                   United States Court of Appeals,

                              Eleventh Circuit.

                                No. 94-9215.

  BICKERSTAFF CLAY PRODUCTS COMPANY, INC., Plaintiff-Appellee,

                                       v.

       HARRIS COUNTY, GEORGIA, By and Through its BOARD OF
COMMISSIONERS; George Elmore; Danny Bridges; Carl C. Hobbs, III;
Wallace Marriner; Warren Popp, Defendants-Appellants.

                               July 16, 1996.

Appeal from the United States District Court for the Middle
District of Georgia. (No. 94-3-COL), J. Robert Elliott, Judge.

Before TJOFLAT, Chief Judge, CARNES, Circuit Judge, and FAY, Senior
Circuit Judge.

     TJOFLAT, Chief Judge:

     In this case, a company challenges under several provisions of

state   and   federal   law    the    decision     of   a   county   board    of

commissioners to rezone the company's property. The district court

granted injunctive relief in favor of the company, and the county

took this interlocutory appeal.          For the reasons that follow, we

affirm in part, reverse in part, and vacate in part.

                                       I.

                                       A.

     The property in question is a landlocked 161-acre tract

located in southwest Harris County, Georgia, along Interstate

Highway   185.      Appellee         Bickerstaff    Clay     Products,       Inc.

("Bickerstaff"), a brick manufacturing company, bought the property

in 1960 because of the property's rich reserves of a mineral used

in the brickmaking process. Bickerstaff uses a form of rock called

weathered mylonite in the manufacture of bricks; the Harris County
property lies along a vein of such rock.         At the time Bickerstaff

purchased the property, it had no immediate need to mine the

weathered mylonite on the property.           It conducted several test

drills on the property and dug a trench to determine the extent of

the mylonite deposit, but otherwise did not mine the property.

Instead, Bickerstaff held the property in its mineral reserves for

future use.

     In 1984, the governing entity for Harris County, a five-member

Board of Commissioners, enacted a county-wide zoning ordinance,

including a comprehensive land-use plan for the county.                    The

ordinance provided that initial determinations on zoning matters

such as rezoning requests would be studied by the county planner's

office, which would recommend the denial or granting of the request

to a planning commission.         The planning commission would hold a

public   meeting   on    the   rezoning   request,   and   then   would   make

recommendations to the Board of Commissioners, which would have

final authority over all zoning decisions.             The 1984 ordinance

zoned Bickerstaff's property A-1, which is the designation given to

vacant property.1       Under the ordinance, the uses permitted on land

zoned A-1 include general agriculture and forestry;               the stated

purpose of the A-1 category is to "preserve land areas suitable for

eventual rezoning."

     In 1993, Bickerstaff decided to make use of the mylonite

reserves on the Harris County property.         To that end, Bickerstaff


     1
      The 1984 zoning ordinance was re-enacted almost verbatim in
1988 and again in 1990 to cure alleged procedural defects in the
original ordinance. The zoning of Bickerstaff's property was A-1
in all three ordinances.
applied      for    a   mining   permit      from   the    Georgia      Environmental

Protection Department.           In this application, Bickerstaff indicated

the proposed duration and manner of the mining and explained how

the company would shield surrounding areas from the noise and

visual disturbances attendant to the operation.2                      The application

also       contained      provisions    for     land   reclamation       and    runoff

containment. In August of 1993, the Department granted Bickerstaff

a permit to mine the property.

       While       preparing     its    application       to    the     Environmental

Protection Department, Bickerstaff discovered that the property had

been zoned A-1, and that A-1 zoning would not permit mining.                     Armed

with state approval of the mining operation, Bickerstaff sought to

have       the   property    rezoned     M-2,    which     would      permit   mining.

Bickerstaff presented its plan to the Harris County planner, who

found       that    M-2     zoning     was    consistent       with    the     county's

comprehensive land-use plan and recommended that the planning

commission approve the rezoning request.                       Following a public

meeting, however, the planning commission voted to recommend that

the Board of Commissioners deny the rezoning request.

