Henry v. Henry

• Decision Date: 03 March 2011
• Docket Number: Nos. 09–1546,09–2021.,s. 09–1546
• Parties: Aubrey E. HENRY; Deborah V. Henry, Plaintiffs–Appellants,v.JEFFERSON COUNTY COMMISSION; Jefferson County Planning and Zoning Commission; Shepherdstown Men's Club Foundation, Incorporated; Ledge Lowe Homeowner's Association; William E. Lewandowski; Joyce Ann Lewandowski; Richard Super; Dan Marken; John Sims; Thomas Kane; John Does I–V, Defendants–Appellees.Aubrey E. Henry; Deborah V. Henry, Plaintiffs–Appellants,v.Jefferson County Commission; Jefferson County Planning and Zoning Commission; Shepherdstown Men's Club Foundation, Incorporated; Ledge Lowe Homeowner's Association; William E. Lewandowski; Joyce Ann Lewandowski; Richard Super; Dan Marken; John Sims; Thomas Kane; John Does I–V, Defendants–Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

637 F.3d 269

Aubrey E. HENRY; Deborah

v. Henry, Plaintiffs–Appellants,

v.JEFFERSON COUNTY COMMISSION; Jefferson County Planning and Zoning Commission; Shepherdstown Men's Club Foundation, Incorporated; Ledge Lowe Homeowner's Association; William E. Lewandowski; Joyce Ann Lewandowski; Richard Super; Dan Marken; John Sims; Thomas Kane; John Does I–V, Defendants–Appellees.Aubrey E. Henry; Deborah

v. Henry, Plaintiffs–Appellants,

v.Jefferson County Commission; Jefferson County Planning and Zoning Commission; Shepherdstown Men's Club Foundation, Incorporated; Ledge Lowe Homeowner's Association; William E. Lewandowski; Joyce Ann Lewandowski; Richard Super; Dan Marken; John Sims; Thomas Kane; John Does I–V, Defendants–Appellees.

Nos. 09–1546

09–2021.

United States Court of Appeals, Fourth Circuit.

Argued: Dec. 8, 2010.Decided: March 3, 2011.

ARGUED: Linda M. Gutsell, Martinsburg, West Virginia; David Hart Nelson, Charlottesville, Virginia, for Appellants. James Robert Russell, Shuman, McCuskey & Slicer, PLLC, Morgantown, West Virginia; Braun A. Hamstead, Hamstead & Associates, LC, Martinsburg, West Virginia, for Appellees. ON BRIEF: Tamara J. DeFazio, Shuman, McCuskey & Slicer, PLLC, Morgantown, West Virginia, for Appellees Jefferson County Commission, Jefferson County Planning and Zoning Commission, William E. Lewandowski, Dan Marken, John Sims, and Thomas Kane.Before WILKINSON and NIEMEYER, Circuit Judges, and PATRICK MICHAEL DUFFY, Senior United States District Judge for the District of South Carolina, sitting by designation.Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge NIEMEYER and Senior Judge DUFFY joined.

OPINION

WILKINSON, Circuit Judge:

We are asked once again to intervene in a decades-old land-use dispute between Aubrey Henry and the sundry local government bodies and neighboring residents who played a part in turning back his development plans. Henry chiefly alleges that the defendants took his property by granting him a less intensive conditional use permit than the one to which he claims he was entitled. Because he had no such entitlement and because his numerous other claims are without merit, we affirm the district court's grant of summary judgment to defendants.

I.

We begin by begging the reader's indulgence as we summarize the frequently litigated facts underlying Henry's claims and the byzantine procedural history accompanying them. Henry owned or had an interest in four adjoining parcels of land totaling 13.69 acres in Jefferson County, West Virginia. He resided in a single-family home on Parcel A, his mother resided in a similar home on Parcel B until her death in 2004, and Parcel D was unimproved.

Although a 1988 zoning ordinance designated all of the land as rural-agricultural, see generally Jefferson County, W. Va., Zoning and Development Review Ordinance § 5.7 (1988), Henry for years had been operating a restaurant on Parcel C. In February 1993 the restaurant burned down. Allegedly acting on the erroneous advice of the zoning administrator, Henry applied in January 1994 for a Conditional Use Permit (“CUP”) to build 76 townhouses on some of the property rather than attempting to rebuild the restaurant.

Under the ordinance's Development Review System, proposals are first subjected to a Land Evaluation Site Assessment (“LESA”). Henry's proposal received a score of 39.04. Any score under 60 passes, and proposals with scores closer to 0 are viewed more favorably than those whose scores approach 60. Members of the community expressed concerns about the project at a Compatibility Assessment Meeting, and the Jefferson County Planning and Zoning Commission (the “Planning Commission”) denied the CUP application. The Board of Zoning Appeals (“BZA”) upheld the denial, but the West Virginia Supreme Court of Appeals reversed and remanded on the grounds that the BZA failed to set forth sufficient factual findings. See Henry v. Jefferson Cnty. Planning Comm'n, 201 W.Va. 289, 496 S.E.2d 239, 242 (1997). On remand the BZA again denied the 1994 CUP application, and the Circuit Court of Jefferson County affirmed.

