### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT September 18, 2003 THOMAS K. KAHN CLERK

* Honorable B. Avant Edenfield, United States District Judge for the Southern District of Georgia, sitting by designation. [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

________________________ No. 02-14294

________________________ D. C. Docket No. 01-03066-CV-2 GREENBRIAR VILLAGE, L.L.C.,
Plaintiff-AppelleeCross-Appellant,

versus MOUNTAIN BROOK, CITY, Defendant-AppellantCross-Appellee.

________________________ Appeals from the United States District Court for th e Nort hern D istri ct of A labama

_________________________ (September

18, 2003) Before BIRCH and HULL, Circuit Jud ges, and EDENFIELD * , District Judge.2

PER CURIAM: In this case, a municipality issued a land disturbance permit for a residentially-

zoned piece of prope

rty. The wo

rk to be accomplished under the permit was for the admitted purpose of developing the property comm ercially, that is, for a purpose in

consistent with the pr

operty’s zoni

ng status at that tim

e, and the permit did not con

tain an explicit expir

ation date. Afte

r years of liti

gation over the proper scope of the d

isturbance activity

, and, correlat

ively, yea rs of the property languishing in a terminally disturbed state, the municipality passed a revised ordinance that resulted in the permit’s revocation. The landowner claimed violations of hi s due process right s. The question in this ca

se, essentially

, is whether const

itutional due process was due. We f

ind that substantive due

process concerns a

re not implicat

ed by the actions of the City

in this case, and so a

ffirm the dist

rict court’s dec

ision for the City on that clai

m. We find

, however, that

the district court e

rred in recognizing

a federally pro

tectable right as to

Greenbriar, a

nd, therefore, in holding that the City violated Greenbriar’s p rocedural due proces s rights. I. BACKGROUND The factual findings of the district court, following a bench trial, are essentially undisputed. The crucial portions of those findings follow. Greenbriar3

Village LLC (“

Greenbriar”) o

wns a 10-acre pie

ce of property

at the intersection

of Green Valley

Road and U. S. H

ighway 280 in the c

ity of Mountain Br

ook, Alabama (the

“City”).This property is zoned for residen tial use and has been s o zoned since Green

briar purchased the

property in 1990. Over the last deca

de, Greenbriar

has repeatedly

contended that the pr

operty is not suitable for re sidential use and has u sed all available a

venues to attemp

t to convince the City

to re-zone the prope

rty for com

mercial act

ivity. In 1992, Greenbriar applied for and was denied re-zoning of the property for use as an office development. In 1997, Greenbri ar filed a request

for re-zoning, a

gain denied, to support a pr

oposed “Green

briar Village” sh

opping center, whi

ch would include retail sto res, a grocery store, and a gas s tation. Greenbriar broug ht suit to challenge this denial, but lost in the trial court and eventually abandoned appeal because of an inade

quate transcript. On 17 February 1998, Greenbriar applied to the City for a land disturbance permit (the “Permit”), which the City issued on 18 March 1998. The Permit seemed to author

ize the clearing of

a commer

cial site. It is unc

ontested that Greenbriar’ s entire purpose for obtaining the Perm

it was to prepare for the eventuality of the prop erty being re-zoned for commercial us e. The Permit i tself contained no expirati

on date, and the appl

icable ordinances a

t the time did not4

provide for automatic ex piration. Greenbr iar use d the Pe rmit to cl ear the p ropert y, remove accumulated garbage and , later, move trees and earth. Under the authority of the Permit

