Kenneth Goodman v. The City of Cape Coral, 11th Cir. (2014)

Case: 13-14213
Date Filed: 07/28/2014
Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________
No. 13-14213
Non-Argument Calendar
________________________
D.C. Docket No. 2:12-cv-00654-SPC-UAM
KENNETH GOODMAN,
as successor trustee to Kathy Kellum,
as Trustee of the Reel Estate Trust,
DEREK RUNION,
as the beneficial owner of the Reel Estate Trust,
IAK FLORIDA BUILDERS, LLC,
a Florida limited liability company,
Plaintiffs-Appellants,
versus
THE CITY OF CAPE CORAL,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(July 28, 2014)
Case: 13-14213
Page: 2 of 8
Before TJOFLAT, JORDAN and BLACK, Circuit Judges.

PER CURIAM:
IAK Florida Builders, LLC, Kenneth Goodman, and Derek Runion
(Appellants) appeal the district courts dismissal of their due process claims against
the City of Cape Coral (the City) in connection with the Citys denial of
Appellants application to rezone certain real property. Upon review, we affirm.
I.
BACKGROUND 1
In late 2006, IAK Florida Builders, LLC (IAK) agreed with Kathy Kellum,
trustee of the Reel Estate Trust, to purchase certain real property in Florida for the
purpose of developing it as Sans Souci Bay. As part of the development, IAK
petitioned the City to rezone the property from single-family and agricultural use
to single- and multi-family use by submitting a proposal on December 7, 2006.
The City and its Planning and Zoning Committee both denied the proposal in
November 2007, outlining various reasons for doing so.
On October 29, 2008, Appellants sought review of the denial at a hearing
before a special magistrate under Fla. Stat. 70.51 and presented changes to the
proposal meant to address the Citys reasons for the denial. On February 2, 2009,
the City and IAK entered into a settlement agreement under which the Planning
In accordance with the standard applicable to a motion to dismiss, we assume the truth
of Appellants well-pleaded factual allegations in reciting the background of this case. Leib v.
Hillsborough Cnty. Pub. Transp. Commn, 558 F.3d 1301, 1305 (11th Cir. 2009).
Case: 13-14213
Page: 3 of 8
and Zoning Committee and the City would rehear IAKs rezoning proposal. On
April 7, 2010, the Planning and Zoning Committee approved IAKs amended
proposal, subject to a series of conditions. IAK complied with the conditions and
presented the amended proposal to the City at a final determinative hearing on May
24, 2010. The City denied the proposal and took certain actions Appellants claim
were improper during the hearing, including considering irrelevant information,
considering false allegations that had been spread by a neighborhood association
prior to the hearing, limiting IAKs ability to cross-examine witnesses and give a
closing statement, and requesting modifications to the amended proposal designed
to satisfy personal interests of the members of the city council. Appellants argue
there was no rational basis for the City to deny their rezoning proposal.
Appellants commenced this action by filing a complaint under 42 U.S.C.
1983 in federal district court on December 10, 2012. Appellants asserted two
counts. In the first count, Appellants claimed the City violated their right to
procedural due process because it reached a decision that amounted to a taking of
Appellants property interests without providing a full and fair hearing. In the
second count, Appellants claimed the City committed a substantive due process
violation because its denial of Appellants rezoning petition was an arbitrary and
irrational exercise of power.
Case: 13-14213
Page: 4 of 8
The City filed a motion to dismiss the complaint on January 7, 2013. The
district court granted the motion, dismissing Appellants substantive due process
claim with prejudice and dismissing the procedural due process claim without
prejudice. Appellants filed an amended complaint reasserting the procedural due
process claim with additional information concerning the procedural guidelines for
review of rezoning petitions and allegations that the City failed to comply with
those guidelines. The City responded with a second motion to dismiss, but before
the district court ruled on it, Appellants filed a motion for leave to file a second
amended complaint to clarify certain allegations in the first amended complaint.
The district court granted leave to amend, and Appellants filed a second amended
complaint, which the City again moved to dismiss. On August 19, 2013, the
district court granted the motion and dismissed Appellants procedural due process
claim with prejudice in light of the availability of judicial review in state court.
This appeal followed.
II.
STANDARD OF REVIEW
We review de novo the district courts grant of a [Federal Rule of Civil

Procedure] 12(b)(6) motion to dismiss for failure to state a claim, accepting the
allegations in the complaint as true and construing them in the light most favorable
to the plaintiff. Leib v. Hillsborough Cnty. Pub. Transp. Commn, 558 F.3d 1301,
1305 (11th Cir. 2009).
Case: 13-14213
III.
Page: 5 of 8
DISCUSSION
To state a claim under 1983, a plaintiff must allege (1) that the defendant
deprived [the plaintiff] of a right secured under the Constitution or federal law and
(2) that such deprivation occurred under color of state law. Arrington v. Cobb
Cnty., 139 F.3d 865, 872 (11th Cir. 1998). Here, Appellants claimed the City
deprived them of their constitutional rights to procedural and substantive due
process in connection with its refusal to grant their proposal to rezone certain land.
We agree with the district court, however, that Appellants failed to allege either
substantive or procedural due process violations.
A.
Substantive Due Process

