Arthur D. Weiss v. City of Gaineville, Florida

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 21, 2012
• Docket: 10-12099
• Status: Unpublished

Opinion

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT MARCH 21, 2012 No. 10-12099 JOHN LEY ________________________ CLERK

D. C. Docket No. 1:05-cv-00158-MP-AK

ARTHUR D. WEISS,

Plaintiff-Appellant,

versus

CITY OF GAINESVILLE, a municipal corporation organized under the laws of the State of Florida,

Defendant-Appellee.

________________________

Appeal from the United States District Court for the Northern District of Florida _________________________

(March 21, 2012)

Before EDMONDSON, ANDERSON and FARRIS,* Circuit Judges.

___________________ *Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by designation. PER CURIAM:

Arthur Weiss, a Florida land developer, appeals the district court’s grant of

summary judgment for the City of Gainesville in a lawsuit he brought against the

City. We have jurisdiction under 28 U.S.C. § 1291 and affirm. We also affirm the

district court’s denial of Weiss’s motion to enlarge the discovery period. Finally,

we deny Weiss’s motion to certify to the Florida Supreme Court the question of

whether “self-amending” provisions in comprehensive land use plans are unlawful

under Florida law.

I. BACKGROUND

A. Comprehensive Plans and Zoning

Chapter 163 of Florida Statutes provides for the adoption and amendment of

“comprehensive plans” by municipalities and counties. See Fla. Stat. § 163.3167. A

locality’s comprehensive plan controls and directs the use and development of

property within the locality. See id. § 163.3177(1); Gardens Country Club, Inc. v.

Palm Beach County, 590 So. 2d 488, 490 (Fla. Dist. Ct. App. 1991). A

comprehensive plan includes a number of “elements,” including a “future land use

plan element.” Fla. Stat. § 163.3177(6). That element’s text and map provide the

future land uses for the locality’s properties. Id. Section 163.3184 of Florida

Statutes provides the process for adoption of comprehensive plan amendments. The

2 process requires hearings, notice and comment periods, and final approvals by the

state land planning agency. Id. § 163.3184(3).

The zoning of a property must be consistent with its land use designation

under the prevailing comprehensive plan. Gardens Country Club, 590 So. 2d at

490. In addition, under Florida law, a city cannot deny zoning approval on the basis

that it intends, in the future, to amend its comprehensive plan to change the land

use designation of the applicant’s land to a use inconsistent with the zoning for

which the applicant applied. Id. at 490-91. If the land use of the applicant’s land

under the prevailing comprehensive plan is consistent with the zoning the applicant

seeks, the city must consider the zoning application. Id.

B. Facts and Proceedings in the District Court

In 1989, Arthur Weiss sought to have the City of Gainesville annex a 940-

acre parcel he owned in return for the City’s allowing him to apply to build a

development on the land. Weiss and the City entered into an annexation agreement

providing that, upon annexation, the City would “do what is reasonably necessary

and within its governmental powers and authority to grant and allow development

permits and approvals for the orderly development of the Property.” The parties

expressly acknowledged in the agreement that Weiss would have to obtain zoning

and “development of regional impact” approval to proceed with the development.

3 The agreement also expressly provided that nothing contained within it prevented

the City from (1) “exercising its proper zoning and development review powers for

the protection of the public” or (2) “amend[ing] its development regulations,

building codes, zoning codes, land use plans or other ordinances for the protection

of the public health, safety and welfare.”

The annexation agreement also provided that “[t]he City shall immediately

initiate the process to establish . . . annexation pursuant to a referendum in

compliance with Section 171.0413, Florida Statutes” and that “[t]his agreement

shall become effective upon the annexation of the Property into the City.” At the

time, Florida Statutes § 171.0413 required that a “dual majority” of voters approve

an annexation for it to take effect. The City immediately held the dual-majority

referendum vote. The vote failed. In 1990, Florida changed its annexation

procedures to no longer require a dual-majority referendum. In 1992-1993, the

City, using the new procedures, annexed Weiss’s land.

