Howard v. Country Club Estates Home-Owners Ass'n , 486 F. App'x 48 ( 2012 )

Case: 11-15129 Date Filed: 08/06/2012 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-15129
Non-Argument Calendar
________________________
D.C. Docket No. 1:09-cv-00037-WLS
JOSEPH HOWARD, III,
ANNIE HOWARD,
WENDELL WILLIAMS,
Plaintiffs-Appellants,
versus
COUNTRY CLUB ESTATES HOMEOWNERS
ASSOCIATION, INC., et al.,
Defendants,
CITY OF ALBANY, GEORGIA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(August 6, 2012)
Before BARKETT, PRYOR, and COX, Circuit Judges.
Case: 11-15129 Date Filed: 08/06/2012 Page: 2 of 4
PER CURIAM:
Joseph Howard, III, Annie Howard, and Wendell Williams (the “Plaintiffs”)
filed this 42 U.S.C. § 1983 action after the City of Albany, Georgia (the “City”)
rezoned property owned by Joseph Howard, III. According to the Plaintiffs, this
rezoning made it impossible for them to complete a planned development project on
the property. The complaint asserts four counts against the City and other Defendants
who are not parties to this appeal. Count One alleges that the Defendants violated
Plaintiffs’ substantive due process rights. Count Two alleges a procedural due
process violation. Count Three claims that a municipal policy violated the Plaintiffs’
due process rights and Count Four claims that the Defendants conspired to violate the
Plaintiffs’ due process rights.
The parties filed cross-motions for summary judgment. The district court
granted the City’s motion for summary judgment, denied the Plaintiffs’ motion, and
entered judgment in favor of the Defendants. Plaintiffs appeal.
As we construe the Plaintiffs’ brief, it presents four issues: (1) whether the
district court erred by concluding that the Plaintiffs did not assert a ripe takings claim
under the Fifth Amendment; (2) whether the district court erred by deciding that the
Plaintiffs failed to put forth evidence to support a regulatory takings claim; (3)
whether the district court erred by finding that the City never issued the Plaintiffs a
2
Case: 11-15129 Date Filed: 08/06/2012 Page: 3 of 4
building permit for the development project; and (4) whether the Plaintiffs had a
vested right to develop the property protected by the due process clause.
We note at the outset that the Plaintiffs have waived any challenge to the
district court’s entry of summary judgment on Counts One, Three, and Four of the
complaint. The Plaintiffs’ brief makes passing reference to the district court’s entry
of summary judgment in favor of the Defendants on the Plaintiffs’ substantive due
process claim. This reference appears in the Plaintiffs’ argument regarding regulatory
takings and the brief does not develop any arguments regarding the substantive due
process claim. Therefore, any challenge to the entry of summary judgment on the
substantive due process claim has been waived. See Farrow v. West, 320 F.3d 1235,
1242 n.10 (11th Cir. 2003) (citations omitted). Similarly, Plaintiffs do not make any
argument regarding their claim of conspiracy or their claim that there was an
unconstitutional municipal policy. (See Appellants’ Br. at 1-2.) So these arguments
are also waived. Farrow, 320 F.3d at 1242 n.10.
The district court also properly rejected the Plaintiffs’ Fifth Amendment
takings claim. We doubt whether any takings claim was properly alleged, but in any
event, a takings claim was not ripe for the reasons stated in the district court’s
opinion. (See Dkt. 93 at 7, 8 & 9.)
3
Case: 11-15129 Date Filed: 08/06/2012 Page: 4 of 4
The Plaintiffs’ brief also argues that they had a vested right to develop the
property because the City had issued a construction permit for the development.1
However, the Plaintiffs have failed to cite to any portion of the record to show that
they held a construction or building permit for the development. Therefore, we find
no error in the district court’s finding that the City never issued the Plaintiffs a
building permit. Furthermore, a procedural due process claim under § 1983 requires
an allegation and proof of constitutionally inadequate process. See Grayden v.
Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003) (citing Cryder v. Oxendine, 24 F.3d
175, 177 (11th Cir. 1994)). Thus, even if the Plaintiffs had a vested property
interested protected by Georgia law, their claim fails because they did not show that
they received inadequate process. The district court did not err by entering summary
judgment on this claim.
Finding no error in the district court’s entry of summary judgment in this case,
we affirm.
AFFIRMED.
1
To the extent the Plaintiffs seek to use Georgia’s vested rights doctrine as a basis for
injunctive relief independent from their § 1983 claims, they failed to assert this claim in their
complaint. Therefore, we will not consider the doctrine as an independent basis for relief.
4