[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 13

- 13893

________________________ D.C. Docket No. 2:11

- cv - 00661

- SPC

- UAM DAVID KENTNER, SUSAN A. KENTNER, et al.,

Plaintiffs

- Appellants,
CYNTHIA A. BERMAN,
Plaintiff,

versus CITY OF SANIBEL, a Florida muni ci pality, Defendant

- Appellee.

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

______________ __________ (May 8, 2014) Case: 13-13893 Date Filed: 05/08/2014 Page: 1 of 132 Before MARTIN an d FAY, Circuit Judges, and DUFFY , ∗ District Judge

. MARTIN, Circuit Judge: David Kentner , Susan Kentner, Richard W. Brown, Patricia S. Brown, Robert H. Williams, Diane R. Williams, Shirley A. Paulsen Florida Qualified Personal Residence Trust, Jerry’s Enterprises, Inc. (d.b.a. Jerry’s Foods, Inc.), Lowell T. Spillane, and Lighthouse 2011, LLC , are the plaintiffs in this action, and each own s property along the water in the City of Sanibel, Florida. They filed suit against Sanibel, challenging a municip al ordinance that prohibits them from building a boat dock or accessory pier on their properties . The District C ourt granted Sanibel’s motion to dismiss the lawsuit. Plaintiffs now appeal the dismissal of their substantive due process claim s . After care ful review and with the benefit of oral argument, we affirm.
I. Plaintiffs allege the following in t he i r Amended Complaint, which we accept
as true. See Keating v. City of Miami , 598 F.3d 753, 762 (11th Cir. 2010). In September 1993, Sanibel enacted Ordinance 93

- 18 (the Ordinance), amending Sanibel’s Land Development Code. The Ordinance prohibited new construction of docks and accessory piers within an area fronting San Carlos Bay (Bay Beach

* Honorable Patrick Michael Duffy , United States District Judge for the District of South Carolina , sitting by designation.

Case: 13-13893 Date Filed: 05/08/2014 Page: 2 of 133 Zone). The s tated purpo se of the Ordinance is to protect seagrasses that grow on the submerged lands in much of the Bay Beach Zone. Plaintiffs came to own properties within the Bay Beach Zone after the Ordinance was enacted

. Because they own land that borders the high tide l ine,
p laintiff s claim to have riparian rights , inclu ding “reasonable docking rights. ” In their challenge to the Ordinance, plaintiffs argue that it (1) makes no specific finding as to the particular ecological conditions of the submerged l ands, including whether they even have seagrass es on them ; (2) makes no allowance for dock technology that would not harm seagrasses ; (3) contains no basis for the specific b oundaries of the Bay Beach Zone ; and (4) prohibits any conditional use or variance . Plaintiffs also complain that the tr ue purpose of the Ordinance “is to serve the aesthetic preferences of certain interest groups and to artificially protect the property values of other property owners who are allowed to build docks.” Plaintiffs fil ed suit in state court on October 14, 2011 , alleging in part that Sanibel’s Ordinance “ do [ es ] not substantially advance any legitimate state interest ” and therefore violate s p laintiffs’ due p rocess rights under the U.S. and Florida Constitutions. Sanibel removed the case to federal court and asked the District
C ourt to dismiss plaintiffs’ federal claims and decline jurisdiction over their state claims

. The District C ourt granted Sanibel’s motion. Relevan t to this appeal, the District C ourt dismis s ed plaintiffs’ substantive due process claims because it found

Case: 13-13893 Date Filed: 05/08/2014 Page: 3 of 134 that riparian rights ar e premised on state law and therefore are not fundamental rights that can support a substantive due process claim. Plaintiffs’ appeal chal lenges only the dismissal of t he se federal substantive due process claims

. Contrary to the District Court’s conclusion, Plaintiffs argue that the Supreme Court’s decision in Lingle v. Chevron U

. S

. A

. , Inc. , 544 U.S. 528, 125 S. Ct. 2074 (2005), held that property regulations that do not “substantially advance a legitimate state interest” give rise to constitutional challenges sounding in substantive due process law

. II. We review de novo the dismissal of plaintiffs’ complaint under Rule 12(b)( 6). Silva v. Bieluch , 351 F.3d 1045, 1046 (11th Cir. 2003)

. We also review questions of constitutional law de novo

. United States v. Duboc , 694 F.3d 1 223, 1228 n.5 (11th Cir. 2012)

