Here's the Brief in Opposition filed by the city Kentner v. City of Sanibel, No. 14-404, the case asking the Supreme Court to review an 11th Circuit decision in which the court concluded that riparian rights, although recognized by Florida as property rights, are not "fundamental rights" protected by the Due Process Clause. The court concluded that the City's ban on the construction of docks and piers (except, apparently, city-owned docks and piers) was not subject to due process review because the plaintiffs' riparian rights are not fundamental rights because they are merely "state-created" rights.
The property owners filed a cert petition, and we joined an amicus brief in support. Quite naturally, the BIO doesn't agree with our view of the issues, and phrases the Questions Presented this way:
(1) Whether a riparian landowner’s “qualified” right to construct a dock on adjoining state-owned submerged lands is a “fundamental” right “implicit in the concept of ordered liberty” entitled to heightened review under the due process clause?(2) Whether the Eleventh Circuit erred in applying the “rational basis” standard in reviewing a substantive due process challenge to legislation eliminating docks as a conditional use on a three-mile stretch within Sanibel?
More to follow, including the anticipated reply brief.
Brief in Opposition, Kentner v. City of Sanibel, No. 14-404 (Nov. 26, 2014)
