           Case: 15-10152    Date Filed: 09/17/2015   Page: 1 of 7


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-10152
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 8:12-cv-02851-CEH-TGW



STEPHEN J. DIBBS,

                                                           Plaintiff - Appellant,


                                   versus


HILLSBOROUGH COUNTY, FLORIDA,

                                                          Defendant - Appellee.

                      ________________________

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

                            (September 17, 2015)

Before HULL, MARTIN and ROSENBAUM, Circuit Judges.

PER CURIAM:
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       Stephen J. Dibbs appeals the district court’s grant of summary judgment to

Hillsborough County in this 42 U.S.C. § 1983 suit. Dibbs contends that the

county’s Community Plan, which governs various aspects of land-use and

development, is unconstitutional. After careful review, we affirm.

                                               I

       Almost fifteen years ago, Hillsborough County adopted the Community Plan

to guide development in the Keystone-Odessa area in the northwestern part of that

county. The Plan was intended to preserve the “predominant[ly] rural residential

character” of the community as an “area of lakes, agricultural activities, and homes

built on varied lot sizes and in a scattered development pattern.” And consistent

with this purpose, it sets out guidelines for the use of land in that area, including

for the density of new residential developments, construction of streets and

roadways, and use of natural resources.1

       After the Plan had been adopted, Dibbs purchased three pieces of real

property in the Keystone area: one piece near Lake LeClare, one piece near Gunn

Highway and North Mobley Road, and one piece near Lutz Lake Fern Road and

the Suncoast Expressway. The county rejected several of Dibbs’s proposals for

these properties as inconsistent with its Community Plan. For instance, Dibbs

       1
         Under Florida law, “all development undertaken by, and all actions taken in regard to
development orders by, governmental agencies . . . shall be consistent” with an adopted
community plan. Fla. Stat. § 163.3194(1)(a). Further, all of the county’s land development
regulations must be consistent with the plan. See id. § 163.3194(1)(b).
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unsuccessfully applied to re-zone his Lake LeClare property so that he could build

a golf course. Similarly, he unsuccessfully applied to opt out of the Plan altogether

and join the Lutz Community Plan, which would have permitted him to build a

denser residential development.

       Citing these grievances and others, Dibbs brought this § 1983 suit against

Hillsborough County, raising both facial and as-applied Due Process and Equal

Protection claims, as well as claims under Florida law. In a thorough, well-

reasoned order, the district court granted Hillsborough County’s motion for

summary judgment as to each federal claim, and dismissed the remaining state law

claims without prejudice so that they could be resolved in state court. On appeal,

Dibbs contends that the district court erred in its resolution of his facial and as-

applied substantive Due Process claims, and his as-applied Equal Protection

claim. 2

       We review de novo the district court’s grant of summary judgment,

“considering all evidence and reasonable inferences drawn therefrom in the light

most favorable to the non-moving party.” OSI, Inc. v. United States, 525 F.3d

1294, 1297 (11th Cir. 2008). We address each of Dibbs’s arguments in turn.




       2
        Dibbs’s complaint also raised a procedural Due Process claim. Because he advances no
argument regarding this claim on appeal, the issue is waived. See Greenbriar, Ltd. v. City of
Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989).
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                                           II

      We first consider Dibbs’s argument that the Community Plan is

unconstitutional, both on its face and as applied to him, because it violates his

substantive Due Process rights. We analyze his challenges under the rational basis

standard. Restigouche, Inc. v. Town of Jupiter, 59 F.3d 1208, 1214 (11th Cir.

1995). As a result, the Plan will be upheld if it “has a rational relationship with a

legitimate general welfare concern.” Id.

      We use a two-step procedure for determining whether the Community Plan

is constitutional. “The first step . . . is identifying a legitimate government

purpose—a goal—which the enacting government body could have been

pursuing.” Id. “The second step . . . asks whether a rational basis exists for the

enacting government body to believe that the legislation would further the

hypothesized purpose.” Id.

       Dibbs’s substantive Due Process claims fail under this framework. First,

the Community Plan’s goals are evident from the document itself. They include

preserving natural areas and resources, maintaining ecological balance, improving

design aesthetics, and protecting the area from suburban and urban sprawl. There

is no serious question that these are all legitimate government goals. See id. (“It is

well settled that the maintenance of community aesthetics is a legitimate

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government purpose.”). Second, there exists a rational basis for Hillsborough

County to believe that its adoption of the Community Plan—and the Plan’s

application to Dibbs’s property—furthers these goals.3 For instance, there is a

rational relationship between the county’s goal of maintaining ecological balance

and its refusal to allow Dibbs to construct a golf course on his Lake LeClare

property. Similarly, the county’s refusal to allow Dibbs to build a dense residential

development on his Lutz Lake Fern Road property is rationally related to the its

goal of protecting the area from urban sprawl. These are “plausible, arguably

legitimate purpose[s]” for both the Community Plan and its application to Dibbs.

Haves v. City of Miami, 52 F.3d 918, 923 (11th Cir. 1995). Thus, we affirm the

district court’s grant of summary judgment to Hillsborough County on Dibbs’s

Due Process claims. 4

                                             III

       We next consider Dibbs’s as-applied Equal Protection claim. The crux of

his argument is that Hillsborough County has singled him out for disparate

treatment because of “vindictiveness, maliciousness, animosity, spite or other

reasons unrelated to a legitimate government interest.” He specifically points a


       3
      Dibbs does not dispute that his property falls within the area governed by the
Community Plan.
       4
        The district court held that Dibbs’s facial Due Process claim was time-barred. Because
we may affirm “for any reason supported by the record,” United States v. Chitwood, 676 F.3d
971, 976 (11th Cir. 2012), we need not reach the issue of whether Dibbs’s claim was timely.
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number of decisions the county made pursuant to the Community Plan, such as

denying his application for rezoning or delaying his applications for land

excavation.

      To succeed on his Equal Protection Claim, Dibbs “must show (1) that [he

was] treated differently from other similarly situated individuals, and (2) that

Defendant unequally applied a facially neutral ordinance for the purpose of

discriminating against [him].” Campbell v. Rainbow City, Ala., 434 F.3d 1306,

1314 (11th Cir. 2006). Because Dibbs does not allege discrimination against a

protected class, we apply the “similarly situated” requirement rigorously. Leib v.

Hillsborough Cnty. Pub. Transp. Comm’n, 558 F.3d 1301, 1306 (11th Cir. 2009)

(“With respect to the first prong, we have frequently noted that the ‘similarly

situated’ requirement must be rigorously applied in the context of ‘class of one’

claims.”).

      As the district court correctly explained, Dibbs’s Equal Protection claim fails

because he has not met his burden in identifying “similarly situated” individuals.

For instance, although he claims that he was treated disparately in relation to others

who succeeded in opting out of the Community Plan, he conceded in his deposition

that he was not aware of anyone in the Keystone area who was able to opt out. We

find no error in the district court’s grant of summary judgment to Hillsborough

County on Dibbs’s Equal Protection Claim.

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AFFIRMED.




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