, Greenbriar ha

s stockpiled tons of roc

k and fill mater

ial on the property over the last se veral years. Greenbriar has never proffered a residential purpose for cleari

ng the land, and the a

ctivity to date on

the land does not seem

in any way directed toward that end. Though the Perm

it was issued for the

clearing of a com

mercial site,

the City’s attorney, upon realizing the disconnect, specifically inform ed Greenbriar that the Permi

t did not authorize any

use contrary to

the current zoning st

atus of the property. The City’s attorney noted that it seemed incongruous for a landowner to apply for a disturbance permit when the purpose to which he wanted to put the property had not yet been approved, but he could find no reason under the zoning schem

e to deny a perm

it for that reason. In March 1999, Greenbriar applied yet again for re-zoning for comm ercial use, and this reques t was denied yet again in Oct ober 1999. Greenbriar aga in challenged this denia

l in state court. D

uring the pendency

of this action, the C

ity ordered Greenbriar to stop work under the Permit, and Greenbriar challenged that order in a mandamus proceeding in state court. The state court f ound that the Permit author

ized the clearing a

ctivity underwa

y on Greenbria

r’s property

and5

directed the City to resci nd the stop-work ord er immediately. Thus, from 19 98 to 2001, Greenbriar

used the Permi

t to conduct various la

nd improvem

ent projects on the property. It is uncontested that, even after three years, the property was in an unfinished state; no residential use had been advanced through the disturbance work, and no com

mercial use ha

d been authorized by

the City through r

e-zoning. In September

2001, and in the contex

t of the above content

iousness, the City passed Ordinance 1485, which is the crux of the alleged constitutional violations in this case . Subsection (k) of Ordinance 1485 provi

ded that all perm

its issued before 12 July

1999 would expire auto

matically thirty days after the effective date of the or dinance. This portion of the or dinance allowed the

City to start on a clean sla

te, with the end of

fully enacting a

more internal

ly consistent permit syst

em. Other p ortions of Ordinanc e 1485 amended the municipal code t

o requir e that a ny land d isturb ance wor k be don e in ant icipat ion of a current lyauthorized use and to provide that all new permits would expire if work was suspended or abandoned or, at the outer lim it, if two yea

rs had passed from issuance. The City adm

its that its experien

ces with Greenbr

iar were part of

the impetus towar

ds the passage of Or

dinance 1485, and it is

apparent that the changes accom

plished by that Or

dinance would serve

to correct the inconsistencies that allowed Greenbriar to obtain a non-expiring land disturbance1 It is unclear from the record how this notice was served. Greg g Doody, an attorney a

nd the principal dra

fter of the ordin

ance, testified

that the city

council discussed

sending notice to the parties affected by the ordinance but he did not know the specific s of the notice or whether the entities received it. Greenbriar V illage , 202 F.Supp. 2d at 1287; R3 at 393-94. The letters submitted as exhibits show only the address of the entity to be notified; there is no indication as to whether the letters were sent by regular or certified mail or were hand-delivered. Pl. Ex. 39. The only other record reference to the manne r of service is found in a copy of an e-mail sent from city employee Vicki Thomas to City Manager Sam Gaston in which she provided information he requested “regarding the mailing information” for contractors holding permits, and asked that Gaston advise whether he planned “to send mail” to the property owners. Id. ; Greenbriar Village , 202 F.Supp. 2d at 1287. 6 permit in anticipation of a non-conforming use in 1999. The district court specifically f

ound that Greenbria

r’s land disturban

ce Permit “

demonstrated to

the City the need for revision of the current ordinances.” Greenbriar Village, L.L.C. v. City of Mounta

in Brook , 202 F.Supp. 2d 1279 , 1286 (N.D. Ala. 2002). Furthermore, the district court found that “Ordinance 1485 targeted Greenbriar and that the City designed Ordinance 1485 to accomplish what its stop-work order could not do – force G

reenbriar to cea

se work on its proper

ty under its exist

ing valid permit.” Id. After passage of the Ordinance, G

reenbriar’s P ermit was the only permit in Mountain Brook that both expired and could not be renewed under the terms of the new code. Prior to the passage

of Ordinance 1485,

notice was sent to a

ll of the

contractors who held land disturba nce permits,

informing them

of the upcoming council meeting

in which the am

endment would be

discussed and adopted. 1 For7

Greenbriar’ s Permit, noti ce was sent to Saii

a Construction LLC , the contractor whose name app ears on an increas ed bond for work on the property, fil

