ORDER

MARCUS, District Judge.

THIS CAUSE comes before the Court upon Defendants' Restated and Amended Motion for Dismissal or Summary Judgment and Plaintiffs' Motion for Leave to File a (Second) Amended Complaint. Before us at this time are various constitutional claims contained in Count V of the [First] Amended Complaint (DE 17). The state law claims contained in Counts I-IV of the Amended Complaint were remanded to the state courts and resolved. The primary issue at this juncture is the preclusive effect of the state court ruling as to the state claims upon the federal constitutional claims remaining before us in Count V. We conclude, for the reasons detailed below, that most of Plaintiffs' federal claims are barred by res judicata and the full faith and credit statute, and, accordingly, Defendants' motion for summary judgment is GRANTED IN PART. Specifically, Defendants' motion for summary judgment is GRANTED as to Plaintiffs' constitutional claims asserting a taking without just compensation, a substantive due process violation based upon arbitrary and capricious conduct, and a due process takings claim. In addition, Plaintiffs' motion for leave to amend is DENIED.

I. The Summary Judgment and Motion to Amend Standards

The standard to be applied in reviewing a summary judgment motion is stated unambiguously in Rule 56(c) of the Federal Rules of Civil Procedure:

The judgment sought shall be rendered forthwith 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 a judgment as a matter of law.

It may be entered only where there is no genuine issue of material fact. Moreover, the moving party has the burden of meeting this exacting standard. Adickes v. S.H. Kress Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970).

In applying this standard, the Eleventh Circuit has explained:

In assessing whether the movant has met this burden, the courts should view the evidence and all factual inferences therefrom in the light most favorable to the party opposing the motion. Adickes, 398 U.S. at 157, 90 S.Ct. at 1608; [ Environmental Defense Fund v.] Marsh, 651 F.2d [983] at 991 [(5th Cir. 1981)]. All reasonable doubts about the facts should be resolved in favor of the non-movant. Casey Enterprises v. Am. Hardware Mutual Ins. Co., 655 F.2d 598, 602 (5th Cir. 1981). If the record presents factual issues, the court must not decide them; it must deny the motion and proceed to trial. Marsh, 651 F.2d at 991; Lighting Fixture Elec. Supply Co. v. Continental Ins. Co., 420 F.2d 1211, 1213 (5th Cir. 1969). Summary judgment may be inappropriate even where the parties agree on the basic facts, but disagree about the inferences that should be drawn from these facts. Lighting Fixture Elec. Supply Co., 420 F.2d at 1213. If reasonable minds might differ on the inferences arising from undisputed facts, then the court should deny summary judgment. Impossible Electronic [Techniques, Inc. v. Wackenhut Protective Systems, Inc.], 669 F.2d [1026] at 1031 [(5th Cir. 1982)]; Croley v. Matson Navigation Co., 434 F.2d 73, 75 (5th Cir. 1970).

Moreover, the party opposing a motion for summary judgment need not respond to it with any affidavits or other evidence unless and until the movant has properly supported the motion with sufficient evidence. Adickes v. S.H. Kress Co., 398 U.S. at 160, 90 S.Ct. at 1609-10; Marsh, 651 F.2d at 991. The moving party must demonstrate that the facts underlying all the relevant legal questions raised by the pleadings or otherwise are not in dispute, or else summary judgment will be denied notwithstanding that the non-moving party has introduced no evidence whatsoever. Brunswick Corp. v. Vineberg, 370 F.2d 605, 611-12 (5th Cir. 1967). See Dalke v. Upjohn Co., 555 F.2d 245, 248-49 (9th Cir. 1977).

The United States Supreme Court has provided significant additional guidance as to the evidentiary standard which trial courts should apply in ruling on a motion for summary judgment:

[The summary judgment] standard mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a), which is that the trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict. Brady v. Southern R. Co., 320 U.S. 476, 479-80, 64 S.Ct. 232, 234, 88 L.Ed. 239 (1943).

In another case the Supreme Court declared that a non-moving party's failure to prove an essential element of a claim renders all factual disputes as to that claim immaterial and requires the granting of summary judgment:

In our view, the plain language of Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.

As for the motion to amend, the Court of Appeals for the Eleventh Circuit has written:

A decision whether to grant leave to amend is within the discretion of the district court, Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962), but that discretion is severely circumscribed. Federal Rule of Civil Procedure 15(a) declares that leave to amend "shall be freely given when justice so requires." Because "this mandate is to be heeded," there must be a justifying reason" for a court to deny leave. Foman, 371 U.S. at 182, 83 S.Ct. at 230; see also Halliburton Associates v. Henderson, Few Co., 774 F.2d 441, 443 (11th Cir. 1985) ("substantial reason" needed).

