Tri County Paving, Inc. v. Ashe County

• Decision Date: 22 February 2002
• Docket Number: No. 01-1931.,01-1931.
• Citation: 281 F.3d 430
• Parties: TRI-COUNTY PAVING, INCORPORATED, Plaintiff-Appellant, v. ASHE COUNTY; Ashe County Board of Commissioners, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

281 F.3d 430

TRI-COUNTY PAVING, INCORPORATED, Plaintiff-Appellant, v. ASHE COUNTY; Ashe County Board of Commissioners, Defendants-Appellees.

No. 01-1931.

United States Court of Appeals, Fourth Circuit.

Argued December 5, 2001.

Decided February 22, 2002.

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ARGUED: Donald Merritt Nielsen, Kilpatrick Stockton, L.L.P., Winston-Salem, North Carolina, for Appellant. James Redfern Morgan, Jr., Womble, Carlyle, Sandridge & Rice, P.L.L.C., Winston-Salem, North Carolina, for Appellees. ON BRIEF: Stephen R. Berlin, Kilpatrick Stockton, L.L.P., Winston-Salem, North Carolina, for Appellant.

Before WILKINSON, Chief Judge, and WILKINS and LUTTIG, Circuit Judges.

Affirmed by published opinion. Chief Judge WILKINSON wrote the opinion, in which Judge WILKINS and Judge LUTTIG joined.

OPINION

WILKINSON, Chief Judge.

Plaintiff Tri-County Paving, Inc. ("TCP") claims that Ashe County, North Carolina and the Ashe County Board of Commissioners (collectively "the County") violated its due process and equal protection rights by not issuing a building permit for TCP's proposed asphalt plant, by enacting a one-year moratorium on the building of asphalt plants, and by subsequently enacting a Polluting Industries Development Ordinance. TCP seeks damages and injunctive relief pursuant to 42 U.S.C. § 1983 and the North Carolina Constitution. The district court granted summary judgment for the County. Because TCP was not deprived of a property interest without due process of law, and because the County's actions were rationally related to a legitimate state interest, we affirm the judgment of the district court.

I.

In the mid-1990's, Tri-County Paving began to consider constructing an asphalt plant on its property in an unincorporated portion of Ashe County, North Carolina. Some time prior to August 1997 and again in August 1998, TCP's principal shareholders, Leonard and Lucian Jordan, informally discussed their plans to construct the plant with George Yates, Chairman of the Ashe County Board of Commissioners. In August 1998, TCP purchased a used asphalt plant and moved the disassembled plant to its property. Leonard Jordan also informed the County Planner that TCP was applying to the North Carolina Department of Environment and Natural Resources ("NCDENR") for an air quality permit to operate the plant and requested a consistency determination. On August 26, 1998, the County Planner wrote that TCP's proposed site did not violate any existing County ordinances.

However, TCP's plans to construct and operate an asphalt plant soon met with community resistance. At the October 5 1998 Commissioners' meeting, Chairman Yates voiced concerns over TCP's proposed plant and urged the citizens of the Town of West Jefferson to exercise territorial jurisdiction rights to stop the project. The news of TCP's plans quickly spread through the small, rural county. Two citizen advocacy groups, the Ashe County Citizens Against Pollution and the Blue Ridge Environmental Defense League, requested that a discussion of TCP's proposed plant be included on the agenda of the October 19 Commissioners' meeting.

Meanwhile, on October 15, Leonard Jordan's daughter-in-law requested a building permit for the asphalt plant from the County Inspector's Office. She was told that TCP had to submit a set of signed and sealed blueprints before the County could issue a building permit.¹ The following day, TCP returned to the office to again seek a permit. Taking the evidence in the light most favorable to TCP, the Jordans submitted a set of properly signed and sealed blueprints. It is undisputed however that Robert Reed, the Director of Building Inspections, never issued a building permit to TCP for the plant.