ed in November 2002. The name of S aiia Construction ap pears nowhere on th

e land disturbance Perm

it itself. Rather

, the only entity

identified on the fa

ce of the Permit is Greenbriar. The district court concluded, based on evidence entered at trial, that “

the City specif

ically chose not to send notice to Gre enbriar of the proposed ordinance by the means customarily used.” Id. at 1287. All prece ding notices and corresp ondence regarding th e Greenbriar pr

operty had been s ent by the City to John De Buys, a principal of Greenbriar. Only in this one instance was notice of a proceeding affecting the property not sent directly to the listed landowner. After the enactm

ent of the ordinance , and after the P ermit expired by virtue of the plain language

of subsection (k), the City sent a l etter directly

to De Buys, informing him

that the Perm

it had expired, but th

at the City woul

d withhold application of the or

dinance for approxim

ately a mo

nth, until 1 Decem

ber 2001, to allow Greenbriar time to discuss the matter with City off icials. On 1 December 2001, following an exchange of letters between Greenbriar and the City that ultimately

resolved nothing, the

Permit expir

ed and all work stoppe

d on the property, except for emergency enviro nmental work occasioned by heavy rains.2 Greenbriar also presented a claim of denial of equal protection at trial, but the district

court’s rejecti

on of that claim ha

s not been challen

ged or briefe

d by Greenb

riar on appeal. T

hus, Greenbriar has abandoned that claim, and we, accordingly , do not discuss it. See United States v. Nealy , 232 F.3d 825, 830-31 (11th Cir. 2000). 8 II. DISCUSSION Greenbriar conte

nds that the revocati

on of the Permi

t violated its rights under the Due Process Cl ause of the Fourteent h Amendment to the Constitu tion. The district court

, following a bench

trial, found that G

reenbriar’s pr

ocedural due process rights wer

e violated, rej ected any substa ntive due process cla

im, and entered an injunc

tion prohibiting the Cit

y from using

Ordinance 1485 to de

prive Greenbriar of th

e Permit. 2 The City appeals the district court’s finding of a procedural due proc ess violation, and G reenbriar cross- appeals the reje ction of its substantive due process claim. W e review a trial court’s findings of fact for clear error and its legal

conclusions de novo

. Georgia Manufac tured Hous. v. Spa

lding County , 148 F.3d 1304, 1307 (11th Cir. 1998). We do so with a proviso that zoning decisions, as a

general rule, w

ill not usually be f

ound by a federa

l court to implicate const

itutional guarantee s and with a disinclina tion to sit as a zoning board of review. See Spence v. Zimmerm an , 873 F.2d 256, 262 (1 1th Cir. 1989). A. Substantive Due Pr

ocess The district court

agreed with the Ci

ty of Mountain Br

ook that no3 The question presented in McKinney was “whether, u

nder the Fourte

enth Amendment, a government e

mployee poss

essing a state-

created prope

rty interes t in his employm

ent states a substantive due process claim, rather than a procedural due process claim, when he alleg es that he was deprived of that employment interest by an arbitrary and capricious non-legislative governmental action.” 20 F.3d at 1553. We held that “[b]ecause employment rights are statecreated rights and are not ‘fundamental’ rights created by the Constitution, they do not enjoy substantive due process protection.” Id. at 1560. The only exception to this rule is when the state-created right is deprived in a manner that implicates a fundamental right, for example, when 9 substantive due proce ss claim could suc ceed, and we af

firm. “ The substantive component of the Due Proces s Clause protects th ose rights that are ‘fun damental,’ that is, rights that are ‘implicit in the concept of ordered liberty.” McKinney v. Pate , 20 F.3d 1550, 1556 ( 11th Cir. 1994) (en b anc). Fundam ental rights are tho se rights created by the Con stitution. DeKalb Stone, Inc. v. County of DeKalb, Ga. , 106 F.3d 956, 959 n.6 ( 11th Cir. 1997) (per curiam). “

Property inter

ests, of course, are not c

reated by the C onstitution. Rather they are cre

ated and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.” Board of Regents v. Roth , 408 U.S. 564, 577, 92 S. Ct. 2701,

2709 (1972); see also Vinyard v. W ilson , 311 F.3d 1340, 1356 (11th Cir. 2002).Thus, to the extent that Greenbriar

predicates its substantive due proce ss claim direc tly on the denial o f its state-grante d and - defined property right in the permit, no substan tive due process cla im is viable. See McKinney , 20 F.3d at 1560; Morley’s Auto Body, Inc. v. Hunter , 70 F.3d 1209, 1217 n.5 (1995). 3a state employee is fired in violation of the First Amendment for expressing his views.