       The Board of Commissioners then held a public hearing on

Bickerstaff's application for rezoning.                   In accordance with the

zoning ordinance, Bickerstaff was allowed to present its proposed

plan for mining its land, and any citizen with an opinion about

Bickerstaff's proposal was allowed to speak.                     The Board made no


       2
      The mining of mylonite does not involve any blasting or
crushing of rock. It is simply a digging operation, whereby the
rock is extracted from the ground using backhoes and then hauled
away in dump trucks.
decision on the rezoning request at that time, but instead met

privately two weeks later to consider the request.                   At that

meeting, the Chairman of the Board of Commissioners moved to rezone

the     property   R-1,   which   allows   only   low-density    residential

development.3      Bickerstaff had not requested R-1 zoning, and had no

notice that the Board would consider rezoning the property R-1.

The Chairman's motion passed by a vote of four to one.

                                      B.

        Following the Board's decision, Bickerstaff brought this suit

against Harris County, alleging violations of the United States

Constitution, the Georgia Constitution, and state real property

law.4       Bickerstaff's   primary   contention   is   that    rezoning   the

        3
      R-1 is the designation given to land that is to be
developed as a residential subdivision containing single-family
lots.
        4
      Bickerstaff's amended complaint, the pleading before us,
contains eight counts. The complaint is a typical shotgun
pleading, in that some of the counts present more than one
discrete claim for relief. See, e.g., Anderson v. District Bd.
of Trustees, 77 F.3d 364, 366-67 (11th Cir.1996). Moreover, in
some instances one cannot discern, with respect to a given claim
for relief, the substantive rule giving rise to the claim. For
purposes of this appeal, we give Bickerstaff's complaint a
liberal reading, and construe it as presenting the following
claims for relief:

             (1) A takings claim pursuant to 42 U.S.C. § 1983 that
        seeks just compensation for the full value of the property
        under the Fifth and Fourteenth Amendments to the United
        States Constitution. (Count one.) This count also seeks an
        injunction, under an undisclosed rule of law, prohibiting
        the Board from preventing Bickerstaff from mining its
        property.

             (2) A claim under 42 U.S.C. § 1983 for money damages on
        the ground that the Board has violated Bickerstaff's
        (unspecified) "substantive rights" under the Fifth and
        Fourteenth Amendments. (Count two.) This count also seeks
        the same injunctive relief as count one. The district court
        appears to have interpreted this allegation as alleging a
property R-1 constituted a taking of Bickerstaff's property because

the rezoning rendered the property virtually useless: the property


     claim under the substantive component of the Fourteenth
     Amendment's Due Process Clause.

          (3) A claim under 42 U.S.C. § 1983 for money damages on
     the ground that, in reaching its zoning decision, the Board
     denied Bickerstaff its right to procedural due process under
     the Fifth and Fourteenth Amendments. (Count three.) This
     count also seeks the same injunctive relief as count one.

          (4) A takings claim under the Georgia Constitution,
     Article I, Section I, Paragraph I, and Article I, Section
     III, Paragraph I. This claim seeks an injunction
     prohibiting the Board from preventing Bickerstaff from
     mining its property. (Count four.)

          (5) A claim for a declaration that (unspecified)
     provisions of the United States and Georgia Constitutions
     grant Bickerstaff a "vested right" to mine the property.
     (Count five.) This count seeks in the alternative money
     damages for the full value of the property.

          (6) A claim that (unspecified) provisions of the United
     States Constitution and Georgia law and several provisions
     of the Harris County zoning ordinance grant Bickerstaff the
     right to mine the property as a "non-conforming use."
     Bickerstaff seeks an injunction prohibiting the Board from
     preventing it from mining the property. (Count six.)

          (7) A claim that the Board's denial of Bickerstaff's M-
     2 zoning request was "arbitrary and capricious" (under an
     unspecified provision of law) and also violates the Harris
     County zoning ordinance. Bickerstaff seeks an injunction
     prohibiting the Board from preventing Bickerstaff from
     mining the property. (Count seven.)

          (8) A claim that the Harris County zoning ordinance is
     invalid under O.C.G.A. § 36-66-5 (1982), because of
     procedural irregularities in the adoption of the ordinance.
     Bickerstaff seeks a declaration that the ordinance is
     invalid. (Count eight.)

