USCA11 Case: 18-13920 Date Filed: 02/22/2021 Page: 1 of 24
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-13920 ________________________
D.C. Docket No. 9:17-cv-81254-DMM
PBT REAL ESTATE, LLC,
Plaintiff-Appellant,
versus
TOWN OF PALM BEACH, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(February 22, 2021)
Before MARTIN, TJOFLAT, and TRAXLER,* Circuit Judges.
TJOFLAT, Circuit Judge:
* The Honorable William B. Traxler, Senior United States Circuit Judge for the Fourth Circuit, sitting by designation. USCA11 Case: 18-13920 Date Filed: 02/22/2021 Page: 2 of 24
Florida law authorizes a municipality to relocate the electrical, telephone,
and cable television utilities within a city by placing them underground and
levying a special assessment on real property benefited by the relocation.1 In July
2017, the Town of Palm Beach (the “Town”) decided to underground the utilities
servicing some of its neighborhoods and to finance the project by levying special
assessments on the properties serviced. The condominiums in Palm Beach Towers
(“PB Towers”) were included.
PBT Real Estate, LLC (“PBT”), owns one of those condominiums. After
the Palm Beach Town Council resolved to implement the project, PBT, on behalf
of itself and the owners of the other condominiums, sought an injunction in state
court barring the Town from levying a special assessment against their properties.
PBT initially argued that the assessments would be invalid because the utilities
1 Florida law provides that (1) Any municipality of this state may, by its governing authority: . . . . (d) Pay for the relocation of utilities, including the placement underground of electrical, telephone, and cable television services, pursuant to voluntary agreement with the utility. . . . (k) Provide for the payment of all or any part of the costs of any such improvements by levying and collecting special assessments on the abutting, adjoining, contiguous, or other specially benefitted property. . . . (2) Special assessments may be levied only for the purposes enumerated in this section and shall be levied only on benefited real property at a rate of assessment based on the special benefit accruing to such property from such improvements when the improvements funded by the special assessment provide a benefit which is different in type or degree from benefits provided to the community as a whole.
Fla. Stat. § 170.01. 2 USCA11 Case: 18-13920 Date Filed: 02/22/2021 Page: 3 of 24
servicing their properties had already been undergrounded through a privately
funded project. 2 But before the state court could rule on their application for
injunctive relief, PBT amended its complaint to allege that requiring it and the
other condominium owners to pay the special assessments would violate their
Fourteenth Amendment rights to substantive due process and equal protection of
the laws and would violate Florida state law. Following this amendment, the Town
removed the case to the United States District Court for the Southern District of
Florida.
The case is before us on appeal following the District Court’s rejection of
the owners’ claims. The District Court granted both the Town’s motion for
summary judgment on the owners’ substantive due process and equal protection
claims and the Town’s motion to dismiss the owners’ state law claims. We affirm
the District Court’s judgment on all claims except for one state law claim.
I.
As early as 2006, the Town began developing a plan for undergrounding its
utilities—a process that involves burying the existing overhead electrical,
2 The Florida Supreme Court has declared that “[t]here are two requirements for the imposition of a valid special assessment. First, the property assessed must derive a special benefit from the service provided. Second, the assessment must be fairly and reasonably apportioned among the properties that receive the special benefit.” City of Boca Raton v. State, 595 So. 2d 25, 29 (Fla. 1992) (citations omitted).
3 USCA11 Case: 18-13920 Date Filed: 02/22/2021 Page: 4 of 24
telephone, and cable wires. The Town decided to undertake the undergrounding
process on a gradual basis, “by neighborhood or area,” and fund it by levying
special assessments on property owners within the area.
Over the next several years, the Town retained two financial services firms
to assist with finding a basis for imposing non-ad valorem special assessments on
properties within the Town to fund utility undergrounding projects. Willdan
Financial Services prepared a report in 2009, and Raftelis Financial Consultants
provided an updated report in 2017. In their respective reports, Willdan and
Raftelis provided that the apportionment of the special assessment would be
determined by assigning a number of “Equivalent Benefit Units” (“EBUs”) to each
property based on the anticipated value the property would receive from
undergrounded utilities. The EBU calculation took into account three types of
benefits: increased reliability of services, increased safety due to the removal of
poles and overhead lines, and increased aesthetic value from removing lines and
poles from sight. 3 Higher EBU values assigned to a property would correspond
with higher special assessments.
