The Eleventh Circuit on Due Process ClaimsPosted: July 21, 2014
Substantive due process challenges to local land use regulations have at least three notable features: (1) they can routinely be filed in federal court (rather than state court) in the first instance (unlike most regulatory taking claims); (2) they involve allegations that government acted in an arbitrary and unreasonable fashion (rather than allegations that government acted in a legitimate but economically burdensome fashion, as in a regulatory takings case), and (3) they almost always fail (given the high hurdle the Supreme Court has erected for invalidation of economic regulation under the Due Process Clause). Two recent decisions from the U.S. Court of Appeals for the Eleventh Circuit provide some additional, useful guidance on litigating due process challenges to local land use regulations.
On May 8, 2014, in Kentner v. City of Sanibel, the Eleventh Circuit rejected a due process challenge to a municipal ordinance prohibiting landowners from building “a boat dock or accessory pier” in front of their bay-front properties in Florida. The Court’s opinion includes an interesting discussion of the Supreme Court’s 2005 decision in Lingle v Chevron USA and its implications for due process claims. As followers of takings law will recall, in Lingle the Court repudiated the ostensible “substantially advance” takings test, ruling that a claim based on this test was best viewed as raising an issue under the Due Process Clause rather than the Takings Clause. It addition, the Court said that use of the word “substantially” in this test could “be read to demand heightened means ends review of virtually any regulation of private property,” an approach that the Court said would be inconsistent with its longstanding tradition of “deference to legislative judgments about the need for, and likely effectiveness of, regulatory actions.” In Kentner, the Eleventh Circuit rejected the plaintiffs’’ imaginative (but, in my view, far-fetched) argument that the Supreme Court in Lingle implicitly endorsed a “new substantive due process test” involving use of the “substantially advance” formula. The Eleventh Circuit ruled that Lingle did not speak to the standard that should apply in substantive due process cases and, therefore, it would continue to use the traditional “rational basis” test. Applying that very deferential test, the Eleventh Circuit had no difficulty concluding that the ordinance was constitutional, observing that “[p]laintiffs themselves plead at least two rational bases for the Ordinance in their Amended Complaint: (1) protection of seagrasses and (2) aesthetic preservation.”
On June 18, 2014, in Hillcrest Property, LLC v. Pasco County, the Eleventh Circuit returned to the topic of due process challenges to local land use regulation, addressing the issue of when the statute of limitations begins to run on a facial due process challenge to a land use ordinance. The Court ruled that the limitations period began to run upon enactment of the ordinance, and rejected the landowner’s argument that the claim accrued when it filed its application under the ordnance or, alternatively, when its application was denied under the audience. Accordingly, the Court concluded that the plaintiff’s facial due process claim was time-barred. In reaching this conclusion on when a facial due process claim accrues the Eleventh Circuit followed rulings by the Sixth and Ninth Circuits reaching the same conclusion (and which also apply the same accrual rule to facial regulatory takings claims). The Eleventh Circuit expressed no view on the merits of the plaintiff’s still pending as-applied due process claim.