Posted by: Patricia Salkin | March 18, 2014

11th Circuit Finds that Procedural Due Process Claim Requires Allegations of Unavailable Adequate State Remedies and Not Exhaustion of Administrative Procedures

The City denied Flagship‘s application to rezone property “allowing Flagship to construct waste disposal and waste management facilities, methane gas facilities, recycling facilitates, and wetlands habitat preservation on the property.” Flagship alleged the City’s denial was arbitrary and capricious and in violation of Fourteenth Amendment procedural and substantive due process. Flagship further claimed that the hearing regarding the ordinance was an “unwieldy affair.” In sum, Flagship contended that the opponent’s conduct during the hearing was argumentative, hyperbolic, and extremely confusing. In addition to the unruly behavior at the hearing, Flagship argued that several of the board members engaged in ex parte communications because they conducted private research prior to the hearing, including a conversation with “an unidentified person about a landfill located in a different community.” Flagship also argued that the council members were clearly biased because they stated opposition to the ordinance prior to hearing any evidence at the hearing. The City’s reasons for denying the ordinance were: “(1) unpleasant odors, (2) attraction of rodents, (3) traffic increased due to garbage trucks, and (4) a purported requirement of two distance access point/entrance ways.” On appeal, Flagship’s argument was not any substantial or competent evidence to support these findings.

As to Flagship’s procedural due process claim, the court found that because Flagship did not avail itself to all state remedies, and did not allege that such adequate remedies were unavailable that there was no procedural due process violation because “only when the state refuses to provide a process sufficient to remedy the procedural deprivation does a constitutional violation” occur. Flagship’s argument was that it was not required to exhaust all available administrative remedies prior to seeking judicial review. The court found that argument was not applicable because a due process violation requires the “unavailability of adequate remedies” which is not what occurred here. The court also found that Flagship’s substantive due process claim was barred because Flagship’s claims fell under state law and not the federal Constitution, as such there could be no substantive due process violation. The court affirmed the district court’s dismissal of both Flagship’s procedural and due process claims.

Flagship Lake County v. Mascotte, 2014 WL 961042 (11th Cir. (unpub) 3/13/2014)

This opinion can be located at:

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