[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
April 11, 2005
No. 04-15335 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00330-CV-RLV-4
EARLE B. LEWIS,
BUTTON LEWIS,
TERRY LEWIS,
Plaintiffs-Appellants,
versus
CLARENCE BROWN, in his Official
Capacity as Bartow County Commissioner,
BARTOW COUNTY, GEORGIA,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(April 11, 2005)
Before CARNES, HULL and WILSON, Circuit Judges.
PER CURIAM:
This case presents the issue of whether a county commissioner’s decision to
deny the application of three landowners to re-zone their property is an executive
or legislative decision. Because we agree with the district court that the county
commissioner’s decision is executive, we affirm that court’s decision to dismiss
the landowners’ complaint for failure to state a claim.
I.
Earle B. Lewis, Button Lewis, and Terry Lewis jointly own 272 acres of
land in unincorporated Bartow County, Georgia. When they purchased the land it
was zoned by Bartow County as agricultural.
The Lewises filed an application with Bartow County to re-zone the 272
acres as residential. They wanted to develop the property as single family homes,
which was consistent with the County’s land-use plan but not with the existing
zoning of the property.
Clarence Brown, as the sole member of the Bartow County Commission,
denied the Lewises’ request to re-zone the property. The Lewises allege that this
decision was “arbitrary and capricious” and “does not bear a substantial relation to
2
the public health, safety, morals, or general welfare, and is therefore an invalid
exercise of the police power.” (R.1:4:3–4).
The Lewises filed this lawsuit seeking an injunction against Brown
“directing [him] to re[-]zone the Property in a constitutional manner consistent
with the Bartow County land use plan.” (R.1:4:4). The district court granted
Brown’s motion to dismiss the suit for failure to state a claim. The Lewises
appeal.
II.
The Lewises contend here, as they did before the district court, that Brown
violated their substantive due process right to be free from arbitrary, capricious,
and irrational legislation.
“The substantive component of the Due Process Clause protects those rights
that are ‘fundamental,’ that is, rights that are ‘implicit in the concept of ordered
liberty.’” McKinney v. Pate, 20 F.3d 1550, 1556 (11th Cir. 1994) (en banc)
(quoting Palko v. Connecticut, 302 U.S. 319, 325, 58 S. Ct. 149, 152 (1937)). The
Supreme Court “has always been reluctant to expand the concept of substantive
due process because guideposts for responsible decisionmaking in this uncharted
area are scarce and open-ended.” Id. (quoting Collins v. City of Harker Heights,
503 U.S. 115, 125, 112 S. Ct. 1061, 1068 (1992)).
3
In particular, “areas in which substantive rights are created only by state law
(as is the case with tort law and employment law) are not subject to substantive
due process protection under the Due Process Clause because ‘substantive due
process rights are created only by the Constitution.’” Id. (quoting Regents of
Univ. of Mich. v. Ewing, 474 U.S. 214, 229, 106 S. Ct. 507, 515 (1985) (Powell,
J., concurring)). The list of state-created rights is not limited to tort and
employment law, and has been held by this Court to include land-use rights like
the zoning restrictions at issue here. See Greenbriar Village, L.L.C. v. Mountain
Brook, City, 345 F.3d 1258, 1262 (11th Cir. 2003) (“‘Property interests 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.’” (quoting Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.
Ct. 2701, 2709 (1972)).
To this general rule that “areas in which substantive rights are created only
by state law are not subject to substantive due process protection,” there is an
exception which the Lewises contend applies to them: Where an individual’s
state-created rights are infringed by “legislative act,” the substantive component of
the Due Process Clause generally protects him from arbitrary and irrational action
by the government. See McKinney, 20 F.3d at 1557 n.9. The legislative nature of
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the act is key. “[N]on-legislative,” or executive, “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 arbitrarily
and irrationally. Constitutional due process is satisfied for these deprivations
when proper procedures are employed.” Greenbriar Village, L.L.C., 345 F.3d at
1263 (citing McKinney, 20 F.3d at 1559). Thus, this case turns on whether
Brown’s decision was a legislative act or an executive act.