Between 2009 and 2017, the Town undergrounded the utilities in some
limited areas and levied special assessments on the property owners in those areas
3 The reports allocated to all parcels a minimum number of baseline EBUs for each category, regardless of whether there were overhead lines on or adjacent to the property, in recognition of the town-wide benefits that undergrounded utilities would bring. 4 USCA11 Case: 18-13920 Date Filed: 02/22/2021 Page: 5 of 24
pursuant to the methodology detailed in the Willdan Report. The utilities servicing
Palm Beach Towers were among those undergrounded during this period, but the
project was financed privately and was not subject to a special assessment payable
to the Town.
On June 13, 2017, the Town Council passed an Initial Assessment
Resolution authorizing the Town to create an “Underground Utility Assessment
Area” (the “Project”) and specially assess property owners to fund the cost of the
Project. The Town Council determined that the Project “w[ould] provide a special
benefit to all [properties] located within the Underground Utility Assessment
Area” in the form of enhanced safety, reliability, and aesthetics. The resolution
adopted the methodology of the Raftelis Report to calculate the amount of
anticipated benefit for each property and the corresponding amount of special
assessment for each property owner. The resolution excluded from the town-wide
assessment those properties with already-undergrounded utilities, which were
previously subject to a special assessment.
Commensurate with its adoption of the Initial Assessment Resolution, the
Town Council published a notice that informed the public and the owners of all
properties within the assessment area of the proposed special assessments. The
5 USCA11 Case: 18-13920 Date Filed: 02/22/2021 Page: 6 of 24
notice announced that on July 12, 2017, the Town Council would conduct a public
hearing with respect to the imposition of the proposed special assessments.4
A PBT representative appeared at the July 12 hearing and contested PBT’s
proposed assessment obligation. The representative had two “specific
objections . . . to the special assessment.” First, PB Towers had “already
undergrounded its utilities.” Second, the “property [would] not benefit from the
Town-wide underground project in an amount that exceed[ed] the amount of the
special assessment that [PBT] w[ould] be required to pay.” 5 At the conclusion of
the hearing, the Town Council passed a Final Assessment Resolution (the
“Resolution”), which officially imposed the special assessment as described in the
Initial Assessment Resolution.
4 Fla. Stat. § 170.07, “Publication of preliminary assessment role,” provides, in pertinent part: Upon the completion of said preliminary assessment roll, the governing authority of the municipality shall by resolution fix a time and place at which the owners of the property to be assessed or any other persons interested therein may appear before said governing authority and be heard as to the propriety and advisability of making such improvements, as to the cost thereof, as to the manner of payment therefor, and as to the amount thereof to be assessed against each property so improved. Thirty days’ notice in writing of such time and place shall be given to such property owners. Fla. Stat. § 170.08, “Final consideration of special assessments; equalizing board to hear complaints and adjust assessments; rebate of difference in cost and assessment,” provides that, prior to any “final decision on whether to levy [a] special assessment[],” the “governing authority of the municipality shall meet and hear testimony from affected property owners as to the propriety and advisability of making the improvements and funding them with special assessments on property.” 5 PBT’s representative said that he would be paying far more for the PBT “500-square- foot unit” than two other properties, “Testa’s restaurant” and the “old Texaco gas station,” whose square footage exceeded that of the PBT condominium “by over 1,000 percent.” 6 USCA11 Case: 18-13920 Date Filed: 02/22/2021 Page: 7 of 24
II.
On August 1, 2017, PBT, proceeding on behalf of itself and the owners of
the other condominiums in PB Towers, filed a Complaint in the Circuit Court for
the Fifteenth Judicial Circuit of Florida alleging that their special assessments were
invalid under Florida state law on two grounds: (1) The Project “d[id] not provide
a ‘special benefit’ to the [PB Towers] properties” and (2) the Towers special
assessments were based on “appraisal practices that differ[ed] from the appraisal
practices generally applied by the Town to comparable properties with
underground utilities.” The Complaint sought an order permanently enjoining the
Town and Palm Beach County’s property appraiser and tax collector from
enforcing the special assessments (the “Assessments”). Instead of proceeding in
this manner, on September 22, 2017, PBT moved the Circuit Court for leave to
amend the Complaint and substitute the proposed Amended Complaint attached to
its motion.6 On November 1, 2017, the Circuit Court granted the motion, and the
Amended Complaint became operative.
