EDMONDSON, Circuit Judge:
Robert and Margaret Spence, plaintiffs below, appeal from the district court's order granting summary judgment to defendants for claims based on 42 U.S.C. section 1983 and pendant state claims. We affirm.
In 1979 the Spences applied to the City of Clearwater, Florida for a building permit for a single family home in a residential subdivision. In their application, they said that they would be building the house themselves and wished to complete only a portion of the structure before moving in; when the Spences wanted to move in, they would apply to the City for a Temporary Certificate of Occupancy ("TCO"). The City issued the building permit, and Mr. Spence began work at the job site; but six years later construction had progressed so slowly that the structure was still largely incomplete.
Our Standard of Review
"Rule 56(c) mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986) accord Kramer v. Unitas, 831 F.2d 994 (11th Cir.1987). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (emphasis in original). The nonmovant need not be given the benefit of every inference but only of every reasonable inference. Brown v. City of Clewiston, 848 F.2d 1534, 1540 n. 12 (11th Cir.1988). As the Supreme Court noted in Anderson, "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 250-51, 106 S.Ct. at 2511 (citations omitted) (emphasis added); accord Brown v. City of Clewiston, 848 F.2d at 1534. "Summary judgment procedure is properly regarded not as a disfavored procedural short cut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Celotex, 477 U.S. at 327, 106 S.Ct. at 2555 (quoting Fed.R.Civ.P. 1); accord Barnes v. Southwest Forest Industries, Inc., 814 F.2d 607, 609 (11th Cir.1987).
Civil Rights Violations Under 42 U.S.C. 1983.
A. SUBSTANTIVE DUE PROCESS CLAIM
1. The Temporary Certificate of Occupancy
The Spences assert that the City's refusal to issue a TCO deprived them of property without substantive due process. Although the contours of substantive due process are vague, no party in this case denies that substantive due process rights exist or that substantive due process can apply to land use decisions. The substantive due process doctrine proscribes "deprivation of a property interest for an improper motive and by means that were pretextual, arbitrary and capricious, and ... without any rational basis." Hearn v. City of Gainesville, 688 F.2d 1328, 1332 (11th Cir.1982), accord Anthony v. Franklin, 799 F.2d 681, 684 (11th Cir.1986).
To support a claim under the fourteenth amendment for deprivation of property without due process of law, the Spences must first establish that they had a valid "property interest" in some benefit that was protectible under the fourteenth amendment at the time they were deprived. Scott v. Greenville County, 716 F.2d 1409, 1418 (4th Cir.1983). Mere abstract need or desire for a benefit will not create a protectible property interest; instead there must be a legitimate claim of entitlement to the expected benefit. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). No property interests are created by the Constitution; such interests are created by "existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Id. We conclude that the Spences never had a property interest in a TCO.
The relevant rule is section 109.3 of the Standard Building Code, used by the City of Clearwater, stating that "[a] temporary certificate of occupancy may be issued for a portion or portions of a building which may be safely occupied prior to final completion of the building." (emphasis added). In April 1984 when the Spences applied for the TCO, they admitted that the structure was incomplete and unsafe and agreed to perform the essential work if the City would allow them to move in. At that time, necessary electrical panels and circuits were absent; the hot water heater, stove, bathing facilities and heating system were missing; interior walls were unfinished; and no insulation existed inside or out.
The Spences claim that after they submitted their application, the City bowed to pressure from the subdivision's homeowners' association and illegally increased the TCO requirements to include certain requirements that were also in the subdivision's restrictive covenants. The Spences admit they never met reasonable minimum housing code standards for safe occupancy of the building. For example, they never installed a shower facility, a heating system other than a small fireplace, a cooking stove, an electrical panel connected with the electrical power supply, interior walls or insulation. The Spences do not dispute that the City had every right to require that they meet reasonable minimum safety requirements before a TCO would be issued. They take issue instead with the City's addition of requirements that the Spences claim go beyond safety requirements for the structure.