Following annexation, Weiss asked the City to amend its then-operative

1991-2001 Comprehensive Plan to designate his property’s land use as “planned

use district.” The planned use district designation would allow him to apply for

“planned development” zoning, which in turn would allow him to build his

development. The City honored Weiss’s request and recommended the addition of

4 policies 2.3.6, 2.3.7, and 2.3.8 to the Plan. Policy 2.3.6 established Weiss’s

development “using the PUD (Planned Use District) land use category.” Policy

2.3.7 listed the distribution of land uses within the development. Policy 2.3.8

established standards for the property’s development. Policy 2.3.8(m) provided:

m. The planned development zoning ordinance consistent with the [planned use district] overlay district must be adopted by the City Commission within 4 years or the overlay district shall be null and void, and the Future Land Use Map shall be amended accordingly upon proper notice. The underlying Future Land Use Map Category is “Single-Family”; such category is inapplicable as long as the property is developed and used in accordance with the development plan approved in the ordinance rezoning this property to Planned Development “PD”.

The City submitted proposed policy (m) to Weiss for comment. Weiss responded in

writing:

Please be advised that I have reviewed the attached Text Amendment and request that the City of Gainesville affirmatively act upon said Amendment. The Amendment . . . adds . . . at subsection M, that, in essence there shall be four (4) years to achieve approval of the planned development.

On August 22, 1994, the City Commission adopted the proposed amendments as

Ordinance 4000. The same day, the City adopted companion Ordinance 4001,

which “amended . . . the land use category [of Weiss’s land] . . . to . . . ‘Planned

Use District’” and provided that “[t]he [Planned Use District] land use category on

the [Weiss] property shall be governed by Policies 2.3.6, 2.3.7, and 2.3.8 of

5 Objective 2.3. of the Future Land Use Element of the . . . Comprehensive Plan

adopted by ordinance no. [4000] . . . .” Ordinance 4001 also provided that “[t]he

City Manager is authorized and directed to make the necessary changes in maps . . .

in the . . . Comprehensive Plan . . . in order to comply with this ordinance.”

Weiss then commenced the process of obtaining development approvals.

Weiss’s development was a “development of regional impact” due to its size and

complexity. See Fla. Stat. § 380.06(1). Florida law required that the relevant

regional planning agency review development of regional impact applications for

“sufficiency” and notify applicants of “insufficiencies” in their applications. Id.

§ 380.06(10)(b). An applicant was required to respond to up to two sufficiency

requests. Id. After that, he could either (1) voluntarily choose to provide more

information or (2) refuse to provide more information and demand that the agency

schedule a hearing. Id. If he chose (2), the local government would hold a hearing,

consider the agency’s recommendation, and decide whether to approve (with or

without conditions) or deny the application. Id. §§ 380.06(11)-(15).

By late 1997, Weiss had not yet submitted his development of regional

impact application. His August 22, 1998 zoning deadline was fast approaching. In

November 1997, the Weiss team thus devised a schedule for obtaining, by August

22, 1998, an amendment to the Plan to extend the zoning deadline. The team also

6 devised a “‘what if’ schedule assuming [that] a time extension for [planned

development] zoning is not granted.” The document outlining the “what if”

schedule explicitly acknowledged that “[t]he [planned development] rezoning must

be adopted prior to 8/22/98.”

Later that month, Weiss petitioned the City to amend the Plan to extend the

zoning deadline one year. By July 1998, the City Commission had approved the

amendment, but the Department of Community Affairs had yet to review and

approve it. John Percy, a member of Weiss’s team, met with Dean Mimms, the

City’s Chief of Comprehensive Planning, to ask what would happen if the

Department did not approve the amendment by the August 22, 1998 zoning

deadline. Mimms told Percy that Weiss could continue with the project even if the

Department did not approve the amendment until after August 22. In October, the

Department approved the amendment. Weiss now had until August 22, 1999 to

secure zoning approval.

In December 1998, Weiss submitted his development of regional impact and

zoning applications. The City believed that hearings on the two applications should

run in tandem with each other, and that the conditions for their approval should be

identical so that a single source document would govern the project (if approved).

Thus, the City allowed the development of regional impact review process to

7 proceed and did not immediately grant Weiss’s zoning application.

The regional planning agency conducted a review of Weiss’s development

application and found it insufficient because it did not accurately report

transportation and environmental impacts of the project. Weiss responded to the

insufficiency findings, but the agency found that the application remained

insufficient. With no development approval in hand, and the extended zoning

deadline of August 1999 approaching, Weiss again petitioned the City to amend the

Plan to extend the deadline by another year. Weiss then continued with the

development of regional impact process, providing his second and “final” response

in July 1999. In August, the agency sent a letter to Weiss, telling him that his

responses were still insufficient. Weiss’s project manager sent the agency a letter

saying that Weiss would not attempt any future sufficiency responses. The agency

informed the City, and the City scheduled a public hearing on the development

application. Weiss then sent a letter to the City requesting that the City postpone

the hearing until he notified the City that he wanted to re-schedule it.