While his claims were pending before the West Virginia Supreme Court of Appeals, Henry also filed his first federal lawsuit, which the parties call Henry I. After the resolution of his state supreme court case, we affirmed the district court's grant of summary judgment on Henry's procedural due process challenge to the zoning ordinance but reversed the district court's decision to abstain from hearing Henry's other claims. See Henry v. Jefferson Cnty. Planning Comm'n, No. 99–2122, 2000 WL 742188 (4th Cir. June 9, 2000) (appeal of Henry I ). Once the case wended its way back to us after remand, we affirmed the grant of summary judgment on his substantive due process claim but held that his takings claim was not ripe because he had not attempted to secure compensation in state court. See Henry v. Jefferson Cnty. Planning Comm'n, 34 Fed.Appx. 92 (4th Cir.2002) (appeal of post-remand Henry I consolidated with another suit Henry had filed, Henry II ).

In January 2001 Henry applied for another CUP for a 76–unit townhouse development. He received another 39.04 LESA score, and although members of the public again expressed their concerns at the Compatibility Assessment Meeting, the Planning Commission voted unanimously to grant Henry's request, although limiting the number of units to 51 (including Henry's residence). However, several neighboring landowners, including the Shepherdstown Men's Club, William and Joyce Lewandowski, and Miriam Wilson, appealed the Planning Commission's decision. Ultimately, the Circuit Court of Jefferson County reversed because the Planning Commission failed to enter sufficient factual findings. Shortly thereafter Henry filed another federal suit, Henry III. In October 2003 he applied for a variance to rebuild the restaurant, which the BZA denied because allowing the request would have permitted Henry to circumvent the CUP process and because Henry's right to rebuild had expired. Henry did not appeal.

There was some delay in dealing with Henry's 2001 CUP application after the state court remanded it. In October 2004 Henry's counsel appeared before the Planning Commission to request a hearing on the application. At the meeting William Lewandowski, by that time a member of the Planning Commission and a defendant in Henry III, spoke strongly against Henry's ongoing litigation and declared that he would not recuse himself from considering Henry's CUP.

The Planning Commission soon decided to consider anew the unresolved issues in Henry's 2001 CUP application, and at a December 2004 public hearing Henry's counsel, the Planning Commission, and some of the project's opponents discussed them. By this time Lewandowski had recused himself from considering Henry's application. At the meeting Henry agreed to resolve the remaining issues, though not necessarily in the manner requested by the Planning Commission, and he agreed again to reduce the development from 76 to 51 units. Nonetheless, at a January 2005 meeting the Planning Commission granted Henry a CUP that allowed for only one unit per 40,000 square feet, for a total of 14 units. Although the Circuit Court of Jefferson County reversed the CUP's condition that Henry appeal the decision to the BZA, it affirmed the remainder of the CUP. By January 2006 Henry had sold the property to investors led by Peter Corum.

But the litigation, which by now resembled a chronicle of the Tudor dynasty, did not stop. In March 2007—two years after the district court had dismissed Henry III 's takings claim as unripe—Henry finally sought compensation in state court, suing the Planning Commission for taking his property in violation of the West Virginia Constitution. The Circuit Court of Jefferson County held that statutory immunity barred Henry's claims. It also refused to allow him to add a mandamus action for compensation, reasoning with the Planning Commission that Henry's specific reservation of his federal claims and pursuit of those claims in another pending federal action— Henry IV, filed in March 2006—rendered any amendment to the complaint futile. Henry did not appeal. In November 2006 the BZA granted Peter Corum, Henry's successor in title, a CUP for a mixed commercial-residential development on the property.

Henry's amended complaint in Henry IV alleged that the Jefferson County Commission and the Planning Commission took his property without just compensation by “preclud[ing]” him from rebuilding his restaurant and denying him a meaningful CUP. Among other claims, he also alleged that various county entities and officials, as well as private opponents, violated his substantive and procedural due process rights.

The district court granted summary judgment against Henry on every claim, and he unsuccessfully moved to vacate the judgment after Caperton v. A.T. Massey Coal Co., Inc., ––– U.S. ––––, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009). He now appeals both of these decisions.

II.

A.

The hurdles to Henry's claims, both procedural and substantive, are so numerous that the district court was plainly right in dismissing them. On the procedural front, there is considerable question whether Henry's takings claims should even be in federal court. See San Remo Hotel, L.P. v. City and County of San Francisco, 545 U.S. 323, 125 S.Ct. 2491, 162 L.Ed.2d 315 (2005) (applying ordinary preclusion principles to takings plaintiffs); Williamson Cnty. Reg'l Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985) (takings plaintiffs must first pursue compensation in state court).

Be that as it may, the substantive obstacles to Henry's contentions are even more forbidding. Henry claims that the Planning Commission took his property by granting him a 14–unit CUP rather than the 51–unit CUP to which he claims he was entitled. We start by discussing whether Henry was...