Hillcrest Property, LLP v. Pasco County

Case: 17-14789 Date Filed: 02/13/2019 Page: 1 of 44

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 17-14789
________________________

D.C. Docket No. 8:10-cv-00819-SDM-TBM

HILLCREST PROPERTY, LLP,

Plaintiff - Appellee,

versus

PASCO COUNTY,

Defendant - Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Florida
________________________

(February 13, 2019)

Before TJOFLAT, MARCUS, and NEWSOM, Circuit Judges.

TJOFLAT, Circuit Judge:

The question before us is whether a litigant in this Circuit has a substantive-

due-process claim under the Due Process Clause of the Fourteenth Amendment

when the alleged conduct is the unlawful application of a land-use ordinance. The
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answer to that question is a resounding “no”—an answer that this Court delivered

in McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994) (en banc), 24 years ago and

has reaffirmed ever since. We held in McKinney that executive action never gives

rise to a substantive-due-process claim unless it infringes on a fundamental right.

A land-use decision is classic executive, rather than legislative, action—action that,

at least here, does not implicate a fundamental right under the Constitution.

I.

We start by reviewing the ordinance at issue. We then discuss the

application of that ordinance to Plaintiff Hillcrest Property and the specific events

that give rise to this appeal.

A.

Pasco County (“the County”) passed Ordinance No. 11-15 (“the Ordinance”)

“to preserve, protect, and provide 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.” 1

Pasco County, Fla., Land Development Code ch. 900, § 901.2(A)(2). The County

found that “provision of an adequate transportation network is an essential public

1
A transportation corridor is “part of a network of transportation facilities and systems
which provide mobility between and access to businesses, homes, and other land uses throughout
the jurisdiction, region, and State.” Pasco County, Fla., Land Development Code ch. 900,
§ 901.2(A)(2).

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service.” Id. § 901.2(A)(2). The Ordinance aimed “to protect transportation

corridors from encroachment by structures or other development except under

special conditions.” Id. § 901.2(A)(6). It applies to all development of land that is

located on the County’s corridor-preservation map. Id. § 901.2(B)(1).

The corridor-preservation map includes all of the land that the County

believes will be required to adequately provide transportation, regardless of who

currently owns the land. When an entity seeks a development permit for land that

adjoins a transportation corridor, the County, as a “condition of approval,”

capitalizes on that need by requiring a right-of-way dedication, which 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.” Id.

§ 901.2(H)(1). The dedications must be “in accordance with the County Real

Estate Division requirements and free and clear of all liens and encumbrances.” Id.

Importantly, the land to be dedicated is “limited to the amount of land needed for

the planned transportation improvements.” 2 Id.

The Ordinance contemplates that disputes might arise between the entity and

the County and provides for waiver and appeal. An entity that believes that the

2
The amount of land needed is determined by the “Metropolitan Planning Organization
and Comprehensive Plan transportation element plans in effect at the time of dedication,” or if no
plans exist, by the “County-approved traffic study and collector/arterial spacing and design
standards for the development approval or development permit/order.” Id.

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County’s demanded dedication “exceeds the amount of land that is roughly

proportional to the transportation impacts to be generated by the proposed

development site” may apply to the development review committee for a

“dedication waiver.” Id. The procedures for seeking a waiver are largely the same

as those for seeking a variance. 3 Id. ch. 900, § 901.2(I)(2)(a). In its application for

a waiver, the entity must include the appraised value of the development site and

expanded development site, both before and after approval of the development; 4 a

traffic-impact study; and a list of transportation-mitigation measures taken or

required to be taken. Id.

The committee, upon finding that the “transportation requirement is not

roughly proportional to the transportation impacts of the proposed development

site or expanded development site” or that “any portion of the land required to be

dedicated . . . exceeds the amount of land that is roughly proportional to the

3
A variance is “limited relief” when “strict application” of the County’s code would
“create an unnecessary hardship” or would “render the land difficult to use because of some rare
and unique physical attribute of the property itself or some other factor unique to the property for
which the variance is requested.” Id. ch. 400, § 407.2(A)(1).
4
The development site is the “total area of the lot, tract, or parcel which is the subject of
an application for a Development Permit.” Id. § 901.2(D)(2). The expanded development site is
all development, parcels of land, lots, and tracts, including development, parcels
of land, lots, and tracts contiguous to or nearby the development site that are (1)
developed by the same or a related developer or landowner; or (2) developed as
part of the same zoning plan, preliminary plan, preliminary site plan, plat, or other
unified or common plan or development.
Id. § 901.2(D)(3).

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transportation impacts of the proposed development site or expanded development

site,” may proceed in one of two ways. Id. § 901.2(I)(4). One, it can authorize

compensation for the excess land. Id. Two, if it elects not to authorize

compensation, it must not require the entity to dedicate the excess land and must

permit it to use that land subject only to other generally applicable zoning

restrictions. Id.; see also id. § 901.2(I)(6).

The entity may appeal the committee’s decision to the Board of County

Commissioners. Id. § 901.2(I)(2)(a).

And this brings us to Hillcrest.

B.

Hillcrest Property owns 16.5 acres of undeveloped, commercially zoned land

in Pasco County, Florida.

In December 2006, Hillcrest applied to the County to develop its property

with a 83,000 square-foot retail shopping center and three commercial spaces. Just

over one year later, in February 2007, the County notified Hillcrest that pursuant to

the Ordinance, it would require the dedication of 50 feet for the future

development of State Road 52 (“the Road”) into four lanes. 5 The property at issue

shares a 1,400-foot border with the Road. Just a few months later, in May, the

5
As Hillcrest points out, however, the Comprehensive Plan designated the road and the
surrounding property as having an “acceptable level of roadway service” without the dedication.

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County then advised Hillcrest that a proposed shift in the Road by the Florida

Department of Transportation (“FDOT”) would require a dedication of an

additional 90 feet, bringing the total to 140 feet. The County was to compensate

Hillcrest for these additional 90 feet.

In July 2007, Hillcrest submitted a different proposed site plan that had no

improvement inside the 140-foot area. In so doing, Hillcrest reserved its rights to

object to the dedication of any land without compensation. The County approved

the preliminary site plan that August.

In June 2008, after having denied at least three of Hillcrest’s construction

plans for the site, the County approved a construction plan but conditioned

approval upon reaching an agreement on the dedication. Thereafter, the Magistrate

Judge tells us, things get hazy. What is clear is that Hillcrest and the County

continued to disagree on matters related to the dedication. And in January 2010,

the County supposedly told Hillcrest that it lacked the ability to compensate

Hillcrest the amount that it sought in compensation.

Hillcrest did not apply for a waiver or take any action in state court.

This suit ensued. Later in 2010, Hillcrest filed a seventeen-count complaint

in the District Court, as amended, alleging violations of both state and federal law.

The federal causes of action included claims under the Takings Clause of the Fifth

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Amendment, as incorporated by the Fourteenth Amendment, and facial and as-

applied substantive-due-process claims under the Fourteenth Amendment. 6

The crux of Hillcrest’s substantive-due-process claim is that the County

required the dedication “without . . . having first made an individualized

determination that the exaction was reasonably related both in nature and extent to

the traffic impacts of the proposed development,” “without . . . having clearly

demonstrated a reasonable connection or rational nexus between the need to 4-lane

[the Road] and the traffic generated by the development and between the exaction

and the benefits accruing to the development,” and

without . . . having first demonstrated that the need to widen [the
Road] to 4-lanes is substantial and demonstrably clear and present,
such that it definitely appears that Hillcrest’s proposed development
either forthwith or in the demonstrably immediate future will so
overburden [the Road] as to require its accelerated improvement, or
that the 4-laning of [the Road] is contemplated by the County or
FDOT for immediate improvement.

