Posted by: Patricia Salkin | May 21, 2014

Eleventh Circuit Holds Riparian Rights Asserted By Property Owners Were State-Created Rights, Not Fundamental Rights, For Purposes of Substantive Due Process Claims

In this case, the owners of riparian property in beach zone brought state court action against the city, challenging a municipal ordinance that prohibited them from building a boat dock or accessory pier on their properties. In September 1993, Sanibel enacted Ordinance 93–18 (the Ordinance), amending Sanibel’s Land Development Code. The Ordinance prohibited new construction of docks and accessory piers within an area fronting San Carlos Bay (Bay Beach Zone). The stated purpose of the Ordinance is to protect seagrasses that grow on the submerged lands in much of the Bay Beach Zone. Plaintiffs came to own properties within the Bay Beach Zone after the Ordinance was enacted. Because they own land that borders the high tide line, plaintiffs claim to have riparian rights, including “reasonable docking rights.” In their challenge to the Ordinance, plaintiffs argued that it (1) makes no specific finding as to the particular ecological conditions of the submerged lands, including whether they even have seagrasses on them; (2) makes no allowance for dock technology that would not harm seagrasses; (3) contains no basis for the specific boundaries of the Bay Beach Zone; and (4) prohibits any conditional use or variance. Plaintiffs also complained that the true purpose of the Ordinance “is to serve the aesthetic preferences of certain interest groups and to artificially protect the property values of other property owners who are allowed to build docks.”

Plaintiffs filed suit in state court on October 14, 2011, alleging in part that Sanibel’s Ordinance “do[es] not substantially advance any legitimate state interest” and therefore violates plaintiffs’ due process rights under the U.S. and Florida Constitutions. Sanibel removed the case to federal court and asked the District Court to dismiss plaintiffs’ federal claims and decline jurisdiction over their state claims. The District Court granted Sanibel’s motion. This court held that executive acts typically arise from the ministerial or administrative activities of the executive branch and characteristically apply to a limited number of people, often to only on; which includes employment terminations or individual acts of zoning enforcement. Legislative acts, on the other hand, generally apply to a larger segment of society; laws and broad-ranging executive regulations are the most common examples. A legislative act also involves policy-making rather than mere administrative application of existing policies. Prospective “zoning-type decisions made by an elected body” are often legislative or quasi-legislative. Therefore, the District Court concluded that the riparian rights asserted by plaintiffs are state-created rights, not fundamental rights, and that plaintiffs could not show Sanibel’s Ordinance lacked a rational basis. Plaintiffs themselves pleaded at least two rational bases for the Ordinance in their Amended Complaint: (1) protection of seagrasses and (2) aesthetic preservation. Accordingly the Eleventh Circuit found that these allegations and the “exceptional” burden plaintiffs must bear in challenging the Ordinance under the rational basis standard, and affirmed the District Court’s order on this alternate basis.

Kentner v City of Sanibel, 750 F3d 1274 (11th Cir. CA 5/8/2014)


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