Emmett Adolph, Sr., et al., Plaintiffs-appellants, v. Federal Emergency Management Agency of the United States,defendant-appellee, 854 F.2d 732 (5th Cir. 1988)

Louisiana property owners affected by flood-plain ordinances passed by the Plaquemines Parish Commission Council filed this class action alleging an unconstitutional taking. They challenge the imposition, without compensation, of severe flood control regulations which are said "effectively [to] sound a death-knell for these communities, the ancestry of which pre-dates our Constitution." Because the parish was required by Federal Emergency Management Agency (FEMA) regulations to adopt such a stringent building code in order to participate in the National Flood Insurance Program (NFIP), 42 U.S.C. § 4001 et seq., the plaintiffs named FEMA as a defendant, as well as the parish council, which body had imposed the challenged building ordinances--conforming to federal standards--upon the affected residents. The trial court dismissed the suit against FEMA under Fed. R. Civ. P. 12(b) (6). While the substantive issues presented herein are res nova before this court, our opinion today is guided by a compelling decision from the United States District Court for the District of Columbia, dismissing identical allegations against local building ordinances passed in conformance with FEMA guidelines. We AFFIRM.I. The NFIP Scheme.

In order to participate in the NFIP,¹  the Plaquemines Parish Commission Council passed building ordinances in conformance with FEMA regulations that required that new or additional structures meet certain elevation requirements.²  42 U.S.C. §§ 4022, 4102. The plaintiffs brought this suit against FEMA and the parish council alleging that the building ordinances made development of their (and some 7,649 class members') property prohibitively expensive, rendering their property unmarketable, and resulting in an unconstitutional taking in violation of the fifth and fourteenth amendments. FEMA was named as a defendant because certain federal benefits would not be available in the parish if the parish had not adopted an ordinance (such as the one adopted), that meets certain requirements (set by FEMA and calculated with hundred-year flood plain estimates taken by FEMA) designed to minimize future flood losses in the parish. As stated in the complaint, the plaintiffs view any injunctive relief against the parish as meaningless unless FEMA is also enjoined from "punishing" the parish for noncompliance with the allegedly unconstitutional regulations.

The district court dismissed the complaint for failure to state a claim. This disposition was based on holdings (1) that the ordinances were passed by the parish (which was named as a party and against which this litigation is currently stayed pending action here), rather than FEMA, and thus there was no Article III case or controversy; and (2) that the FEMA regulations did not result in an unconstitutional taking.

On this appeal the plaintiffs contend that the parish ordinances were passed pursuant to FEMA regulations and thus there is an actual controversy between plaintiffs and FEMA. The plaintiffs also contend that whether an unconstitutional taking has occurred depends upon the reasonableness of the government regulation and that reasonableness should be determined on the facts as a whole on a case-by-case basis, rather than on a motion to dismiss.

The plaintiffs' takings argument is legally unsupportable, however, though this court has not previously addressed the precise issue of flood control measures that effectively eliminate commercial value. The only court to address the FEMA regulatory guidelines for local ordinances held that the federal flood prevention regulations do not result in an unconstitutional taking. Texas Landowners Rights Ass'n v. Harris, 453 F. Supp. 1025 (D.D.C. 1978) (decided on summary judgment), aff'd mem., 598 F.2d 311 (D.C. Cir.), cert. denied, 444 U.S. 927, 100 S. Ct. 267, 62 L. Ed. 2d 184 (1979). Neither the distinction that that case was decided not on the complaint alone, but with consideration of stipulated facts, nor very recent Supreme Court decisions on regulatory takings, undermine the persuasiveness of this well-reasoned authority adverse to the plaintiffs' arguments.

