SUNRISE CORPORATION OF MYRTLE BEACH; Boulevard Development LLC; S & H Development, Inc. v. The CITY OF MYRTLE BEACH; Mark McBride, Individually; Judy Rodman, Individually; Rachael Broadhurst, Individually; Charles Martino, Individu- ally; Wilson Cain, Individually; Crain Woods, Individually; Larry Bragg, In- dividually; Tom Conn, Individually; Tom Davis, Individually; Sally How- ard, Individually; Fred Rourk, Individually
No. 04-2171
United States Court of Appeals, Fourth Circuit
Argued May 25, 2005. Decided Aug. 26, 2005.
420 F.3d 322
IV.
For the foregoing reasons, Lamparello, rather than Reverend Falwell, is entitled to summary judgment on all counts.8 Accordingly, the judgment of the district court is reversed and the case is remanded for entry of judgment for Lamparello.
REVERSED AND REMANDED.
Before WIDENER, WILKINSON, and NIEMEYER, Circuit Judges.
Affirmed by published opinion. Judge WIDENER wrote the opinion, in which Judge WILKINSON and Judge NIEMEYER concurred.
Plaintiffs, Sunrise Corporation of Myrtle Beach, Boulevard Development LLC, and S & H Development, Inc. (collectively Sunrise),1 appeal from the district court‘s granting of defendant the City of Myrtle Beach‘s (Myrtle Beach) motions for summary judgment.2 In the underlying case Sunrise was seeking damages for violations of the Due Process, Equal Protection and Takings Clauses of the Constitution under
I.
In 1996, shortly after all three plaintiffs were formed, plaintiffs purchased the St. John Inn and surrounding land, an 88-unit hotel and restaurant located on 2.65 acres in the City of Myrtle Beach, looking to further development. Sunrise then examined the zoning regulations, decided on a proposal for a 14-story tower with 98-units, obtained financing, entered negotiations with a builder, and began to execute contracts to pre-sell individual units in the new tower.
Myrtle Beach‘s esthetic zoning laws require that every new construction requires approval of the Community Appearance Board before a building permit would issue, even if the plans complied with all zoning regulations. Myrtle Beach Code Appx. A § 603.1. Under this law, the Board is to consider preservation of the landscape; relation of the proposed buildings to the environment; drives, parking, and circulation; surface water drainage; utility service; advertising features; special features; and application of design standards. Myrtle Beach Code Appx. A § 604. If the Board denies the proposal, the applicant can appeal to the City Council, Myrtle Beach Code Appx. A § 606, which reviews the proposal de novo. Myrtle Beach Code Appx. A § 606.2. If the City Council affirms the Board, the applicant has the right to appeal to the Circuit Court in and for Horry County.3 Myrtle Beach Code Appx. A § 606.2.
In mid 1998, Sunrise applied for a permit to build the new hotel. They then submitted to the Board a proposal that complied with all of the zoning ordinances. The Board suggested changes to the proposal and later held a second hearing. This hearing was attended by residents of the area who voiced opposition to Sunrise‘s proposal. After the hearing, the Board denied the proposal, citing section 604 of the City Code. Sunrise then appealed the Board‘s decision to the City Council and was granted a hearing where area residents again voiced opposition to the pro-
While the appeal of the City Council‘s decision was still pending, plaintiffs brought the instant action in the Court of Common Pleas of Horry County, a state court, seeking to recover their pre-development costs as well as lost profits from the pre-sale of units in the proposed tower. The complaint asserted causes of action against the City Council as well as several individual members of the Board. The complaint sought damages under
On May 13, 1999, the Court of Common Pleas issued an order reversing the decision of the City Council withholding the permit, finding that Myrtle Beach‘s decision violated the holding of Peterson Outdoor Advertising v. City of Myrtle Beach, 327 S.C. 230, 489 S.E.2d 630 (1997) (Board‘s denial of proposal must be based on application of the City Code to the facts of the case), because it was arbitrary, subjective, without evidentiary support, an abuse of discretion, and a denial of plaintiffs’ due process and equal protection rights. The court then determined that re-application would be futile and ordered Myrtle Beach to issue the permit to Sunrise. At some point in 1999, plaintiffs sold the site for approximately four million dollars.