          The district court had subject matter jurisdiction
     under 28 U.S.C. §§ 1331 and 1343 to entertain Bickerstaff's
     federal constitutional claims. The court entertained
     Bickerstaff's state-law claims under its supplemental
     jurisdiction. The district court based its injunction only
     on the claims described in (1), (2), and (4)-(7) above.
     Accordingly, we do not address the claims described in (3)
     and (8).
cannot be developed as a residential subdivision because there is

effectively    no    access    to    a    public   roadway.5     According      to

Bickerstaff,    this    taking      was   in   violation   of   the   Fifth    and
                                                                          6
Fourteenth    Amendments      to    the   United   States Constitution         and
                                                   7
Article I of the Georgia Constitution                  because the taking was

accomplished (1) pursuant to an invalid exercise of the county's

police   power,      and   (2)      without    providing    Bickerstaff       just

compensation.       Bickerstaff therefore asked the district court to

award the company just compensation for a temporary taking, in the

event the R-1 zoning was held invalid, or for a permanent taking if

it was not.     See First English Evangelical Lutheran Church v. Los

Angeles County, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987)

(recognizing a Takings Clause claim for the temporary deprivation

of all use of private property).


     5
      Bickerstaff has a 20-foot-wide easement running 3,500 feet
over neighboring land to Georgia Highway 315. Bickerstaff
contends, and the county does not dispute, that a residential
subdivision must have at least one means of ingress and egress,
and that, to accommodate a subdivision entrance, the easement
would need to be at least 60 feet wide.
     6
      The Fifth Amendment's prohibition on takings for public use
without just compensation is applied to the states through the
Fourteenth Amendment. See Chicago, B. & Q. R.R. v. Chicago, 166
U.S. 226, 239, 17 S.Ct. 581, 585, 41 L.Ed. 979 (1897). Further
references in this opinion to a takings claim under the Fifth
Amendment mean a takings claim under the Fifth and Fourteenth
Amendments.
     7
      The Georgia Constitution does not have a takings clause.
Georgia courts recognize takings claims, however, under the
eminent domain provision of Article I, Section III, Paragraph I
("[P]rivate property shall not be taken or damaged for public
purposes without just and adequate compensation being first
paid.") and the due process provision of Article I, Section I,
Paragraph I ("No person shall be deprived of life, liberty, or
property except by due process of law."). See Gradous v. Board
of Comm'rs, 256 Ga. 469, 349 S.E.2d 707, 709 (1986).
     In its answer to Bickerstaff's complaint the county denied

that it was liable under any of Bickerstaff's theories of recovery.

As for Bickerstaff's Fifth Amendment claim, the county contended

that the suit was not ripe for federal court review because

Bickerstaff had not pursued its remedies in state court.         See

Williamson County Regional Planning Comm'n v. Hamilton Bank, 473

U.S. 172, 186, 105 S.Ct. 3108, 3116, 87 L.Ed.2d 126 (1985).      The

county noted that, although Bickerstaff had filed a suit on the

same claims in the Harris County Superior Court, Bickerstaff had
persuaded that court to stay its hand pending the outcome of the

instant case.    The county further contended that because the

superior court had jurisdiction over the controversy, the instant

case was barred.8    The district court did not rule on these

contentions and scheduled a bench trial on Bickerstaff's claims for

declaratory and injunctive relief.

     8
      The county provided the district court with no authority
for the proposition that the pendency of the state court suit
barred Bickerstaff's prosecution of this suit, and we know of
none. We read the county's answer on this point as a request
that the district court stay its hand until the state court
proceeding ran its course.

          On appeal, the county contends that Bickerstaff's
     Takings Clause and substantive due process claims are not
     ripe for federal district court adjudication and that,
     therefore, the district court should have dismissed them for
     want of subject matter jurisdiction. In addition, the
     county contends that the court, in the exercise of its
     discretion, should have dismissed Bickerstaff's remaining
     pendent state law claims. We disagree.

          Bickerstaff's federal constitutional claims are not
     "frivolous," nor were they asserted "solely for the purpose
     of [giving the district court subject matter] jurisdiction."
     Bell v. Hood, 327 U.S. 678, 682-83, 66 S.Ct. 773, 776, 90
     L.Ed. 939 (1946). Thus, the district court was not required
     to dismiss the pendent state-law claims, and it was within
     its discretion to decide the state-law issues.
       The bench trial focused on Bickerstaff's acquisition of the

property,      its    plans    to   mine   the    land,    and    the     circumstances

surrounding the rezoning of the property R-1.                     After entertaining

the parties' evidence, the court entered an order declaring the R-1

and prior A-1 zoning classifications invalid.                     The court enjoined

the enforcement of either the R-1 or the A-1 zoning classification

on both state and federal grounds.                       It concluded that these

measures were "not substantially related to any valid health,

safety or welfare considerations" and thus, under the due process

clauses of both the state and federal constitutions, constituted

invalid exercises of the county's police power. In addition, these

classifications were enacted in derogation of Bickerstaff's right

under Georgia law and the Harris County zoning ordinance to mine

the property as either a vested right or a nonconforming use.                         The

court    thus     enjoined         the   county    from        applying    any     zoning

classification to the property other than M-2.                    Finally, the court

held    that    the   R-1     classification,       by    rendering       Bickerstaff's

property worthless, had effected a taking of the property without

just    compensation          in    violation     of     the     state    and     federal

constitutions.         Proceedings to determine just compensation have

been stayed pending our resolution of this appeal.