II. Disposition as a Matter of Law Was Proper.

A. Case or Controversy?

FEMA mistakenly argues that there is no case or controversy between plaintiffs and the agency in this suit. To meet the case-or-controversy requirement of article III of the Constitution, (1) a plaintiff must state an actual or threatened injury to himself; (2) the injury must be a result of the allegedly illegal conduct of the defendant; and (3) the injury must be capable of redress by a favorable decision with respect to the challenged conduct. Common Cause v. Dep't of Energy, 702 F.2d 245, 250 (D.C. Cir. 1983). The plaintiffs' allegations of an unconstitutional condition and of federal coercion meet this jurisdictional threshold. Bowen v. Gilliard, --- U.S. ----, 107 S. Ct. 3008, 97 L. Ed. 2d 485 (1987) (private citizen challenging the effect of federal guidelines and regulations under Aid to Families with Dependent Children (AFDC) program operated by the state).

Although the Texas Landowners court did not address the case-or-controversy issue, its conclusions are relevant to this issue, and its clear implication was that those plaintiffs had alleged a case or controversy with FEMA. If either the Texas Landowners court or the court below had ruled that there was no case or controversy with FEMA, dismissal would have had to have been under rule 12(b) (1), rather than under rule 12(b) (6); neither court properly could have reached the merits of any of the various claims against FEMA if there was a lack of article III jurisdiction.

B. Failure to State a Claim?

Taking the allegations of the complaint as true, however, a court may properly dismiss a suit for failure to state a claim upon which relief may be granted. Because, as a matter of law, FEMA neither affected nor required any unconstitutional taking of the plaintiffs' property, such a disposition is appropriate here.

A claim is not to be dismissed under rule 12(b) (6) unless it appears to a certainty that no relief can be granted under any set of facts provable in support of its allegations or if the allegations, accepted as true, do not present a claim upon which relief legally can be obtained. United States v. Uvalde Consolidated Indep. School Dist., 625 F.2d 547, 549 (5th Cir. 1980) (citing Conley v. Gibson, 355 U.S. 41, 45, 78 S. Ct. 99, 101, 2 L. Ed. 2d 80 (1957)). Texas Landowners establishes that as a matter of law, the NFIP is not a regulatory taking. Because no facts are needed for evaluation of the claim, it is clear that a procedural disposition of claims against FEMA was correct.

C. There Was No Unconstitutional Condition.

By conditioning the availability of federally-subsidized insurance upon enactment of local flood-plain management ordinances in accordance with federal standards, the NFIP represents a voluntary federal program. Texas Landowners, 453 F. Supp. at 1030. As in the cases upholding imposition of speed-limit reductions, minority set-asides, and drinking-age requirements as a condition of federal highway funding, Congress traditionally has been sustained in enacting such programs to encourage state and local participation in the achievement of federal legislative goals. See South Dakota v. Dole, --- U.S. ----, 107 S. Ct. 2793, 97 L. Ed. 2d 171 (1987) ("Incident to this power [to Tax and Spend], Congress may attach conditions on the receipt of federal funds, and has repeatedly employed the power 'to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives.' ") (citing Fullilove v. Klutznick, 448 U.S. 448, 474, 100 S. Ct. 2758, 2772, 65 L. Ed. 2d 902 (1980) (10% set-aside for contracts with minority business enterprises); Lau v. Nichols, 414 U.S. 563, 569, 94 S. Ct. 786, 789, 39 L. Ed. 2d 1 (1974) (nondiscrimination provisions applied to local schools).³ 

Because communities such as Plaquemines Parish "weigh the advantages of these federal benefits against the limitations on future development in the communities, which must be done in a safe manner, so that there will be no damage from flooding in the future," the district court here correctly saw this case as indistinguishable from Texas Landowners. We concur with the holding below that the parish was not compelled to participate in the NFIP and that as a result FEMA could not be charged with an unconstitutional taking of property, even if, arguendo, the elevation requirements otherwise could be shown to constitute an actual deprivation without compensation.

III. That All Takings Claims Must Be Factually Explored Is

Legally Erroneous.