II. Procedural History

The procedural history of this case is complex, involving both the state and federal courts at various junctures. After several attempts to obtain rezoning of their Coconut Grove property, Plaintiffs filed a petition for writ of certiorari with the Circuit Court of the Eleventh Judicial Circuit, Appellate Division and an original, de novo action in the Circuit Court, Eleventh Judicial Circuit. The Appellate Division, Circuit Court denied Plaintiffs' petition for certiorari, see Order, No. 86-120AP (Fla. 11th Jud. Cir.App. Div. Aug. 16, 1988), filed at Volume I, Component 8, entry 87, and was in turn affirmed by the Third District Court of Appeals. See Treister v. City of Miami, 537 So.2d 1140 (Fla. 3d DCA 1989) [hereinafter "Treister I"]. The de novo action — this action — was removed to federal court on May 23, 1986. See Petition for Removal (DE 1). Subsequent to removal, on August 5, 1986, Plaintiffs filed their [First] Amended Complaint. See Amended Complaint (DE 17). The [First] Amended Complaint included in counts I-IV a variety of pendent state law claims, and in Count V contained a prayer for relief under 42 U.S.C. § 1983. See id. This Court, the Honorable Eugene P. Spellman, United States District Judge, before whom the case was then pending, declined to exercise jurisdiction over the state law claims and remanded Counts I-IV to the Florida Circuit Court for the Eleventh Judicial Circuit. See Order Remanding State Claims and Retaining Jurisdiction Over Section 1983 Claim [etc.] (DE 64). In addition, this Court stayed consideration of the section 1983 action (Count V) pending resolution of the state law claims by the state courts. Id. These remanded state law claims, discussed in greater depth below, were resolved on summary judgment in favor of Defendants by the Florida circuit court. See Tr. of Hr'g, No. 86-17121, at 113 (Fla. 11th Jud. Cir. July 20, 1989) filed at Volume III, Component 18; Final Summary Judgment, No. 86-17121 (Fla. 11th Jud. Cir. July 26, 1989) filed at Volume III, Component 5, entry 10 [hereinafter "Treister II"]. Plaintiffs appealed the order of final summary judgment to the Third District Court of Appeals, which affirmed the Circuit Court's order of final summary judgment. See Treister v. City of Miami, 575 So.2d 218, 219-20 (Fla. 3d DCA 1991) [hereinafter "Treister III"]. No further appeal was taken.

In June 1991 Plaintiffs moved this Court to reinstate Count V. In addition, during that month this case was assigned to the undersigned pursuant to a blind random drawing, upon the death of the Honorable Eugene P. Spellman and the recusal of the Honorable Federico A. Moreno. The instant motions to amend and for dismissal or summary judgment followed.

III. The [First] Amended Complaint

The [First] Amended Complaint raised five claims for relief. Counts I-IV, as discussed above, raised state law claims and were remanded and resolved by the Florida circuit court. Generally, the [First] Amended Complaint alleged that the Commodore Bay property, owned by Plaintiffs and zoned for single family residences, should properly be rezoned for other types of residences and commercial development. Plaintiffs also alleged generally that despite four attempts to persuade the Miami City Commission to rezone the property, the Commission has refused, and "no economically viable use may be made of the Commodore Bay property as presently zoned." Amended Complaint at ¶ 34. Plaintiffs claimed that various impermissible considerations, including the City of Miami's fear of competition from Plaintiff's development and an attempt to facilitate public acquisition of the property, motivated the Commission's decisions. Amended Complaint at ¶¶ 36-54. Specifically, in Count I Plaintiffs sought injunctive relief requiring Defendants to rezone the Commodore Bay property. In Count II Plaintiffs alleged that the current zoning scheme has "deprived Plaintiffs of all economically viable and all reasonable beneficial use of the Commodore Bay property, without full compensation in violation of Article X, Section 6 of the Constitution of the State of Florida," requested a finding that a de facto taking had occurred and demanded damages. Amended Complaint at ¶ 61. In Count III Plaintiffs sought to enjoin Defendant City of Miami from proceeding further with several projects, which might strain the water, sewer and traffic capacities of Coconut Grove to the point that the infrastructure could not support the project Plaintiffs hoped to build on the Commodore Bay property. In Count IV Plaintiffs sought to enjoin permanently various actions by the City which would interfere with Plaintiffs ability to use the Commodore Bay property if it is not rezoned. All of these state law claims were resolved "on the merits," See Tr. of Hr'g, No. 86-17121, at 113 (Fla. 11th Jud. Cir. July 20, 1989) filed at Volume III, Component 18, against Plaintiffs on summary judgment. Count V, the only count alleging a violation of federal law, and the only count before us now, alleges that Defendants' actions, under color of state law, give rise to various constitutional claims under the 42 U.S.C. § 1983. As discussed above, Counts I-IV of the [First] Amended Complaint were resolved by the state courts. It is clear that this court refused jurisdiction, remanding these counts to state court where they were definitively resolved.