       Following the district court's entry of the injunctive relief

described above, the county took this interlocutory appeal.                            We

have jurisdiction under 28 U.S.C. § 1292(a)(1) (1994).                          We review

the     district      court's       factual       findings       for     clear     error.

Fed.R.Civ.P. 52(a).           Questions of law and mixed questions of law

and fact are reviewed de novo.              See Nadler v. Mann, 951 F.2d 301,
311 (11th Cir.1992).

                                       II.

      As noted, the district court's injunction addressed three

zoning classifications:       A-1, R-1, and M-2.        The court invalidated

the A-1 and R-1 classifications and ordered the Board to apply the

M-2 classification to the property. We summarily vacate the aspect

of the court's injunction that prohibits the Board from applying

any zoning classification to the property except M-2.                 The court

cited no authority, state or federal, for such action—which, in

effect, usurped the Board's legislative function—and Bickerstaff

has cited us to none.

      In the discussion that follows, we address first the court's

decision   to   strike   down    the    A-1    zoning     and   conclude     that

Bickerstaff's challenge to that zoning is time barred.                  Turning

next to the Board's decision to zone the property R-1, we conclude

that the court had no basis for invalidating the decision on the

ground that Bickerstaff had acquired a right to mine the property

as either a vested right or a nonconforming use under Georgia law.

The   court's   alternative     holding—that,     under     Georgia   law,   the

Board's decision constituted a taking without just compensation—is,

however,   correct.      We   therefore      affirm   the   court's    decision

invalidating the R-1 zoning.            We vacate, though, the court's

holding that the Board's decision also violated the United States

Constitution, because Bickerstaff's federal claim is not ripe.9

      9
      We are mindful of the doctrine that a federal court should
not pass on federal constitutional issues unless necessary to its
decision. See Ashwander v. Tennessee Valley Auth., 297 U.S. 288,
347, 56 S.Ct. 466, 482, 80 L.Ed. 688 (1936) (Brandeis, J.,
concurring) ("The Court will not pass upon a constitutional
                                    A.

      Bickerstaff cannot challenge the county's original decision

to zone the property A-1.      The property has been zoned A-1 since

1984, and Bickerstaff is barred from challenging this zoning not

only by the applicable statute of limitations, see O.C.G.A. § 50-

14-1(b), but also by the doctrine of laches.10 The provision of the

district     court's   injunction   invalidating   the   A-1   zoning   is

accordingly vacated.

                                    B.

     We consider now the merits of the remaining state-law grounds

for the district court's invalidation of the R-1 zoning. They are:

(1) that Bickerstaff had acquired a right to mine the property as

a nonconforming use within the meaning of the Harris County zoning

ordinance;     (2) that Bickerstaff had acquired a "vested right"

under the Georgia common law to mine the property;         and (3) that

the Board's R-1 rezoning of the property (and its refusal to rezone

the property M-2) constituted a taking without just compensation in

violation of the Georgia Constitution.

                                    1.


question although properly presented by the record, if there is
also present some other ground upon which the case may be
disposed of."). We believe that it is prudent to discuss the
federal constitutional claims in this case because the damages
issue remains to be litigated. If we do not decide the federal
constitutional claims, then the district court, in framing the
issues for the damages trial, will likely provide for recovery
under the Fifth Amendment Takings Clause and the substantive
component of the Fourteenth Amendment's Due Process Clause. If
the district court submitted those claims to the jury, and an
appeal followed, we would likely be required to reach the federal
claims. We believe it judicious to reach them now.
     10
      On appeal, Bickerstaff's brief is silent on these points
and thus appears to concede them.
       The Harris County zoning ordinance defines a nonconforming use

as "[a] building, structure or use of land existing at the time of

enactment of this ordinance and which does not conform to the

regulations of the district in which it is situated."                The court

found that Bickerstaff's intention to mine the property was a "use

of land" that existed at the time the zoning ordinance was enacted,

because the ordinance defines "use" as "[t]he specific purpose for

which land or building is designed, arranged, intended, or for

which it is or may be occupied or maintained" (emphasis added).

