Posted by: Patricia Salkin | April 28, 2019

11th Circuit Court of Appeals Holds Adverse Non-Final Decisions of an Intermediate Body Insufficient to Establish Futility

This post was authored by Matthew Loeser, Esq.

Laveranues Coles leased a property in Jacksonville in 2013 with the intent of opening a “bikini bar” that would feature non-nude dancing and sell alcohol. In 2014, Coles opened the property as a restaurant while he attempted to obtain three zoning exceptions: to sell alcohol, to use the entire square footage of the property without providing additional parking, and a waiver of local minimum distance requirements because of the location’s proximity to two nearby churches. The Development Department issued a favorable report, but the Planning Commission rejected Coles’ applications after hearing from two community members who expressed concern about parking and the effect the bikini bar would have on development in the neighborhood.


Coles did not appeal this decision to the Land Use Zoning Committee (“LUZ Committee”), but instead filed new applications the following year. The Committee found that Coles needed to apply for an additional exception because the City had recently enacted new distance requirements between bikini bars and other adult entertainment establishments. The Committee remanded the matter back to the Planning Commission and gave Coles sixty days to file an application for an additional exception. Coles took no further local action, but instead filed a complaint in federal court. The district court dismissed the case without prejudice for lack of subject-matter jurisdiction after determining the complaint was unripe because Coles had not obtained a final decision from the City.


On appeal, Coles first contended his claims were ripe because the City’s non-final decisions denying his applications were not supported by substantial evidence, and were instead motivated solely by bias toward the type of speech his bikini bar would feature. Regardless of Coles’ perception that the local zoning process was biased and dilatory, however, the court found he was obligated to complete that process before bringing a federal suit.


Coles next argued that even if his complaint was unripe he was entitled to an exception under the futility doctrine. Specifically, Coles’ contended that the LUZ Committee was going to ultimately reject his applications since the Planning Commission had rejected his applications in the past. The court rejected this contention, finding that the LUZ Committee never had an opportunity to consider a complete application from Coles, and the intermediate decisions of the Planning Commission did not show with certainty that the LUZ Committee would have rendered a final decision against Coles. Accordingly, the trial court’s judgment was affirmed.


Coles v City of Jacksonville, 2019 WL 1791393 (11th Cir. CA 4/24/2019)

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