. This Court may “affirm a district court’ s decision to grant or deny a motion for any reason, regardless of whether it was raised below. ” Am. United Life Ins. Co. v. Martinez , 480 F.3d 1043, 1059 (11th Cir. 2007)

. III.
A. We first consider plaintiffs’ argument that Lingle v. Chevron U.S.A., Inc. , created a new substantive d ue process test that applies to state

- created property rights. Lingle addressed the Fifth Amendment ’s Takings Clause. 544 U.S. at 536 ,

Case: 13-13893 Date Filed: 05/08/2014 Page: 4 of 135 125 S. Ct. at 2080

. In Lingle , Ch evron challeng ed a Hawaii state law that limited the amount of rent an oil company could charge a gas station lessee. Id. at 533 , 125 S. Ct. at 2078

– 79. Applying the substantial advanceme nt standard set forth in Agins v. City of Tiburon , 447 U.S. 255, 260, 100 S. Ct. 2138, 2141 (1980), t he District C ourt found Hawaii’s law was an unconstitutional regulatory taking given its failure to substantially advance any legitimate state interest. Lingle , 544 U.S. at 536 , 125 S. Ct. at 2080 . The Ninth Circuit affirmed. Id. However, t he Supreme
Court reversed , find i ng the Agins “substantially advances” formula w as not a valid taking s test. Id. at 548 , 125 S. Ct. at 2087

. In rejecting the Agins test, the Supreme Court traced the “substantially advances” inquiry to due process origin s. Id. at 540

– 41 , 125 S. Ct. at 2082

– 83 (“We conclude that this formula prescribes an inquiry in the nature of a due
pro ces s, not a takings, test[.]”). Specifically, t he Supreme Court noted th at in adopting the substantial advancement test , Agins cited to two due process cases, Nectow v. Cambr idge , 277 U.S. 183, 48 S. Ct. 447 ( 1928) , and Village of Euclid v. Ambler Realty Co. , 272 U.S. 365 , 47 S. Ct. 114 (1926)

. Lingle , 544 U.S. at 540

– 41, 125 S. Ct. at 2083. Plaintiffs rely on Lingle ’s conclusions about the due process origins of Agins to argue that the Supreme Court , in rejecting the substantial advance ment standard as a takings test, created a new type of property rights

- based substantive

Case: 13-13893 Date Filed: 05/08/2014 Page: 5 of 136 due process claim that employs that standard

. Specifically, p laintiffs quote Lingle to claim “that when a government action does not ‘substantially advance a legitimate state interest,’ the affected property owner’s remedy is to sue the government for a violation of substantive due process, and not a taking.”
But this goes beyond what Lingle held

. After reviewing its three established regulatory takings tests , the Supreme Court determined that the substantial advancement test was “ not a takings[] test” and “ that it has no proper place in our takings jurisprudence.” Lingle , 544 U.S. at 540 , 125 S. Ct. at 2083

. Although the Supreme Court said that the substantial advancement test “prescribes an inquiry in the nature of a du e process . . . test, ” id. , it did not reflect upon its substantive due process legal framework or any effect that its holding i n Lingle had on that area of la w. Notably , the Court said nothing suggesting it was establishing a new “substantial advancement” test in the substantive due process context

. In support of their position, p laintiffs argue that other Circuits Courts have dramatically adjusted their property rights

- based substantive due process doctrines
in Lingle ’s wake. However, the cases plaintiffs point us to do not support their argument on appeal

. First, in most of t hese cases , the Circuit Court s were focused on the effect of Lingle on their Takings C lause precedent, not their substantive due process case law. See, e.g. , Rose Acre Farms, Inc. v. United States , 559 F.3d
1260 , 1277

– 82 (Fed. Cir. 2009) (discussing how the Agins inquiry is now obsol ete

Case: 13-13893 Date Filed: 05/08/2014 Page: 6 of 137 after Lingle and examining Lingle ’s effect on regulatory takings cases)

. Second , the Circuit Court s that did find Lingle a ffected their substantive due process jurisprudence had earlier precedent holding that all property rights

- based substantive due process claims were preempted or supplanted by the Takings Clause. See, e.g. , Crown Point Dev., Inc. v. City of Sun Valley , 506 F.3d 851 , 852 (9th Cir. 2007) (holding that prior circuit precedent “that the Fifth Amendment’s Takings Clause subsumes or ‘pre empts’ substantive due process claims ” was

“ undermined ” by Lingle ) ; see also A Helping Hand, LLC v. Balt. Cn ty ., Md. , 515 F.3d 356 , 369 n.6 (4th Cir. 2008) ( relying on Lingle in rejecting the argument that takings law supplants substantive due process claims based on property rights)