In July 2011, the parties filed cross motions for partial summary judgment

on numerous claims. These included motions by Hillcrest on the facial

substantive-due-process claim and the County on the as-applied claim. The

6
Teaser: the only claim that remains, the only claim at issue here, is an as-applied claim
that the Ordinance violates substantive due process, as guaranteed by the Fourteenth
Amendment.
The remaining counts have otherwise been resolved. The District Court dismissed some
and declined to exercise supplemental jurisdiction over others. The remainder were dismissed
with prejudice pursuant to a partial settlement agreement entered into by Hillcrest.

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Magistrate Judge, in March 2012 and upon referral from the District Court, issued

a report recommending that the Court grant both motions.

Just over one year later, in April 2013, the District Court granted summary

judgment for Hillcrest on the facial claim but denied summary judgment on the as-

applied claim (thus declining to follow the Magistrate Judge’s recommendation).

Pursuant to that decision, the Court permanently enjoined the County from

enforcing the portions of the Ordinance that are in dispute here.

The County appealed. A panel of this Court held that Hillcrest’s facial

substantive-due-process claim, which was the basis for the District Court’s

judgment, was barred by the statute of limitations. Hillcrest Prop., LLC v. Pasco

County, 754 F.3d 1279, 1283 (11th Cir. 2014). We accordingly vacated the

District Court’s order but expressed “no view as to the merits of Hillcrest’s

pending as-applied substantive due process claim.” Id.

The litigation continued. In April 2016, the parties filed cross-motions for

summary judgment on Hillcrest’s as-applied substantive-due-process claim. Then,

about a year and a half later, the District Court—riding on the back of the

Magistrate Judge’s March 2012 Report and Recommendation—granted Hillcrest’s

motion. Hillcrest Prop., LLP v. Pasco County, No. 8:10-CV-819-T-23TBM, 2017

WL 4342347, at *1 (M.D. Fla. Sept. 29, 2017).

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The District Court summarily concluded that “application of a facially

unconstitutional ordinance necessarily establishes a meritorious as-applied due-

process claim.” Id. at *2. The Court entered an award of $1 in nominal damages

in favor of Hillcrest—the only relief that Hillcrest had sought on this claim. Id.

Importantly, the District Court also allowed Hillcrest to move for attorneys’

fees. Id. Indeed, as counsel acknowledged at oral argument, this case is currently

about nothing but attorneys’ fees. Let us explain. In January 2014, before this

Court issued its decision in the first appeal, the parties to this case, in addition to

the FDOT, entered into a partial settlement agreement. In exchange for a 100-foot

strip of Hillcrest’s property, the County and the FDOT would together compensate

Hillcrest $4.7 million. Hillcrest, pursuant to the agreement, forfeited nearly all of

its claims against the County, including its takings claim, but expressly reserved its

as-applied substantive-due-process claim. As this litigation has stretched nearly

nine years, we can only imagine that the fees Hillcrest seeks to collect are

significant.

This second appeal ensued.

Because the Court still faces a case or controversy within the meaning of

Article III, even if the controversy is only over attorneys’ fees, the parties have

properly invoked our jurisdiction. As such, we must decide the one claim that

lingers and put this case to rest.

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II.

We review de novo a district court’s grant of a motion for summary

judgement, “viewing all of the facts in the record in the light most favorable to the

non-movant.” United States ex rel. Phalp v. Lincare Holdings, Inc., 857 F.3d

1148, 1153 (11th Cir. 2017) (quoting Haynes v. McCalla Raymer, LLC, 793 F.3d

1246, 1249 (11th Cir. 2015)). We affirm upon a showing that there is “‘no genuine

dispute as to any material fact’ such that ‘the movant is entitled to judgment as a

matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)).

III.

The Due Process Clause of the Fourteenth Amendment provides, “No state

shall . . . deprive any person of life, liberty, or property, without due process of

law.” U.S. Const. amend. XIV, § 1.

The Clause “extends beyond the command of fair procedures” and

comprises a “substantive component as well.” County of Sacramento v. Lewis, 523

U.S. 833, 856, 118 S. Ct. 1708, 1721 (1998) (Kennedy, J., concurring). As we

describe below, substantive due process has two strands—one that protects against

deprivation of fundamental rights and one that protects against arbitrary legislation.

Neither strand offers Hillcrest relief here.

A.

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The Due Process Clause protects “fundamental rights found to be deeply

rooted in our legal tradition,” Washington v. Glucksberg, 521 U.S. 702, 722, 117 S.

Ct. 2258, 2268 (1997), “that is, rights that are ‘implicit in the concept of ordered

liberty,’” McKinney, 20 F.3d at 1556 (quoting Palko v. Connecticut, 302 U.S. 319,

325, 58 S. Ct. 149, 152 (1937)). Absent a “compelling state interest” and an

infringement “narrowly tailored” to serve that interest, the government may not

violate those rights “at all, no matter what process is provided.” Glucksberg, 521

U.S. at 721, 117 S. Ct. at 2268 (quoting Reno v. Flores, 507 U.S. 292, 302, 113 S.

Ct. 1439, 1447 (1993)). These rights include “most—but not all—of the rights

enumerated in the Bill of Rights” and “certain unenumerated rights (for instance,

the penumbral right of privacy[)].” McKinney, 20 F.3d at 1556.

Hillcrest does not allege denial of any fundamental right. As we made clear

in McKinney, fundamental rights in the constitutional sense do not include “state-

created rights.” 7 Id. at 1560. McKinney applies to Hillcrest’s land-use claim that

is the subject of this suit. We explained in DeKalb Stone, Inc. v. County of

DeKalb, 106 F.3d 956 (11th Cir. 1997) (per curiam), that “land use rights, as

7
The McKinney plaintiff had been a “full-time permanent employee” of the state who
was subsequently terminated. Id. at 1554. He alleged that his termination was “pretextual,” that
he was terminated “without reason,” and thus that his termination “violated his ‘constitutional
employment rights’ and consequently denied him substantive due process of law.” Id. at 1555.
We held that “[b]ecause employment rights are state-created rights and are not ‘fundamental’
rights created by the Constitution, they do not enjoy substantive due process protection.” Id. at
1560.
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property rights generally, are state-created rights.” Id. at 959; see also Greenbriar

Vill., L.L.C. v. City of Mountain Brook, 345 F.3d 1258, 1263 (11th Cir. 2003) (per

curiam) (noting that “state-created rights . . . include land-use rights”). Under

circuit precedent, then, this seems to be an open-and-shut case.

Hillcrest seeks to evade McKinney and its progeny, however, by

distinguishing between “old property,” which substantive due process supposedly

protects, and “new property,” which it does not.8 The problem, of course, aside

from the fact that DeKalb Stone and Greenbriar Village foreclose the argument

altogether, is that neither the Supreme Court nor this Court draws a distinction

between old property and new property.

In Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701 (1972), the

Supreme Court observed, “Property interests, of course, are not created by the

Constitution. Rather they are created and their dimensions are defined by existing

rules or understandings that stem from an independent source such as state law.”

8
For readers unfamiliar with the concept of “new property,” see generally Charles A.
Reich, The New Property, 73 Yale L.J. 733 (1964). The core idea is that in a society “built
around entitlement,” Goldberg v. Kelly, 397 U.S. 254, 262 n.8, 90 S. Ct. 1011, 1017 n.8 (quoting
Charles A. Reich, Individual Rights and Social Welfare: The Emerging Legal Issues, 74 Yale
L.J. 1245, 1255 (1965) [hereinafter Social Welfare]), it is more appropriate “to regard welfare
entitlements as more like ‘property’ than a ‘gratuity,’” id. A classic example of new property is
government employment, which was the right at issue in Roth and McKinney. Other examples
are “subsidies to farmers and businessmen, routes for airlines and channels for television
stations; long term contracts for defense, space, and education; social security pensions for
individuals.” Goldberg, 397 U.S. at 262 n.8, 90 S. Ct. at 1017 n.8 (quoting Reich, Social
Welfare, supra, at 1255).

