              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                                                              [DO NOT PUBLISH]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)
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Before TJOFLAT, JORDAN and BLACK, Circuit Judges.

PER CURIAM:

       IAK Florida Builders, LLC, Kenneth Goodman, and Derek Runion

(Appellants) appeal the district court’s dismissal of their due process claims against

the City of Cape Coral (the City) in connection with the City’s 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 City’s reasons for the denial. On February 2, 2009,

the City and IAK entered into a settlement agreement under which the Planning


       1
         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. Comm’n, 558 F.3d 1301, 1305 (11th Cir. 2009).


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and Zoning Committee and the City would rehear IAK’s rezoning proposal. On

April 7, 2010, the Planning and Zoning Committee approved IAK’s 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 IAK’s 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.”




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      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 court’s 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. Comm’n, 558 F.3d 1301,

1305 (11th Cir. 2009).



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                                 III.   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



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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 City’s refusal to grant their

rezoning petition.2

       Appellants’ reliance on dicta in Eide v. Sarasota County, 908 F.2d 716, 721-

22 & 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 plaintiff’s] 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)).


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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. Comm’rs of Brevard Cnty. v. Snyder, 627 So. 2d



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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, we—when determining if a

plaintiff has stated a valid procedural due process claim—look 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.




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