        In   Georgia,   however,     "mere    preliminary     work   not   of   a

substantial    nature   does   not    constitute    a    nonconforming       use;

neither does a use which is merely contemplated for the future but

unrealized as of the effective date of the regulation."              Rainwater

v. Coweta County Bd. of Zoning Appeals, 123 Ga.App. 467, 181 S.E.2d

540,   541   (1971).    Bickerstaff's        drilling   and   testing   on    the

property more than thirty years ago—to determine the extent of the

mylonite vein—cannot be characterized as anything but preliminary,

and its intention to mine the property was, in 1984 (when the

Harris County zoning ordinance was enacted), a "use ... merely

contemplated for the future."        Extending a nonconforming use to an

owner's unrealized intentions for his property would mean that any

property owner, whenever confronted with unfavorable zoning, could

claim a nonconforming use by stating that he had always intended to

use the property as, for instance, a shopping center, or an

apartment complex, or an office park. Bickerstaff has not acquired

the right to mine the property as a nonconforming use, and we

reverse the district court's conclusion to the contrary.
                                      2.

       Bickerstaff contends, and the district court held, that it has

a "vested right" to mine the property—a right that the Board is

powerless to limit. This right supposedly arose from the company's

preliminary drilling and testing of the soil on the property.                  We

do not believe that Georgia's vested rights doctrine extends that

far.

        The doctrine of vested rights that the district court applied

in this case is derived from the principle of equitable estoppel.

See Cohn Communities, Inc. v. Clayton County, 257 Ga. 357, 359

S.E.2d 887, 889 (1987).         The doctrine applies when a "landowner,

relying in good faith, upon some act or omission of the government,

has    made   a   substantial    change    in   position    or   incurred   such

extensive     obligation   and    expenses      that   it   would   be   highly

inequitable and unjust to destroy the rights he has acquired."11

Id.

        Bickerstaff has established none of these elements.                 While

Bickerstaff's expenditures for the test drills may have risen to

the level of "extensive obligation[s] and expenses," Harris County

made no representations on which Bickerstaff could have relied or

did rely.         At no time between Bickerstaff's purchase of the


       11
      The Georgia courts have applied the vested rights doctrine
in cases where a property owner has materially changed his
position in reliance on a zoning ordinance and government
assurances that a building permit will issue. See, e.g., Barker
v. County of Forsyth, 248 Ga. 73, 281 S.E.2d 549, 552 (1981);
Cohn Communities, 359 S.E.2d at 889. Whether the Georgia courts
would extend the vested rights doctrine to cases such as
Bickerstaff's is an open question. We need not reach the
question because, as explained in the text, Bickerstaff has
failed to meet the doctrine's requirements.
property and the company's application for rezoning did any Harris

County official promise Bickerstaff that the property would be

zoned for mining.      We therefore reverse the district court's

holding that Bickerstaff has acquired a vested right to mine the

property under Georgia law.

                                    3.

     In order to determine whether a zoning ordinance has effected

a taking without just compensation in violation of the Georgia

Constitution, see Ga. Const. art. I, § III, par. I, and note 7

supra, courts employ a balancing test.     In the words of the Georgia

Supreme Court, a court must "weigh[ ] the benefit to the public

against the detriment to the individual."         Gradous v. Board of

Comm'rs, 256 Ga. 469, 349 S.E.2d 707, 709 (1986).          In practical

terms, the balancing test means that an aggrieved landowner must

show that the zoning decision "presents a significant detriment to

the landowner and is insubstantially related to the public health,

safety, morality, and welfare."      Id., 349 S.E.2d at 709-10.

         The district court found that the application of the R-1

zoning    classification   to   Bickerstaff's   property   rendered   the

property virtually worthless.        We agree that the rezoning of

Bickerstaff's property R-1 deprives the property of all reasonable

economic use.    Thus, Bickerstaff has proven the first part of its

Georgia takings claim:      that the zoning "presents a significant

detriment to" Bickerstaff.