Myrtle Beach appealed the Court of Common Pleas’ decision to the South Carolina Court of Appeals, which affirmed in 2001. An appeal was then taken by Myrtle Beach to the Supreme Court of South Carolina, which initially granted certiorari, but later dismissed the writ as improvidently granted. At that point defendants made the permit available to plaintiffs.
After the Supreme Court of South Carolina dismissed the writ of certiorari, the district court lifted its stay in this case, and both parties later filed motions for summary judgment. At the hearing on the motions, the district court denied plaintiffs’ motion for summary judgment which contended that the South Carolina Court of Appeals decision was res judicata of their
II.
On appeal, plaintiffs advance five arguments as to how the district court allegedly erred. First plaintiffs assert that the district court erred by holding that Myrtle Beach was not barred by res judicata from arguing that it had not violated plaintiffs’ due process, equal protection and Fifth Amendment rights. Second, plaintiffs argue that the district court
We review de novo a district court‘s grant of summary judgment. Temkin v. Frederick County Comm‘rs, 945 F.2d 716, 718 (4th Cir.1991). Summary judgment under
III.
Plaintiffs assert that the district court erred by not applying the doctrine of res judicata to bar Myrtle Beach from arguing that its actions did not violate their Constitutional rights. The judgment they argue should be given res judicata effect is the decision of the Common Pleas Court which stated that Myrtle Beach‘s actions were “arbitrary, subjective, without evidentiary support, an abuse of discretion, merely a pretense to stop development, and a denial of Plaintiffs’ due process and equal protection rights.”
Under
Even if we consider the requirement of identity of the subject matter to be satisfied, which is not at all certain, the federal Constitutional rights of due process and equal protection were not adjudicated in the South Carolina Court of Appeals.6 That proceeding was nothing other than a court review of an administrative determination by local zoning authority. That court summarized its decision as follows: “We conclude the decision of City Council was arbitrary because it was based, not on the evidence in the record and the esthetic concerns of the CAB‘s ordinance, but upon the objections of citizens of the neighborhood who wanted to stop further development in the area.” JA 425. This decision is an indication of a mistake by the local zoning authorities and hardly conclusive evidence, even if evidence at all, of a violation of due process and equal protection rights. It is no indication that such federal Constitutional rights were decided in
IV.
Plaintiffs next assert that the district court erred in dismissing their due process claims. To establish a violation of procedural due process, plaintiffs must show that (1) they had property or a property interest (2) of which the defendant deprived them (3) without due process of law. Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810, 826 (4th Cir.1995). To establish a violation of substantive due process, plaintiffs must “demonstrate (1) that they had property or a property interest; (2) that the state deprived them of this property or property interest; and (3) that the state‘s action falls so far beyond the outer limits of legitimate governmental authority that no process could cure the deficiency.” Sylvia Dev. Corp., 48 F.3d at 827 (citing Love v. Pepersack, 47 F.3d 120, 122 (4th Cir.1995))(emphasis in original).
We are of opinion that plaintiffs received due process, both procedural and substantive. Plaintiffs claim that their due process rights were violated because the hearings they received were unfair. Even if true, which we do not decide, this does not change the fact that plaintiffs received four levels of review, in each of which they were permitted to present their side of the controversy.7 In cases such as this we review the state process as a whole, and do not look only to what happened in front of the Board. See e.g. Tri County Paving, Inc. v. Ashe County, 281 F.3d 430, 437 (4th Cir.2002)(a “due process violation actionable under
Accordingly, we find that the district court did not err in dismissing plaintiffs’ due process claims.
V.