In May of 2000, Weiss submitted his second “Final Traffic Study” to the

agency, which it found insufficient in June 2000. Weiss responded that he would

attempt to provide additional information. In July 2000, Weiss’s proposed

amendment extending the zoning deadline a second time, to August 22, 2000, was

8 enacted. By that time, the new deadline was already less than two months away.

Weiss thus petitioned the City Commission to extend the deadline a third time, to

August 22, 2001. On October 23, 2000, the City denied the petition.

On October 25, Weiss’s attorney sent a letter to the City Attorney

“request[ing] that the City advise us of what the Comprehensive Plan and zoning is

for [Weiss’s property].” On November 7, the Department of Community

Development responded that the land use category was single-family and the pre-

annexation agriculture zoning remained in place. The City then removed the

planned use district overlay designation for Weiss’s property from the Plan’s future

land use map.

From 2000 to 2002, the Commission began a series of hearings to amend the

Comprehensive Plan in a variety of ways not related to the Weiss project. The

Commission bundled with these amendments the updates it needed to make to the

Plan to (1) update the land use plan element to reflect the reversion of the Weiss

land’s designation to single-family use and (2) delete the Plan’s references in

policies 2.3.6 through 2.3.8 to Weiss’s project. The proposed amendments provided

that they would not be effective until officially enacted. In March 2002, the

Commission enacted these amendments in Ordinances 0-01-20 and 0-01-17.

In 2005, Weiss sued the City. His complaint contained four causes of action.

9 First, he stated a 42 U.S.C. § 1983 claim for violations of his “vested rights,

property interests and contractual rights” under Article I, § 10, and the Fourteenth

Amendment, of the U.S. Constitution. Weiss’s second cause of action alleged that

the City breached its obligations under the annexation agreement. Third, Weiss

sought a declaratory judgment that he had a vested right in the planned use district

designation. Fourth, Weiss brought an inverse condemnation claim under the

Florida Constitution.

The parties proceeded to discovery. The district court set a discovery cut-off

deadline of August 1, 2007. In February 2007, Weiss moved to amend his

complaint. The proposed amended complaint (1) added a takings claim under the

U.S. Constitution and (2) added to the § 1983 claim allegations that the City

violated the Fourteenth Amendment’s Equal Protection Clause and procedural Due

Process Clause. On August 21, the City moved for summary judgment on the

claims contained in Weiss’s original complaint. On September 27, the district court

granted Weiss’s motion to amend his complaint and ordered that it would “apply all

pending motions . . . to the amended complaint.” In March 2008, the district court

heard arguments on all pending motions. In March 2010, it granted summary

judgment for the City on all of Weiss’s claims. It held that policy (m)’s language

ma[de] clear that the [planned use district] overlay would naturally

10 terminate if final zoning approval was not obtained by a certain deadline. With the Commission’s October 23, 2000, vote to deny his third extension request, Weiss thus failed to secure the required [planned development] rezoning by [the] extended deadline. The [planned use district] overlay automatically dissolved at that time, and the underlying future land use element of “Single Family” became in place after that vote by automatic reversion . . . .

This foregoing automatic reversion was self-effectuating and did not require any new “public hearings” because the very language in the Policies of the Comp[rehensive] Plan provided for this automatic reversion and had already been the subject of the required public hearings back in 1994, and had already been the subject of [Department of Community Affairs] review and approval, back in 1994.

Weiss appealed. He also moved this court to certify to the Florida Supreme

Court the question “whether Fla. Stat. § 163.3184 and Fla. Stat. § 163.3189

exclude[] self-amending comprehensive plan policies that automatically amend the

future land use element of a comprehensive plan.”

II. DISCUSSION

We review the district court’s grant of summary judgment de novo, Tana v.

Dantanna’s, 611 F.3d 767, 772 (11th Cir. 2010), viewing all genuinely disputed

facts in the light most favorable to Weiss. Scott v. Harris, 550 U.S. 372, 380, 127

S. Ct. 1769, 1776, 167 L. Ed. 2d 686 (2007). Interpretation of agreements and

comprehensive plans, and the determination of whether they are ambiguous, is a

question of law which the district court may resolve on summary judgment and

11 which we review de novo. See Saregama India Ltd. v. Mosley, 635 F.3d 1284, 1290

(11th Cir. 2011); Nassau County v. Willis, 41 So. 3d 270, 278 (Fla. Dist. Ct. App.