IV. Count V-Federal Constitutional Claims

The Eleventh Circuit has established that "[a] plaintiff seeking to challenge a local government's refusal to rezone his property may bring four different causes of action." Executive 100 Inc. v. Martin County, 922 F.2d 1536, 1540 (11th Cir.), cert. denied, 502 U.S. 810, 112 S.Ct. 55, 116 L.Ed.2d 32 (1991):

First, a plaintiff may claim that the zoning applied to his land constitutes a taking of his property without just compensation in contravention of the Fifth Amendment. [ Eide v. Sarasota County, 908 F.2d 716, 721 (11th Cir. 1990), cert. denied, 498 U.S. 1120, 111 S.Ct. 1073, 112 L.Ed.2d 1179 (1991)] (labeling this claim a "just compensation claim"). Second, a plaintiff may claim that the zoning applied to his property goes too far and destroys the value of his property to such an extent that it amounts to a taking by eminent domain without due process of law. Id. at 721 (labeling this claim a "due process takings claim"). Third, a plaintiff may argue that the regulation, either on its face or as applied, is arbitrary and capricious, does not bear a substantial relation to the public health, safety, morals, or general welfare, and therefore is an invalid exercise of police power. Id. at 721-22 (labeling this claim as an "arbitrary and capricious due process claim"). Finally, a plaintiff may claim that the zoning denies him equal protection of the laws, either because it treats a suspect class differently from others, because it affects a fundamental right, or because it treats a non-suspect class differently and is not rationally related to a legitimate government purpose. Id. at 722 (labeling this an "equal protection" claim). Id. at 722.

Plaintiffs have persuaded us that their claims are ripe for adjudication at this time. Under Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), a takings claim stemming from a regulatory taking is not ripe until the Plaintiff establishes (1) that a final decision by the relevant authority regarding application of the subject property has been made and (2) that no adequate state remedy, such as inverse condemnation, is available to redress the injury caused by the final decision. See Eide, 908 F.2d at 720-21; Corn I, 816 F.2d 1514, 1516-17 (11th Cir. 1987). As for the first prong, the zoning decision has been finally made, and Plaintiffs made numerous applications for zoning in order to establish the extent of development that would be permitted. See Eide, 908 F.2d at 725 n. 16, 726 726 n. 7; Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1733-77 (11th Cir. 1989). As to the second prong, at the time of the alleged taking, no monetary compensation could be given in the state courts, and the federal takings claim was ripe once the zoning ruling was final. See Corn I, supra; Hoehne v. County of San Benito, 870 F.2d 529, 534 (9th Cir. 1989) ("[T]he appropriate point for determining the adequacy of state compensation procedures is at the time of the alleged taking."). The equal protection, arbitrary and capricious due process and due process takings claims are ripe as well.

The primary question before us is the preclusive effect of the state court rulings on Counts I-IV upon Plaintiffs' federal claims. The full faith and credit statute provides that judicial proceedings of any state "shall have the same full faith and credit in every court within the United States. . . ." 28 U.S.C. § 1738; see Corn v. City of Lauderdale Lakes, 904 F.2d 585, 587 (11th Cir. 1990) ("A federal court must accord a state court proceeding the same preclusive effect the state proceeding would have under state law."). In Lake Lucerne Civic Ass'n v. Dolphin Stadium Corp., 878 F.2d 1360 (11th Cir. 1989), cert. denied, 493 U.S. 1079, 110 S.Ct. 1132, 107 L.Ed.2d 1038 (1990), the Eleventh Circuit addressed the proper analysis of the preclusive effect in federal court of a Florida state court judgment. The Court wrote:

In Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980), the Supreme Court "made clear that issues actually litigated in a state-court proceeding are entitled to the same preclusive effect in a subsequent federal § 1983 suit as they enjoy in the courts of the State where the judgment is rendered." Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 80-85, 104 S.Ct. 892, 897, 79 L.Ed.2d 56 (1984). In Migra, the Supreme Court held that the same preclusive effect applied to a claim which "a § 1983 litigant could have raised but did not raise in the earlier state-court proceeding," Id. and that pursuant to the Full Faith and Credit Clause of the Constitution, art. IV, § 1, and the federal full faith and credit statute, 28 U.S.C. § 1738, "[i]t is now settled that a federal court must give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the state in which the judgment was rendered." Id. at 81, 104 S.Ct. at 896. See also Gjellum v. City of Birmingham, Alabama, 829 F.2d 1056, 1060 (11th Cir. 1987).

Plaintiffs devote considerable energy to their argument that the trial court erred in granting summary judgment in Treister II, and that to allow the state court rulings to have preclusive effect on Plaintiffs' constitutional claims "would be to compound the error." Memorandum In Opposition To Defendants . . . Motion for Dismissal, or Summary Judgment, at 10 [hereinafter "Pls. Resp."]. It is possible, of course, that the state circuit court incorrectly granted summary judgment for Defendants. The state appeals process, however, was the proper avenue for Plaintiffs to pursue such an objection, and Plaintiffs did in fact appeal the circuit court's order of final summary judgment. See Treister III, 575 So.2d 218 (Fla. 3d DCA 1991). The appeal, however did not challenge the basis of the circuit court's ruling, but rather Plaintiffs unsuccessfully "claim[ed] that changed circumstances in the use of the surrounding properties have entitled him to relief in his original action." Id. at 219. The appeal failed, and final judgment in favor of Defendants was affirmed. Id. at 220. If Plaintiffs disagreed with the District Court of Appeals' ruling, they could have then petitioned the Florida Supreme Court for review, but they did not do so. The Plaintiffs may not, however, obtain in this court de novo review of the state court ruling. The federal district courts lack jurisdiction to sit as appellate courts reviewing state court proceedings. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476, 103 S.Ct. 1303, 1311, 75 L.Ed.2d 206 (1983); Staley v. Ledbetter, 837 F.2d 1016, 1017-18 (11th Cir. 1988) ("Federal courts are not a forum for appealing state court decisions.").