The Amended Complaint contained two counts, both seeking an order
permanently enjoining the Town from enforcing PBT’s special assessments and
6 The record is silent as to the Town’s response to the Complaint, i.e., whether it moved to dismiss the Complaint or simply filed an answer. 7 USCA11 Case: 18-13920 Date Filed: 02/22/2021 Page: 8 of 24
awarding it attorney’s fees. 7 In Count I, PBT claimed that the Assessment
violated the Takings Clause of the Fifth and Fourteenth Amendments.8 In
Count II, PBT alleged that the Assessments violated the Equal Protection
Clause of the Fourteenth Amendment by not “imposing [the] same [special
assessment] on other properties similarly situated.”
The Amended Complaint’s assertion of federal constitutional claims
rendered the case removable to federal district court. The Town promptly
removed the case9 and shortly thereafter moved the District Court to dismiss the
Amended Complaint for failure to state a claim for relief.10 The Court granted
the Town’s motion.
7 Counts I and II based PBT’s entitlement of relief on 42 U.S.C. § 1983. See 42 U.S.C. § 1988(b). 8 Count I was entitled “Taking Under United States Constitution’s Fifth and Fourteenth Amendments, Florida Constitution and 42 U.S.C. § 1983.” Count I appeared to assert five distinct claims: (1) that the Town exceeded the police powers delegated to it (presumably by Fla. Stat. §§ 170.01(1)(d), (1)(k), and (2), which together give municipalities the power to finance the relocation of utilities by special assessment); (2) that the Town deprived PBT of “its rights, privileges, and immunities” and “due process of law” in violation of section 1 of the Fourteenth Amendment; (3) that the Town Council’s imposition of the Assessments violated Article VII, §§ 1(a) and 9(a) of the Florida Constitution; (4) that the Town Council’s imposition of the Assessments violated Fla. Stat. § 166.021(3)(b); and (5) that the Assessments imposed a lien on PBT’s property and thus constituted a taking under the Takings Clause of the Fifth Amendment as incorporated into the Fourteenth Amendment via its Due Process Clause. As indicated infra, the District Court dismissed the Takings Clause claim. In its Second Amended Complaint, PBT realleged the “taking” as a violation of the substantive component of the Due Process Clause of the Fourteenth Amendment. 9 See 28 U.S.C. §§ 1441(a); 1446. To the extent Count I of the Amended Complaint presented state law claims, see supra n.8, the District Court had jurisdiction to entertain them under 28 U.S.C. § 1367. 10 See Fed. R. Civ. P. 12(b)(6). 8 USCA11 Case: 18-13920 Date Filed: 02/22/2021 Page: 9 of 24
The District Court interpreted Count I as alleging only a Fifth Amendment
Takings Clause claim and dismissed it because “the Takings Clause does not apply
to [a] mere obligation to pay an assessment.” 11 The Court then dismissed Count II
because its allegation that “there are similarly situated properties that were treated
differently” was a mere conclusion. Specifically, Count II failed to allege that the
properties were “similarly situated ‘in light of all the factors that would be relevant
to an objectively reasonable governmental decisionmaker.’” The Court dismissed
Count I with prejudice and Count II without prejudice, with leave to amend.