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Id. at 577, 92 S. Ct. at 2709; see also Barnhill v. Johnson, 503 U.S. 393, 398, 112

S. Ct. 1386, 1389 (1992) (“In the absence of any controlling federal law, ‘property’

and ‘interests in property’ are creatures of state law.”). Not only do Roth and its

progeny say nothing to limit the Roth principle to new property, but the Court has

extended the principle to old property on many occasions.9

Hillcrest also brings to our attention two decisions of the Supreme Court that

it believes supports its argument that land-use rights are fundamental rights:

Koontz v. St. Johns River Water Management District, 570 U.S. 595, 133 S. Ct.

2586 (2013), and Lynch v. Household Finance Corp., 405 U.S. 538, 92 S. Ct. 1113

(1972). Neither is apposite.

We start with Koontz, the case of more recent vintage. The unconstitutional-

conditions doctrine, which was Koontz’s focus, “vindicates the Constitution’s

enumerated rights by preventing the government from coercing people into giving

them up.” 570 U.S. at 604, 133 S. Ct. at 2594 (emphasis added). There, the

government would approve the plaintiff’s construction permit “only if” he agreed

9
For examples, see Phillips v. Wash. Legal Found., 524 U.S. 156, 164, 118 S. Ct. 1925,
1930 (1998) (principal in lawyer trust account); Delaware v. New York, 507 U.S. 490, 503, 113
S. Ct. 1550, 1558 (1993) (escheat claims); Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1029,
112 S. Ct. 2886, 2900 (1992) (lake bed); Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1003–04,
104 S. Ct. 2862, 2872 (1984) (trade secrets); Parratt v. Taylor, 451 U.S. 527, 529 n.1, 101 S. Ct.
1908, 1910 n.1 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 106 S.
Ct. 662 (1986) (hobby materials); Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155,
160, 101 S. Ct. 446, 450 (1980) (principal in court registry); Memphis Light, Gas & Water Div.
v. Craft, 436 U.S. 1, 9, 98 S. Ct. 1554, 1560 (1978) (creditor rights).

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to various concessions. Id. at 601, 133 S. Ct. at 2593. He declined. Id. at 602, 133

S. Ct. at 2593. There was, of course, no takings claim because “[w]here the permit

is denied and the condition is never imposed, nothing has been taken.” Id. at 608,

133 S. Ct. at 2597. But the problem is obvious: “[b]y conditioning a building

permit on the owner’s deeding over a public right-of-way, for example, the

government can pressure an owner into voluntarily giving up property for which

the Fifth Amendment would otherwise require just compensation.” Id. at 605, 133

S. Ct. at 2594. The “unconstitutional conditions doctrine prohibits” “[e]xtortionate

demands of this sort” because they “frustrate the Fifth Amendment right to just

compensation.” Id. at 605, 133 S. Ct. at 2595.

Koontz makes clear that an unconstitutional-conditions claim is its own

constitutional cause of action that is “predicated” on some other enumerated

constitutional right—in Koontz’s case “predicated on the Takings Clause.” Id. at

610, 133 S. Ct. at 2597.

Koontz thus does no work for Hillcrest here. Hillcrest did not assert an

enumerated right allegedly infringed by an unconstitutional condition; it sued

under substantive due process, which is unenumerated. Indeed, because the right is

unenumerated, the “guideposts for responsible decisionmaking in this unchartered

area are scarce and open-ended.” Glucksberg, 521 U.S. at 720, 117 S. Ct. at 2267

(quoting Collins v. City of Harker Heights, 503 U.S. 115, 125, 112 S. Ct. 1061,

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1068 (1992)). For precisely that reason, the Court has instructed us, pursuant to

“judicial self-restraint,” to “exercise the utmost care whenever we are asked to

break new ground in this field.” Collins, 503 U.S. at 125, 112 S. Ct. at 1068. In

short, Koontz does not apply to substantive due process, as it does to the Takings

Clause or to other enumerated constitutional rights.

We now turn to Hillcrest’s other precedent.

Lynch, for its part, states only that the “[a]cquisition, enjoyment, and

alienation of property” constitute “basic civil rights.” 405 U.S. at 544, 92 S. Ct. at

1118. As we explained in DeKalb Stone, however, though “property rights have

been important common law rights throughout history,” “common law rights are

not equivalent to fundamental rights, which are created only by the Constitution

itself.” 106 F.3d at 959 n.6. It is telling, moreover, that the “basic civil rights”

referenced in Lynch stem not from the Constitution but from the Civil Rights Act

of 1866. 405 U.S. at 543–44, 92 S. Ct. at 1117–18. So Lynch, too, fails to bridge

the gap between land-use rights and substantive due process.

B.

There is a second strand to substantive due process, one on which Hillcrest

hangs its case.

When “state-created rights are infringed by a ‘legislative act,’ the

substantive component of the Due Process Clause generally protects that person

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from arbitrary and irrational government action.” Kentner v. City of Sanibel, 750

F.3d 1274, 1279−80 (11th Cir. 2014) (quoting Lewis v. Brown, 409 F.3d 1271,

1273 (11th Cir. 2005) (per curiam)); see also Palko, 302 U.S. at 327, 58 S. Ct. at

153 (“[T]he legislative judgment, if oppressive and arbitrary, may be overridden by

the courts.”).

But not all state action is legislative. In McKinney, we emphasized the

“crucial . . . distinction between ‘legislative’ acts and ‘non-legislative’ or

‘executive’ acts.” 20 F.3d at 1557 n.9 (citation omitted). Whereas legislative acts

“generally apply to a larger segment of—if not all of—society,” executive acts

“characteristically apply to a limited number of persons (and often to only one

person).” Id. Examples of the former are “laws and broad-ranging executive

regulations”; examples of the latter are “ministerial or administrative activities of

members of the executive branch.”10 Id.

Hillcrest’s assertion that this Court recognizes a substantive-due-process

right that “protects essential rights in real property from arbitrary, capricious and

unreasonable land use regulation” fails to appreciate the McKinney distinction.

Hillcrest, seeking to overcome the distinction, cites Village of Arlington Heights v.

10
Hillcrest argues that this language is dicta because “McKinney was decided on the basis
that Ms. McKinney’s employment rights were state-created and therefore not protected by
substantive due process.” Hillcrest is wrong: McKinney required us to draw this distinction
because substantive due process does prohibit arbitrary legislative action, even if that action is
deprivation of a state-created right.

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Metropolitan Housing Development Corp., 429 U.S. 252, 97 S. Ct. 555 (1977),

which alluded to the “right to be free of arbitrary or irrational zoning actions,” id.

at 263, 97 S. Ct. at 562. But this snippet does not advance Hillcrest’s position.

First, the cited language is pure dicta; Arlington Heights, as every law student

learns, concerns equal protection, not substantive due process. Indeed, the Court—

in the very next sentence—explained that the “heart of this litigation,” id. at 263,

97 S. Ct. at 562, was the plaintiff’s equal-protection claim, which served as the

basis for the Court’s analysis. See id. Second, the Court’s citations for the quoted

language are to police-power cases, each of which involved challenges to

legislation, not to executive action. See Village of Euclid v. Ambler Realty Co.,

272 U.S. 365, 384, 47 S. Ct. 114, 117 (1926) (ordinance); Nectow v. City of

Cambridge, 277 U.S. 183, 185, 48 S. Ct. 447, 447 (1928) (same); Village of Belle

Terre v. Boraas, 416 U.S. 1, 3, 94 S. Ct. 1536, 1538 (1974) (same). 11 Arlington

11
Washington ex rel. Seattle Title & Trust Co. v. Roberge, 278 U.S. 116, 49 S. Ct. 50
(1928), another decision of the Supreme Court that Hillcrest flags, is yet another police-power
case. The Court applied the rule that “[l]egislatures may not, under the guise of the police power
impose restrictions that are unnecessary and unreasonable upon the use of private property or the
pursuit of useful activities.” 278 U.S. at 121, 49 S. Ct. at 52. Put differently, legislation, to be
legitimate, must “bear a substantial relation to the public health, safety, morals, or general
welfare.” Id. at 121, 49 S. Ct. at 51–52 (quoting Nectow, 277 U.S. at 188, 48 S. Ct. at 448).
Hillcrest cites a single line within the opinion: “The right of the trustee to devote its land
to any legitimate use is property within the protection of the Constitution.” Id. at 121, 49 S. Ct.
at 52. But that language has no significance here when the entire paragraph is devoted to
discussing whether the enactment at issue accords with the police power. See id. (evaluating the
constitutionality of the statute in light of “public health, safety, morals or general welfare” and
the “public interest”).