The plaintiffs argue that First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, --- U.S. ----, 107 S. Ct. 2378, 96 L. Ed. 2d 250 (1987), symbolizes both the fact-specific nature of takings determinations and that dismissal without at least some evidentiary development, either administratively or at trial, is improper. Relying in part upon Kaiser Aetna v. United States, 444 U.S. 164, 175, 100 S. Ct. 383, 390, 62 L. Ed. 2d 332 (1979), and Goldblatt v. Hempstead, 369 U.S. 590, 594, 82 S. Ct. 987, 990, 8 L. Ed. 2d 130 (1962), the plaintiffs argue that the Supreme Court has not developed any "set formula" for determining when a regulatory taking occurs; they contend that

[t]o conclude otherwise would be to effectively hold [sic] that regardless of how onerous, flood control ordinances can never result in an unconstitutional taking--a position expressly contrary to the holding of the Supreme Court in First English.

Contrary to plaintiffs' suggestion, however, First English did not hold that there must be a trial on every claim of a taking. The holding of the court addressed only the narrow, technical issue of whether there could be, as a matter of law, compensation paid for "temporary" takings of property, i.e., before a court ultimately holds a statute or regulation unconstitutional. The court specifically stated that it was not reaching the merits of the controversy. 107 S. Ct. at 2384-85. The dissent noted that if the merits had been reached, the "regulatory program at issue here cannot constitute a taking." 107 S. Ct. at 2391-92 (Stevens, J., dissenting).

Here the law is well settled, and no proffered evidence will alter the result indicated by Texas Landowners. Because the NFIP is not a taking as a matter of law, the specific facts of this case, or of Texas Landowners, are irrelevant. However, even a cursory examination of the allegedly crippling burden imposed upon the residents of Plaquemines Parish reveals that the new building ordinances do not deprive property owners of all beneficial use of their flood-prone lands.IV. As a Matter of Law There Was No Taking.

Assuming, arguendo, that suit could be brought against FEMA for an action taken by the parish, the land-use and building criteria of the NFIP do not constitute a taking of property without compensation. While, as a general rule, federal courts look to state law to determine whether a property interest has been taken,⁴  thereby triggering the constitutional requirement of "just compensation," we adopt Texas Landowners' conclusion that the NFIP, when operating precisely as intended by Congress, results in no unconstitutional taking of plaintiffs' property, regardless of state law. Texas Landowners, 453 F. Supp. at 1032-33.

Plaintiffs sole attempt to distinguish Texas Landowners is to emphasize that it was decided upon summary judgment, not a motion to dismiss. However, this is a meaningless distinction, because, as the district court noted below, both it and the Texas Landowners district court were ruling that as a matter of law the NFIP did not constitute a taking. The facts relevant to Texas Landowners ' holding and to the instant case are the same; the cases are not distinguishable, and no factual development was necessary.⁵ 

Plaintiffs' only real argument attempting to undermine Texas Landowners is that an arguably more "conservative" Supreme Court may now apply a more searching scrutiny to allegations of such regulatory takings as are made here. It is true that the Supreme Court decided both First English and Nollan v. California Coastal Comm'n, --- U.S. ----, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987), after the dismissal below. However, neither case contains even dicta indicating that the persuasiveness of Texas Landowners' validation of the NFIP can be questioned.

As FEMA correctly underscores, it is important to recognize that the plaintiffs are challenging not only the building elevation requirements, but the sanctions which Congress has prescribed. In other words, the plaintiffs challenge the entire Congressional scheme, and to hold in favor of them would require a holding that virtually the entire statute is unconstitutional. Obviously, such a holding would turn this carefully-crafted nationwide scheme on its head.

However, the contention that these recent cases significantly altered judicial review of alleged takings is without merit. The court did note in Nollan that a land use regulation may effect a taking if it does not substantially advance legitimate state interest, or if it denies the owner economically viable use of the land. Id. 107 S. Ct. at 3147 (citing Agins v. City of Tiburon, 447 U.S. 255, 260, 100 S. Ct. 2138, 2141, 65 L. Ed. 2d 106 (1980), and Penn Central Transp. Co. v. New York City, 438 U.S. 104, 127, 98 S. Ct. 2646, 2660, 57 L. Ed. 2d 631 (1978)). But it is apparent that Nollan did not revolutionize takings law.⁶  Additionally, we find unpersuasive and implausible the plaintiffs' in terrorem characterization of the consequences had the parish council refused to enact FEMA-mandated building regulations and so declined participation in the NFIP.⁷ 

Texas Landowners' determination that the NFIP does not constitute a taking thus is not impaired by the recent takings cases from the Supreme Court. Furthermore, state flood-management authorities have frequently been sued on allegations that their building restrictions constituted takings, and there is little credence due the plaintiffs' assertion that the almost uniform rejection of those takings claims would be reviewed differently by the Supreme Court now.⁸  The plaintiffs' chance of prevailing on the merits here is not increased by having joined the parish as a party-defendant, because even when the local government is sued directly, the same rejection of the takings claim obtains.