PBT responded with a Second Amended Complaint containing three
counts.12 In Count I, PBT transformed the Takings Clause claim asserted in Count
I of the Amended Complaint into a claim under the substantive component of the
Due Process Clause of the Fourteenth Amendment: the Assessments were “not
rationally related to serve a legitimate government interest” and were imposed by
the Town Council “arbitrarily” under “capricious ad hoc [‘unwritten’] rules.” In
Count II, PBT realleged its Equal Protection Clause claim, stating that “other
similarly situated properties” which “will not have their utility lines undergrounded
by [the Project],” were being “intentionally treated differently,” in that they did not
11 This quoted language was taken from our decision in Swisher International, Inc. v. Schafer, 550 F.3d 1046, 1049 (11th Cir. 2008). 12 Like its predecessor complaint, the Second Amended Complaint sought relief from the alleged federal constitutional violations under 42 U.S.C. § 1983. It also sought attorney’s fees under 42 U.S.C. § 1988(b). 9 USCA11 Case: 18-13920 Date Filed: 02/22/2021 Page: 10 of 24
receive a special assessment. In Count III, PBT alleged that the Assessments
constituted an “unconstitutional tax” under the “Florida Constitution and Florida
law” because the Project did not “confer” a special benefit on the PB Towers
properties.13 To the extent “any special benefit,” might have been conferred, “it
d[id] not exceed the Special Assessment the Town [Council] has imposed on
PBT’s properties.”
The Town moved to dismiss the Second Amended Complaint, contending
that none of the three counts stated a claim for relief. The District Court agreed
and granted the motion. The Count I substantive due process claim was deficient
because, despite the allegation that the Assessments were the product of ad hoc
“unwritten rules,” Count I “never describe[d] these ‘unwritten rules’ or specifie[d]
who ‘engaged’ in them.” 14 Nor did it state whether the rules were created
legislatively or administratively. The Court dismissed PBT’s Count II claim under
the Equal Protection Clause for the reason it dismissed Count II of the First
Amended Complaint: the facts alleged were insufficient to show that the other
13 We assume that the reference to the Florida Constitution and law was to Article VII, §§ 1(a) and 9(a) of the Florida Constitution and Fla. Stat. § 166.021(3)(b) since those provisions, although not explicitly referenced in Count III, appeared in the allegations made antecedent to Count I and were incorporated into Count III by reference. 14 Count I was silent as to whether the Town Council’s imposition of the Assessments was an executive decision or a legislative act. The District Court explained that in order for PBT to plausibly state a claim that substantive due process protects its state-created property rights, it would have to show that the imposition of the Assessments constituted a “legislative act.” 10 USCA11 Case: 18-13920 Date Filed: 02/22/2021 Page: 11 of 24
“similarly situated properties were actually similarly situated in light of “all the
factors that would be relevant to an objectively reasonable government
decisionmaker.” And Count III was insufficient because it alleged “a violation of
Florida law generally,” without identifying the provisions of the Florida
Constitution or the law allegedly violated.
The order dismissing the Second Amended Complaint gave PBT leave to
file a third amended complaint, in which PBT again raised three claims for relief.
Count I, based once again on the substantive component of the Due Process
Clause, alleged that Assessments, imposed by the Town Council legislatively, were
“arbitrary and capricious without any rational basis,” in that the Project “d[id] not
improve the safety, reliability, or aesthetics of PBT’s property.” Count II, based
(as before) on the Equal Protection Clause, alleged that the Assessments denied
PBT equal protection of the law because the Resolution exempted similarly
situated property owners (the “Comparators”) from paying a special assessment.15
Count III replicated Count III of the Second Amended Complaint in asserting that
the Assessments amounted to an “unconstitutional tax” under the “Florida
Constitution and Florida law” because the Project conferred no special benefit on
the PB Towers properties. Count III additionally asserted that if the Project
15 PBT sought relief on the claims in Counts I and II under 42 U.S.C. § 1983 and attorney’s fees under 42 U.S.C. § 1988(b). 11 USCA11 Case: 18-13920 Date Filed: 02/22/2021 Page: 12 of 24
conferred a special benefit, the amount of the Assessments exceeded the special
benefit and, to that extent, the Assessments constituted a “taking [of] property
without due process of law under Florida law.”16
The Town responded to the Third Amended Complaint by moving the
District Court for summary judgment on Counts I and II and for dismissal of Count
III for failure to state a claim for relief.17 The District Court granted both motions.
