In 1993, in order to protect seagrasses, the city of Sanibel adopted an ordinance prohibiting the new construction of docks and piers in certain areas of town. Plaintiffs, littoral owners who bought their land after the ordinance was in place, thought that -- this being Florida, and an island -- it was their right to build docks and the like (because doesn't everybody in Florida have a boat?). They challenged the ordinance in state court as a violation of due process and did not substantially advance a legitimate state interest, asserting they possessed riparian rights, incluidng "reasonable docking rights." The city removed the case to federal court, which dismissed the complaint because riparian rights, having their source in state law, are not "fundamental" rights, and thus form no basis for a substantive due process claim.
In Kentner v. City of Sanibel, No.13-13893 (May 8, 2014), the Eleventh Circuit agreed. The court noted that in Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005), the Supreme Court held the "substantially advances" test had "due process origins." And even though the plaintiffs argued the pier ban did not substantially advance a legitimate state interest, the court held they didn't have a due process claim. Try and follow the Eleventh Circuit's logic here, because its pretty convoluted.
The court started by rejecting the plaintiffs' argument that Lingle meant that the substantially advance test was actually one of due process:
Specifically, plaintiffs quote Lingle to claim “that when a government action does not ‘substantially advance a legitimate state interest,’ the affected property owner’s remedy is to sue the government for a violation of substantive due process, and not a taking.”But this goes beyond what Lingle held. After reviewing its three established regulatory takings tests, the Supreme Court determined that the substantial advancement test was “not a takings[] test” and “that it has no proper place in our takings jurisprudence.” Lingle, 544 U.S. at 540, 125 S. Ct. at 2083. Although the Supreme Court said that the substantial advancement test “prescribes an inquiry in the nature of a due process . . . test,” id., it did not reflect upon its substantive due process legal framework or any effect that its holding in Lingle had on that area of law. Notably, the Court said nothing suggesting it was establishing a new “substantial advancement” test in the substantive due process context.
Slip op. at 6. Well not exactly that "substantially advance" isn't a due process test, because if you can figure out how in Lingle the Supreme Court wasn't saying that the substantially advance test wasn't a due process test, please let us know: if it isn't a takings test, and isn't a due process test, then what is it? Rather, the Eleventh Circuit concluded Lingle did not announce a new due process test. The opinion distinguished those circuits which, post-Lingle, it it was a due process test (see our article for examples) by concluding that they earlier had applied a different due process test than is applicable in the Eleventh Circuit:
Unlike the Ninth Circuit, the Eleventh Circuit has already recognized property rights-based substantive due process claims based on legislative acts. See, e.g., Lewis v. Brown, 409 F.3d 1271, 1273 (11th Cir. 2005). As a result, Lingle did not impact this Court’s substantive due process precedent. We therefore reject, as did the District Court, plaintiffs’ argument that Lingle created a new “substantial advancement” test for substantive due process claims based on state-created property rights.
Slip op. at 7. The court held that Lingle merely corrected those courts, like the Ninth, which pre-Lingle held that property-based claims must be characterized as takings claims and could not be brought as due process claims. See, e.g., Armendariz v. Penman, 75 F.3d 1311 (9th Cir. 1996).
Having determined that Lingle had no effect in the Eleventh Circuit, the court held that due process does not protect "state-created property rights," which are different from "fundamental" rights (rights "implicit in the concept of ordered liberty"). Slip op. at 8. "As a result, there is generally no substantive due process protection for state-created property rights." Id. But if a state-created right is infringed by a "legislative act," then due process protections kick back in. In other words, if the legislature creates a right, it cannot arbitrarily take it away. Following along so far (because we aren't sure we are)?
The court concluded that riparian rights are not "fundamental," but merely "state-created" rights. Slip op. at 10 ("In this case, the District Court correctly concluded that the riparian rights asserted by plaintiffs are state-created rights, not fundamental rights."). Consequently, the court refused to apply heightend scrutiny and concluded that good old "rational basis" was the test (and you know what that means). Game over, city wins, plaintiffs out.
If you can figure out the court's logic about why riparian rights are not fundamental, and what is a "state-created" right (in contrast to a state-created right created by legislative act, or why the legislature's hand triggers greater scrutiny than mere common law rights), please let us know.
Kentner v. City of Sanibel, No. 13-13893 (11th Cir. May 8, 2014)