Plaintiffs next assert that the district court erred by dismissing their equal protection claim by holding that they failed to present evidence as to being similarly situated and the victim of illegitimate discretion. Sunrise bases this argument on Tri County Paving, where we said that a party can bring an equal protection claim by alleging that it had been intentionally treated differently from others similarly situated and that there was no rational basis to support the different treatment. 281 F.3d at 439 (citing Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000)). Plaintiffs
Even if we were to determine that plaintiffs’ project was similarly situated to other projects, they would still need to show purposeful discrimination. If disparate treatment alone was sufficient to support a Constitutional remedy then every mistake of a local zoning board in which the board mistakenly treated an individual differently from another similarly situated applicant would rise to the level of a federal Constitutional claim. Sylvia Dev. Corp. 48 F.3d at 825 (citing Snowden v. Hughes, 321 U.S. 1, 11-12, 64 S.Ct. 397, 88 L.Ed. 497 (1944)). There is no evidence in the record that Sunrise was subjected to purposeful, invidious discrimination. At most the evidence shows that the public was opposed to the project for a number of reasons, some relevant to Board review and some not. This evidence that the Board and City Council responded to the public opposition does not rise to the level of a Constitutional violation, because we have recognized that matters of zoning are inherently political, and that it is a zoning official‘s responsibility to mediate disputes between developers, and local residents. Sylvia Dev. Corp. 48 F.3d at 828.
Similar to the plaintiffs in Sylvia Dev. Corp., the plaintiffs here at most could prove that similarly situated developers were treated differently, without an adequate evidentiary basis for the differing treatment. Even if this is good grounds for an appeal under state law, it does not give rise to a claim for a violation of equal protection. Sylvia Dev. Corp., 48 F.3d at 825. Accordingly, we are of opinion that the district court did not err in dismissing plaintiffs’ equal protection claim.
VI.
Plaintiffs’ final argument is that the district court erred in dismissing their takings and inverse condemnation claims by holding that the lawful use of property was not an antecedent property right, and that the delay was only an unfortunate by-product of the adjudicatory system. Under South Carolina law federal takings law is incorporated as an element of an inverse condemnation action. Sea Cabins on the Ocean IV Homeowners Association, Inc. v. City of North Myrtle Beach, 345 S.C. 418, 548 S.E.2d 595, 601 (2001). Accordingly these two issues are both resolved by a finding that the City‘s actions here did not constitute a taking under federal law. There are two distinct types of taking under federal law, categorical and regulatory.9 Because Myrtle Beach in this case neither physically took
A regulatory taking occurs when a regulation or limitation on land use interferes with a landowner‘s rights but does not deprive the land of all economically viable use. See generally Penn Central Transp. Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). The analysis in a takings case necessarily begins with determining whether the government‘s action actually interfered with the landowner‘s antecedent bundle of rights. See Lucas, 505 U.S. at 1027, 112 S.Ct. 2886 (discussing how property rights are a “bundle of rights“). If, as the district court found, there was no interference with this bundle of rights, there is no taking.
Plaintiffs contend that there was interference with their antecedent property rights because their proposal complied with all of the zoning ordinances in force at the time, and thus they were entitled to the permit. But the plaintiffs ignore the fact that under the applicable law they were required to not only comply with the zoning ordinances, but also to secure Board approval under Myrtle Beach Code Appx. A § 603.1. Myrtle Beach Code Appx. A § 603.1 is as certainly a part of the City‘s zoning law as any other land use ordinance. Accordingly, they had no right to proceed with the project until they received the Board‘s approval.
As a general rule, a delay in obtaining a building permit is not a taking but a non-compensable incident of ownership. Agins v. City of Tiburon, 447 U.S. 255, 263 n. 9, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980) (“Mere fluctuations in value during the process of governmental decision making, absent extraordinary delay, are ‘incidents of ownership’ “). Plaintiffs contend that this case is an example of the extraordinary delay referred to in Agins.
But the delay at issue in this case was not extraordinary. Plaintiffs first applied for Board approval in August of 1998. By that November they had been through the entire process twice. At no point did defendants take more than 15 days to issue their final decisions. The bulk of the delay that plaintiffs claim was extraordinary was a result of the process to appeal the defendants’ decision. There is nothing in the record to suggest that defendants had any control over how quickly the case moved under state law through the various judicial appeals processes, or that the defendants acted in bad faith or engaged in deliberate delay during that process. Accordingly, any delay was nothing more than the law‘s delay as lamented for some 400 years, and not an extraordinary delay that could give rise to Constitutional implications.
The judgment of the district court is accordingly
AFFIRMED.