2010). We review the denial of a motion to re-open discovery for an abuse of

discretion. White v. Coca-Cola Co., 542 F.3d 848, 853 (11th Cir. 2008).

A. Meaning of Policy (m)

Weiss’s central challenge is to the district court’s interpretation of policy

(m). He argues that policy (m) required the official passage of a Plan amendment

before his property reverted to single-family use. He bases this interpretation on

policy (m)’s provision that “the Future Land Use Map shall be amended

accordingly” (emphasis added). Thus, he claims, when the City Commission denied

him a third extension of the zoning deadline, his land use was still planned use

district and would remain so until the City’s official passage of a Plan amendment

changing the map to reflect the land’s single-family use. Until such passage, he

argues, the City was required to hold hearings to consider his zoning and

development applications.

The district court correctly interpreted policy (m). Policy (m) unambiguously

provided that “[t]he underlying Future Land Use Map Category” of

“‘Single-Family’ . . . [wa]s inapplicable [only] as long as the property [wa]s

developed and used in accordance with the development plan approved in the

12 ordinance rezoning this property to Planned Development ‘PD,’” and that if such

an ordinance did not pass by the deadline, the property’s “planned use district”

overlay would “be null and void.” When the City voted in October 2000 not to

extend the zoning deadline for a third time, Weiss’s failure to obtain an “ordinance

rezoning this property to Planned Development” by August 22, 2000 became

certain. At that point, under the unambiguous language of the policy, the planned

use district overlay was “null and void” and the underlying single-family use was

“[]applicable.”

Policy (m)’s use of the word “amended” (“the Future Land Use Map shall be

amended accordingly”), does not change the meaning of this language. That phrase

clearly means that, in the event that Weiss failed to timely secure zoning approval,

the City would, as a housekeeping matter, update the map to reflect the land’s

reversion to single-family use. In fact, Ordinance 4001 expressly authorized the

City to “make the necessary changes in maps . . . in order to comply with this

ordinance.”

Because the planned use district overlay became “null and void” in October

2000, the City did not need to pass Ordinances 0-01-17 and 0-01-20 in order for

Weiss’s land use to revert to single-family. Anyone reading the Plan following the

October 2000 vote would have read that “[t]he planned development zoning

13 ordinance . . . must be adopted by the City Commission by August 22, 2000 or the

overlay district shall be null and void”; would have recognized that August 22,

2000 had passed; and would have therefore understood that the planned use district

overlay had expired and the single-family use was applicable. The reader would

have read policies 2.3.6 through 2.3.8 (which had become policies 2.3.8 through

2.3.10 for reasons not relevant here) and understood that they referred to a now-

obsolete project. And the reader would not have seen a planned use district

designation for Weiss’s property on the Plan’s map, because the City, pursuant to

its authority under Ordinance 4001 to “make the necessary changes in maps . . . to

comply with this ordinance,” erased that designation following the October 2000

vote. Thus, in October 2000, “[t]he comprehensive plan as a whole, including the

future land use map and all of the other policies of the plan, . . . that . . . determine

what uses can be made of a specific tract of land,” made clear that single-family

was the only “use[] [that] c[ould] be made of [Weiss’s] land.” Coastal Dev. of N.

Fla., Inc. v. City of Jacksonville Beach, 788 So. 2d 204, 208-09 (Fla. 2001).

Ordinances 0-01-17 and 0-01-20 were thus mere housekeeping amendments. That

these ordinances did not pass until 2002 says nothing about Weiss’s land use

designation from October 2000 through 2002.

Since Weiss’s land use was single-family after October 2000, the City was

14 under no obligation thereafter, under Gardens Country Club, to consider Weiss’s

planned development zoning application. Such zoning is not permitted for single-

family properties. And because planned development zoning was no longer

available to Weiss, he could not build his development of regional impact on the

land. Thus, the City was also under no obligation, after October 2000, to consider

Weiss’s development of regional impact application. Weiss’s project was dead.