In Littlefield v. City of Afton, 785 F.2d 596, 602 (8th Cir.1986), the Eighth Circuit held that state law creates a constitutionally protectible property interest in a building permit if (1) the municipality lacks discretion and must issue a building permit to an applicant who complies with the statutory requirements and (2) the applicant has fulfilled the requirements. Accord Carolan v. City of Kansas City, 813 F.2d 178, 181 (8th Cir.1987) (noting that both conditions must be met before a constitutionally protected property interest in a building permit arises). We agree with the Eighth Circuit and extend its reasoning to TCOs.
We note first that the Building Code states that a TCO "may be issued," indicating
The Spences also have failed to make any showing that they met the safety requirements for a TCO; therefore, they do not meet the second part of the test. The Spences have not demonstrated that but for the alleged addition of new and improper TCO requirements, the city's officers would have been required to grant them the TCO; therefore they have shown no legitimate claim of entitlement to the TCO. See Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54, 59 (2d Cir.1985). The City could legitimately require the Spences to meet reasonable safety standards before issuing them a TCO. Even if the City could not legitimately ask that additional requirements unrelated to safety be met before issuing a TCO, the Spences' interest in the TCO was nothing more than an abstract need or desire for a benefit until they met at least the minimum requirements for the TCO.
2. The Building Permit
By a March 1, 1985 letter, Building Director Edward Bethel told the Spences that unless various conditions were met within six months — installing a driveway, sodding the yard, finishing the exterior of the structure, installing sidewalks, and removing all construction materials from the outside of the structure — the building permit would be revoked. The Spences, seemingly unable to meet these conditions despite the structure having been under construction for six years, contracted to sell the incomplete structure before the six months expired. The sale price, they claim, was $70,000 less than the house's fair market value.
The Spences argue that they were denied substantive due process because they were deprived of a property interest — their building permit — arbitrarily and irrationally. Assuming that the Spences had a protectible property interest in the building permit, we conclude that the Spences' substantive due process rights were unviolated. The only act the Spences cite in support of their contention that they were deprived of property without due process is the March 1, 1985 letter from Bethel informing them that their building permit would be revoked in six months if certain conditions were not met. The Spences have failed to show that they were unentitled in the meantime to continue construction under the permit; no reasonable interpretation of the letter would indicate that it contemplates anything other than future action by the City. The City never revoked the permit and, because the Spences sold the house, never had to face the question of what would happen if the conditions imposed had not been satisfied in the time allowed. We conclude that the Spences have failed to make an adequate showing that they have been deprived of property without due process. See Kerley Industries, Inc. v. Pima County, 785 F.2d 1444 (9th Cir.1986) (no deprivation of property without due process where owner was entitled to use permit).
We alternatively conclude that even if the Spences were deprived of the permit, they have not adequately shown an abuse of government power. The evidence is insufficient
Municipal building permits do not have to extend forever. The Standard Building Code section 106.3, titled Conditions of the Permit, stated that "Every permit issued shall become invalid unless the work authorized by such permit is commenced within six (6) months after its issuance, or if the work authorized by such permit is suspended or abandoned for a period of six (6) months after the time the work is commenced,...." The City was troubled about the Spence situation, in which a permit had been issued five years earlier to build a one-family house in a well-kept neighborhood and Spence did just enough work to receive an inspection every six months to keep the permit alive.
After five years, the house was approximately one-half completed; because there was no landscaping, grading, or driveway, silt ran onto a neighbor's yard and into the street. The citizens of the community were distressed, worried and complaining about their property values. The City could rationally care that a structure that was only half-completed after five years presented a problem with rodents, transients, sand erosion or vandals, injuring the surrounding neighborhood economically, environmentally, and aesthetically. Avoidance of such harms is a constitutionally permissible objective. Jackson Court Condominiums v. City of New Orleans, 665 F.Supp. 1235 (E.D.La.1987); see also Young v. American Mini Theatres, Inc., 427 U.S. 50, 73, 96 S.Ct. 2440, 2453, 49 L.Ed.2d 310 (1976) (acknowledging city's interest in preserving character of neighborhoods); Village of Belle Terre v. Boraas, 416 U.S. 1, 9, 94 S.Ct. 1536, 1541, 39 L.Ed.2d 797 (1974) (police power not "confined to elimination of filth, stench, and unhealthy places," but extends to zoning areas "where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people"); Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954) (concept of public welfare represents spiritual and aesthetic values); City of Lake Wales v. Lamar Advertising Ass'n, 414 So.2d 1030 (Fla.1982) (zoning solely for aesthetic purpose not outside police power); City of Lewiston v. Knieriem, 107 Idaho 80, 685 P.2d 821 (1984) (acknowledging that zoning to protect property values is valid exercise of police powers).