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Heights thus tells us nothing about Hillcrest’s claim here—a substantive-due-

process violation for allegedly arbitrary executive action. 12

In short, the McKinney distinction between legislative and executive action

is alive and well and as we explain below, fatal to Hillcrest’s substantive-due-

process claim in this case. First, the nature of the pleadings reveals that Hillcrest

challenges the application of the Ordinance, not anything inherent in its design. As

such, the County’s actions are characterized as executive, not legislative. Second,

and relatedly, Hillcrest pleads an as-applied violation of substantive due process.

But as-applied violations are always executive because the executive is responsible

for applying, or enforcing, the law. 13

1.

12
Hillcrest also proffers six decisions of this Circuit that purportedly identify a
fundamental right to use property in a particular manner. Of the six cases, three pre-date
McKinney. See Reserve, Ltd. v. Town of Longboat Key, 17 F.3d 1374 (11th Cir. 1994); Corn v.
City of Lauderdale Lakes, 997 F.2d 1369 (11th Cir. 1993); Eide v. Sarasota County, 908 F.2d
716 (11th Cir. 1990). We thus do not discuss these cases at all. The remaining three cases
involved substantive-due-process challenges to legislative acts. See New Port Largo, Inc. v.
Monroe County, 95 F.3d 1084, 1091 (11th Cir. 1996) (reasoning that the zoning decision at issue
was a “legislative judgment[]”); Restigouche, Inc. v. Town of Jupiter, 59 F.3d 1208, 1214 (11th
Cir. 1995) (evaluating under a two-part test whether the “legislation” at issue could have served a
legitimate purpose and whether the “legislation” could have furthered that purpose). Though the
Restigouche plaintiff brought an as-applied substantive-due-process challenge, 59 F.3d at 1211,
we made clear that we only “assumed arguendo some sort of vested right,” id. at 1215 n.7. So
too in Villas of Lake Jackson, Ltd. v. Leon County, 121 F.3d 610 (11th Cir. 1997), where we
assumed that the challenge was to a “legislative rather than an executive act.” Id. at 614.
13
To be clear, nothing about our holding limits a person’s ability to bring an as-applied
substantive-due-process challenge to executive action that infringes on fundamental rights. We
today speak only about state-created rights.

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The deprivation alleged in this case is quintessentially executive action, as

our prior land-use cases reveal.

In Lewis v. Brown, 409 F.3d 1271 (11th Cir. 2005) (per curiam), for

example, a family had purchased property that was zoned for agricultural use. Id.

at 1272. After purchasing it, the family applied to rezone the property for

residential use, use that would have been “consistent with the County’s land-use

plan.” Id. The government denied the family’s application. Id. The family

subsequently brought a substantive-due-process claim and alleged, as does

Hillcrest here, that the decision was “arbitrary and capricious.” Id. We affirmed

the District Court’s grant of the motion to dismiss for failure to state a claim. Id. at

1274. We reasoned that the decision was a “textbook ‘executive act’” given that

the action affected “only a limited class of persons, namely, the [plaintiffs].” Id. at

1273.

So too here. The whole of Hillcrest’s challenge, as alleged in their Amended

Complaint, is that the County “has applied [the Ordinance] . . . so as to require

Hillcrest to set aside or dedicate a substantial portion of the [p]roperty for the

benefit of the public for future use as a right of way.” Said in McKinney-speak, the

harm that allegedly results from the County’s action is harm only to Hillcrest.

Hillcrest argues that the County’s action here was “legislative or quasi-

legislative in nature.” It cites Kelo v. City of New London, 545 U.S. 469, 125 S. Ct.

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2655 (2005), which reasoned that in the context of eminent domain, “[o]nce the

question of the public purpose has been decided, the amount and character of land

to be taken for the project and the need for a particular tract to complete the

integrated plan rests in the discretion of the legislative branch.” Id. at 489, 125 S.

Ct. at 2668 (quoting Berman v. Parker, 348 U.S. 26, 35–36, 75 S. Ct. 98, 104

(1954)). But Kelo only strengthens the decision that we today lay down. There,

the city had passed a “development plan” that was intended to “revitalize an

economically distressed city.” 14 Id. at 472, 125 S. Ct. at 2658. The Court

explained that the “takings . . . would be executed pursuant to a ‘carefully

considered’ development plan.” Id. at 478, 125 S. Ct. at 2661 (citation omitted)

(emphasis added). What Hillcrest fails to grasp is that the development plan in

Kelo, like the Ordinance here, was legislative, but the application of that plan, like

the application of the Ordinance here to Hillcrest, was executive.15

2.

14
The plan, which obtained “state-level approval,” was created by a “private nonprofit
entity established some years earlier to assist the [c]ity in planning economic development.” Id.
at 473, 125 S. Ct. at 2659. The petitioner argued that the condemnation of her home violated the
“‘public use’ restriction in the Fifth Amendment.” Id. at 475, 125 S. Ct. at 2660.
15
The same problem plagues the other cases that Hillcrest brings to our attention. The
Supreme Court in Rindge Co. v. Los Angeles County, 262 U.S. 700, 43 S. Ct. 689 (1923), noted
that the “necessity and expediency of the taking . . . are legislative questions, no matter who may
be charged with their decision.” Id. at 709, 43 S. Ct. at 693 (quoting Bragg v. Weaver, 251 U.S.
57, 58, 40 S. Ct. 62, 63 (1919)). These cases involved the legislative authorization to take, not
the taking itself. Id. at 702, 43 S. Ct. at 691; Bragg, 251 U.S. at 58, 40 S. Ct. at 63. Hillcrest
here does not challenge the Ordinance itself but a specific application of the Ordinance—namely,
to Hillcrest.

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There is a more fundamental reason why, under our precedent, Hillcrest

lacks a substantive-due-process claim: it brings an as-applied challenge.16 Because

the role of the executive is to apply, or to enforce, statutes, any as-applied

challenge necessarily implicates executive, rather than legislative, action. The

Constitution, for example, requires the President to “take Care that the Laws be

faithfully executed.” U.S. Const. art. II, § 3. Cf. Springer v. Philippine Islands,

277 U.S. 189, 202, 48 S. Ct. 480, 482 (1928) (“Legislative power, as distinguished

from executive power, is the authority to make laws, but not to enforce them or

appoint the agents charged with the duty of such enforcement. The latter are

executive functions.”).

We drew this distinction between facial and as-applied challenges in

Kentner v. City of Sanibel, 750 F.3d 1274 (11th Cir. 2014). There, we reasoned

that the plaintiffs’ substantive-due-process challenge was to a “legislative act”

because the plaintiffs challenged the ordinance “on its face rather than contesting a

specific zoning or permit decision made under the auspices of the [o]rdinance.”