Plaintiffs also suggest that under Kremer v. Chemical Constr. Corp., 456 U.S. 461, 482, 102 S.Ct. 1883, 1898, 72 L.Ed.2d 262 (1982), collateral estoppel and full faith and credit should not apply here. Plaintiffs cite Kremer for the proposition that collateral estoppel does not apply "when the party against whom the earlier decision is asserted did not have a `full and fair opportunity' to litigate the claim or issue." Pls. Resp. at 12-13 (quoting Kremer, 456 U.S. at 480-81, 102 S.Ct. at 1897). The Kremer Court continued, "`Redetermination of issues is warranted if there is reason to doubt the quality, extensiveness, or fairness of the procedures followed in prior litigation.'" Kremer, 456 U.S. at 481, 102 S.Ct. at 1897 (quoting Montana v. United States, 440 U.S. 147, 164, 99 S.Ct. 970, 979, 59 L.Ed.2d 210 (1979)). This Court has reviewed the record carefully, and there is no indication that the Florida state courts used unfair procedures, or that the state courts were qualitatively substandard or that the proceedings were insufficiently extensive. The Florida circuit court held numerous hearings in this case, received lengthy pleadings on Defendants' motion for final summary judgment, and heard the equivalent of 115 transcript pages of oral argument on that motion. See Tr. Hr'g, No. 86-17121, at 1-115 (Fla. 11th Jud. Cir. July 20, 1989) filed at Volume III, Component, 18.

The Just Compensation Claim

1. Florida Preclusion Law

The Florida Supreme Court has summarized Florida's preclusion principles as follows:

It has been well settled . . . that several conditions must occur simultaneously if a matter is to be made res judicata: identity of thing sued for; identity of the cause of action; identity of parties; identity of the quality in the person for or against whom the complaint is made. It is also a settled rule that when the second suit is between the same parties, but based upon a different cause of action from the first, the prior judgment will not serve as an estoppel except as to those issues actually litigated and determined in it. . . . The determining factor in deciding whether the cause of action is the same is whether the facts or evidence necessary to maintain the suit are the same in both actions.

Plaintiffs claim they did not litigate the issues or facts comprising a state law takings claim. In Count II of the [First] Amended Complaint, Plaintiffs allege that the current zoning scheme has "deprived Plaintiffs of all economically viable and all reasonable beneficial use of the Commodore Bay property, without full compensation in violation of Article X, Section 6 of the Constitution of the State of Florida." Amended Complaint at ¶ 61. Plaintiffs argue that the order of final summary judgment, however, could not have resolved the takings issue raised in Count II. Plaintiffs posit that because the Florida Supreme Court in Dade County v. National Bulk Carriers, 450 So.2d 213 (Fla. 1984), held that a landowner could not obtain money damages for confiscatory zoning, that therefore the circuit court's ruling on the inverse condemnation count is a nullity and cannot in any way be res judicata on the Fifth Amendment just compensation claim raised here. We disagree with Plaintiff's view of the impact of National Bulk Carriers on this issue. Moreover, it is unclear to us that at the time the circuit court entered its order of final summary judgment, no claim for monetary damages was available.

First, National Bulk Carriers held only that no money damages were available for an inverse condemnation claim. Despite the inability to obtain damages for a confiscation by zoning, under National Bulk Carriers the Florida courts could still grant declaratory and injunctive relief if the zoning constituted a taking. See National Bulk Carriers, 450 So.2d at 216; Corn I, 816 F.2d at 1517 ("[W]here a zoning ordinance is confiscatory . . relief may be obtained by instituting a suit to declare the ordinance invalid and to enjoin its enforcement."). In Mailman Development Corp. v. City of Hollywood, which was relied upon by the Florida Supreme Court in National Bulk Carriers, 450 So.2d at 216, the Fourth District Court of Appeals wrote as follows:

Under our present Constitution, Article X, Section 6, no private property shall be taken except for public purposes and with full compensation to the owner. But there is a clear distinction between the appropriation of private property for public use in the exercise of the power of eminent domain, and the regulation of the use of property under the police power exercised to promote the health, morals and safety of the community. We hold that the enactment of a zoning ordinance under the police power does not entitle the property owner to seek compensation for the taking of the property through inverse condemnation. If the zoning ordinance as applied to the property involved is arbitrary, unreasonable, discriminatory, or confiscatory, (as defendant has alleged in the other counts still pending before the trial court), the relief available to the property owner is a judicial determination that the ordinance is either invalid, or unenforceable as pertains to plaintiff's property.

