                                                                   [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                                                                            FILED
                              ________________________ U.S. COURT OF APPEALS
                                                                      ELEVENTH CIRCUIT
                                                                         March 6, 2006
                                     No. 04-15538
                                                                       THOMAS K. KAHN
                               ________________________                    CLERK

                        D. C. Docket No. 03-00184-CV-1-CB-M

SEVENTH STREET, LLC,


                                                                          Plaintiff-Appellant,

                                            versus

BALDWIN COUNTY PLANNING AND ZONING COMMISSION,
BALDWIN COUNTY COMMISSION,


                                                                      Defendants-Appellees.


                               ________________________

                      Appeal from the United States District Court
                         for the Southern District of Alabama
                            _________________________

                                      (March 6, 2006)

Before TJOFLAT and PRYOR, Circuit Judges, and GEORGE *, District Judge.


       *
          Honorable Lloyd D. George, United States District Judge for the District of Nevada,
sitting by designation.
PER CURIAM:

      Seventh Street, L.L.C., appeals a summary judgment in favor of the Baldwin

County Planning and Zoning Commission and the Baldwin County Commission.

Seventh Street argues that some provisions of the Subdivision Regulations of

Baldwin County violate the Due Process Clause of the Fourteenth Amendment on

the ground that the County Commission lacked statutory authority to enact the

regulations and others violate due process on the ground that they are

unconstitutionally vague and standardless. Because Alabama law granted the

Commission the police power to enact the regulations and those regulations are not

vague as applied to Seventh Street, we affirm.

                                I. BACKGROUND

      Seventh Street sought approval from the Zoning Commission to build a

condominium complex in Lillian, Baldwin County, Alabama. Portions of the

parcel were not then subject to county zoning, but the entire parcel was designated

as a “flood prone area.” In March and April 2002, the Zoning Commission held

public hearings to consider the application of Seventh Street.

      The Zoning Commission denied the application of Seventh Street based on

failure to comply with sections 10.3.2(b), 10.3.2(d), 10.3.3(a)(1), 10.3.3(a)(2),

10.3.5(f), 10.3.5(r), and 10.3.5(t) of the Subdivision Regulations. Section 10.3.2



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requires all planned developments to “meet the minimum development standards”

including to reserve ten percent of the land area in the development for open space,

Baldwin County, Ala., Subdivision Regulations § 10.3.2(b) (2002), and to limit

non-residential land uses to no more than twenty percent of the gross land area, id.

§ 10.3.2(d). Section 10.3.3(a) requires approval of the site plan by the

Commission after consideration of (1) “the value and character” of adjacent

properties and (2) the “objectives and purpose of the master plan.” Id. § 10.3.3(a).

Section 10.3.5 lists additional “site plan requirements,” including the “[n]ames and

addresses of the owners of the land immediately adjoining the site,” id. § 10.3.5(f);

“[p]roposed land uses and the location of proposed buildings and other structures,”

id. § 10.3.5(r); and “[t]he method proposed to maintain private common open

areas,” id. § 10.3.5(t).

       On March 23, 2003, Seventh Street filed a complaint against the County

Commission and the Zoning Commission in federal district court and sought relief

on two grounds. First, Seventh Street argued that certain provisions of the

subdivision regulations were “promulgated without statutory authority and thus

application of those provisions to plaintiff’s application was arbitrary and

capricious in violation of due process.” Second, Seventh Street argued that two

provisions of the subdivision regulations were “so vague and standardless as to be



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arbitrary and capricious, in violation of due process.” The Commissions moved

for summary judgment, the district court granted the motion as to each claim, and

Seventh Street appealed.

                           II. STANDARD OF REVIEW

      This Court reviews de novo the grant of summary judgment. Kingsland v.

City of Miami, 382 F.3d 1220, 1225-26 (11th Cir.), reh’g en banc denied, 124 Fed.

App’x 644 (11th Cir. 2004). Summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c). We view the evidence and all factual inferences in the light most favorable

to the non-moving party. Kingsland, 382 F.3d at 1225-26.

                                 III. DISCUSSION

      Seventh Street’s argument is twofold. First, Seventh Street argues that the

Subdivision Regulations violate the Due Process Clause of the Fourteenth

Amendment because they are beyond the statutory authority of the County

Commission. Second, Seventh Street argues that provisions of the regulations are

so vague as to violate due process. We address each argument in turn.




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              A. The Commission Has Statutory Authority to Enact the
                            Challenged Provisions.

      Seventh Street argues that sections 10.3.2(b), 10.3.2(d), 10.3.3(a)(1),

10.3.3(a)(2), 10.3.5(f), 10.3.5(r), and 10.3.5(t) of the Subdivision Regulations

violate the Due Process Clause of the Fourteenth Amendment because “the []

Commission lack[ed] statutory authority to promulgate” the provisions and “those

regulations are therefore arbitrary and capricious.” Because Seventh Street does

not contend that the Subdivision Regulations impair a fundamental right, we apply

“rational basis” scrutiny. Ga. Manufactured Hous. Ass’n v. Spalding County, 148

F.3d 1304, 1307 (11th Cir. 1998). “The first step in determining whether

legislation survives rational-basis scrutiny is identifying a legitimate government

purpose . . . . The second step of rational-basis scrutiny asks whether a rational

basis exists for the enacting governmental body to believe that the legislation

would further the hypothesized purpose.” Id. A governmental entity does not have

a legitimate purpose to regulate beyond the authority conferred by its enabling

legislation. See Thorpe v. Hous. Auth., 393 U.S. 268, 280-81, 89 S. Ct. 518, 525

(1969). Because “a county can exercise only that authority conferred on it by law,”

Jefferson County v. Johnson, 333 So. 2d 143, 145 (Ala. 1976), this Court must turn

to Alabama law to determine whether the County Commission was empowered to

enact the regulations.