Weiss points to several actions the City took long after the passage of policy

(m) that he claims support his argument as to policy (m)’s meaning. When a

comprehensive plan is unambiguous, however, the parol evidence rule bars our

consideration of extrinsic evidence of its meaning. Mosley, 635 F.3d at 1290;

TECO Barge Line, Inc. v. Hagan, 15 So. 3d 863, 865 (Fla. Dist. Ct. App. 2009).

B. Legality of Policy (m)

Weiss argues that, under the district court’s interpretation, policy (m) was

invalid because under Florida law, comprehensive plans cannot be “self-

amending.” He has also moved to certify this issue to the Florida Supreme Court.

Policy (m) is not “self-amending”; it is self-executing. When the City voted

not to extend the zoning deadline in October 2000, the Plan was not amended

without following the comprehensive plan amendment procedures required by

Florida Statutes § 163.3184(3). Instead, the condition for the reversion of Weiss’s

15 property to single-family (his failure to obtain zoning approval)—a condition

specifically provided for in policy (m), which the City, in 1994, did pass in

accordance with § 163.3184(3)—occurred.

Weiss cites to no Florida authority holding unlawful a comprehensive plan

provision providing for such conditional land use designations. He argues that the

district court’s interpretation of policy (m) was “contrary” to the Florida

Supreme Court’s decision in Coastal Development of North Florida, Inc. v. City of

Jacksonville Beach, 788 So. 2d 204 (Fla. 2001). Coastal Development is

inapplicable. In that case, the Florida Supreme Court made clear that any

amendment to a comprehensive plan’s future land use map is a legislative policy

decision subject to the “fairly debatable” standard of review. Coastal Dev., 788

So. 2d at 209-10. Coastal Development thus does no more for Weiss than reiterate

what § 163.3184 of Florida Statutes provides: if a city amends its plan, it must

follow the procedures required by statute. But as we already established, the

reversion of Weiss’s property to single-family was not an amendment to the City’s

Plan, and so did not trigger those procedures.

In fact, the District Court of Appeal of Florida expressly approved of

conditional land use designations such as policy (m) in Nassau County v. Willis, 41

So. 3d 270 (Fla. Dist. Ct. App. 2010). The comprehensive plan at issue in Willis

16 designated the land use of “all areas shown as wetlands on the Future Land Use

Map series” as “Conservation.” 41 So. 3d at 272. The plan then qualified its

blanket “Conservation” designation:

1.09.03 Areas identified on the [Future Land Use Map] map series as wetlands are generally defined. A landowner may provide more detailed data to the County to clarify jurisdictional wetland areas. Those land areas determined by the Board of County Commissioners with the advice of the St. Johns River Water Management District . . . not to be jurisdictional wetlands will be allowed to be developed at the least intense adjacent land use densities and intensities.

Id. at 273. The future land use map identified the property at issue in Willis as

wetlands, and thus designated its land use “Conservation.” Id. The would-be

developers of the property submitted a formal wetlands determination issued by the

River Water Management District concluding that a portion of the property was

actually uplands, not wetlands. Id. Based on this submission, they applied to have

their land use designation changed from “wetlands” to “Planned Unit

Development.” Id. The county approved the application and re-categorized the

property’s land use designation, thus permitting a higher-density development than

that permitted under the “Conservation” land use designation. Id. at 273-74.

Residents of Nassau County who opposed the development challenged its

consistency with the comprehensive plan. Id. at 274. “The crux of their argument,”

similar to Weiss’s here, “was that Nassau County utilized Policy 1.09.03 to attempt

17 to evade amending the Comprehensive Plan” and that “the County’s utilization of

Policy 1.09.03 made the Comprehensive Plan ‘self-amending,’ which, in their

view, is contrary to state law and leads to an absurd result.” Id. at 275. The court of

appeal rejected the plaintiffs’ argument, holding that “Policy 1.09.03 is

self-executing, reasonable, and not invalid under any state law.” Id. at 279. It

concluded that policy 1.09.03 “direct[ly], clear[ly], and simpl[y]” provided that

“‘[t]hose land areas determined . . . not to be jurisdictional wetlands will be

allowed to be developed at the least intense adjacent land use densities and

intensities.’” Id. at 278. Therefore, it held, “[t]he County’s action is consistent with

the Comprehensive Plan, because Policy 1.09.03 precisely provides that wetlands

may be redefined . . . .” Id.