750 F.3d at 1280. As such, we deemed it not barred by McKinney. We implied in

Kentner what we now make clear today: an as-applied challenge to a land-use

16
At oral argument, counsel for Hillcrest reiterated the nature of its challenge: “The
bottom line here, Judges, is, ‘Can you codify extortionate leveraging of the police power in an
ordinance and then attempt to enforce it?’ And our position is that the attempt to enforce it is a
violation of substantive due process.” Oral Argument at 23:30, Hillcrest Prop., LLP v. Pasco
County, ___ F.3d ___ (2019) (No. 17-14789), https://goo.gl/sq4Bkv (emphasis added).

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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.

3.

We cannot be clearer on this point: regardless of how arbitrarily or

irrationally the County has acted with respect to Hillcrest, Hillcrest has no

substantive-due-process claim. Cf. Greenbriar Vill., L.L.C., 345 F.3d at 1263

(“[N]on-legislative deprivations of state-created rights, which would include land-

use rights, cannot support a substantive due process claim, not even if the plaintiff

alleges that the government acted arbitrary and irrationally. Constitutional due

process is satisfied for these deprivations when proper procedures are employed.”

(citations omitted)).

IV.

For these reasons, the application of the Ordinance to Hillcrest does not give

rise to a substantive-due-process claim. Because Hillcrest lacks a viable cause of

action, judgment as a matter of law is appropriate. The District Court’s grant of

summary judgment is therefore REVERSED.

SO ORDERED.

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NEWSOM, concurring in the judgment:

About 20 years ago now, an insightful (and hilarious) lawyer friend of mine

said to me—and because this is a family show, I’ll clean it up a bit—“Not

everything that s[tink]s violates the Constitution.” If ever a case proved the truth

of that little nugget, this is it.

I

A

First things first. What happened to Hillcrest here was pretty doggone

s[tink]y. In short: Hillcrest is the fee-simple owner of 16.5 acres of commercially

zoned land that fronts State Road 52 in Pasco County, Florida. Desiring to put the

land to good (and presumably profitable) use, Hillcrest sought a permit to develop

its property to include a retail shopping center and additional commercial space.

Despite the fact that the County’s own “Comprehensive Plan” described State

Road 52 and the adjacent areas as having an “acceptable level of roadway surface,”

Hillcrest was told that in order to obtain the permit, it would have to give the

County a 50-foot strip of land—70,000 square feet total—to accommodate the

road’s future widening. Hillcrest accordingly revised its site plan to account for

the 50-foot corridor. Just a few months later, though, having been notified that the

Florida DOT might want to shift the road’s path, the County demanded that

Hillcrest hand over an additional 90-foot band, bringing the required dedication’s

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grand total to 196,000 square feet—4.5 acres, more than a quarter of Hillcrest’s

total parcel. Over the course of the next few years, the parties continued to haggle,

the County continued to deny Hillcrest’s construction permits, and Hillcrest—

presumably feeling like it was trapped in some Ayn-Rand-ian nightmare—

eventually sued.

Sounds like a job for the Takings Clause, right? That provision states that

“private property” may not be “taken for public use . . . without just

compensation,” U.S. Const. amend. V, and has been interpreted to prohibit the

government from conditioning a development permit on a land exaction absent

solid proof that the exaction both (1) bears an “essential nexus” and (2) “is related

both in nature and extent” to the proposed development’s impact. See Nollan v.

California Coastal Comm’n, 483 U.S. 825, 834–37 (1987); Dolan v. City of

Tigard, 512 U.S. 374, 391 (1994). Unsurprisingly, in its original complaint,

Hillcrest alleged (among other causes of action) takings claims under both the

United States and Florida Constitutions, asserting that the “required set aside and

dedication amount[ed] to an uncompensated taking of private property for public

use requiring the County to pay Hillcrest just compensation.” For support,

Hillcrest cited Nollan and Dolan as indicative of the Supreme Court’s “concern

with,” among other things, the “extortionate leveraging of the police power by

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local government to obtain concessions from landowners that the government

would otherwise have to pay for itself.”

Hillcrest’s takings-based claims, though, never saw the light of day.

Hillcrest initially moved to abate its federal takings claim, acknowledging that it

first had to “pursue adequate state procedures for seeking just compensation” under

Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S.

172 (1985). Then, in conjunction with that exhaustion-of-remedies process,

Hillcrest filed an amended federal complaint from which it dropped its Fifth

Amendment takings claim. Several years later, the parties entered into a partial

settlement agreement pursuant to which Pasco County agreed to pay Hillcrest $4.7

million to resolve the takings-based claims.

Meanwhile, the federal-court litigation—minus the Takings Clause

allegation—chugged ahead, with Hillcrest continuing to press what, to my mind,

was the exact same claim parading under a different banner: “substantive due

process.” And the district court let it. By permitting Hillcrest to invoke

substantive due process to pursue what was in substance a Takings Clause claim—

a claim that, for its own reasons, Hillcrest had dropped from the lawsuit and would

eventually settle for good money—the district court clearly erred.

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B

The district court was (understandably) disgusted by the County’s treatment

of Hillcrest. Beginning with the summary judgment hearing, the district court

expressed profound “discomfort” with Pasco County’s conduct. It just “doesn’t sit

well,” the court said. “You look at this and it’s disturbing and you think, this is

just not right. Something—somewhere this is flawed, whether [or not] you know,

the theories happen to fit it.” In the end, the court concluded: “As I sit here, I don’t

quite know whether [the case] fits in any of these [constitutional] slots that [the

lawyers] have laid out, but I’m not sure it shouldn’t . . . . And I’m not sure that if

it doesn’t fit into one of them that I’m not going to find the one it’s closest to and

give the Circuit Court of Appeals an opportunity to say that it should land there.”

Memorializing its disgust—and reasoning—in a written order, the district court

held:

Another judge might find . . . this opinion inexact in this or that
particular of constitutional law. Nonetheless, this Ordinance
[pursuant to which the County demanded the exaction] is an
unmistakable, abusive, and coercive misapplication of governmental
power, perpetrated to cynically evade the Constitution. The
Ordinance cannot stand, whether for the precise reasons stated here or
for a related reason.
Translation: What Pasco County did here s[tink]s to high heaven; ergo, it must be

unconstitutional—if not under the Takings Clause, because Hillcrest’s takings-

based claim had evaporated with its amended complaint, then on some (any) other

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basis. The basis that the district court chose—the constitutional “slot[]” into which

it slid Hillcrest’s case—was substantive due process.

That’s not how constitutional law works. Whatever other role substantive-

due-process doctrine may play, it is not a stand-in for a failed, forfeited, or (even

worse) settled Takings Clause claim. The district court should have seen this case

for what it is: a not-so-veiled attempt to revive its dropped (and eventually settled)

Takings Clause claim and to infuse it with new substantive-due-process life. The

fact that Hillcrest sought to do so—and that the district court let it, relying on

substantive-due-process doctrine as a failsafe for remedying actions that “do[n’t]

sit well” or that are “just not right,” speaks volumes about the doctrine’s

slipperiness.

C

1

Substantive due process, of course, has been criticized by a wide variety of

people for a wide variety of reasons. First, and most obviously, there’s the pesky

issue of constitutional text. As John Hart Ely colorfully remarked, “there is simply

no avoiding the fact that the word that follows ‘due’ is ‘process.’” John Hart Ely,

Democracy and Distrust: A Theory of Judicial Review 18 (1980). “[W]e

apparently need periodic reminding,” he said—providing the reminder—“that

‘substantive due process’ is a contradiction in terms—sort of like ‘green pastel

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redness.’” Id. Others—from one end of the jurisprudential spectrum to the

other—have made the same basic observation. See, e.g., United States v. Carlton,

512 U.S. 26, 39 (1994) (Scalia, J., concurring in the judgment) (calling substantive

due process “an oxymoron”); Laurence H. Tribe, American Constitutional Law §

7-5, at 1317 (3d ed. 2000) (referring to “the textual gymnastics arguably necessary

to find protection of substantive rights in a provision whose words seem most

apparently concerned with process”).