     The district court further concluded that the R-1 zoning was

not substantially related to the public health, safety, morality,

or welfare, and was thus an invalid exercise of the county's police
power.         Although    there   is   no   formula     for   determining     when

government action exceeds the police power, the Georgia Supreme

Court has held that a zoning decision that "completely fails to

scrutinize the merits of the land in question and the impact of the

decision upon the landowner's property rights" is an invalid

exercise of the police power.           Barrett v. Hamby, 235 Ga. 262, 219

S.E.2d 399, 402 (1975).

     The county has presented no evidence indicating that the Board

evaluated prospective uses for the property, conducted a study of

the possible impact mining would have on neighboring property, or

even considered the probable effect that R-1 zoning would have on

the value of Bickerstaff's property.                  The members of the Board

testified at trial that they thought the R-1 zoning was in the

"best interests" of the county, but they offered no justification

for this conclusion.

         The exercise of the police power is not without limits.

Where,    as    here,     the   governing    entity    "completely   fail[s]     to

scrutinize"       the   balance    between     the    public   interest   in    the

contemplated zoning and the impact of the zoning on the property,

the entity's decision is beyond its police power.               It is clear that

the R-1 zoning had a significant detrimental effect on the value of

Bickerstaff's property and that the Board had only vague and

unsubstantiated conclusions to justify the zoning.                Therefore, the

rezoning of Bickerstaff's property constituted a taking of the

property in violation of the Georgia Constitution.

                                        III.

     The district court also held that the Board's decision to
rezone Bickerstaff's property R-1 was invalid under the Takings

Clause of the Fifth Amendment and the substantive component of the

Due Process Clause of the Fourteenth Amendment.                 The court so held

because it found that the zoning decision (1) effectively condemned

Bickerstaff's property for a purpose not within the county's police

power     to    pursue   and   (2)   failed     to    provide   Bickerstaff   just

compensation.12      In concluding that these two elements made out a

claim under both the Takings Clause and the Due Process Clause, the

district court did not consider whether the Bickerstaff's takings

claim subsumed its substantive due process claim.                 We hold that it

does.

                                           A.

          The    Takings   Clause     of    the      Fifth   Amendment   prohibits

government from condemning "private property ... for public use,

without just compensation."            The clause applies in any case in

which government action renders private property worthless.13                  See

     12
      The district court erred in holding that any zoning
classification that is an invalid exercise of the police power
constitutes a Fifth Amendment taking. To constitute such a
taking, the zoning classification must render the property
worthless. See Agins v. Tiburon, 447 U.S. 255, 260-63, 100 S.Ct.
2138, 2141-43, 65 L.Ed.2d 106 (1980) (stating that government
action that deprives a landowner of only part of the value of his
property is not a taking prohibited by the Fifth Amendment). Due
to our disposition of Bickerstaff's Takings Clause claim,
however, this error is of no moment.
     13
      A taking within the meaning of the amendment may occur in
one of two ways. First, the government, exercising its power of
eminent domain, may institute a proceeding to condemn the
landowner's property for a public use. Second, a taking may
occur when the government, exercising its police power, enacts a
measure—here, a zoning classification—that effectively condemns
the landowner's property without paying for it. When the
government has not instituted an eminent domain proceeding, the
only way a property owner can vindicate his Takings Clause rights
is to institute an inverse condemnation proceeding. This is what
Agins v. Tiburon, 447 U.S. 255, 260-63, 100 S.Ct. 2138, 2141-43, 65

L.Ed.2d 106 (1980);   Lucas v. South Carolina Coastal Council, 505

U.S. 1003, 1014-16, 112 S.Ct. 2886, 2893, 120 L.Ed.2d 798 (1992)

(government action effectively condemns a landowner's property if

it denies him "all economically beneficial or productive use" of

his property). Bickerstaff contends, and has established, that the

R-1 zoning classification rendered its property worthless, and it

seeks "just compensation" for its loss.   Bickerstaff also contends

that this "taking" was not for a "public use."    Depending on the
resolution of the public use issue,14 Bickerstaff will be entitled

to just compensation for either the temporary or permanent loss of

use of the property.15


Bickerstaff has done in this case.
     14
      The district court reached the public use issue and
resolved it in favor of Bickerstaff. The court erred in doing
so, however, because, as we explain in part III.B., infra,
Bickerstaff's takings claim is not ripe.
     15
      It is not necessary that Bickerstaff prevail on the public
use issue in order to obtain just compensation for the loss of
use of its property. If Bickerstaff succeeds in having the R-1
zoning classification declared invalid, its loss of use will be
for a temporary term—from the date the R-1 classification became
operative to the date of its invalidation. See First English
Evangelical Lutheran Church v. Los Angeles County, 482 U.S. 304,
107 S.Ct. 2378, 96 L.Ed.2d 250 (1987). If Bickerstaff's public
use challenge fails, its loss of use will be permanent and it
will recover as just compensation the full value of the property.