Second, although Plaintiffs argue that under National Bulk Carriers no inverse condemnation cause of action for damages existed for confiscatory zoning at the time summary judgment was granted, Plaintiffs have not shown that their view of the state of the law is correct. In Corn I, which was filed in May 1987, the panel observed that the Eleventh Circuit and various Supreme Court justices had questioned the constitutionality of denying compensation for a temporary regulatory taking, see Corn I, 816 F.2d at 1519-20, as prescribed by National Bulk Carriers. One month after Corn I was decided, and before the entry of final summary judgment in Treister II, the United States Supreme Court filed its opinion in First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987). First English seemingly overruled National Bulk Carriers, and held that "[i]nvalidation of the ordinance . . ., though converting the taking into a `temporary' one, is not a sufficient remedy to meet the demands of the Just Compensation Clause." Id. at 319, 107 S.Ct. at 2388. In fact, Plaintiffs recognized that under First English they were probably entitled to obtain damages for confiscatory zoning despite National Bulk Carriers, and they vigorously argued this point to the circuit court at the July 20, 1989 summary judgment hearing:

[T]he Supreme Court of the United States has said that a remedy in inverse condemnation is constitutionally required.

The Third District noted that in the footnote in the Bensch case [ Bensch v. Metropolitan Dade County, 541 So.2d 1329, 1330 n. 1 (Fla. 3d DCA), review denied, 549 So.2d 1013 (1989)] at 1330 of the opinion. They said that the apparent holding of the United States Supreme Court [in First English] was that there was a right of damages even from an invalid regulation.

In so doing they noted [without deciding] the apparent overruling of the National Bulk Carriers case by First English Church, and there have been a number of other Florida cases that have also applied First English Church, Your Honor, and they make it clear that the remedy of inverse condemnation is alive and well. . . .

Tr. at 69-70 (Fla. 11th Jud. Cir. July 20, 1989), filed at Volume III, Component 18.

In addition, in their response brief to the motion for summary judgment, Plaintiffs argued to the circuit court that damages were available. See Pls. Resp. in Opp'n Defs. Mot. for Entry of Summ. J. at 23-31 (11th Jud. Cir. Dec. 22, 1988) filed at Volume III, Component 4, entry 59. Specifically, Plaintiffs quoted to the circuit court language from a federal district court case which held that "`[T]he recent Supreme Court case of First English . . . requires that the state recognize an inverse condemnation claim for money damages where a zoning regulation amounts to a taking.'" See id. at 26 (quoting East-Bibb Twiggs Neighborhood v. Macon-Bibb Planning and Zoning Commission, 662 F. Supp. 1465, 1468 (M.D.Ga. 1987), aff'd, 896 F.2d 1264 (11th Cir. 1989)). In addition, the courts of this circuit that have subsequently addressed the issue have assumed that First English requires states to provide a cause of action for inverse condemnation in the zoning context. In fact, the Eleventh Circuit in a zoning case recently observed that the Florida courts would allow a cause of action for inverse condemnation for a regulatory taking. See Executive 100, 922 F.2d at 1539 n. 3, 1542 (11th Cir. 1991) ("The Florida Courts have recognized that under First Lutheran Church property owners have the right to bring reverse condemnation proceedings seeking compensation for regulatory takings."); see also East-Bibb Twiggs Neighborhood Ass'n. v. Macon Bibb Planning and Zoning Commission, 896 F.2d 1264, 1266 (11th Cir. 1990) (citing First English as "requiring states to recognize inverse condemnation claim for damages when zoning regulation amounts to taking"); Barima Inv. Co. v. United States, 771 F. Supp. 1187 (S.D.Fla. 1991) (King, J.) ("[T]he Eleventh Circuit has interpreted First English to require states to recognize inverse condemnation claims for damages when a zoning regulation amounts to a taking." (citing East-Bibb Twiggs, supra)), aff'd without opinion, 959 F.2d 972 (11th Cir. 1992); Joint Ventures, Inc. v. Department of Transp., 563 So.2d 622, 625 (Fla. 1990); Monroe County v. Gonzalez, 593 So.2d 1143, 1145 (Fla. 3d DCA 1992). Significantly, the state law claims were resolved "on the merits," See Tr. of Hr'g, No. 86-17121, at 113 (Fla. 11th Jud. Cir. July 20, 1989) filed at Volume III, Component 18, and not on the basis of failure to state a claim upon which relief could be granted.

Finally, we observe that the Third District Court of Appeals in Treister III interpreted Treister II as denying the claim for money damages based upon res judicata grounds, and not on the grounds that National Bulk Carriers made money damages unavailable. See Treister III, 575 So.2d at 219. Accordingly, we believe that the inverse condemnation claim for damages was probably viable at the time summary judgment was granted. We conclude that regardless of whether monetary damages were available, however, Plaintiffs state law takings claim was "actually litigated."

b. Identity of issues and causes of action litigated

The remaining issue is whether the Florida constitutional claim is sufficiently identical to the federal just compensation claim. "Florida preclusion law defines identical causes of action as causes sharing `similarity of facts essential to both actions.'" Fields, 953 F.2d at 1308 (quoting Amey, Inc., 758 F.2d at 1510). "The determining factor in deciding whether the cause of action is the same is whether the facts or evidence necessary to maintain the suit are the same in both actions." Albrecht, 444 So.2d at 12 (Fla. 1984).

