Rational Public‑Safety Justifications Defeat Substantive Due Process Challenges to Roadway Encroachments: Eleventh Circuit Affirms in Neely v. Elmore County

Introduction

In an unpublished, non‑argument decision, the Eleventh Circuit affirmed summary judgment against a landowner who claimed that Elmore County’s widening of a road intersection encroached on his property and violated his Fourteenth Amendment substantive due process rights. The opinion clarifies two important points:

• A governmental decision to widen a public road to improve safety easily satisfies the “rational basis” standard that governs substantive due process challenges to property-related governmental action.
• Disputes about the precise extent of a physical encroachment can be immaterial at summary judgment where, even assuming encroachment, the governmental act is not arbitrary or conscience‑shocking in the constitutional sense.

The panel also rejected an attempt to reframe unappealed procedural‑due‑process issues as substantive‑due‑process arguments. In a separate concurrence, Judge Lagoa underscored that the court’s holding does not address, and should not be read to limit, Fifth Amendment Takings Clause claims—particularly where alleged roadway encroachments might constitute per se physical takings.

Case Background

Plaintiff‑Appellant Malcolm Neely owns property bordered by Estes and Milam Roads in Elmore County, Alabama. The roads intersect at the property’s northern tip. Neely alleged that the County physically encroached on his land while widening the intersection; the County disputed encroachment and alternatively asserted a prescriptive right‑of‑way. The County further maintained that any work was done for a public purpose—namely, improving motorist safety at the intersection.

Neely’s amended complaint advanced due process theories: (1) procedural due process (dismissed at the Rule 12(b)(6) stage and not appealed) and (2) substantive due process (resolved for the County at summary judgment). On appeal, Neely argued that the County’s actions arbitrarily infringed his property rights and that genuine disputes of material fact precluded summary judgment.

Summary of the Opinion

The Eleventh Circuit (per curiam) affirmed. Applying de novo review of the summary judgment record:

• Substantive Due Process: The County’s road‑widening decision, rooted in public safety, is rational and therefore not “arbitrary” or “conscience‑shocking.” Because the government offered a plausible public‑interest justification, the constitutional threshold for a substantive due process violation was not met.
• Procedural Due Process: Neely’s arguments about the lack of condemnation proceedings sounded in procedural due process, but he did not appeal the dismissal of that claim. He could not repackage those procedural arguments as a substantive due process theory on appeal.
• Materiality at Summary Judgment: Even assuming encroachment arguendo, the exact degree of encroachment was immaterial given the dispositive conclusion that the County’s conduct was not constitutionally arbitrary or conscience‑shocking.
• Attorney’s Fees: The appellees’ motion for attorney’s fees was denied.

Judge Lagoa concurred to emphasize that the panel’s reasoning does not control Takings Clause claims, which involve different standards (including per se rules for physical appropriations).

Analysis

Precedents and Authorities Cited

• Summary Judgment Standards
  • Celotex Corp. v. Catrett, 477 U.S. 317 (1986): The moving party bears the initial burden to show the absence of a genuine issue of material fact; the nonmovant must then go beyond the pleadings to show a genuine issue for trial.
  • Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986): The nonmovant must do more than raise “metaphysical doubt” to avoid summary judgment.
  • Anderson v. Liberty Lobby, 477 U.S. 242 (1986): Courts must draw reasonable inferences in favor of the nonmovant, but the dispute must be “material.”
  • Fed. R. Civ. P. 56: Codifies the standards for materiality and evidentiary support for or against summary judgment.
• Substantive Due Process Framework
  • U.S. Const. amend. XIV: Prohibits the deprivation of property without due process of law.
  • McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994) (en banc): Distinguishes the substantive component of due process—limiting arbitrary government action—from procedural guarantees.
  • Cnty. of Sacramento v. Lewis, 523 U.S. 833 (1998): Only the “most egregious” official conduct—behavior that shocks the conscience—violates substantive due process.
  • Waddell v. Hendry Cnty. Sheriff’s Office, 329 F.3d 1300 (11th Cir. 2003): Government conduct violates substantive due process only if arbitrary or conscience‑shocking in a constitutional sense.
  • Garvie v. City of Fort Walton Beach, 366 F.3d 1186 (11th Cir. 2004): In property disputes, the government need only show a rational connection to a plausible public interest—a very low bar.
  • Hawai‘i Housing Auth. v. Midkiff, 467 U.S. 229 (1984): Incidental private benefits do not defeat a measure’s public purpose for constitutional analysis.
• State-Law Authority for Road Work
  • Ala. Code § 23‑1‑80: Authorizes counties to maintain county roads.
  • Ala. Code § 11‑80‑1: Permits counties to take private property for public roads (eminent domain authority).
• Concurrence—Takings Clause Distinction
  • U.S. Const. amend. V (Takings Clause), applied to the States via the Fourteenth Amendment; see Chicago, B. & Q. R.R. v. Chicago, 166 U.S. 226 (1897).
  • Cedar Point Nursery v. Hassid, 594 U.S. 139 (2021): Physical appropriations are per se takings; the government must pay for what it takes.
  • Tahoe‑Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302 (2002): Physical possession of property interests triggers categorical duty to compensate.
  • Palazzolo v. Rhode Island, 533 U.S. 606 (2001), and Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982): Even minimal permanent physical occupations are per se takings requiring compensation.
  • Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570 (11th Cir. 1989): Reinforces deferential review in land-use substantive due process challenges.
  • McDonald v. City of Chicago, 561 U.S. 742 (2010) (Thomas, J., concurring), and Eknes‑Tucker v. Governor of Alabama (11th Cir. 2024) (Pryor, C.J., respecting denial of reh’g en banc): Cite skepticism about substantive due process doctrine.