          With respect to this second scenario, Bickerstaff's
     Takings Clause and Due Process Clause claims differ. If, in
     the prosecution of the due process claim, the zoning
     classification were upheld, Bickerstaff would be entitled to
     no damages—notwithstanding the complete taking of its
     property. Damages for a taking occasioned by the
     application of a valid zoning classification would be
     recoverable only under the Takings Clause. It thus becomes
     apparent that Bickerstaff's claim under the Takings Clause
     not only subsumes its substantive due process claim, as we
     point out infra, but is broader than that claim.
      The substantive component of the Due Process Clause prohibits

a   government   entity    from    applying   to    property     a   zoning

classification that bears no relationship to the "public health,

safety,   morals,   or   general   welfare"   and   thus   is   beyond   the

government's police power.     See Village of Euclid v. Ambler Realty

Co., 272 U.S. 365, 395, 47 S.Ct. 114, 121, 71 L.Ed. 303 (1926).           A

person whose property is affected by such a classification may

challenge the measure and, if successful, may recover damages for

any injury the classification may have caused him while it was

operative.   Here, Bickerstaff contends that the application of the

R-1 zoning classification to its property is an invalid exercise of

the county's police power and has rendered the property worthless.

If Bickerstaff ultimately prevails on this issue, it may recover in

damages the value of its temporary loss of use of the property.

      This discussion makes it apparent that Bickerstaff's Takings

Clause claim and its substantive due process claim are identical if

the challenges to the validity of the R-1 zoning classification

itself are evaluated under the same standard.        That is, the claims

are identical if the scope of "public use" under the Takings Clause

and the scope of "police power" under the substantive component of

the Due Process Clause are the same.      The Supreme Court's decision

in Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 240, 104 S.Ct.

2321, 2329, 81 L.Ed.2d 186 (1984), indicates that they are.

     Midkiff involved a landowner's challenge to the validity of an

Hawaii statute that provided for the condemnation of private land

and the sale of such land to the landowners' lessees.                    The

landowners mounted their challenge under the "public use" component
of the Takings Clause.       They claimed that "the taking of [their]

property for the purpose of reselling it to [their] lessees [was]

not for a public purpose and hence violative of the Fifth Amendment

command:    "[N]or shall private property be taken for public use,

without just compensation.' "       Midkiff v. Tom, 483 F.Supp. 62, 65

(D.Haw.1979).

     In rejecting the landowner's challenge, the Supreme Court

compared the scopes of "public use" under the Takings Clause and

"police power" under the Due Process Clause.          The Court concluded

that "the public use requirement is ... coterminous with the scope

of a sovereign's police powers."         Midkiff, 467 U.S. at 240, 104

S.Ct. at 2329;      see also National R.R. Passenger Corp. v. Boston &

Maine Corp., 503 U.S. 407, 422, 112 S.Ct. 1394, 1404, 118 L.Ed.2d

52 (1992) ("We have held that the public use requirement of the

Takings    Clause    is   coterminous   with   the   regulatory   power.").

Bickerstaff's Takings Clause and substantive due process challenges

to the validity of the R-1 classification are therefore evaluated

under the same standard.

     Accordingly, Bickerstaff's Takings Clause claim subsumes its

substantive due process claim unless it can be said that the

Framers of the Bill of Rights, in addition to providing the

substantive rights contained in the Takings Clause, meant to

replicate by implication those same rights in the Due Process

Clause.    We do not believe that such duplication was intended.         We

therefore hold that Bickerstaff's challenge to the validity of the
R-1 zoning classification lies solely under the Takings Clause.16
                                  B.

      The foregoing discussion makes clear that the only federal

constitutional ground supporting the district court's injunction is

Bickerstaff's Fifth Amendment takings claim.    That claim, however,

is not ripe.     See Williamson County Regional Planning Comm'n v.

Hamilton Bank, 473 U.S. 172, 186, 105 S.Ct. 3108, 3116, 87 L.Ed.2d

126 (1985).    A Takings Clause claim does not become ripe unless the

state provides no remedy to compensate the landowner for the

taking.   A property owner cannot claim a violation of the Clause

unless the state provides the landowner no procedure (such as an

action for inverse condemnation) for obtaining just compensation.