We have no doubt that the issues raised by a claim for a taking, and the elements of the claim, under the Florida Constitution, are sufficiently similar to the parallel claim under the United States Constitution so as to constitute identical claims for res judicata purposes, and that the issues necessarily litigated therein are sufficiently identical for issue preclusion purposes. Under the Fifth Amendment, "[t]he application of a general zoning law to particular property effects a taking if the ordinance does not substantially advance legitimate state interests, or denies an owner economically viable use of his land." Agins v. Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106 (1980) (citations omitted) (citing, inter alia, Penn Central Transp. Co. v. New York City, 438 U.S. 104, 138 n. 36, 98 S.Ct. 2646, 2666 n. 36, 57 L.Ed.2d 631 (1978)). Citing Agins, the Fifth District Court of Appeals recently wrote:

A regulation effects a taking if it does not substantially advance a legitimate state interest or if the regulation denies an economically viable use of his land. Agins v. City of Tiburon, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980). It is axiomatic that the constitutions of the United States and the state of Florida require that just and full compensation be paid in the event of a taking. U.S. Const. amend. V; Art. X, § 6(a), Fla. Const.

The Florida courts regularly refer to federal case law in discussing the regulatory taking standard under Florida law. See, e.g., Joint Ventures, 563 So.2d at 625; Albrecht, 444 So.2d at 10, 12 (discussing a takings claim under both the Florida and United States' constitutions and citing Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922)). In Graham v. Estuary Properties, Inc., the Florida Supreme Court explicitly relied upon federal takings cases in determining the factors to consider when deciding whether a regulation constitutes a taking. 399 So.2d 1374, 1381 (Fla.), cert. denied, 454 U.S. 1083, 102 S.Ct. 640, 70 L.Ed.2d 618 (1981); see also id. at 1384 (Adkins, J., dissenting); Estuary Properties v. Askew, 381 So.2d 1126, 1137-39 (Fla. 1st DCA 1979) (discussing Florida and United States constitutional law), aff'd in part, rev'd in part sub nom., Graham v. Estuary Properties, 399 So.2d 1374 (Fla.), cert. denied, 454 U.S. 1083, 102 S.Ct. 640, 70 L.Ed.2d 618 (1981); Glisson v. Alachua County, 558 So.2d 1030, 1034-35 (Fla. 1st DCA), review denied, 570 So.2d 1304 (1990); Pinellas County v. Brown, 420 So.2d 308, 310 (Fla. 2d DCA 1982) (taking exists if regulation "substantially deprived [a landowner] of all beneficial uses of the property"), petition denied, 430 So.2d 450 (Fla. 1983). Indeed, Plaintiffs, in the course of pursuing their inverse condemnation claim, relied interchangeably upon state and federal takings law. See Pls.Resp. in Opp'n to Defs.Mot.Entry Summ.J. at 23-25 (Fla. 11th Jud. Cir. Dec. 22, 1988) filed at Volume III, Component 4, entry 59. In fact, in considering whether a § 1983 taking action was barred by res judicata, the Eleventh Circuit in Corn II cited Albrecht for the appropriate standard for a taking: "[T]o maintain an action for a regulatory taking, plaintiff must present evidence of a diminution in the value of the property as well as a lack of alternative uses occasioned by the taking. See Albrecht, 444 So.2d at 12." Corn II, 904 F.2d at 587. See Fields, 953 F.2d at 1308 ("[W]e conclude that the federal takings claim is essentially the same claim as that raised in the Florida law inverse condemnation action for purposes of applying Florida's merger and bar rules.")

Plaintiffs argue that Corn II, 904 F.2d 585 (11th Cir. 1990), Lake Lucerne, and the Supreme Court's recent decision in Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992), show that the causes of action are not identical. We find these cases inapposite, and we stress that on this motion the proper focus is upon the preclusive effect of the order of final summary judgment in Treister II, not the certiorari proceedings involved in Treister I. Lake Lucerne offers no guidance as to whether a state law constitutional taking claim, heard de novo in an original action, is res judicata on a federal law takings claim. In Lake Lucerne, the Eleventh Circuit considered the preclusive effect of three prior state proceedings: a zoning hearing; appeals from that zoning hearing (the "Norwood-Norland litigation"); and litigation commenced before the zoning hearing (the "Rolling Oaks litigation"). None of these instances of prior litigation resolved de novo a takings claim. Rather, in the Rolling Oaks litigation, the circuit court dismissed as premature the claim for taking without just compensation, with leave to amend. Lake Lucerne, 878 F.2d at 1363. The District Court of Appeals subsequently ruled that the count should properly have been dismissed without leave to amend, in order to allow the refiling of a new suit when the claim matured. Id. at 1364. The Eleventh Circuit found the zoning hearing itself too informal and too unlike a judicial proceeding to have administrative res judicata effect. Id. at 1367. The final instance of prior litigation, the Norwood-Norland litigation, involved an "appeal in the Florida circuit court concerning the zoning action," and a denial of certiorari review of the circuit court's opinion. Id. at 1364. The Eleventh Circuit specifically observed that the Norwood-Norland litigation "involved a direct appeal from the zoning action. It did not involve a claim of unconstitutional taking without compensation. That later issue was not raised until the still pending and stayed state court proceeding and this federal case were filed." Id. at 1368. In Treister II, by contrast, a claim for a taking without just compensation was explicitly raised. See Amended Complaint at ¶ 61 (alleging that Defendants "deprived Plaintiffs of all economically viable and all reasonable beneficial use of the Commodore Bay property, without full compensation").