The City could rationally conclude that the building code did not intend for a building permit, once issued, to continue indefinitely. Even though there was no time limit expressed, the City could rationally interpret the Code to require that permitted construction must be substantially completed within a reasonable time of the permit's issuance.
Finally, the conditions placed on continuation were not unrelated to land use planning, but were rationally related to the City's protection of its neighborhoods. Compare Pace Resources, Inc. v. Shrewsbury Township, 808 F.2d 1023 (3d Cir.1987) (where only factual allegations were that zoning changes did not conform to guidelines of comprehensive plan, plaintiff did not present case showing township's actions were for reasons unrelated to land use planning; therefore action was not irrational and hence not violative of substantive due process) and Creative Environments, Inc. v. Estabrook, 680 F.2d 822 (1st Cir.1982) (where plaintiff urged that town misapplied state law to protect town's basic character but did not show fundamental procedural irregularity or racial animus, claim does not rise to due process violation) with Bello v. Walker, 840 F.2d 1124 (3d Cir.1988) (evidence that council members interfered with process by which building permits are issued for partisan political or personal reasons is sufficient due process violation). From the record, it cannot be said therefore that the City was acting with an improper motive; nor was it acting arbitrarily, capriciously or irrationally. This kind of ordinance enforcement decision is not the stuff of which constitutional violations are made.
B. EQUAL PROTECTION CLAIM
The Spences contend that the City's actions violated their equal protection rights under the fourteenth amendment. We disagree. The equal protection clause "is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne, Texas v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985) (citing Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 2394, 72 L.Ed.2d 786 (1982)).
In this case, the Spences have shown no one similarly situated who has been treated more favorably. No other single-family lot owner had spent six years constructing a bare shell that was unfit to live in, yet demanded the right to live in it and build it around him at his convenience. Building Director Bethel stated that in his thirty-eight-year experience — including the years before he was employed by the City of Clearwater — he had never issued a TCO for a single family residence. Assistant City
The Spences were not in the same situation as those persons issued a TCO for a single family residence and have thus completely failed to show how the City's denial of the TCO deprived them of equal protection under law. Compare Cordeco Development Corp. v. Santiago Vasquez, 539 F.2d 256 (1st Cir.1976) (upholding equal protection violation when plaintiff accused defendants of failing to act on sand excavation permit but granting permits to politically influential family for excavation of five adjacent parcels) with Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54 (2d Cir.1985) (insufficient allegations of equal protection violation where junkyard operator alleged that zoning board wanted his application "killed" but did not allege that others were treated differently) and Beacon Syracuse Associates v. City of Syracuse, 560 F.Supp. 188, 199 (N.D.N.Y.1983) (dismissing equal protection claim for failure to allege manner in which plaintiff was treated differently from those similarly situated).
We stress that federal courts do not sit as zoning boards of review and should be most circumspect in determining that constitutional rights are violated in quarrels over zoning decisions. Raskiewicz v. Town of New Boston, 754 F.2d 38, 44 (1st Cir.1985) ("federal courts do not sit as a super zoning board or zoning board of appeals"); Albery v. Reddig, 718 F.2d 245 (7th Cir.1983) (federal appeals court should not become accustomed to idea that constitutional rights are implicated in quarrel over zoning rules); Scott v. Greenville County, 716 F.2d 1409 (4th Cir.1983) (noting reluctance of federal courts to sit as zoning boards of appeal). None of the claims advanced by appellants warrant reversing the district court's order granting summary judgment.