This case is like Willis. Like policy 1.09.03 in Willis, policy (m) here is

“direct, clear, and simple”: if Weiss failed to gain zoning approval by policy (m)’s

deadline, the planned use district would be “null and void.” Like policy 1.09.03 in

Willis, policy (m) is “self-executing,” not “self-amending.” Like policy 1.09.03,

policy (m) is “reasonable, and not invalid under any state law.” Willis, 41 So. 3d at

279.

The Florida Supreme Court “[m]ay review a question of law certified by . . .

a United States Court of Appeals . . . for which there is no controlling precedent of

18 the supreme court of Florida.” Fla. Const. art. V, § 3(b)(6). “The decision to certify

is discretionary with this Court,” and “certifying every state law question which has

been authoritatively decided by a Florida District Court of Appeal” would be an

abuse of that discretion. Farmer v. Travelers Indem. Co., 539 F.2d 562, 563 (5th

Cir. 1976).1 We will follow the Florida District Court of Appeal in Willis and

affirm summary judgment, and deny Weiss’s motion for certification to the Florida

Supreme Court. See, e.g., Farmer, 539 F.2d at 563. Even though the Florida

Supreme Court could rule contrary to the appellate court’s decision in Willis, Weiss

does not offer, and we cannot find, a “persuasive indication” that it actually would

change the law. See McMahan v. Toto, 311 F.3d 1077, 1080 (11th Cir. 2002)

(“[T]he rule is that, absent a decision from the state supreme court on an issue of

state law, we are bound to follow decisions of the state’s intermediate appellate

courts unless there is some persuasive indication that the highest court of the state

would decide the issue differently.”). We deny Weiss’s motion to certify the issue

of policy (m)’s legality to the Florida Supreme Court.

C. Vested Rights Through Equitable Estoppel or Bad Faith

Weiss argues that the doctrines of “equitable estoppel and bad faith” entitle

1 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.

19 him to a declaratory judgment that Ordinances 0-01-20 and 0-01-17 are invalid.

The crux of Weiss’s argument is that, regardless of what policy (m) actually said,

the City represented to him that his land use would not revert to single-family until

the passage of Ordinances 0-01-17 and 0-01-20. Weiss argues that between

October 2000 (when the City denied his third request for a zoning deadline

extension) and March 2002 (when Ordinances 0-01-17 and 0-01-20 were passed),

he “would have been able to demand a hearing and obtain a development order . . .

and . . . zoning app[roval] . . . .”

The district court properly granted summary judgment for the City on

Weiss’s equitable estoppel claims. There is no record evidence that the City misled

Weiss. See Goodwin v. Blu Murray Ins. Agency, Inc., 939 So. 2d 1098, 1103 (Fla.

Dist. Ct. App. 2006) (“[E]stoppel will not lie unless the party seeking to assert it

was misled.”). The only record evidence to which Weiss cites concerning actual

representations made by the City relates to the conversation in July 1998 between

the City’s Chief of Comprehensive Planning, Dean Mimms, and one of Weiss’s

team members, John Percy, in which Mimms said that Weiss’s project would not

automatically expire if the Department of Community Affairs did not approve the

first extension of the zoning deadline by August 22, 1998. Mimms’s assurances

communicated merely that a deadline extension amendment, if not officially passed

20 until after the expiration of the original deadline, would be retroactive to the date of

the original deadline. Mimms’s assurances did not in any way communicate that, if

the City denied future deadline extension requests—whether before or after the

expiration of the then-applicable deadline—Weiss’s land use would not

immediately revert to single-family. Weiss points us to no other evidence in the

record that the City led Weiss to believe that policy (m) was not self-executing.

Even if Percy’s affidavit can be read to assert that Mimms affirmatively told

him that policy (m) was not self-executing, it does not create a “genuine” dispute as

to whether Weiss was misled. “When opposing parties tell two different stories,

one of which is blatantly contradicted by the record, . . . a court should not adopt

that version of the facts for purposes of ruling on a motion for summary judgment.”

Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 1776, 167 L. Ed. 2d 686

(2007). Here, Weiss’s assertion that he believed that he had until the passage of

Ordinances 0-01-17 and 0-01-20 to obtain his approvals, based on Mimms’s

alleged representations, is “blatantly contradicted by the record” evidence from

1994 of Weiss’s confirmation that he understood exactly how policy (m) worked:

“there shall be four (4) years to achieve approval of the planned development.”