Addressing Count I, the Court treated PBT’s substantive due process claim as a
challenge to the Resolution itself rather than its application to PBT. Having done
so, the Court concluded that the claim could not withstand summary judgment
because PBT presented no evidence that the Resolution was not “rationally related
to a legitimate government purpose.” Turning to Count II, the Court found PBT’s
equal protection claim insufficient for the reasons it stated in denying the claim
earlier: PBT failed to “come forward with any evidence to show that [it] is
similarly situated to the Comparators in light of all the factors that would be
relevant to an objectively reasonable governmental decisionmaker.” And the Court
dismissed Count III for the reason it dismissed Count III of the Second Amended
16 The reference to “due process of law under Florida law” was the only allegation added to Count III of the Second Amended Complaint. 17 The Town’s motion for summary judgment was based on evidence obtained during discovery. 12 USCA11 Case: 18-13920 Date Filed: 02/22/2021 Page: 13 of 24
Complaint: PBT failed to “allege the [Florida] Constitutional or statutory provision
giving rise to this cause of action.”18
PBT moved the District Court “for reconsideration.”19 The Court denied the
motion, and PBT lodged this appeal. It argues that the District Court erred in
granting summary judgment on Counts I and II, erred in dismissing Count III, and
abused its discretion in denying reconsideration.
III.
We consider first the summary judgment granted on Counts I and II. We
review the judgment de novo, viewing all facts in the light most favorable to PBT
and drawing all reasonable inferences in its favor. See McCullum v. Orlando Reg’l
Healthcare Sys., Inc., 768 F.3d 1135, 1141 (11th Cir. 2014). The Town was
entitled to the summary judgment on Counts I and II if there was “no genuine
dispute as to any material fact and [it was] entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
A.
We consider first the District Court’s disposition of Count I’s substantive
due process claim. In its complaint, PBT alleged that “[b]ecause the utility lines at
18 The District Court looked only to the allegations of Count III in making this statement. It did not consider Count III’s incorporation by reference of the citation antecedent to Count I of the allegation that the Assessments violated Article VII, §§ 1(a) and 9(b) of the Florida Constitution and Fla. Stat. § 166.021(3). See supra n.8. 19 The motion was filed pursuant to Fed. R. Civ. P. 59(e). 13 USCA11 Case: 18-13920 Date Filed: 02/22/2021 Page: 14 of 24
PBT’s Property are already undergrounded, the Town-Wide Underground Project
does not improve the safety, reliability, or aesthetics at PBT’s Property.”
Therefore, in its view, the Assessments failed to “confer[] any special benefit to
PBT’s Property” and were “arbitrary and capricious without any rational basis.”
PBT asserted that the “Town’s enacting and imposing the Special Assessment is a
legislative act.” On appeal, PBT again argues that the Assessments violated its
“substantive due process” rights because the Project “did not confer direct, special
benefits logically related to” its property; therefore, the Assessments were
“arbitrary and irrational as applied to [PBT’s property].” Appellant’s Br. at 28.
Ordinarily, the substantive component of the Fourteenth Amendment’s 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,
58 S. Ct. 149, 152 (1937)). Garden-variety property rights do not meet this
standard and thus, as a general proposition, their deprivation does not in and of
itself concern the concept of ordered liberty. See DeKalb Stone, Inc. v. Cty. of
DeKalb, 106 F.3d 956, 959 n.6 (11th Cir. 1997) (“[C]ommon law rights are not
equivalent to fundamental rights, which are created only by the Constitution.”).
There is at least one exception to this rule. That is “[w]here a person’s state-
created rights are infringed by a ‘legislative act,’ the substantive component of the
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Due Process Clause generally protects that person from arbitrary and irrational
governmental action.” Kentner v. City of Sanibel, 750 F.3d 1274, 1279–80 (11th
Cir. 2014). We review this category of substantive due process challenges to
legislative acts that do not implicate fundamental rights under the rational basis
standard. Id. at 1280. “In order to survive this minimal scrutiny, the challenged
provision need only be rationally related to a legitimate government purpose.”
Schwarz v. Kogan, 132 F.3d 1387, 1390–91 (11th Cir. 1998). However, the
legislative exception does not include as-applied challenges, which “are always
executive because the executive is responsible for applying, or enforcing, the law.”
Hillcrest Prop., LLP v. Pasco County, 915 F.3d 1292, 1301 (11th Cir. 2019). We
are mindful that “non-legislative deprivations of state-created rights . . . cannot
support a substantive due process claim, not even if the plaintiff alleges that the
government acted arbitrar[ily] and irrationally.” Greenbriar Village, L.L.C. v.