While the actions of some government officials can easily be categorized as
legislative or executive, for others, like county commissioners who act in both a
legislative and executive capacity, sorting out which hat they were wearing when
they made a decision can be difficult. In McKinney, we established a test, culled
from prior Supreme Court precedents, to help distinguish executive from
legislation acts:
Executive acts characteristically apply to a limited numbers of
persons (and often to only one person); executive acts typically arise
from the ministerial or administrative activities of members of the
executive branch. The most common examples are employment
terminations.
Legislative acts, on the other hand, generally apply to larger
segments of—if not all of—society; laws and broad-ranging
executive regulations are the most common examples.
McKinney, 20 F.3d at 1557 n.9 (citations omitted).
5
Applying the McKinney test, Brown’s decision affects only a limited class
of persons, namely, the Lewises. The decision to deny the Lewises’ application to
re-zone their property does not “generally apply to larger segments of—if not all
of—society.” See id. Rather, it was an administrative decision by Brown to
enforce the current property designation to the economic detriment of the Lewises.
This is a textbook “executive act.”
We are unpersuaded by the Lewises’ contention that we should ignore our
precedent and find that county zoning decisions are legislative acts because the
Georgia courts characterize such decisions as legislative acts. They offer no
precedent for the conclusion that we should defer to the state court
characterization of a government act as executive or legislative where such
characterization is dispositive of a party’s substantive due process rights under the
federal Constitution. And, in fact, McKinney, and its progeny, suggest otherwise;
that is, it is the duty of federal courts to independently determine whether a
government act is executive or legislative for the purposes of applying substantive
due process principles. Cf. 20 F.3d at 1557 n.9 (Underscoring that for federal
courts to determine whether a plaintiff is entitled to substantive due process
protection “it is crucial to note the distinction between legislative acts and non-
legislative or executive acts.” (quotations omitted)).
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While state law may inform our independent inquiry, it is not determinative
of it. In situations like the Lewises’, we have explicitly held, for the purposes of
substantive due process analysis, “that enforcement of existing zoning regulations
is an executive, not legislative act. . . . Acts of zoning enforcement rather than
rulemaking are not legislative.” DeKalb Stone, Inc. v. County of DeKalb, Ga.,
106 F.3d 956, 959 (11th Cir. 1997) (quotation omitted); see also Greenbriar
Village, L.L.C., 345 F.3d at 1262–63 (“[N]on-legislative deprivations of state-
created rights, which would include land-use rights, cannot support a substantive
due process claim . . . .”); Crymes v. DeKalb County, 923 F.2d 1482, 1485 (11th
Cir. 1991) (“Acts of zoning enforcement rather than rulemaking are not
legislative.”).1
1
The Lewises cite South Gwinnett Venture v. Pruitt, 491 F.2d 5 (5th Cir. 1974) (en
banc), for the proposition that the decisions of zoning commissions are “quasi-legislative.” Id. at
7. This characterization by the former Fifth Circuit, however, was only meant to distinguish
legislative decisions, which are “entitled to a presumption of validity,” from judicial decisions,
which are reviewed by the court de novo. See id. It was not intended to distinguish legislative
acts from executive acts for the purposes of substantive due process analysis.
But, to the extent that South Gwinnett Venture can be so interpreted, the en banc Court
has decided on a different approach in the more recent McKinney case. In South Gwinnett
Venture, the former Fifth Circuit classified the decisions of the county zoning commission as
“quasi-legislative” because of the “functions involved in . . . the reclassification of a piece of
property under an existing plan.” 491 F.2d at 7. In McKinney, we shied away from a
“functions” test, and instead adopted an “impact” test “[w]hen discussing substantive due process
protection.” 20 F.3d at 1557 n.9. The crucial distinction between executive acts and legislative
acts, we said in McKinney, was the impact an act of the government had on the public. If the act
applied “to a limited number of persons,” then it is an executive decision; if it “generally
appl[ies] to a larger segment of—if not all of—society,” then it is legislative decision. Id.
Applying the McKinney impact test here, as we have already done above, Brown’s
7
Because Brown’s decision was executive, not legislative, we AFFIRM the
district court’s decision granting Brown’s motion to dismiss for failure to state
claim.
decision on behalf of Bartow County impacted only three people—the owners of the 272
acres—and therefore is executive in nature.
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