On May 8, 2014, the Eleventh Circuit, in Kentner v. City of Sanibel, No. 13-13893, affirmed the dismissal of a suit challenging a municipal ordinance of the City of Sanibel, Florida, which prohibited plaintiffs from building a boat dock or accessory pier on their properties to protect seagrasses that grow on submerged lands in a nearby bay. 

In the case and on appeal, Plaintiffs advanced a type of property rights-based federal substantive due process claim under Lingle v. Chevron USA, 544 U.S. 528 (2005), arguing the City’s ordinance did not substantially advance a legitimate state interest when it violated their riparian rights.  However, the Eleventh Circuit concluded that “Lingle did not impact this Court’s substantive due process precedent” or otherwise create a new “’substantial advancement’ test for substantive due process claims based on state-created property rights.”  

The appellate court then examined plaintiffs’ claim under existing substantive due process case law and determined “there is generally no substantive due process protection for state-created property rights” absent “arbitrary and irrational” legislative action.  Under rational basis scrutiny, the Eleventh Circuit held “that plaintiffs cannot show that Sanibel’s Ordinance lacks a rational basis.”

Don Hemke represented the City of Sanibel and gave oral argument on April 22, 2014.