We’re hoping that someone can explain the Florida District Court of Appeal’s recent opinion in Bondar v. Town of Jupiter Inlet Colony, No. 4D19-2118 (May 5, 2021) in a way that makes sense other than the old apocryphal tale of “I don’t know why we do things this way, except that we’ve always done things this way.”

Before we get to the details, a slight detour. This is another one of those cases about substantive due process. Now don’t get us started on that one — we get that it might seem odd to suggest that the Fourteenth Amendment’s Due Process Clause limits the government’s power beyond requiring fair procedures. After all, the words are right there in the text: “nor shall any state deprive any person of life, liberty, or property, without due process of law.” But work with us here: we’ve always viewed the phrase much more holistically and within the historical context that the words “due process of law” must be read as a single phrase, and really were the 18th Century way of saying “law of the land.” (Edward Coke, we’re looking at you, Your Lordship.)

With that background, let’s take a look at Bondar.

The Bondars owned or leased three homes in the Town that they used for short-term rentals. The Town has one zoning district, “RS Single-Family Dwelling.” That’s it. Slip op. at 2 (“There were no commercial, industrial, multi-family or other zoning districts located within the Town.”). A neighbor dropped dime and the Town issues notices of violation of the zoning code, and later filed a lawsuit seeking a declaration that the Bondars were violating the code.

The owners shot back: what violations? Where in the zoning code does it say short term rentals are prohibited? The trial court agreed, concluding that the zoning code didn’t limit the length or frequency of an owner renting their property, and that the Bondars’ use of their properties as short term rentals didn’t violate the zoning code. 

Things were looking up for the Bondars’ counterclaims for inverse condemnation, substantive due process, equal protection, and intentional interference with business relations. The trial court denied the Town’s motion for summary judgment on the due process claim.

But the court of appeal concluded that the Town should have been granted summary judgment on the Bondars’ claim that “the Town’s actions in issuing notices of violation and filing the declaratory action resulted in substantial interference and substantial deprivation of their ‘fundamental or constitutionally protect right to own, possess, use, dispose of, and transfer property.'” Slip op. at 8.

How so, you may ask? The court bought into the line of thinking from the Eleventh Circuit that holds that there’s no substantive due process claim when the conduct alleged is the unlawful application of a land-use ordinance. That line goes like this: substantive due process is only to protect fundamental rights against arbitrary legislation. Slip op. at 9. Cf. elsewhere

That leads to two questions.

First, isn’t property one of those “fundamental” rights? It’s right there in the text of the Fourteenth Amendment, after all.

No, you’re just not seeing things clearly, dude. The fundamental rights the due process clause might protect include your the right to own, possess, use, dispose of, and transfer property,” but the Town here hasn’t deprived the plaintiffs of their rights to do those things. It simply precluded third parties from doing so!

Although the Owners asserted below and on appeal that the fundamental right violated was the “right to own, possess, use, dispose of, and transfer property,” a close review of the counterclaim reveals otherwise. Under the plain facts alleged in the counterclaim, it cannot be said that the actions of the Town (issuing notice of violations and filing the Dec Action) impeded upon the Owners’ right to themselves “own, possess, use, dispose of or transfer” a fee ownership interest in any of the three properties. What the Town was seeking to preclude was the ability of the Owners to allow others to use the properties, which is an incidental property right controlled by state law.

Slip op. at 10. The right to let others “own, possess, use, dispose of or transfer” your property is, in the court’s thinking, merely a state-granted property right, not a “fundamental” property rights. In short, the owners don’t have a fundamental right “in the constitutional sense” to rent their property. Short term, long term, or otherwise.

Sorry, we’re just simple country bumpkins so we initially didn’t understand how the either the Florida court or the Eleventh Circuit (whose reasoning the Florida court adopted) reached this conclusion. Then we read the stuff starting on the bottom of page 10:

The Owners have not cited any cases that hold that the right to rent property to others is a fundamental right in the constitutional sense, and we have been unable to find any such authority. Instead, the cases cited by the Owners on appeal address principles applicable to the Fifth Amendment and other constitutional rights, rather than fundamental rights in the context of the Fourteenth Amendment. Thus, we conclude the Owners’ counterclaim alleging a violation of substantive due process fails because they cannot demonstrate the Town violated a fundamental right protected by the Fourteenth Amendment.

Slip op. at 10-11.

What the Florida court is saying (between the lines) is that the plaintiffs much choose their remedy (and the only choice is takings). The opinion never actually says so (unlike the Eleventh Circuit’s Judge Newsom (“Sounds like a job for the Takings Clause, right?”)), but that’s how we read that passage.

The forced-choice-of-remedy doesn’t get us there. What’s to say a property owner can’t allege both a taking (you regulated my property so much it sure looks like eminent domain), and a substantive due process violation (you are behaving very badly towards me, government)? To us, eliminating a due process remedy simply because the owner has a takings claim also is bad for a couple of reasons. First, the remedies may be different (compensation vs injunction). And second, that pesky text of the Fourteenth Amendment, which, you know, mentions “property” rather explicitly.

The Florida court wades further into the morass on page 11, which takes us to our second big point. The court accepted the Eleventh Circuit’s distinction between “executive” actions and “legislative,” and concluded that when a person alleges that the government deprived them of a “non-fundamental” right, only legislative action can trigger substantive due process violations. State government can run pretty wild, as long as its merely the executive that’s doing it! That’s an even lower standard than the notorious rational basis test.

So there you have it: “As for the substantive due process violation counterclaim, the Owners’ right to rent the properties to others is not a fundamental right for purposes of substantive due process. Additionally, the executive actions by the Town were not arbitrary, irrational or conscience shocking so as to violate the Fourteenth Amendment.” Slip op. at 12.

We think the Sixth Circuit has a better approach: if the facts, plausibly alleged, show that a plaintiff might have both a takings and a substantive due process claim, go for it.

We still wish someone could explain Bondar and its predecessors to us in a way we could wrap our minds around.

Bondar v. Town of Jupiter Inlet Colony, No. 4D19-2118 (Fla. Dist. Ct. App. May 5, 2021)