We've been meaning to post the U.S. Court of Appeals for the Eleventh Circuit's opinion in Hillcrest Property, LLP v. Pasco County, No. 16-14789 (Feb. 13, 2019), mostly because of the provocative way it starts off:
The question before us is whether a litigant in this Circuit has a substantive-due-process claim under the Due Process Clause of the Fourteenth Amendment when the alleged conduct is the unlawful application of a land-use ordinance. The answer to that question is a resounding “no”—an answer that this Court delivered in McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994) (en banc), 24 years ago and has reaffirmed ever since. We held in McKinney that executive action never gives rise to a substantive-due-process claim unless it infringes on a fundamental right. A land-use decision is classic executive, rather than legislative, action—action that, at least here, does not implicate a fundamental right under the Constitution.
Slip op. at 1-2.
If the name of the case sounds familiar, it's because we've covered this situation before.
The county adopted the "Right of Way Preservation Ordinance," which allows it to land bank for future road corridors by means of an exaction which conditions any development permit for land that adjoins a transportation corridor on donation of a right-of-way dedication. In other words, if you want to build near the transportation corridor, you have to donate part of the transportation corridor. Oh look, free money!
Also baked into the ordinance is an administrative process by which a landowner who doesn't think that this exaction is fair may appeal to a "committee" (let's call it the Nollan-Dolan-Koontz Committee), which is tasked with determining things like rough proportionality, narrowing the exaction, or even authorizing the payment of compensation.
Hillcrest wanted to develop its land into a shopping center, and under the ordinance, the county eventually wanted its land dedication. Hillcrest filed suit in federal court, raising the usual claims: facial and as-applied substantive due process, and takings. In the court's words, "[t]he crux of Hillcrest’s substantive-due-process claim is that the County required the dedication 'without . . . having first made an individualized determination that the exaction was reasonably related both in nature and extent to the traffic impacts of the proposed development,' 'without . . . having clearly demonstrated a reasonable connection or rational nexus between the need to 4-lane [the Road] and the traffic generated by the development and between the exaction and the benefits accruing to the development,'" Slip op. at 7.
The district court granted summary judgment on the facial due process claim. While the appeal was pending, the parties settled all claims except the pending facial and as-applied due process claims for $4.7 million. Eventually, the Eleventh Circuit reversed the district court's facial due process ruling in favor of Hillcrest, concluding that the claim was brought too late. Case remanded for a determination of the as-applied due process claim.
The district court ruled in favor of Hillcrest's as-applied substantive due process challenge, but only awarded nominal damages of $1.00. Hillcrest sought attorneys' fees, for a yet-to-be-determined amount. Next stop, Eleventh Circuit.
The panel concluded that substantive due process "'protects 'fundamental rights found to be deeply rooted in our legal tradition,' 'that is, rights that are ‘implicit in the concept of ordered liberty,'" Slip op. at 11 (citations omitted). "These rights include 'most—but not all—of the rights enumerated in the Bill of Rights' and 'certain unenumerated rights (for instance, the penumbral right of privacy[)]." Id. (citations omitted).
"Hillcrest," the opinion concluded, "does not allege denial of any fundamental right." Id.
OK, you are saying to yourself, Hillcrest wanted a development permit. It has, even without such permits, a property right -- the right to use and develop its property, right? No, held the court, the right which Hillcrest is saying it possessed was a state-created right:
We explained in DeKalb Stone, Inc. v. County of DeKalb, 106 F.3d 956 (11th Cir. 1997) (per curiam), that “land use rights, as property rights generally, are state-created rights.” Id. at 959; see also Greenbriar Vill., L.L.C. v. City of Mountain Brook, 345 F.3d 1258, 1263 (11th Cir. 2003) (per curiam) (noting that “state-created rights ... include land-use rights”). Under circuit precedent, then, this seems to be an open-and-shut case.
Slip op. at 11-12. The court rejected the idea that "land use rights" are fundamental rights, distinguishing both Koontz v. St. Johns River Water Management Dist., 570 U.S. 595 (2013), and Lynch v. Household Finance Corp., 405 U.S. 538 (1972). Koontz was an unconstitutional conditions case that dealt with an "enumerated" right, while Lynch held (according to the Eleventh Circuit) was about a right created by the Civil Rights Act of 1866 (42 U.S.C. § 1983). Slip op. at 15.
Sorry, we don't get this. Isn't "property" an enumerated right in the Constitution? Isn't the use of land one of those fundamental sticks in the bundle? Maybe you can explain it to us in a way that makes sense.
The panel then concluded that the exaction was an "executive" action (not legislative), and thus Hillcrest had no claim. See slip op. at 15-19. In short, because this was an action applying the statute, Hillcrest could not assert that it was applied in an arbitrary and capricious manner:
So too here. The whole of Hillcrest’s challenge, as alleged in their Amended Complaint, is that the County “has applied [the Ordinance] ... so as to require Hillcrest to set aside or dedicate a substantial portion of the [p]roperty for the benefit of the public for future use as a right of way.” Said in McKinney-speak, the harm that allegedly results from the County’s action is harm only to Hillcrest.