Second, there’s the matter of history. The best indications are that those

who framed the Fourteenth Amendment’s Due Process Clause envisioned it as a

guarantee (as its phrasing and moniker indicate) of fair process, not a font of

substantive rights. During the floor debates on the Fourteenth Amendment,

Congressman John Bingham—the principal draftsman of the Amendment’s

Section 1—responded to a question about the meaning of the Due Process Clause:

“[T]he courts have settled that long ago, and the gentleman can go and read their

decisions.” Cong. Globe, 39th Cong., 2d Sess. 1089 (1866). The most prominent

of those “decisions” was undoubtedly Murray’s Lessee v. Hoboken Land &

Improvement Co., 59 U.S. (18 How.) 272 (1855), which the Supreme Court

decided in 1856 and which, just a decade later, was the definitive statement on the

meaning of the phrase “due process of law.” The Court there construed the

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materially identical terms of the Fifth Amendment’s Due Process Clause solely in

procedural terms. Specifically, the Court said:

To what principles, then, are we to resort to ascertain whether this
process, enacted by congress, is due process? To this the answer must
be twofold. We must examine the constitution itself, to see whether
this process be in conflict with any of its provisions. If not found to
be so, we must look to those settled usages and modes of proceeding
existing in the common and statute law of England, before the
emigration of our ancestors . . . .

Id. at 276–77 (emphasis added); see also, e.g., Akhil Reed Amar, The Bill of

Rights: Creation and Reconstruction 173 (1998) (describing Murray’s Lessee as a

“procedural due process” case).

Third, pedigree. At least in the Supreme Court, substantive-due-process

doctrine traces its roots to the fateful—and repugnant—decision in Dred Scott v.

Sandford, 60 U.S. (19 How.) 393 (1857). Invalidating the Missouri Compromise

as violative of the Fifth Amendment’s Due Process Clause, the Court observed that

“an Act of Congress which deprives a citizen of the United States of his liberty or

property, merely because he came himself or brought his property”—which was to

say, another human being—“into a particular Territory of the United States, and

who had committed no offen[s]e against the laws, could hardly be dignified with

the name of due process of law.” Id. at 450. Tellingly, the Court voiced no

particular objection to the procedures by which Congress had enacted the Missouri

Compromise; rather, it simply concluded that, somehow or another, the substance

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of the act must have infringed a white man’s “right” to own a black man. Yuck.

Fast forward about half a century and you arrive at a second pillar of substantive-

due-process jurisprudence, Lochner v. New York, 198 U.S. 45 (1905). There, the

Court invalidated a state statute establishing maximum work hours for bakers as

violating the “general right to make a contract in relation to . . . business.” Id. at

53. Again, the procedures employed in enacting the law were just fine; even so,

the Court held that the law was substantively unreasonable and, therefore, that it

simply had to be unconstitutional. Double yuck.

Finally, in addition to the textual, historical, and ancestral difficulties that

plague modern substantive-due-process jurisprudence, the Supreme Court has also

emphasized a very real practical problem: The “guideposts for responsible

decisionmaking in this unchartered area are scarce and open-ended.” Collins v.

City of Harker Heights, 503 U.S. 115, 125 (1992). Put simply, there is always a

risk that a court asked to recognize a substantive-due-process violation—but

without traditional interpretive guardrails—will simply read into the Constitution

its own view of good government. Accordingly, the Supreme Court has

emphasized, “[t]he doctrine of judicial self-restraint requires us to exercise the

utmost care whenever we are asked to break new ground in this field.” Id.

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2

One important way in which the Supreme Court has set out to “restrain[]”

substantive-due-process decisionmaking—significant for present purposes—is by

holding, repeatedly, that “[w]here a particular Amendment ‘provides an explicit

textual source of constitutional protection’ against a particular sort of government

behavior, ‘that Amendment, not the more generalized notion of “substantive due

process,” must be the guide for analyzing these claims.’” Albright v. Oliver, 510

U.S. 266, 273–74 (1994) (plurality) (quoting Graham v. Connor, 490 U.S. 386,

395 (1989)). Put slightly differently, “if a constitutional claim is covered by a

specific provision”—the Fourth Amendment, the Eighth Amendment, etc.—“the

claim must be analyzed under the standard appropriate to that specific provision,

not under the rubric of substantive due process.” United States v. Lanier, 520 U.S.

259, 272 n.7 (1997). More specifically, and more pertinently here, substantive due

process “cannot” “do the work of the Takings Clause.” Stop the Beach

Renourishment, Inc. v. Florida Dep’t of Envtl. Prot., 560 U.S. 702, 721 (2010)

(plurality) (citing Albright and Graham).

Bottom line: Whatever its proper office—and, as noted, there’s plenty of

debate about that—substantive due process does not exist to duplicate (or insure, as

it were) claims appropriately pursued under other constitutional guarantees. If a

claim properly fits within a specific constitutional provision, then it must rise or

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fall on the doctrine that applies to that provision. If (for whatever reason) the

claim can’t proceed in its natural textual and doctrinal “home,” then, well, it can’t

proceed. The claimant can’t just repackage it in substantive-due-process garb and

attempt to relitigate it.

In that respect at least, this case represents substantive due process at its

abject worst. At its core, this has always—always—been a Fifth Amendment

Takings Clause case. Hillcrest contests Pasco County’s insistence that, as the price

for developing its roadside parcel, it surrender 196,000 square feet—some 4½

acres—of its land. Put simply, Hillcrest’s is a “land-use exaction” claim—which,

as the Supreme Court has clarified, is one of the quintessential means by which “a

plaintiff [can] challenge a government regulation as an uncompensated taking of

private property” under the Fifth Amendment. Lingle v. Chevron U.S.A., Inc., 544

U.S. 528, 548 (2005).

But don’t just take my word for it. Listen to how the magistrate judge and

the district court described Hillcrest’s arguments. To begin, the magistrate judge—

even while resolving the case on substantive-due-process grounds—summarized

the nub of Hillcrest’s position as based in Takings Clause principles:

Hillcrest maintained that the dedication requirement resulted in an
unconstitutional taking of its property and that it should be
compensated for the 140-foot clear space it is required to dedicate to
the County in exchange for its development permit/order. When the
parties failed to resolve the dispute over compensation, this suit was
filed.
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R. & R., Doc. 168 at 14 (emphasis added). Explaining what he viewed as the

constitutional infirmity, the magistrate said that Ordinance No. 11-15 “compelled

[landowners] to surrender private property without compensation as a condition of

development approval or permitting.” Id. at 26 (emphasis added). The

Ordinance’s “dedication provision,” he continued, “is no mere regulation of land

use but rather a calculated measure by the County to avoid the burdens and costs of

eminent domain and take private property without just compensation.” Id. at 26–

27 (emphasis added). The Ordinance, the magistrate held, “commands that certain

landowners be forced ‘to bear the public burdens which, in all fairness and justice,

should be borne by the public as a whole,’ the very thing the Takings Clause of the

United States Constitution and the equivalent provision of the Florida Constitution

are intended to prevent.” Id. at 27–28 (emphasis added).

Tellingly, throughout his report—and to support his conclusion that the

Ordinance violates substantive due process—the magistrate judge relied on the

Supreme Court’s decisions in Nollan v. California Coastal Commission, 483 U.S.

825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994), both of which, as

already explained, addressed the constitutionality of land-use exactions under the

Takings Clause. See Doc. 168 at 15–16, 17, 24–25, 27, 29. The magistrate judge

said (vaguely) that “[w]hile Nollan and Dolan do not set forth the applicable

standard”—presumably because they are Takings Clause cases—they “help inform

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the due process analysis.” Id. at 25. Notably, however, when it came to explaining

precisely why the Ordinance violated substantive-due-process principles, the

magistrate judge reverted back to a takings-based analysis: “[T]he scheme itself

violates due process because it is inconsistent with, and permits the County to

avoid its obligations under, the Takings Clause of the Fifth and Fourteenth

Amendments of the United States Constitution and Article X, Section 6 of the

Florida Constitution.” Id. at 29 (emphasis added).