The Court’s Legal Reasoning

• Proper Constitutional Lens: The panel treated Neely’s claim strictly as a substantive due process challenge. Although Neely argued that the County acted without formal condemnation, that complaint concerns procedures and fits procedural due process. Because Neely did not appeal the dismissal of his procedural due process claim, he could not recast it as substantive due process on appeal.
• Property Interest and the Governing Standard: The court assumed Neely had a valid property interest. The core question, then, was whether the County infringed that interest in a constitutionally arbitrary or conscience‑shocking manner. That inquiry is governed by the highly deferential “rational basis” standard in land‑use and property contexts.
• Public‑Safety Justification: The County’s evidence showed the widening improved motorist safety at the intersection. Alabama statutes expressly authorize counties to maintain roads and to take property for roads. These authorities, coupled with a safety rationale, readily supplied a plausible public interest connection. Under Garvie and Midkiff, that suffices.
• Materiality at Summary Judgment: The County argued on summary judgment assuming encroachment for purposes of the motion. The panel held that, even with that assumption, the action was not arbitrary or conscience‑shocking; therefore, the extent of any encroachment was not material to the dispositive constitutional question. This is a classic application of Rule 56 materiality: where a fact cannot affect the outcome under the governing law, it is immaterial.
• Attorney’s Fees: The denial of appellees’ fee request indicates the appeal was not deemed frivolous, even though it failed on the merits.

Impact and Practical Implications

• Substantive Due Process is a Poor Vehicle for Road‑Project Encroachment Claims: Litigants alleging that a local road project encroached on private land face an exceedingly low governmental burden under the Fourteenth Amendment’s substantive due process rubric. A minimally plausible public‑safety rationale (widening an intersection to improve safety) will almost always defeat such a claim.
• Procedural vs. Substantive Due Process Matters: Challenges to the absence of condemnation proceedings or to the adequacy of process are procedural due process claims that must be properly pleaded and preserved on appeal. They cannot be repackaged as substantive due process arguments at the appellate stage.
• Materiality at Summary Judgment: Even where factual disputes exist (e.g., exact boundaries, degree of physical intrusion), those disputes may be immaterial if the constitutional claim fails as a matter of law under a deferential standard.
• Takings Clause Remains the Right Tool for Compensation: The concurrence emphasizes that per se physical takings principles (e.g., Loretto, Palazzolo, Cedar Point) may support a Fifth Amendment claim for just compensation when a government physically occupies private land for a public road. Today’s decision neither reaches nor limits such claims. Property owners should carefully assess whether a Takings Clause theory—distinct from due process—best fits their objectives.
• Local Government Practice: Counties should document and, where possible, communicate the public‑safety rationale for roadway projects. While this helps dispose of substantive due process challenges, local governments must remain mindful that a rational safety purpose does not immunize them from the separate constitutional duty to pay just compensation if a taking occurs.
• Non‑Precedential but Persuasive: Though marked “DO NOT PUBLISH,” the opinion aligns with well‑established Eleventh Circuit and Supreme Court doctrine. Practitioners should expect district courts in the circuit to follow the same analytical path on similar substantive due process claims.

Complex Concepts Simplified

• Substantive vs. Procedural Due Process:
  • Procedural due process asks whether the government used fair procedures before infringing life, liberty, or property (e.g., notice, hearing, proper condemnation steps).
  • Substantive due process polices the outer bounds of what government may do at all; to succeed, the plaintiff must show government action so arbitrary or egregious that it “shocks the conscience.”
• Rational Basis Review:
  • The most deferential form of judicial scrutiny. The government wins if there is any conceivable rational connection between the action and a legitimate public purpose (here, roadway safety).
• Genuine Issue of Material Fact:
  • A dispute is “genuine” if a reasonable jury could return a verdict for the nonmovant; it is “material” if it could affect the outcome under the governing law. Disputed facts that cannot change the legal result are immaterial.
• Prescriptive Right‑of‑Way / Easement:
  • A right to use another’s property acquired by long‑term, open, continuous, and adverse use. The County asserted such a right here, but the court did not need to resolve it given its constitutional analysis.
• Per Se Physical Takings:
  • When the government physically occupies private property, compensation is categorically required under the Fifth Amendment, regardless of the public purpose or the amount taken. This is a different constitutional claim from due process and was not pursued by Neely on appeal.
• Non‑Argument Calendar / Unpublished:
  • The court resolved the appeal without oral argument, signaling that existing law clearly controlled. “Do not publish” signals the opinion is non‑precedential, though it reflects and applies binding precedents.

What the Court Did Not Decide

• Whether the County actually encroached and, if so, by how much—assumed arguendo and deemed immaterial to the due process analysis.
• Whether a prescriptive right‑of‑way exists in the County’s favor—unresolved and unnecessary to the decision.
• Whether Neely would have a viable Fifth Amendment Takings Clause claim—explicitly left open by the concurrence.

Conclusion

Neely v. Elmore County reinforces a settled but critical boundary in constitutional property litigation in the Eleventh Circuit: when government widens public roads for safety, a substantive due process challenge will almost invariably fail because the action is rational and not conscience‑shocking. Disputes over the precise extent of any encroachment are immaterial at summary judgment if the constitutional claim fails as a matter of law. Procedural objections to the manner of taking must be raised and preserved as procedural due process claims, not back‑doored through substantive due process on appeal.

The concurrence importantly clarifies that nothing in this opinion curtails Fifth Amendment Takings Clause claims. Where a road project results in a physical occupation of private property, per se takings principles may entitle the owner to just compensation, subject to proof of boundaries and property interests (including any prescriptive easements). The upshot is a clear doctrinal roadmap: substantive due process protects against arbitrary government action; the Takings Clause governs compensation for public uses. Litigants must choose (and preserve) the right path.