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 (1937)). [A]reas in which
substantive rights are created only by state 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 (1985) (Powell, J., concurring)). The zoning
restrictions at issue in this appeal concern land-use rights that are state created and
therefore fall beyond the scope of substantive due process protections. See Lewis
Case: 13-14213
Page: 6 of 8
v. Brown, 409 F.3d 1271, 1273 (11th Cir. 2005); Greenbriar Vill., L.L.C. v.
Mountain Brook, City, 345 F.3d 1258, 1262 (11th Cir. 2003) (Property interests,
of course, are not created by the Constitution. (quoting Bd. of Regents v. Roth,
408 U.S. 564, 577 (1972))). Consequently, Appellants can state no viable claim
for a violation of substantive due process based on the Citys refusal to grant their
rezoning petition.2
Appellants reliance on dicta in Eide v. Sarasota County, 908 F.2d 716, 72122 & n.9 (11th Cir. 1990), to reach a contrary conclusion is misplaced in light of
our more recent en banc decision in McKinney explicitly stating that substantive
due process protections do not apply to state-created interests like those at issue in
the instant case. McKinney, 20 F.3d at 1556. Appellants have not attempted to
harmonize their interpretation of Eide with our pronouncements in McKinney. See
Greenbriar, 345 F.3d at 1263 n.4 (To say the least, it is surprising that neither
party in this case discussed the impact of McKinney on [the plaintiffs] substantive
due process claim. All of the Eleventh Circuit precedent cited by the parties on
these types of substantive due process claims mysteriously ends in 1994, which,
curiously, is the same year that an en banc court decided McKinney.).
2
An exception to the general rule that substantive rights created by state law are not
protected by substantive due process exists when the substantive state rights are infringed by
legislative rather than by executive acts. See McKinney, 20 F.3d at 1557 n.9. This exception
does not apply to the instant case, nor have Appellants argued that it does. See Lewis, 409 F.3d
at 1274 ([W]e have explicitly held, for the purposes of substantive due process analysis, that
enforcement of existing zoning regulations is an executive, not legislative act. (internal
quotation marks omitted)).
Case: 13-14213
Page: 7 of 8
Appellants arguments are therefore unpersuasive, and we conclude the district

court did not err in dismissing Appellants substantive due process claim.
B.
Procedural Due Process

A 1983 action alleging a procedural due process clause violation requires
proof of three elements: a deprivation of a constitutionally-protected liberty or

property interest; state action; and constitutionally inadequate process. Cryder v.
Oxendine, 24 F.3d 175, 177 (11th Cir. 1994). Assuming Appellants have alleged a
constitutionally-protected property interest, their claim still fails for failure to
allege constitutionally inadequate process.
We have repeatedly articulated the basic rule that a procedural due process
violation has not occurred when adequate state remedies are available. See, e.g.,
Reams v. Irvin, 561 F.3d 1258, 1267 (11th Cir. 2009) (Because we conclude that
available state remedies were adequate to cure any erroneous deprivation . . . [the
plaintiff] failed to establish that her procedural due process rights were violated.);
Foxy Lady, Inc. v. City of Atlanta, 347 F.3d 1232, 1238 (11th Cir. 2003) ([E]ven
if a procedural deprivation exists during an administrative hearing, such a claim
will not be cognizable under 1983 if the state provides a means by which to
remedy the alleged deprivation.). Appellants did not take advantage the judicial
review of final agency actions, including zoning decisions, available under Fla.
Stat. 120.68, see Bd. of Cnty. Commrs of Brevard Cnty. v. Snyder, 627 So. 2d
Case: 13-14213
Page: 8 of 8
469, 474-75 (Fla. 1993), nor did they offer any argument that the process afforded
by this review is constitutionally inadequate. Consequently, regardless of the
alleged improprieties of the hearing before the city council, Appellants procedural
due process claim fails. See McKinney, 20 F.3d at 1565 (Since the Florida courts
possess the power to remedy any [procedural error], [the plaintiff] cannot claim
that he was deprived of procedural due process.); Cotton v. Jackson, 216 F.3d
1328, 1331 (11th Cir. 2000) (Assuming a plaintiff has shown a deprivation of
some right protected by the due process clause, wewhen determining if a
plaintiff has stated a valid procedural due process claimlook to whether the
available state procedures were adequate.).
IV.
CONCLUSION
In light of the foregoing, we hold that the district court did not err in
dismissing Appellants substantive or procedural due process claims.
AFFIRMED.

Kenneth Goodman v. The City of Cape Coral, 11th Cir. (2014)

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Kenneth Goodman v. The City of Cape Coral, 11th Cir. (2014)

Uploaded by

Copyright:

Available Formats

Case: 13-14213

Date Filed: 07/28/2014

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

Date Filed: 07/28/2014

Before TJOFLAT, JORDAN and BLACK, Circuit Judges.

Date Filed: 07/28/2014

Date Filed: 07/28/2014

We review de novo the district courts grant of a [Federal Rule of Civil

Date Filed: 07/28/2014

Substantive Due Process

Date Filed: 07/28/2014

Date Filed: 07/28/2014

Appellants arguments are therefore unpersuasive, and we conclude the district

Procedural Due Process

proof of three elements: a deprivation of a constitutionally-protected liberty or

Date Filed: 07/28/2014

You might also like