Posted by: Patricia Salkin | February 17, 2019

Eleventh Circuit Holds As-Applied Challenge to a Land-Use Statute Cannot Give Rise to a Substantive-Due-Process Claim

This post was authored by Matthew Loeser, Esq.

Pasco County passed Ordinance No. 11-15 with the goal of preserving, protecting, and providing for “the dedication and/or acquisition of right-of-way and transportation corridors that are necessary to provide future transportation facilities and facility improvements to meet the needs of projected growth.” Under this Ordinance, when an entity seeks a development permit for land that adjoins a transportation corridor the County requires a right-of-way dedication as a “condition of approval.” This “right-of-way dedication” is a dedication by the entity to the County of lands “within the development site or expanded development site which are within the transportation corridor.” In 2006, Hillcrest applied to the County to develop its property with a 83,000 square-foot retail shopping center and three commercial spaces. The County notified Hillcrest that pursuant to the Ordinance, it would require the dedication of 140 feet for the future development of State Road 52. In response, Hillcrest submitted a proposed site plan that had no improvement inside the 140-foot area, and reserved its rights to object to the dedication of any land without compensation. The County then approved the preliminary site plan.

After failing to reach an agreement concerning the dedication, Hillcrest filed a seventeen-count complaint in the District Court. The District Court granted summary judgment for Hillcrest on the facial substantive-due-process claim, but denied summary judgment on the as-applied claim. On appeal, the court vacated the District Court’s holding, and found that the claim was barred by the statute of limitations. In 2014, prior to the court issuing its decision in the first appeal, the parties entered into a partial settlement agreement. Pursuant to this agreement, in exchange for a 100-foot strip of Hillcrest’s property, the County would compensate Hillcrest $4.7 million. In exchange Hillcrest forfeited nearly all of its claims against the County, including its takings claim, but expressly reserved its as-applied substantive-due-process claim.

The court first noted that Hillcrest did not allege denial of any fundamental right in its substantive due-process claim. Additionally, Hillcrest did not assert an enumerated right allegedly infringed by an unconstitutional condition; instead, Hillcrest sued under substantive due process, which was unenumerated. In doing so, Hillcrest relied on Kentner v. City of Sanibel, 750 F.3d 1274, 1279−80 (11th Cir. 2014), which held “state-created rights are infringed by a ‘legislative act,’ the substantive component of the Due Process Clause generally protects that person from arbitrary and irrational government action.” Here, however, as Hillcrest challenged the application of the Ordinance, rather than anything inherent in its design, the County’s actions were characterized as executive, not legislative.

The court held that an as-applied challenge to a land-use statute never gives rise to a substantive-due-process claim when the sole basis for the challenge is allegedly arbitrary behavior that does not infringe on a fundamental right. Accordingly, regardless of how arbitrarily or irrationally the County allegedly acted with respect to Hillcrest, Hillcrest had no substantive-due-process claim. The District Court’s grant of summary judgment was therefore reversed.

Hillcrest Property, LLP v. Pasco County, 2019 WL 580259 (11th Cir CA 2/13/2019)

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