Posted by: Patricia Salkin | February 10, 2016

11th Circuit Court of Appeals Dismisses Due Process, Equal Protection and First Amendment Claims Regarding Accessory Building for the Breeding of Toucans

This case arose from a citizen complaint filed with Orange County against the Foleys for breeding and selling toucans from their residentially zoned property. In response to the complaint, county employees investigated and cited the Foleys for having accessory buildings on their property without the necessary permits, which the Foleys used to house the toucans. The Foleys requested a determination from the county zoning manager as to whether the ordinance under which the Foleys were cited was interpreted properly. The zoning manager determined that the ordinance was interpreted properly, and that the Foleys were required under the ordinance to obtain permits for the accessory buildings on their property. This was affirmed by the Board of Zoning Adjustment, the Board of County Commissioners, the Florida Ninth Judicial Circuit Court, and the Fifth District Court of Appeal.

The Foleys alleged a substantive due process violation: the County’s upholding of the zoning manager’s final determination of the interpretation of the ordinance. The Court said that the enforcement of a valid zoning ordinance is an executive, non-legislative act, which is not subject to substantive due process protections. Next, the court found that the Foleys could not establish a “class of one” equal protection claim, since they failed to identify a similarly situated comparator that was intentionally treated differently.

The Foleys alleged that their request for the zoning manager’s final determination and their various appeals amount to compelled and commercial speech. However, the Foleys’ voluntary actions did not constitute compelled or commercial speech because they did not amount to a government regulation that compelled them to express a message in which they did not agree, nor were they commercial in nature. Finally, the court held that the voluntary transfer of a possessory interest did not constitute a seizure under the Fourth Amendment. Accordingly, District Court lacked federal-question jurisdiction since these federal claims were absent a plausible foundation.

Foley v Orange County, 2016 WL 361399 (11th Cir. CA 1/29/16)


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