Weiss did not write, “there shall be four (4) years, plus the time it takes to amend

the Plan, to achieve approval of the planned development.” The affidavit is also

21 “blatantly contradicted” by the Weiss team’s November 1997 “what if” schedule,

which explicitly acknowledged that “[t]he [planned development] rezoning must be

adopted prior to 8/22/98.” The “version of events [related in Percy’s affidavit] is so

utterly discredited by the record that no reasonable jury could have believed him.”

Scott, 550 U.S. at 380, 127 S. Ct. at 1776. Summary judgment for the City on

Weiss’s equitable estoppel claims was proper.

So was summary judgment on Weiss’s claims based on the City’s alleged

“bad faith.” Weiss argues the City acted in bad faith when it refused to consider

Weiss’s development and zoning applications after it denied his third deadline

extension request in October 2000. As discussed, the City’s interpretation of policy

(m) as self-executing was correct, and the City did not mislead Weiss to adopt any

other interpretation. It follows that the City did not act in bad faith when it acted

consistently with its interpretation of policy (m) and informed Weiss that he could

no longer obtain zoning or development approval after October 2000. Weiss insists

that “[o]n October 23 2000, [he] was told in writing that his [development of

regional impact] hearing would occur later.” Thus, he argues, the City acted in bad

faith when it later told Weiss that it would not conduct such a hearing. But the only

record evidence to which Weiss cites is the City Attorney’s October 23

memorandum to the Commission, recommending that the Commission extend the

22 zoning deadline a third time, in which the City Attorney stated, “The proposed

[development of regional impact] will be the subject of a future public hearing and

is not part of this application [for an amendment extending the zoning deadline].”

This document clearly did not promise Weiss a future development of regional

impact hearing.

D. Substantive Due Process Claim

The district court also granted summary judgment for the City on Weiss’s

claim that the City violated his substantive due process rights. A plaintiff alleging

such a violation must prove that the defendant (1) deprived him of a

constitutionally protected property interest (2) for an improper motive and by

means that were pretextual, arbitrary, capricious, and without any rational basis.

Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1577 (11th Cir. 1989). Weiss

argues that the district court erred in its analysis of prong (2). We need not consider

this argument because the court properly held under prong (1) that the City did not

deprive Weiss of a constitutionally protected property interest. Weiss’s alleged

property interest was “the settled law of Florida which required the City to consider

duly filed zoning applications under the existing land use designation of its

comprehensive plan.” We have already concluded that the land use designation of

Weiss’s property after October 2000 was single-family and that, therefore, the City

23 had no obligation to consider Weiss’s planned development zoning application

thereafter. The district court properly granted summary judgment for the City on

this claim.

E. Weiss’s Waiver of Development of Regional Impact Hearing

Weiss next contends that the district court erred in finding that Weiss waived

his right to his development of regional impact hearing. The district court applied

its conclusion that Weiss waived this right to its analysis of Weiss’s (1) substantive

due process and (2) procedural due process claims. We have already determined

that summary judgment for the City was proper on claim (1). Weiss asserted no

constitutionally protected property interest.

Weiss’s procedural due process claim was that the City “targeted Weiss and

unfairly deprived him of a quasi-judicial hearing on his duly filed and pending

[development of regional impact] and zoning applications . . . .” There is no

evidence that the City deprived Weiss of a development of regional impact hearing

to which he was due. In October 1999, Weiss asked the City to postpone the

hearing indefinitely. From then until October 2000, the City and the agency held

workshops and meetings with Weiss and informed him of ongoing insufficiencies

in his application so that he could correct them. At no point during this period did

Weiss ask the City to schedule the hearing. After October 2000, he was no longer

24 entitled to the hearing because his proposed development was inconsistent with his

land’s single-family use. The district court thus did not err in finding that Weiss

waived his right to the hearing.

F. Breach of Contract Claim

In deciding Weiss’s breach of contract claim, the district court held that

“under the unambiguous language of the [annexation] agreement, [the agreement]

had no enforceability once the [dual-majority] referendum failed.” Weiss argues

that the agreement was, at least, ambiguous as to its enforceability if the dual-

majority referendum failed but annexation occurred later through other means.

Weiss is correct. The agreement provided that “[t]his agreement shall become

effective upon annexation of the Property into the City.” It did not condition the

agreement’s effectiveness on the means the City used to achieve that annexation. In

1992-1993, the City annexed Weiss’s property under its new annexation

procedures. It is therefore not “unambiguous[ly]” clear that the agreement was

unenforceable once annexation occurred.