. U nlike the Ninth Circuit, t he Eleventh Circuit has already recognized property rights

- based substantive due process claims based on legislative acts.
S ee, e.g. , Lewis v. Brown , 409 F.3d 1271, 1273 (11th Cir. 2005)

. As a result, Lingle did not impa ct this Cour t’s substantive due process precedent. We therefore reject , as did the District C ourt, plaintiffs’ argument that Lingle created a new “substantial advancement” test for substantive due process claims based on state

created property rights.
B.
Even though Lingle did not establish a new property rights

- based substantive due process inquiry , as we have noted, our precedent does allow such a

Case: 13-13893 Date Filed: 05/08/2014 Page: 7 of 138 claim in certain circumstances. So we next consider whether plaintiffs state a substantive due process claim under our existing case law

. It is well established that “[t]he substantive component of the Due Process Clause protects those rights that are ‘fundamental,’ that is, rights that are ‘ impli cit
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, 58 S. Ct. 149, 152 (1937) )

. Fundamental rights are those rights created by the Constitution. DeKalb Stone, Inc. v. County of DeKalb, Ga. , 106 F.3d 956, 959 n.6 (11th Cir. 1997). “ Property interests, of course, are not created by the Constitution[, but rather ] . . . by existing rules or understandings that stem from an indepe ndent source such as s tate law.” Board of Regents of State Colls. v. Roth , 408 U.S. 564, 577, 92 S. Ct. 2701, 2709 (1972); see also Vinyard v. Wilson , 311 F.3d 1340, 1356 (11th Cir. 2002). As a result, there is generally no substantive due process protection for state

- created property rights.
T here is , however, at least one exception to this Circuit’s general rule that there are no substantive due process claims for non

- fundamental rights

. Where a
person ’ s state

- c reated rights are infringed by a “legislative act,” the substantive component of the Due Process Clause generally protects that person from arbitrary and irrational government al action. Lewis , 409 F.3d at 1273.

Case: 13-13893 Date Filed: 05/08/2014 Page: 8 of 139 There is no dispositive test to determine wh ich actions are executive and which are legislative , because local governing bodies often do both

. Id. (“ While the actions of some government officials can easily be categorized as legislative or executive, for others, like county commissioners who act in both a legislative and executive capaci ty, sorting out which hat they were wearing when they made a decision can be difficult. ”). By the same token , our case law does give guidance on how to make this distinction

. E xecutive acts typically arise from the ministerial or administrative activities of the executive branch and characteristi cally apply to a limited number of people, often to only one

. McKinney , 20 F.3d at 1557 n.9 (citations omitted). This includes employment terminations or individual acts of zoning enforcement

. Id. ; see also Crymes v. DeKalb C nty ., Ga. , 923 F.2d 1482, 1485 (11th Cir. 1991).

“ Legislative acts, on the other hand, generall y apply to a larger segment of

— i f not all of

— society. ” McKinney , 20 F.3d at 1557 n.9. “[ L ] aws and broad

ranging executive regulations are the most common examples. ” Id. A legislative
act also involves policy

- making rather than mere administrative appl ication of existing policies. DeKalb Stone , Inc. , 106 F.3d at 959. Prospective “zoning

- type de cisions made by an elected body” are often legislative or quasi

- legislative. 75 Acres, LLC v. Miami

- Dade C nty ., Fla. , 338 F.3d 1288 , 1296 n. 12 (11th Cir. 2003) (citation omitted)

.

Case: 13-13893 Date Filed: 05/08/2014 Page: 9 of 1310 In this case, t he District C ourt correctly concluded that the riparian rights asserted by plaintiffs are state

- created rights , not fundamental rights

. See, e.g. , Walton C nty

. v. Stop the Beach Renourishment, Inc. , 998 So. 2d 1102, 1105 n.3 &
111 1 n.9 (Fla. 2008) (considering waterfront owners’ rights to be “a matter of state law ”); Hayes v. Bowman , 91 So. 2d 795 , 800 (Fla. 1957) (“ The so