Corn II is also inapposite. In that case, the Eleventh Circuit concluded that the cause of action for a writ of mandamus was not identical to that for a taking. The Court wrote:

The state court in [the mandamus action] held that the City was estopped from rezoning Corn's property by Corn's actions in reliance on earlier zoning ordinances. In contrast, to maintain an action for a regulatory taking plaintiff must present evidence of a diminution in the value of the property as well as a lack of alternative uses occasioned by the taking.

2. Preservation of a Federal Forum

As discussed above, generally speaking, "issues actually litigated in a state court proceeding are entitled to the same preclusive effect in a subsequent federal § 1983 suit as they enjoy in the courts of the State where the judgment was rendered." Migra, 465 U.S. at 83, 104 S.Ct. at 897. It is also true that under England v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964), a Plaintiff who has had his case remitted to the state courts may reserve the right to litigate his federal claims in federal court. The Eleventh Circuit has recently discussed the preservation of a federal forum under England:

In order to guarantee litigants entitled to a federal forum an opportunity to litigate their claims in federal court, the England court articulated a three-step procedure through which the right to a federal court hearing could be preserved: (1) the litigant must first file in federal court, (2) the federal court will stay the federal proceedings to allow the state courts to consider any state law questions, and (3) the litigant must inform the state court that, if necessary he intends to pursue any federal constitutional claims in federal court following the conclusion of the state court proceedings.

In the event that a § 1983 plaintiff's federal and state-law claims are sufficiently intertwined that the federal court abstains from passing on the federal claims without first allowing the state court to address the state-law issues, the plaintiff can preserve his right to a federal forum for his federal claims by informing the state court of his intention to return to federal court on his federal claims following litigation of his state claims in state court.

In this case, however, an England reservation was not available, and, even if it was available, it was not properly made. As discussed earlier, see supra note 2, Judge Spellman abstained pursuant to Younger and Pennzoil. To the extent that this case is properly thought of as one involving Younger abstention, it is clear that no reservation was possible. See Temple of Lost Sheep, Inc. v. Abrams, 930 F.2d 178, 183 (2d Cir.), cert. denied, 502 U.S. 866, 112 S.Ct. 193, 116 L.Ed.2d 153 (1991); Beltran v. State, 871 F.2d 777, 783 n. 8 (9th Cir. 1988). However, as Younger abstention "requires dismissal of the complaint," Beltran, 871 F.2d at 782 (quoting Gibson v. Berryhill, 411 U.S. 564, 577, 93 S.Ct. 1689, 1697, 36 L.Ed.2d 488 (1973)), among other things, and the district court did not so dismiss the [First] Amended Complaint, we consider Plaintiffs' claim of reservation. See Ivy Club v. Edwards, 943 F.2d 270, 277-280 (3d Cir. 1991) ("[T]he most important consequence of district court abstention pursuant to Younger rather than [ Railroad Commission of Texas v.] Pullman [ Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971] [(1941)] is that although a decision under Younger terminates the federal litigation . . ., abstention under Pullman merely postpones the exercise of federal jurisdiction.), cert. denied, 503 U.S. 914, 112 S.Ct. 1282, 117 L.Ed.2d 507 (1992).

Second, despite the removal of the case to federal court, the jurisdiction of the federal courts was not properly invoked with regard to the just compensation claim, see Eide, 908 F.2d at 720-21, the due process takings claim, see Eide, 908 F.2d at 721, and the equal protection claim, see Executive 100, at 922 F.2d at 724, because the finality requirement for ripeness had not been met. When Defendants removed the cause to federal court, Plaintiffs' petition for writ of certiorari was pending before the Appellate Division, Circuit Court, and the zoning decision was not final. See Corn II, 904 F.2d at 587. Accordingly, at the time federal jurisdiction was initially invoked, no federal just compensation claim (nor due process takings, nor equal protection claim) was justiciable. "Where a [party] properly invokes federal-court jurisdiction in the first instance on a federal claim, the federal court has a duty to accept that jurisdiction." Allen, 449 U.S. at 101 n. 17, 101 S.Ct. at 418 n. 17 (emphasis added). It follows that no such duty arises where, as here, federal court jurisdiction did not properly lie. Accordingly, it does not appear that England should properly apply in this case.

