In Hillcrest Property, LLP v. Pasco County, 2019 WL 580259 (11th Cir. Feb. 13, 2019), the Eleventh Circuit confirmed that allegedly unlawful application of a land-use ordinance does not give rise to a substantive due process claim. As the court previously held in McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994), “executive action never gives rise to a substantive-due-process claim unless it infringes on a fundamental right.” A particular land-use decision is executive (as opposed to legislative) action, satisfying the first criterion set out in McKinney, and property rights are “state-created rights” and not fundamental ones. Thus in Hillcrest, as explained in the opinion written by Judge Tjoflat, the plaintiff property owner had no substantive due process claim based on the defendant county’s requirement that the plaintiff dedicate to public use about a quarter of its property, for a potential road-widening, before it could build a shopping center on the site.

The failure of the substantive due process claim does not mean that the county’s application of its land-use ordinance to the plaintiff was constitutionally permissible. As discussed in Judge Newsom’s concurrence, the plaintiff may very well have had a viable claim under the Takings Clause. The plaintiff included a Takings Clause claim in its complaint, but settled that claim, and others, for $4.7 million, leaving only the substantive due process claim and a request for attorneys’ fees for appeal. As noted by Judge Newsom, “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.”