Mountain Brook, 345 F.3d 1258, 1263 (11th Cir. 2003) (per curiam).
In its complaint and before this Court, we understand PBT to invoke the
legislative exception for substantive due process claims. We therefore view Count
I solely as a challenge to the Resolution itself.20 To prevail on that challenge, PBT
20 To the extent Count I challenges the Resolution as applied to PBT, that is a challenge to executive action, because “as-applied violations are always executive.” Hillcrest Prop., 915 F.3d at 1301. And “non-legislative deprivations of state-created rights . . . cannot support a substantive due process claim.” Greenbriar Village, 345 F.3d at 1263. Thus, any challenge to the Resolution as applied to PBT fails as a matter of law. 15 USCA11 Case: 18-13920 Date Filed: 02/22/2021 Page: 16 of 24
was required to demonstrate that the Resolution, on its face, was arbitrary and
irrational and not rationally related to a legitimate government purpose. See
Kentner, 750 F.3d at 1279–80; Schwarz, 132 F.3d at 1391. Count I asserts that the
Resolution is “arbitrary and capricious without any rational basis” because “the
utility lines at PBT’s Property are already undergrounded,” and thus “the Town-
Wide Underground Project does not improve the safety, reliability, or aesthetics at
PBT’s Property.” Again on appeal, PBT asserts that the District Court erred in
granting summary judgment in favor of the Town because “there remain genuine
issues of fact regarding whether there are direct, special benefits conferred on the
Property relating to reliability, safety, or aesthetics.”
The fundamental flaw in these contentions, however, is that they take issue
with the Resolution as applied to PBT and its property. As the District Court
correctly observed, the question “is not whether the Town was correct in finding
that [PBT] receives some measure of benefit from the project.” Instead, since
Count I only challenges the Resolution, the question is whether the Resolution
itself is “rationally related to a legitimate government purpose.” Schwarz, 132
F.3d at 1391. For that question, we apply “minimal scrutiny,” and our minimal
scrutiny makes clear that PBT failed to point to evidence sufficient to demonstrate
that the Town lacked a rational basis for imposing special assessments to finance
the project. Id. PBT has also failed to produce evidence sufficient to demonstrate
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that the Town’s determination that all of the properties located within the
Underground Utility Assessment Area benefited from the Project—in the form of
enhanced safety, reliability, and aesthetics—was arbitrary and capricious. See
Kentner, 750 F.3d at 1279–80.
Count I alleges that the Resolution itself violates substantive due process. It
is therefore not enough for PBT to claim factual disputes exist about whether the
Town had a rational basis in imposing the Assessment on its property. Rather,
PBT was required to come forward with evidence showing the Town lacked a
rational basis in enacting the Resolution as a whole. Because it did not, the District
Court correctly granted summary judgment in the Town’s favor.
B.
We turn now to PBT’s argument in support of Count II, that the imposition
of the Assessments was foreclosed by the Equal Protection Clause because the
Resolution expressly excluded the Comparators from its special assessment. PBT
contends that the Comparators are similarly situated because, like the owners of the
PB Towers properties, their utility lines had been undergrounded prior to the
commencement of the Project.
PBT characterizes its equal protection claim, which is based solely on the
Resolution’s differential treatment of the Comparators, as a “class of one” claim.
When presenting a class of one equal protection claim, a plaintiff alleges that it is
17 USCA11 Case: 18-13920 Date Filed: 02/22/2021 Page: 18 of 24
the only entity being treated differently from all other similarly situated entities,
even though it does not belong to a suspect classification. Vill. of Willowbrook v.
Olech, 528 U.S. 562, 564, 120 S. Ct. 1073, 1074–75 (2000) (per curiam). In order
to prevail, a plaintiff must show that it “has been intentionally treated differently
from others similarly situated and that there is no rational basis for the difference
in treatment.” Campbell v. Rainbow City, Ala., 434 F.3d 1306, 1314 (11th Cir.
2006) (quoting Olech, 528 U.S. at 564, 120 S. Ct. at 1074).
In this Circuit, we apply the “similarly situated” requirement “with rigor.”
Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1207 (11th Cir. 2007). “[T]he [entities]
being compared ‘must be prima facie identical in all relevant respects.’” Irvin,
496 F.3d at 1204 (emphasis in original) (quoting Campbell, 434 F.3d at 1314). Put
another way, “[d]ifferent treatment of dissimilarly situated persons does not violate
the equal protection clause.” Campbell, 434 F.3d at 1314 (quoting E&T Realty v.
Strickland, 830 F.2d 1107, 1109 (11th Cir. 1987)). A plaintiff must ultimately
show that it and any comparators are “similarly situated ‘in light of all the factors
that would be relevant to an objectively reasonable governmental decisionmaker.’”
Douglas Asphalt Co. v. Qore, Inc., 541 F.3d 1269, 1275 (11th Cir. 2008) (quoting
Griffin Indus., 496 F.3d at 1207).
PBT cannot show that the Comparators are similarly situated in all relevant
respects. As proof that they are, PBT points to the fact that, like the utility lines
18 USCA11 Case: 18-13920 Date Filed: 02/22/2021 Page: 19 of 24
servicing the PB Towers properties, the Comparators’ utility lines were
undergrounded prior to the adoption of the Project. The Town responds that the
Comparators are not similarly situated because their utility lines were
undergrounded pursuant to separate projects that were funded by special
assessments, not private funding. The Town Council therefore found that it was
“fair and reasonable to exclude these parcels” from the Resolution’s special
assessment in order to avoid imposing duplicative special assessment obligations
on the Comparators’ properties. The PB Towers properties, on the other hand,
were assessed because the Town Council found that all properties within the
assessment area would receive a “baseline special assessment.”
Given the relevant differences between the Comparators and the PB
Towers—i.e., the Comparators’ owners’ obligation to pay a separate
undergrounding special assessment to the Town and the lack of such a special
assessment in connection with the undergrounding of the PB Towers properties—
all that PBT has shown is that the Town Council treated dissimilar properties
differently. Such treatment does not implicate the Equal Protection Clause.
Campbell, 434 F.3d at 1314. And even if they were similar, PBT fails to identify
any evidence that an objectively reasonable governmental decisionmaker would
consider the similarity it proffers. See Douglas Asphalt, 541 F.3d at 1275.
19 USCA11 Case: 18-13920 Date Filed: 02/22/2021 Page: 20 of 24
IV.
PBT further argues that the District Court erred in dismissing Count III of
the Third Amended Complaint for failing to identify the provisions of the Florida
Constitution or other relevant laws that the imposition of the Assessments
supposedly violated. We review de novo the grant of a motion to dismiss for
failure to state a claim. Randall v. Scott, 610 F.3d 701, 705 (11th Cir. 2010). In
doing so, we accept the allegations in the complaint as true and draw all reasonable
inferences in the plaintiff’s favor. Id. To survive a motion to dismiss, a complaint
must present “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). In addition, the complaint must
“contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955,
1974 (2007)). “Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at
555, 127 S. Ct. at 1965). While Iqbal and Twombly “concern the factual
allegations a complaint must contain to survive a motion to dismiss,” Rule 8 does
“not countenance dismissal of a complaint for imperfect statement of the legal
theory supporting the claim asserted.” Johnson v. City of Shelby, 574 U.S. 10, 11,
12, 135 S. Ct. 346, 346, 347 (2014) (per curiam).
20 USCA11 Case: 18-13920 Date Filed: 02/22/2021 Page: 21 of 24
Count III alleged two distinct state law claims. The first claim asserted that
the Assessments constituted an “unconstitutional tax” under the “Florida
Constitution and Florida law” because the Project conferred no special benefit on
the PB Towers properties. The District Court dismissed this claim for failure to
identify the provisions of the Florida Constitution or law the Town Council
purportedly violated. We think the District Court was mistaken on this point.