- called common law riparian rights of upland owners bordering upon navigable waters have now been expressly recognized by [state] statute. ”). Based on this conclusion and i ts rejection of plaintiffs’ Lingle argument , the District C ourt found that plaintiffs

c ould not sustain a substantive due process claim and dismissed that count

. The District C ourt did not consider whether the legislative act exception applies in this case. Because p laintiffs are challenging the Ordinance on its face rather than contesting a specific zoning or permit decision made under the auspices of the Ordinance, we conclud e that they are challenging a legislative act. See
DeK alb Stone, Inc. , 106 F.3d at 959. The Ordinance applies to all properties within the entire Bay Beach Zone , not just those owned by the p laintiffs

. See McKinney , 20 F.3d at 1557 n.9. B ecause we consider a legislative act, then , we
must go beyond the fundamental rights inquiry that ended the District C ourt’s analysis.
S ubstantive due process challenges that do not implicate fundamental rights are reviewe d under the “rational basis” standard. Fresenius Med. Care Holdings,

Case: 13-13893 Date Filed: 05/08/2014 Page: 10 of 1311 Inc. v. Tucker , 704 F.3d 935, 945 (11th Cir. 2013) (“ When a challenged law does not infringe upon a fundamental right, we review substantive due process challenges under the rational basis standard.”). We reject plaintiffs’ i nvitation to create a new standard of review, which plaintiffs describe as “something more than traditional rational basis review,” but below “intermedi ate scrutiny employed in gender

- discrimination cases.” As we have discussed , Lingle did not create a new substantive due process test for property rights

- based claims. Given the Supreme Court’s consistent warning that courts should avoid creating new substantive due process rights, we will follow our existing precedent, rather than crea te a new level of scrutiny. See, e.g. , Chavez v. Martinez , 538 U.S. 760, 776, 123 S. Ct. 1994, 2006 (2003) (noting its “oft

- stated reluctance to expand the doctrine of substantive due process”). After Lingle other Circuit Court s have also applied a versi on of rational basis scrutiny, rather than a higher “substantial advancement test” like that proposed by plaintiffs here. See, e.g. , Samson v. City of Bainbridge Island , 683 F.3d 1051, 1058 (9th Cir. 2012) (holding that “to establish a substantive due
pro cess violation, the Samsons must show that Bainbridge’s ordinances establishing and extending the moratorium were clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals or general welfare” (quotation marks o mitted)); A Helping Hand, LLC , 515 F.3d at
372

– 73 (finding no abuse of discretion in jury instruction describing standard as

Case: 13-13893 Date Filed: 05/08/2014 Page: 11 of 1312 “deprivation of a property interest violates a plaintiff’ s due process rights if it was clearly arbitrary and unreasonable, with no substantial relationship to a legitimate governmental purpose” because it “covered” the County’s requested instruction that a “claim can survive only if the alleged purpose behind the state action has no conceivable rational relationsh ip to the exercise o f the state’ s traditional police power through zoning”). Under rational basis scrutiny , governments “ a re not required to convinc e the courts of the correctness of their legis lative judgments. ” Minn esota v. Clover Leaf Creamery Co. , 449 U.S. 456, 464 , 101 S. Ct. 715, 724 (1981) . “ Rather, those challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker.” Id. (quotation marks omitted); see also Fresenius Med. Care Holdings, Inc. , 704 F.3d at 945 (noting the

“ evidence casts doubt on the wisdom of the statute and suggests that perhaps a competitor out

- lobbied Appellants before the Florida Legislature, but the evidence does not demonstrate that the Florida Legislature could not have possibly believed that [the st atute] . . . would reduce conflicts and improve health care in the renal

dialy sis field”). This standard is “highly deferential” and we hold legislative acts unconstitutional under a rational basis standard in only the most exceptional of circumstances. Williams v. Pryor , 240 F.3d 944, 948 (11th Cir. 2001).

Case: 13-13893 Date Filed: 05/08/2014 Page: 12 of 1313 With these legal principles in mind, we conclude that plaintiffs cannot show Sanibel’s Ordinance lacks a rational basis. Plaintiffs themselves plead at least t wo rational bases for the Ordinance in their Amended Complaint : (1) protection of
seagrasses and (2) aesthetic prese rvation . While p laintiffs do not agree with the wisdom or fairness of these rationales, this is simply not the test under a rational basis review

. See Fresenius Med. Care H oldings, Inc. , 704 F.3d at 945

. Gi ven these allegations and the “exceptional” b urden p laintiffs must bear in challenging the Ordinance under the rational basis standard, we affirm the District C ourt ’s order on this alternate basis.
IV. Because plaintiffs’ substantive due process claims fail to survive rational

basis scrutiny, we AFFIRM

.

Case: 13-13893 Date Filed: 05/08/2014 Page: 13 of 13