For instance, a local ordinance (more restrictive than the NFIP) adopted for purposes of participation in the NFIP was, after careful scrutiny by the Supreme Court of North Carolina, found not to be an unconstitutional taking of property. Responsible Citizens v. City of Asheville, 308 N.C. 255, 302 S.E.2d 204 (1983). The Washington Supreme Court in Maple Leaf Inv., Inc. v. State Dept. of Ecology, 88 Wash. 2d 726, 565 P.2d 1162 (1977), upheld an ordinance that prohibited all residential development--not only that which would increase flood levels. In Brecciaroli v. Connecticut Comm'r of Env'tl Protection, 168 Conn. 349, 362 A.2d 948 (1975), an administrative agency denied a permit to fill a 5.3-acre wetlands parcel. The trial court refused to allow the introduction of evidence on the takings issue, and its decision was upheld by the Connecticut Supreme Court.⁹ 

Similarly, the Georgia Supreme Court in Pope v. City of Atlanta, 242 Ga. 331, 249 S.E.2d 16 (1978), cert. denied, 440 U.S. 936, 99 S. Ct. 1281, 59 L. Ed. 2d 494 (1979), held constitutional a city plan that prohibited construction of "impervious structures," including a proposed tennis court, in a flood plain. This case was decided under the state constitution, using an analysis identical to that used under the federal Constitution. Consideration under the federal Constitution was foreclosed, because the federal constitutional issues had already been determined in favor of the validity of the ordinance. Pope v. City of Atlanta, 418 F. Supp. 665 (N.D. Ga. 1976), aff'd mem., 575 F.2d 298 (5th Cir. 1978).

The North Carolina Supreme Court in Responsible Citizens determined that the enactment of the ordinance was "reasonably necessary" for the public safety, health and welfare,¹⁰  noting that the flood-plain requirements apply only to new construction and substantial improvements and did not result in a taking of such property. So long as the challenged ordinances do not directly affect the then-current use of plaintiffs' property, the prohibitive cost of complying with the regulation provides no proof of a taking.¹¹ 

Even assuming that the cost of complying with the land-use regulations is prohibitive (and we do not decide that it is) and recognizing that the market value of plaintiffs' properties has diminished (a fact found by the trial court), these factors are of no consequence here.

Responsible Citizens, 302 S.E.2d at 204. The court concluded that no "taking" had occurred, citing Texas Landowners, and numerous state cases in which flood-plain ordinances withstood challenges that they were a taking of property without compensation.

The court below correctly relied upon the same discussion in Texas Landowners and similarly held that the plaintiffs had failed to state a claim for which it could grant any relief. Dismissal of FEMA under Fed. R. Civ. P. 12(b) (6) was, accordingly, appropriate.

V. Conclusion.

Language in the local land-use regulations that tracks the criteria of the NFIP does not, on its face, effect a taking in violation of the fifth and fourteenth amendments. The parish's building code protects the public health and substantial non-complying, but non-injurious uses are permitted; there are also no indications of arbitrary, discriminatory, or acquisitive governmental conduct. The validity under state law of the actual application of this ordinance to a particular piece of property depends upon the facts involved in each case, but FEMA would not be a proper party, because the parish's enactment in compliance with FEMA standards and in order to participate in the NFIP was neither under federal coercion nor as an unconstitutional condition to federal benefits. The district court's correct decision with respect to FEMA was one of law and required no factual development. For the foregoing reasons, the district court's dismissal of FEMA from plaintiffs' suit was proper, and we AFFIRM.