See Beckwith v. City of Daytona B each Shores, Fla. , 58 F.3d 1554, 1563 (11th Cir. 1995).

4 The point being that the claim that the government acted arbitrary and irrationally can be easily subsumed and, indeed, is more properly considered a part of a claim that improper procedures were used in the deprivation. Claiming that the interest was deprived arbitrarily or irrationally is equivalent to claiming that no fair, unbiased, and meaningful proc edures were used for the deprivation. That type of inquiry fa lls squarely within what we have defined (and clarified explicitly in McKinney ) as a procedur

al due process c

laim. To say the least, it is surprising that neither party in this case discussed the impact of McKinney

on Greenbriar’s substantive due process claim. All of the Eleventh Circuit precedent cited by the parties on these types of substantive due process claims mysteriously ends in 1994, which, curiously, is the same year that a n en banc court decided McKinney . Our own resear ch in the area reveals that many of the cases cited by Greenbriar are flagged as being ca st into doubt or imp lie dly o verr ule d by McKinney . Indeed, lower courts in this circuit have explicitly applied McKinney

to situations involving the deprivation of land use permits. See , e.g. , Malone v. Parker , 953 F. Supp. 1512, 1515-16 (M.D. Ala. 1996). 10 Rather than base its argument on that losing proposition, Greenbriar contends that the City ’s action with re spect to its Perm it was unconstitutiona

lly irrational and arbitrary, and th at the substantive com

ponent of the Due Pr

ocess Clause protects gen

erally against

arbitrary an

d irrational action by the governm ent. We specifically d

iscussed the dangers of broadening the scop e of substantive due process in this fashio

n in McKinney

. See 20 F.3d at 1559; see also DeKalb Stone , 106 F.3d at 959 n.6, 960. According to McKinney , non-legislative depr ivations of state-created r

ights, which would i

nclude land-use right

s, cannot support a substantive due proce ss claim, not e ven if the plaintiff

alleges that the gove

rnment acted arbitrary

and irrationally . 20 F.3d at 1559. C onstitutional due proce ss is satisfied for these

deprivations when pr

oper procedures ar

e employed. 4 Id.5 Spence is a pre- McKinney case that examine

d the merits of a substantive due proc ess claim resulting from the deprivation of a building permit. Of course, after McKinney , a factual situation similar to Spence wou ld b e ana lyze d di ffer ent ly. 11 Even if we wer

e to find that the depr

ivation of the land dist

urbance Perm

it did implicate c onstitutional substantive due process protect

ions, the City’ s actions were not so arbitrary or irrati onal as to compel us to fi nd for Greenbriar. See City of Cyahoga Fal

ls, Ohio v. Buckey

e Communit

y Hope Foundatio

n , , U.S. , ,123 S. Ct. 1389, 1396 (1996). The avoidance of the harms attendant to halfcompleted construction is a constitutionally permissible objective for a municipality when enforcing its building cod e. See Spence , 873 F.2d at 260. 5 When construction on or development of a property is not completed in an expeditious manne

r, all types of

costs accrue to the

community

at large: “ro dents, transients, sand er

osion or vandals, inj uring the surrounding ne ighborhood economically, environmentally, and aesthetically.” Id. For these reasons, a “City could rationally

conclude that the buil

ding code did not intend f or a building permit, once

issued, to continue in

definitely. E

ven though there was no time limi t expressed, the City could rationally interpret the Code to require that permitted construction must