Count III incorporates the “General Allegations” section of the complaint. The
General Allegations, in turn, include citations to Article VII, Sections 6 and 9(b) of
the Florida Constitution, as well as Florida Statutes §§ 170.01, 170.08, all of which
deal with taxation and special assessments under Florida law. Beyond that, Count
III references the Raftelis Report, citing two Florida state cases. One of those
cases, City of Boca Raton, outlines the “two requirements for the imposition of a
valid special assessment under Florida law.” 595 So. 2d at 29. The other case,
Whisnant v. Stringfellow, 50 So. 2d 885 (Fla. 1951), considered whether a tax was
a special assessment under the Florida Constitution. Id. at 885–86. Although
Count III’s passing references to these authorities may be an “imperfect statement
of the legal theory,” the cited authorities do provide a legal theory, and thus Rule 8
does not require dismissal. See Johnson, 574 U.S. at 11, 135 S. Ct. at 346.
The second claim alleged that if the Project conferred a special benefit on
the PB Towers properties, the amount of the Assessments exceeded the special
21 USCA11 Case: 18-13920 Date Filed: 02/22/2021 Page: 22 of 24
benefit and to that extent the Assessments constituted a “taking [of] property
without due process of law under Florida law.” Count III cites no provision of the
Florida Constitution or law that treats an uncompensated governmental taking,
which is what PBT presumably alleges, as a “taking of property without due
process of law.” And we are aware of none.
The Florida Constitution does have a takings clause. Article X, § 6(a) states
that “[n]o private property shall be taken except for a public purpose and with full
compensation therefor paid to each owner or secured by deposit in the registry of
the court and available to the owner.” See also St. Johns River Water Mgmt.
Dist. v. Koontz, 77 So. 3d 1220, 1226 (Fla. 2011), rev’d on other grounds, 570
U.S. 595, 133 S. Ct. 2586 (2013). The Florida Supreme Court “has interpreted the
takings clauses of the United States and Florida Constitutions coextensively.” Id.
If we consider PBT’s takings claim as having been brought under Article X, § 6(a),
it fails for the same reason the District Court gave when dismissing the federal
takings claim alleged in Count I of the Amended Complaint: “[T]he Takings
Clause does not apply to [a] mere obligation to pay an assessment.”
In fine, the District Court was correct to dismiss the state law takings claims
asserted in Count III, but erred in dismissing the state law claim alleging an
unconstitutional tax. However, this latter claim was properly before the District
Court only based on supplemental jurisdiction. Because the federal claims were
22 USCA11 Case: 18-13920 Date Filed: 02/22/2021 Page: 23 of 24
properly dismissed, the District Court “may decline to exercise supplemental
jurisdiction over” this state law claim on remand. 28 U.S.C. § 1367(c)(3). That
way, the Florida courts can interpret their own constitution and statutes.
V.
Finally, PBT argues that the District Court should have granted its motion
for reconsideration. PBT claims that new evidence discovered after the District
Court disposed of the case raises a genuine issue of material fact regarding its
federal constitutional claims.
PBT filed its motion under Federal Rule of Civil Procedure 59(e). We
review the District Court’s denial of a Rule 59 motion for abuse of discretion.
Drago v. Jenne, 453 F.3d 1301, 1305 (11th Cir. 2006). “The only grounds for
granting [a Rule 59] motion are newly-discovered evidence or manifest errors of
law or fact.” In re Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999). “[A] Rule 59(e)
motion [cannot be used] to relitigate old matters, raise argument[s] or present
evidence that could have been raised prior to the entry of judgment.” Michael
Linet, Inc. v. Village of Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005). In
the summary judgment context, the movant must show that the new evidence was
unavailable at the time that summary judgment was granted. Mays v. U.S. Postal
Service, 122 F.3d 43, 46 (11th Cir. 1997) (per curiam).
23 USCA11 Case: 18-13920 Date Filed: 02/22/2021 Page: 24 of 24
Putting aside the question of whether the new evidence was available when
the District Court granted the Town summary judgment, the evidence PBT
presented provided no basis for the court to reconsider its ruling. The evidence
consists of testimony purportedly indicating either (1) that the PB Towers
properties may not have received a specific benefit from the Project or (2) that the
Comparators received one. This evidence was largely duplicative of the evidence
already available when the District Court ruled. As such, it would not have
changed the outcome. We accordingly find no abuse of discretion in the District
Court’s refusal to reconsider.
VI.
For the foregoing reasons, the District Court’s disposition of the claims set
forth in the Third Amended Complaint and of PBT’s motion for reconsideration
are
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.