, and members of the Rainsville City Council. During one meeting, Mayor Jones urged the Ethertons to themselves apply for a special exception; the Ethertons refused. The Ethertons filed a civil rights complaint against the City, Mayor Jones, Zoning Officer Gibson, and members of the Rainsville City Council, challenging the Zoning Officer Gibson’s determination that after the Ethertons sold the Property the new owners would need a special exception in order to continue as a poultry farm. They claimed that their non-conforming use of the Property was a “vested right” that was transferrable to their successors and could not “be divested without compensation”, and that if the new zoning ordinance would be enforced as to the new owners it would interfere with their attempts to sell the Property and force the Property into foreclosure. The district court dismissed all of the Ethertons’ claims.

As to the takings claim, the court found that the Ethertons’ failure to sell to two potential buyers did not suggest that the Property was rendered worthless, as the Ethertons’ farm provided them with “lawful income” and the Property could be sold in a foreclosure sale, albeit at a “considerable discount.” The court next rejected their equal protection claim on the grounds that the Ethertons’ Complaint did not contain sufficient allegations that the comparators, the Owenses, were similarly situated. Here, the Owenses owned the Property and operated a poultry farm upon it before the passage of the 2001 Ordinance. Moreover, the Complaint did not plausibly allege that the City’s different treatment of them was intentional, rather than the result of a mistake.

The due process claims were likewise rejected, as the challenged determination did not deprive the Ethertons of a constitutionally-protected interest in the Property, as it did not itself affect the Ethertons’ use of their property (it only required their successors to seek an exception to operate a poultry farm). Furthermore, to the extent that the determination burdened some cognizable right related to the Ethertons’ contract with the Joneses, the Ethertons could have sought a remedy by challenging Officer Gibson’s determination before the Zoning Board of Adjustment. Lastly, the court found that the individual defendants were entitled to qualified immunity, as these defendants were not alleged to have done anything other than perform discretionary functions of their offices; moreover, the Ethertons have failed to show that their constitutional rights were violated in any way, much less in a way that was clearly established at the time.

Etherton v. City of Rainsville, 2016 WL 5349206 (11th Cir CA 9/26/16)

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