However, summary judgment for the City on Weiss’s breach of contract

claim was proper on a different ground. See Edwards v. Niagara Credit Solutions,

Inc., 584 F.3d 1350, 1354 (11th Cir. 2009) (this court may affirm a grant of

summary judgment on a ground not relied upon by the district court). There is no

25 genuine dispute of fact as to whether the City breached its obligations under the

annexation agreement. The agreement expressly provided that “[n]othing

contained” in it prevented the City from exercising its powers to review and deny

Weiss’s development of regional impact and zoning applications. The agreement

thus expressly permitted the actions of which Weiss complained in his breach of

contract claim.

G. “Oral” Motion for Summary Judgment

Weiss contends that the City orally moved for summary judgment on the new

claims in Weiss’s amended complaint (the U.S. constitutional takings claim, and

the equal protection and procedural due process claims). The City never orally

moved for summary judgment. Instead, the district court granted Weiss’s motion to

amend his complaint and ordered that it would “apply all pending motions”

(including the City’s written motion for summary judgment on Weiss’s original

complaint) “to the amended complaint.” Thus, Weiss’s argument that the district

court “erred in granting the City’s unnoticed oral summary judgment [motion]”

fails.

Weiss’s related demand that he “be permitted to take discovery, [and] receive

and respond to a properly filed and supported motion for summary judgment

addressing the[] claims [in the amended complaint],” also fails. Weiss invited the

26 district court to apply existing motions to both complaints, and in response, the

court’s order stated that it would “apply all pending motions . . . to the amended

complaint.” Weiss conceded in the district court that the amended complaint

“presents the same facts [and] the same misconduct” as the original complaint and

that “[t]he only material change is based on testimony of [Weiss’s] attorney,”

which Weiss had already secured. He thus admitted that the district court’s grant of

his motion to amend created no need for additional discovery. Finally, Weiss was

permitted to, and did, argue in his opposition to summary judgment that the court

should deny summary judgment for the City on the new claims in the amended

complaint. Weiss’ argument that the district court never should have ruled on the

City’s summary judgment motion as applied to the new claims in the amended

complaint thus fails.2

H. Motion To Re-Open Discovery

Weiss next argues that the district court erred in denying his motion to

enlarge the discovery period. On August 1, 2007—the last day of the discovery

period—Weiss filed a motion to enlarge the discovery period so that he could

2 As Weiss concedes in his Reply Brief, he does not argue on appeal the merits of his equal protection claim. Similarly, he does not argue the merits of his two takings claims. Issues that are not briefed on appeal are considered abandoned. Denney v. City of Albany, 247 F.3d 1172, 1182 (11th Cir. 2001). Accordingly, we do not reach the merits of these claims.

27 depose Norman Bowman. Weiss had originally scheduled the deposition of

Bowman for February 2007, but Weiss’s attorney canceled it and did not attempt to

reschedule it until June 3, at which point Bowman was out of the state indefinitely.

On September 7, Weiss renewed his motion. The court denied the motion because

Weiss’s own dilatory tactics were the reason he did not secure Bowman’s

deposition during the discovery period. This was not an abuse of discretion.

Weiss also contends that the district court ignored the motion’s specific

request for additional discovery on the new claims in the amended complaint. The

only request for discovery in the motion was the request to depose Bowman. The

court did not ignore anything.

I. District Court’s “Fact Finding”

Finally, Weiss argues that the district court “improperly weighed the

credibility of evidence” when it considered (1) the City’s testimony that policy (m)

was self-executing against (2) “the City’s official announcements that the

elimination of Weiss’s [planned use district] land use . . . had not become legally

effective.” The court did no such thing. Weiss submitted no evidence that the City

ever “officially announced” that Weiss’s land use had not reverted to single-family

in October 2000. Weiss cites exclusively to the language in Ordinances 0-01-17

and 0-01-20 stating that the ordinances would not become effective until found in

28 compliance with Florida law. That the housekeeping updates reflecting the 2000

land use reversion did not become effective until 2002 does not put into dispute the

City’s evidence that the reversion occurred in 2000.

III. CONCLUSION

The district court’s grant of summary judgment for the City, and its denial of

Weiss’s motion to enlarge the discovery period, are AFFIRMED. Weiss’s motion

to certify the issue of policy (m)’s legality to the Florida Supreme Court is

DENIED.

AFFIRMED.