The district court’s decision delivered more of the same. On the very first

page of its order, that court criticized Ordinance No. 11-15 as part of “a most

uncommon regulatory regime” designed “to avoid the payment of ‘just

compensation’ after acquiring . . . necessary land by eminent domain.” Order

adopting R. & R., Doc. 196 at 1 (emphasis added). In particular, the court said:

“[T]o avoid the nettlesome payment of ‘just compensation,’ the Ordinance

empowers Pasco County to purposefully leverage the permitting power to compel a

landowner to dedicate land encroached by a transportation corridor. In Pasco

County, if there is no free dedication, there is no permit.” Id. at 2 (emphasis

added). Perhaps most revealingly, the district court observed, even while noting

that by the time that it issued its order Hillcrest was “assert[ing] no federal takings

claim,” that “Hillcrest’s core argument invokes two United States Supreme Court

cases”—yes, Nollan and Dolan—“that consider whether a government’s requiring

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land in exchange for development approval violates the Fifth Amendment’s

Takings Clause, applied to the states through the Fourteenth Amendment.” Id. at

14–15 (emphasis added). Indeed, the district court went so far as to conclude that

“[u]nder the Takings Clause the infirmity of the Ordinance is clear,” id. at 35, and,

further, that “an exaction athwart Nollan and Dolan results in an uncompensated

taking and not a deprivation of due process,” id. at 37 (emphasis added). What

made this case “different,” the court said—what took it out of the Takings Clause

bucket and put it into the substantive-due-process bucket—was that here, “by

legislative fiat, Pasco County use[d] a development permit to compel a landowner

either to convey valuable land for free or to submit to a regime castigated by

Dolan,” and thereby “wield[ed] the police power to compel a landowner’s

abandoning rights guaranteed by the Takings Clause.” Id. I’ll have to confess that

I’m having a hard time seeing the doctrinal space—between where the Takings

Clause leaves off and substantive-due-process doctrine picks up—that the district

court found conclusive.

Tellingly, even in its appellate brief Hillcrest continues to focus on takings-

based arguments, asserting time and again—buttressed by citations to Nollan and

Dolan—that Ordinance No. 11-15 deprives it of “the right to be compensated for a

taking.” Br. for Appellees at 27; see also id. at 33, 37 (same); id. at 39 (contending

that the County violated Hillcrest’s fundamental right to be free of “extortionate,

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arbitrary[,] and irrational regulation and to be compensated for taking of

property”). To be sure, Hillcrest now contends that Nollan and Dolan were not

Takings Clause cases per se, but rather “unconstitutional conditions” cases. And

it’s true that both decisions involved the unconstitutional-conditions doctrine. But

as any faithful reading will attest, both fundamentally implicated landowners’

rights under the Takings Clause.

Again, rather than telling, I’ll show. In Nollan, for instance, the Supreme

Court framed the question as whether, consistent with “the Takings Clause of the

Fifth Amendment,” a state agency “could condition its grant of permission to

rebuild [a] house on [the homeowners’] transfer to the public of an easement across

their beachfront property.” 483 U.S. at 827. The Court observed that if the state

had required the homeowners to grant the easement outright there is “no doubt

there would have been a taking.” Id. at 831. “[C]onditioning their permit to

rebuild their house on their agreeing” to the easement did not “alter[] the

outcome,” the Court held, because there was no “essential nexus” between the

projected impact of constructing a larger house—e.g., obstructed views from the

road—and the exaction demanded of the homeowners—i.e., an easement that

would allow the public to cross their property along the water’s edge. Id. at 834–

37. Takings Clause, through and through.

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Similarly, in Dolan, the Court considered the question whether, under the

Takings Clause, a city “could condition the approval of [a business owner’s]

building permit on the dedication of a portion of her property for flood control and

traffic improvements”—and, in particular, the question of “the required degree of

connection between the exactions imposed by the city and the projected impacts of

the proposed development.” 512 U.S. at 377. The Court opened its analysis by

quoting the Takings Clause in full and reiterating (just as Hillcrest and district

court have here, see Doc. 196 at 24; Br. for Appellees at 14) that “[o]ne of the

principal purposes of the Takings Clause is ‘to bar Government from forcing some

people alone to bear public burdens which, in all fairness and justice, should be

borne by the public as a whole.’” Id. at 384 (quoting Armstrong v. United States,

364 U.S. 40, 49 (1960)). The Court held that before a government agency can

condition a building permit on a property owner’s dedication of a portion of her

parcel, it must, in order to comply with “the Fifth Amendment,” make “some sort

of individualized determination that the required dedication is related both in

nature and extent to the impact of the proposed development.” Id. at 391.

So let’s be clear: Nollan and Dolan—the linchpins of the magistrate judge’s

R&R, the district court’s decision, and Hillcrest’s argument on appeal—are

Takings Clause cases. As the Supreme Court subsequently summarized in Lingle,

“[b]oth Nollan and Dolan involved Fifth Amendment takings challenges to

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adjudicative land-use exactions—specifically, government demands that a

landowner dedicate an easement allowing public access to her property as a

condition of obtaining a development permit.” 544 U.S. at 546. That description

pretty much precisely captures this case: Just like the plaintiffs in Nollan and

Dolan, Hillcrest is complaining that Pasco County has required it to relinquish a

portion of its property as a condition for obtaining a development permit.

* * *

Back to the beginning, then: Why aren’t we talking about the Takings

Clause? And why are we talking about substantive due process? Because

although Hillcrest initially brought a takings claim, it then dismissed that claim

(pending the resolution of parallel litigation in state court) and then eventually

settled it for $4.7 million. Having done so, Hillcrest now wants a second bite at the

apple—in essence, a chance to recover again—under the auspices of substantive

due process. No way.

The way I see it, Hillcrest’s substantive-due-process claim fails as a matter

of law because, whatever else it may currently be permitted to do, substantive-due-

process doctrine cannot be permitted to stand in for a failed or forfeited Takings

Clause claim. And it certainly can’t be deployed to allow a litigant to double-dip

and cash in on a takings claim and then relitigate what is for all intents and

purposes the exact same claim under another label.

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Accordingly, albeit by a different route, I too conclude that the district

court’s decision must be reversed.

II

Having explained my own reasons for concluding that Hillcrest’s

substantive-due-process claim fails as a matter of law, let me briefly explain a

reservation that I have about one of the key “moves” that underlies the majority’s

analysis. To be clear, I think the majority has it exactly right under our existing

precedent. I’m just not convinced that our precedent has it exactly right.

The majority first holds, in Part III.A. of its opinion, that the property

interest asserted by Hillcrest here—a “land-use claim”—is a mere “state-created

right” that doesn’t warrant heightened constitutional protection. Maj. Op. at 11.

Under our decisions in DeKalb Stone, Inc. v. County of DeKalb, 106 F.3d 956

(11th Cir. 1997) (per curiam), and Greenbriar Village, L.L.C. v. Mountain Brook,

345 F.3d 1258 (11th Cir. 2003) (per curiam)—the latter of which is effectively on

point—I’m convinced the majority is correct about that. 17 Having so concluded,

17
I hasten to add, however, that I reject any suggestion—typically attributed to the oft-repeated-
but-rarely-explained dictum that “[p]roperty interests . . . are not created by the Constitution” but
“[r]ather . . . are created and their dimensions . . . defined by existing rules or understandings that
stem from an independent source such as state law,” Board of Regents v. Roth, 408 U.S. 564, 577
(1972)—that all property rights, no matter how traditional, exist by the state’s grace and at its
pleasure. To the contrary, I share Judge O’Scannlain’s view that “there is . . . a ‘core’ notion of
constitutionally protected property into which state regulation simply may not intrude without
prompting” substantive constitutional scrutiny—under either the Takings Clause or (as matters
currently stand) the Due Process Clause. Schneider v. Cal. Dep’t of Corrs., 151 F.3d 1194, 1200
(9th Cir. 1998).
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the majority then proceeds, in Part III.B., to reiterate and enforce what we have

called the “crucial . . . distinction”—first recognized in McKinney v. Pate, 20 F.3d

1550, 1557 (11th Cir. 1994) (en banc)—“between ‘legislative’ acts and ‘non-

legislative’ or ‘executive’ acts.” Maj. Op. at 16 (quoting McKinney, 20 F.3d at

1557 n.9). It’s this legislative-executive distinction that I’d like to address briefly.