Slip op. at 19. If that's not clear (and to us, this whole section of the opinion is majorly opaque): "We cannot be clearer on this point: regardless of how arbitrarily or irrationally the County has acted with respect to Hillcrest, Hillcrest has no substantive-due-process claim." Slip op. at 22.
In short, you don't get even rational basis review (aliens might have done it!) for executive land use actions that might be "stinky." You get no review at all. Twelve-bee-six, case dismissed for failure to state a claim.
For what is, in our opinion, a clearer view of the analysis, check out Judge Newsom's opinion concurring in the judgment, which starts of page 23 ("What happened to Hillcrest here was pretty doggone s[tink]y"). He had two different ways to reach the same result as the majority opinion. First, he concluded that the substantive due process claim was nothing more than the settled takings claim restated. You don't get two chances, Hillcrest. Second, he agreed that under Eleventh Circuit precedent, this was the compelled result. But, he noted, "I’m just not convinced that our precedent has it exactly right."
To Judge Newsom, the best vehicle to vindicate Hillcrest's rights was the Takings Clause. Slip op. at 24 ("Sounds like a job for the Takings Clause, right?"). But Hillcrest settled that claim. To Judge Newsom, the remaining substantive due process claim looked like the takings claim dressed up. Slip op. at 25 ("Meanwhile, the federal-court litigation -- minus the Takings Clause allegation -- chugged ahead, with Hillcrest continuing to press what, to my mind, was the exact same claim parading under a different banner: 'substantive due process.'").
This was the big problem to Judge Newsom. The settlement of the takings claim should have terminated the litigation. And the following passage we quote in full, because it is worthwhile to read it:
The district court was (understandably) disgusted by the County’s treatment of Hillcrest. Beginning with the summary judgment hearing, the district court expressed profound “discomfort” with Pasco County’s conduct. It just “doesn’t sit well,” the court said. “You look at this and it’s disturbing and you think, this is just not right. Something—somewhere this is flawed, whether [or not] you know, the theories happen to fit it.” In the end, the court concluded: “As I sit here, I don’t quite know whether [the case] fits in any of these [constitutional] slots that [the lawyers] have laid out, but I’m not sure it shouldn’t . . . . And I’m not sure that if it doesn’t fit into one of them that I’m not going to find the one it’s closest to and give the Circuit Court of Appeals an opportunity to say that it should land there.” Memorializing its disgust—and reasoning—in a written order, the district court held:Another judge might find . . . this opinion inexact in this or that particular of constitutional law. Nonetheless, this Ordinance [pursuant to which the County demanded the exaction] is an unmistakable, abusive, and coercive misapplication of governmental power, perpetrated to cynically evade the Constitution. The Ordinance cannot stand, whether for the precise reasons stated here or for a related reason.Translation: What Pasco County did here s[tink]s to high heaven; ergo, it must be unconstitutional—if not under the Takings Clause, because Hillcrest’s takings-based claim had evaporated with its amended complaint, then on some (any) other basis. The basis that the district court chose—the constitutional “slot[]” into which it slid Hillcrest’s case—was substantive due process.
Slip op. at 26-27.
But "[t]hat's not how constitutional law works," concluded Judge Newsom , "Whatever other role substantive-due-process doctrine may play, it is not a stand-in for a failed, forfeited, or (even worse) settled Takings Clause claim." Slip op. at 27. (Barista's note: oh yeah, tell that to Justice Kennedy!)
Judge Newsom's bottom line: don't settle your takings claim and think you are going to be able to pursue the same claim as a substantive due process claim.
The balance of Judge Newsom's concurring opinion seems like his audition tape for the next SCOTUS open seat. A run down of substantive due process, the pros and cons, so to speak, and why he finds it kind of "stinky." Was it necessary to write and file this? Don't know. but we sure enjoyed reading it.
Finally, check out the remainder of his opinion starting on page 38, where he explains, "t]o be clear, I think the majority has it exactly right under our existing precedent. I’m just not convinced that our precedent has it exactly right." He challenges McKinney and the legislative vs executive distinction, and why certain actions are deemed to deserve less exacting constitutional review than others. But a direct challenge to McKinney's conclusion and analysis will have to wait for another day.
While we're not entirely on board with the "there's no such thing as substantive due process" line of thinking (in our view, our English predecessors were well-versed in what we now call "substantive due process," so the Founders were also), we do like Judge Newsom's clear-headed approach to applying the doctrine to stinky situations like these.
Hillcrest Property, LLP v. Pasco County, No. 17-14789 (11th Cir. Feb. 13, 2019)