     16
      A reading of dicta in Eide v. Sarasota County, 908 F.2d
716 (11th Cir.1990), cert. denied, 498 U.S. 1120, 111 S.Ct. 1073,
112 L.Ed.2d 1179 (1991), may suggest at first blush that, in a
case such as this where the zoning classification renders the
property worthless, inverse condemnation claims under the Takings
Clause and the substantive component of the Due Process Clause
are not identical. See id. at 720-21.

          We do not read Eide as drawing such a distinction. In
     posing a hypothetical Takings Clause claim, the Eide panel
     assumed sub silentio that the landowner was not questioning
     the public purpose, that is, the "public use," behind the
     zoning classification. In posing the hypothetical
     substantive due process claim, though, the panel assumed
     expressly that the landowner was questioning such public
     purpose. Were the panel to have assumed that, in both
     cases, the landowner questioned the public purpose behind
     the classification, we are satisfied that it would have
     reached the same conclusion we reach today.

          Eide describes a second specie of substantive due
     process claims which is not presented in this case: a claim
     that a regulatory measure exceeds the government's police
     power but has not effected a taking. Eide refers to such a
     claim as "an "arbitrary and capricious due process' claim."
     Id. at 721-22. Because the regulatory measure has not
     rendered the property worthless, this type of substantive
     due process claim is not foreclosed by the Takings Clause.
Williamson, 473 U.S. at 195, 105 S.Ct. at 3121.

      Bickerstaff contends that Georgia provides it no judicial

mechanism     for    obtaining         just   compensation        in   this    case;

accordingly, its Takings Clause claim is ripe. We disagree. Under

Georgia law, a landowner may bring suit under the eminent domain

and due process provisions of the Georgia Constitution, Ga. Const.

art. I, § I, par. I and § III, par. I, to enjoin the enforcement of

a zoning classification that effects a "taking" of his property.

See, e.g., Gradous v. Board of Comm'rs, 256 Ga. 469, 349 S.E.2d 707

(1986).      We   find     no   Georgia   cases   denying     a    landowner    just

compensation for the temporary loss of use of his property while

burdened with an invalid zoning classification; nor do we find any

cases denying a landowner just compensation where a valid zoning

classification effectively condemns his property. See, e.g., East-

Bibb Twiggs Neighborhood Ass'n v. Macon Bibb Planning & Zoning

Comm'n, 888 F.2d 1573 (11th Cir.1989),                aff'g 662 F.Supp. 1465

(M.D.Ga.1987),      amended      and    superseded,    896    F.2d     1264    (11th

Cir.1989);    see also Calibre Spring Hill, Ltd. v. Cobb County, 715

F.Supp.   1577,     1581    (N.D.Ga.1989).        First   English      Evangelical

Lutheran Church v. Los Angeles County, 482 U.S. 304, 107 S.Ct.

2378, 96 L.Ed.2d 250 (1987) holds that a state deprives a landowner

of his rights under the Takings Clause if it denies him just

compensation in either of these situations.                  We assume that the

Georgia courts will follow the holding of First English.

      We therefore do not hold that the Harris County Superior

Court will not as a matter of Georgia law recognize Bickerstaff's

takings claim and provide the company just compensation for either
a temporary or a permanent taking.   We hold, instead, that because

the superior court will entertain Bickerstaff's claim for inverse

condemnation, Bickerstaff's Fifth Amendment takings claim is not

ripe for federal district court review.

                               IV.

     In conclusion, we affirm the district court's injunction that

invalidates the application of the R-1 zoning classification to

Bickerstaff's property, but we do so on only one ground:        the

classification constitutes a taking of Bickerstaff's property in

violation of the Georgia Constitution.    We vacate the portions of

the injunction invalidating the A-1 zoning classification and

ordering the Board to apply the M-2 classification to the property.

Finally, we vacate the portion of the injunction that is based on

Bickerstaff's Takings Clause and substantive due process claims.

We direct the court to dismiss Bickerstaff's Takings Clause claim

as not ripe and to dismiss the substantive due process claim

because it states no case for relief.

     We note that the district court has retained jurisdiction to

try Bickerstaff's claim for money damages for the temporary loss of

use of its property from the effective date of the Board's R-1

zoning decision to the receipt of our mandate.   That claim shall be

tried under Georgia law.

     SO ORDERED.