Even if England could apply here — and, as stated above, we do not believe it can — Plaintiffs did not satisfy the requirements imposed by England to reserve a federal forum for the federal claim. Plaintiffs arguments fail under England because Plaintiffs did not reserve their right to return to the federal forum. To do so, Plaintiffs needed to inform the state court of their intent to litigate their federal claim in federal court without regard to the outcome of the state case. See England, 375 U.S. at 421-22, 84 S.Ct. at 467-68; Fields, 953 F.2d at 1304-05. ("The litigant must inform the state court that, if necessary, he intends to pursue any federal constitutional claims in federal court following the conclusion of the state court proceedings."). No such reservation was made by either party. Plaintiffs have cited us no effective reservation, and our review of the record reveals that none occurred. Plaintiffs sole argument on this point is that by filing a notice with the District Court of Appeals they preserved their right to a federal forum. See Pls.Rep.Mem. at 6 Appendix 3 (DE 119). This notice, however, filed after judgment was entered by the state courts, is insufficient. Cf. Griffin v. State, 760 F.2d 359, 360 n. 1 (1st Cir. 1985) ("Section 1983 does not override state preclusion law by allowing plaintiffs to first proceed to judgment in state courts and then turn to federal courts for adjudication of federal claims."), cert. denied, 474 U.S. 845, 106 S.Ct. 134, 88 L.Ed.2d 111 (1985).

In sum we find that Florida preclusion principles bar maintenance of a federal just compensation claim, that Plaintiffs could not reserve the federal forum, and, indeed, that even if Plaintiffs could preserve a federal forum, they did not take appropriate steps to do so. Accordingly, we conclude that the state law judgment is preclusive, and summary judgment as to Plaintiffs' just compensation claim must be and is GRANTED.

Due process takings claim

The Eleventh Circuit has defined a due process takings claim as "a claim that the application of the regulation goes so far and destroys the value of his or her property to such an extent that it has the same effect as a taking by eminent domain. Such an application would be an invalid exercise of the police power." Eide, 908 F.2d at 721. The remedy for a successful due process takings claim is not compensation for the value taken as with a just compensation claim, but invalidation of the regulation causing the taking and, "perhaps, actual damages. . . ." Id.

For the reasons expressed in the discussion of the just compensation claim, we hold that the grant of summary judgment in Treister II precludes, on res judicata and issue preclusion grounds, a due process takings claim. In Albrecht v. State, the Florida Supreme Court held that merely because an action is authorized by a statute does not determine that no taking exists. Albrecht, 444 So.2d at 8; see National Bulk Carriers, 450 So.2d at 216. However, if the locality's action is "confiscatory and constitutes a taking without just compensation," the Court has held, "the action of the board must be stricken. A denial of rezoning cannot be both reasonable and confiscatory." National Bulk Carriers, 450 So.2d at 216. Given that the standard expressed in Eide is similar to that of National Bulk Carriers, as explicated by the Eleventh Circuit in Corn I, and given the Circuit Court's refusal to grant declaratory or injunctive relief available under National Bulk Carriers, we find that Plaintiffs' due process takings claim is barred by res judicata and issue preclusion. Accordingly, Defendants' motion for summary judgment as to the due process takings claim is GRANTED.

Arbitrary and capricious due process claim

Plaintiff has conceded that the state court proceedings are res judicata on an "arbitrary and capricious" claim, and that therefore they are barred from asserting that type of due process claim. See Tr. [Federal Court] H'rg, at 32, 54 (Dec. 9, 1992) (DE 124). Accordingly, Defendant's motion for summary judgment as to an arbitrary and capricious due process claim is GRANTED.

Equal Protection claim

We believe it inappropriate at this time to consider Defendants' motion with regard to the equal protection claim. The briefs have not addressed how the elements of such a claim compare to the elements of those claims before the state courts, nor have they identified whether litigation of claim below necessarily involved litigation of the equal protection claim herein. Accordingly, we will not consider this claim at this time, and Defendants' motion to dismiss or for summary judgment is DENIED WITHOUT PREJUDICE as to the equal protection claim.

V. Plaintiffs' Motion for Leave to Amend

VI. Conclusion

Defendants' motion for summary judgment is GRANTED as to Plaintiffs' claims for a taking without just compensation, a due process taking, and an arbitrary and capricious due process claim. Defendants' motion for summary judgment is DENIED WITHOUT PREJUDICE as to Plaintiffs' equal protection claim. Plaintiffs' motion to amend is DENIED. Defendants are granted leave to renew their motion for summary judgment or dismissal as to the equal protection claim, on preclusion or other grounds. To the extent that Defendants wish to do so, they are directed to file such motion within 20 days of the date of this Order. In addition, this cause is hereby set for status conference before the undersigned on October 5, 1992 at 9:00 a.m. Finally, the Clerk of Court is directed to reopen this case for administrative purposes.

DONE AND ORDERED.