Furthermore, TCP's application for a building permit remained deficient in several respects. TCP did not submit a written application for a building permit, even though the North Carolina Building Code and Ashe County ordinances expressly require a written application before a building permit can be issued.² Further, it is undisputed that TCP did not have a wastewater permit and that, under North Carolina law, a wastewater permit is required before a building permit can be issued.³ TCP did not obtain a wastewater permit until October 18, 1999 — over a year after TCP applied for a building permit. It is also undisputed that TCP's initial application to the NCDENR for an air permit was incomplete and that the NCDENR did not issue an air permit until May 10, 1999 — almost seven months after TCP applied for a building permit. Under North Carolina law, TCP could not have commenced construction of its asphalt plant without an air permit.⁴ In fact, on November 17, 1998, the NCDENR called TCP's engineer to inform him that if TCP "commenced construction" of the plant without an air permit, TCP would be in violation of state law. Robert Reed also stated under oath that he "wouldn't have issued a [building] permit without an air quality control [permit]."

Following their failed attempt to obtain a building permit, Leonard and Lucian Jordan attended the October 19, 1998 Commissioners' meeting, where a spirited public debate ensued regarding TCP's proposed asphalt plant. It is clear that the Jordans had notice that TCP's plant would be discussed at the meeting and that the Jordans spoke on behalf of the project during the meeting. The Commissioners ultimately passed, by a vote of 3-2, an ordinance placing a one-year moratorium on the construction of asphalt plants in unincorporated portions of Ashe County. Because the first vote on the moratorium was not unanimous, a second reading was required and the moratorium was scheduled to be taken up at the next Commissioners' meeting on November 18, 1998. The Jordans had notice that TCP's asphalt plant would be discussed at the November meeting by virtue of their attendance at the first meeting. And Leonard Jordan actually attended the second meeting, where the moratorium again passed by a vote of 3-2. The moratorium included a provision allowing a party to appeal to the Commissioners for a variance in cases of severe hardship. However, TCP did not apply for or receive a variance under the moratorium.

Near the end of the moratorium period, the Commissioners passed the Ashe County Polluting Industries Development Ordinance ("PIDO"), which required a polluting industry to obtain a special use permit from the County Planning Department, and prohibited the location of a polluting industry within 1,000 feet of a residence or within 1,320 feet of any school, daycare, hospital or nursing home. See Ashe County Ordinance §§ 159.01-159.08, § 159.99. Because it does not have a comprehensive zoning ordinance, the County enacted both the moratorium and the PIDO pursuant to its general police power under N.C. Gen. Stat. § 153A-121, which allows a county to pass ordinances to protect the health, safety, or welfare of its citizens. Like the moratorium, the PIDO contained a variance process and authorized the County Planning Board to issue a variance if strict adherence to the PIDO "would cause an unnecessary hardship." Ashe County Ordinance § 159.07. TCP did not receive a variance or permit to construct its asphalt plant after the enactment of the PIDO.

In July 1999, TCP initiated this action, alleging that the County violated its due process and equal protection rights by denying it a building permit and by passing the moratorium and the PIDO. TCP also alleged that the PIDO was unconstitutionally vague.⁵ TCP sought relief pursuant to 42 U.S.C. § 1983 and the North Carolina Constitution.⁶ The district court granted summary judgment to the County with respect to all of TCP's claims. The court held that TCP's procedural due process claim failed because TCP did not have a vested property right to construct or operate an asphalt plant. The court concluded that TCP's substantive due process claim also failed because TCP lacked a valid property interest and because the County's actions were not beyond the broad limits of legitimate governmental action. The district court similarly rejected TCP's equal protection claim, finding that the County's actions were rationally related to a legitimate governmental end. Finally, the district court rejected TCP's vagueness claim, finding that the terms in the PIDO were "reasonably determinable by people of common intelligence." TCP appeals.

II.

A.

We begin by considering TCP's procedural due process claim. In order to state a valid procedural due process claim, TCP must demonstrate: (1) that it had a property interest; (2) of which the County deprived it; (3) without due process of law. Sylvia Dev. Corp. v. Calvert County, 48 F.3d 810, 826 (4th Cir.1995). It is well-settled that the Fourteenth Amendment itself does not create property interests. "Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law." Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Further, to have a property interest in a benefit, a person must have a "legitimate claim of entitlement to it." Id. A mere "abstract need or desire for it" or "a unilateral expectation of it" is insufficient. Id.

Due process of law generally requires that a deprivation of property "be preceded by notice and opportunity for hearing appropriate to the nature of the case." Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865 (1950). See also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). However, "to determine whether a procedural due process violation has occurred, courts must consult the entire panoply of predeprivation and postdeprivation process provided by the state." Fields v. Durham, 909 F.2d 94, 97 (4th Cir.1990) (citing Zinermon v. Burch, 494 U.S. 113, 126, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990))....