In short, the distinction (as accurately summarized by the majority) is as

follows: “When [a person’s] ‘state-created rights are infringed by “legislative act,”

the substantive component of the Due Process Clause generally protects that

person from arbitrary and irrational government action.’” Maj. Op. at 15 (citations

omitted). When, by contrast, a state-created right is violated by executive act, the

Due Process Clause provides no substantive protection—even against arbitrary and

irrational government conduct. Because the County’s permit-denying conduct here

was “quintessentially executive action,” the majority concludes, Hillcrest has no

claim “regardless of how arbitrarily or irrationally the County has acted.” Id. at 19,

22.

I agree that Hillcrest is challenging non-legislative, executive conduct

here—it’s pressing an as-applied claim against the enforcement of Ordinance No.

11-15. Accordingly, I also agree that under our precedent Hillcrest enjoys no

substantive-due-process protection. And of course I’ve already confessed my view

that substantive due process is a dubious doctrine that should be cabined, not

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expanded. Having said that, though, I further confess that I don’t fully understand

the distinction that we’ve drawn between legislative and executive action.

We initially articulated the distinction—in a footnote—in McKinney.

“Executive acts,” we explained, “characteristically apply to a limited number of

persons (and often to only one person).” 20 F.3d at 1557 n.9. They “typically

arise,” we said, “from the ministerial or administrative activities of members of the

executive branch.” Id. “Legislative acts, on the other hand, generally apply to a

larger segment of—if not all of—society; laws and broad-ranging executive

regulations are the most common examples.” Id. In the years since McKinney, we

have repeated (and repeated and repeated—but without further explaining) this

distinction between legislative and executive acts. See, e.g., Kentner v. City of

Sanibel, 750 F.3d 1274, 1279–80 (11th Cir. 2014); Lewis v. Brown, 409 F.3d 1271,

1273 (11th Cir. 2005); Greenbriar, 345 F.3d at 1263; DeKalb Stone, 106 F.3d at

959–60.

I have no real quarrel with the way we defined and categorized legislative

and executive actions in McKinney. I agree that, in the main, legislative acts apply

generally to (and across) a broad swath of people, whereas executive acts are

aimed at only one or a few. What I don’t understand is why we should think that

the Constitution provides less protection against executive than legislative

infringements. There’s certainly no textual basis for the distinction; the Due

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Process Clause says that no “state”—presumably meaning any branch thereof—

shall “deprive any person of life, liberty, or property, without due process of law.”

U.S. Const. amend. XIV, § 1. Nor, so far as I’m aware, have we ever tried to

justify the legislative-executive distinction on historical grounds. And worse, as a

practical matter, the distinction that we’ve drawn—such that the Clause protects

against arbitrary and irrational legislative acts, but not against abusive executive

conduct—arguably gets matters precisely backwards. As between the two, it

seems to me, executive action—which, by its nature, is individual, targeted, and

one-off, rather than broadly and generally applicable—holds the greater potential

for abuse. If a piece of arbitrary legislation threatens to gore many oxen at once,

the ox owners have a fighting chance of exercising enough political muscle to stop

it; the lonely individual whose ox is gored by abusive executive action has next to

none.

And while it may be true that executive acts “typically” arise from

“ministerial or administrative” undertakings, they can also entail exercises of

substantial discretion. This is a case in point. Though perhaps not quite boundless,

it’s clear that the County’s Development Review Committee has wide latitude in

the way that it enforces and effectuates Ordinance No. 11-15. As the magistrate

judge noted in his R&R, “[t]he DRC has the [sole] authority to approve

preliminary site plans, place conditions on such approval, and to exact right-of-

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ways” under the Ordinance. So too, the DRC alone decides whether a property

owner has sufficiently proven that the dedication isn’t “roughly proportional” to

the development’s likely transportation impacts, and accordingly, whether to

compensate the owner or grant a waiver. As this sad story demonstrates, the

sweeping discretion given to the DRC creates the very real threat of arbitrary and

abusive decisionmaking at every step of the permitting process. 18

18
Prudential considerations aside, McKinney’s holding—that at least insofar as land-use claims
are concerned there can be no substantive-due-process claim against even the most abusive
executive action—is at least arguably inconsistent with intervening Supreme Court precedent. In
the City of Cuyahoga Falls v. Buckeye Community Hope Foundation, the Court addressed a
substantive-due-process challenge to a city engineer’s refusal to issue development permits to a
property owner. 538 U.S. 188, 198 (2003). In rejecting the claim, the Court declined to reach
the question whether the property owner had a protectable interest in the permits “because the
city engineer’s refusal to issue the permits . . . in no sense constituted egregious or arbitrary
government conduct.” Id. (citing Cty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)). The
Court’s reliance on Lewis—a § 1983 case involving a substantive-due-process claim concerning
an alleged police-involved wrongful death—is telling, as it would seem to foreclose any
suggestion that a similar analysis is out-of-place when property (rather than life or liberty) is at
issue. Quoting Lewis, the Court in Buckeye observed that in evaluating “abusive executive
action . . . only the most egregious official conduct can be said to be ‘arbitrary in the
constitutional sense.”’ Id. (quoting Lewis, 523 U.S. at 846). Thus, it would seem, while our
review of executive action in substantive-due-process cases must be exceedingly (and
appropriately) deferential, that review is not nonexistent, such that challenges to executive action
fail “regardless of how arbitrar[y] or irrational[]” that action may be. Maj. Op. at 21.

In the years since Buckeye, other circuits addressing land-use cases have acknowledged
that executive acts are reviewable, even if under a deferential standard. See, e.g., Onyx
Properties LLC v. Bd. of Cty. Comm’rs of Elbert Cty., 838 F.3d 1039, 1048–49 (10th Cir. 2016)
(stating, in a zoning case, that “[w]hen analyzing executive action, ‘only the most egregious
official conduct can be said to be arbitrary in the constitutional sense”’) (quoting Lewis, 523 U.S.
at 846); Shanks v. Dressel, 540 F.3d 1082, 1088 (9th Cir. 2008) (holding that “[w]hen
executive action like a discrete permitting decision is at issue, only ‘egregious official conduct
can be said to be “arbitrary in the constitutional sense”’ . . . it must amount to an ‘abuse of
power’ lacking any ‘reasonable justification in the service of a legitimate governmental
objective’” (quoting Lewis, 523 U.S. at 846 and citing Buckeye, 538 U.S. at 198)).
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Again, though, this question—whether it makes sense to subject legislative

but not executive action to (even minimal) scrutiny under the substantive

component of the Due Process Clause—is one for another day. Today, McKinney

controls, and (rightly or wrongly) that decision clearly holds, as the majority

summarizes, that “executive action never gives rise to a substantive-due-process

claim unless it infringes on a fundamental right.” Maj. Op. at 2 (emphasis added).

Under our precedent, Hillcrest’s challenge to the Ordinance’s application here does

not implicate any fundamental right, and it clearly assails executive action.

Accordingly, just as the majority says, its claim is DOA.

III

For the foregoing reasons, I concur in the judgment of reversal.

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