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      Alabama Code Title 11, Chapter 19 provides a “grant of zoning powers” to

each county over land “within the flood-prone area of the county.” Ala. Code §

11-19-16. The section lists powers that, as Seventh Street admits, amount to a

grant of general police power to the County over flood-prone areas. See id.

Seventh Street concedes that if Chapter 19 applies, the County Commission has

authority to enact the challenged regulations, but Seventh Street argues that the

County Commission failed to avail itself of Chapter 19 powers. See Jefferson

County, 333 So. 2d at 148. In Jefferson County, the Alabama Supreme Court

interpreted a predecessor statute to Chapter 19 and held “the provisions of these

sections are not controlling unless the county governing body has adopted or

established comprehensive land-use and control measures or building codes for

flood-prone areas.” Id.

      The County Commission adopted regulations for flood-prone areas under

Chapter 19. In Town of Orange Beach v. Baldwin County, 491 So. 2d 945, 946

(Ala. 1986), the Alabama Supreme Court affirmed a finding that “Baldwin County

has duly adopted the necessary resolutions authorizing it to exercise the authority

granted by the legislature of the State of Alabama contained in sections 11-19-1

thr[ough] 11-19-24 . . . .” Id. Although Seventh Street argues Town of Orange

Beach is a factual rather than legal determination and is due no deference from this



                                          6
Court, we conclude otherwise, especially in the light of other evidence presented

by the County Commission. In 1978, the County Commission adopted the “Flood

Damage Prevention Ordinance”; in April 1994, the County Commission adopted a

building code for the flood prone areas; in June 1994, the County Commission

imposed additional requirements for coastal areas; and in January 2000, the

building codes were updated.

      Seventh Street alternatively argues that Alabama Act Number 98-655

preempts Chapter 19, but that argument fails. See Ala. Act No. 98-665, 1998 Ala.

Acts 935. Act Number 98-655 provides that the County Commission cannot

“exercise its planning and zoning powers and jurisdiction in any planning district

established under this act until the majority of the qualified electors of the district

voting in an election shall have voted their desire to come within the planning and

zoning authority of the Baldwin County Commission.” Id. § 1(8). The Act states,

“All laws or parts of laws which conflict with this act are repealed.” Id. § 4. The

problem with the argument of Seventh Street is that Chapter 19 does not conflict

with Act Number 98-655.

      Chapter 19 and Act 98-655 pertain to distinct subjects. Act Number 98-655

applies to “all unincorporated areas of Baldwin County,” Act No. 98-655 § 1(3),

but Chapter 19 applies only to “flood-prone areas,” Ala. Code § 11-19-3. Act 98-



                                            7
665 provides general zoning power to the County Commission, but Chapter 19

provides the County Commission with the authority to regulate flood-prone areas.

Act 98-655 did not remove that authority of the County Commission over flood-

prone areas.

               B. The Reasons for Denying the Application Were Not
                           Unconstitutionally Vague.

      Seventh Street argues that sections 10.3.3(a)(1) and 10.3.3(a)(2) of the

Subdivision Regulations were applied in violation of due process to deny its

application because they “give the [] Commission unlimited discretion, and fail to

provide clearly drawn standards that can be uniformly applied and give the

applicant reasonable notice of requirements with which it must comply to obtain

approval.” When a regulation does not affect constitutionally protected conduct,

the provision is valid unless “the enactment is impermissibly vague in all of its

applications.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455

U.S. 489, 494-95, 102 S. Ct. 1186, 1191 (1982). “[E]conomic regulation is subject

to a less strict vagueness test because its subject matter is often more narrow, and

because businesses, which face economic demands to plan behavior carefully, can

be expected to consult relevant legislation in advance of action.” Id. at 498, 102 S.

Ct. at 1193 (footnote omitted). “[T]he statute must be ‘so vague and indefinite as

really to be no rule or standard at all.’” Seniors Civil Liberties Ass’n v. Kemp, 965

                                           8
F.2d 1030, 1036 (11th Cir. 1992) (quoting Boutilier v. INS, 387 U.S. 118, 123, 87

S. Ct. 1563, 1566 (1967)).

      The Zoning Commission provided ample support for its decision to deny the

application of Seventh Street under sections sections 10.3.3(a)(1) and 10.3.3(a)(2)

of the Subdivision Regulations. The Zoning Commission conducted two public

hearings, and it notified Seventh Street of the deficiencies in its application. The

record reflects that Seventh Street failed to comply with various sections of the

Subdivision Regulations, including failure to obtain permits, submit construction

plans, and conduct necessary studies, failure to identify the size and location of

water and sewage lines to which it would connect, and failure to calculate pre- and

post-development water runoff. Because the reasons articulated by the Zoning

Commission were legitimate and not “so vague and indefinite as really to be no

rule or standard at all,” Kemp, 965 F.2d at 1036, summary judgment was

appropriate.

                                IV. CONCLUSION

      The summary judgment in favor of the County Commission and Zoning

Commission is

      AFFIRMED.




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