be substantially completed wit hin a reasonable tim

e of the permit’s issuance.” Id. Greenbriar arg

ues that the City

revoked its Perm

it based on some so

rt of12

personal vendetta a

gainst it. Certain

ly, the am endments to the C

ity ordinances di

d affect Greenbriar more than any of the other perm it holders in the city. Just as certainly, th

e disagreeme

nts between the Cit

y and Greenbr

iar about the use of t

he property wer

e most contentiou

s, and the history

of litigation between the parties is apparent. However, even if we take into account all of these factors, which bear towards the conclusion that the City t argeted Greenbr

iar specifically

by enacting this ordinance, we

still find that their

action could not have vi

olated substantive due process. Even

with this evidence t

hat the City tar

geted Greenbriar

out of animosi ty, it is equall y clear th at the C ity was al so motiv ated in part by a legitimate desire to enact a com prehensive and inter

nally consistent l

and use system. It follows from these reasonable and legitim ate governmental objectives that even if the Per

mit was a funda

mental right pr

otected by substa

ntive due process, the City ’s actions were not constitutionally

arbitrary an

d irrational, and the rights of the st ale permit holder were not vi olated by revocation. Id. However, all of this discussion is

merely a cademic, an

d the core reason tha

t a substantive due pro cess cl aim does not exi st in th is case is that no inte rest pr otecte d by a fundamental ri

ght is being deprived. B. Procedural Due P

rocess “Due process” cases typically focus on whether governm ents can take away6 As the Second Circuit explained (viewing this issue through the prism of a substantive

due process claim): Before a plaintiff seeks to prove that a state official’s denial of a permit deprived him of a property right in the permit in violation of the standards of substantive due process . . . he

must first establish

that he has a fede

rally prote

ctable property right in the permit. This requires a demonstration that [at the time of the municipality’s alleged due process violation,] he had a clear entitlement to the permit under state law. Natale v. Town of

Ridgefield

, 170 F.3d 258, 263 (2d Cir. 1999) (emphasis added).

13 property withou

t affording its owne

r an adequate notice

and opportunity to be heard. See , e.g. Mullane v. Centra l Hanover Bank & T

rust Co. , 339 U.S. 306, 314-16, 70 S. Ct. 6 52, 657-58 (1950). W hen courts analy

ze a procedural due process claim or its analytically related cousin–substantive due process (it arises when a government egregiously or arbitrarily deprives one of his property)–they variously exam

ine three things: (1)

whether there is enough of a property interest at stake to be deemed “protectable” 6 ; (2) the amount of process that should

be due for that protectab le right; and (3) the process actually

provided, be it befo

re or after the deprivatio n. See , e.g. , Tri-County Pa ving, Inc. v. As

he County , 281 F.3d 430, 436 (4th Cir. 2002). Sometime s courts can moot the examinatio

n of one or two of those analytical com

ponents by passing on another. Thus, i n a substantive due proc ess case, the Supreme Court did not did not decide whether aggrieved parties possessed a property interest because the challenged government conduct was14

simply not “egregious or arbitrary.” City of Cuya hoga Falls , ___ U.S. at ___ , 123 S. Ct. at 1396. S imilarly, in Tri-County Pa

ving , the court assum

ed a property interest existed, but concluded that the a ggrieved party t

here failed to expl

oit available remedies which basically waives one’s right to complain. 281 F.3d at 437-38. Finally

, in Bryan v. City

of Madison, Miss. , 213 F.3d 267 (5th Cir. 2000), the court found that a developer’s contract to purchase land did not create a protected property righ t for purposes of hi s due process claims. Id. at 275-76. It did not, therefore , consider the am ount of process due or

the process provided. Here, we need not consider whether the district court correctly decided that the City failed to provi de Greenbriar with adequ ate due process. Inste ad, we examine wheth

er Greenbriar held a federally protectable proper

ty right in the fi

rst place, because no

procedural due proc ess claim exist s until a sufficientl

y certain property right under state law is first shown. Both Greenbriar and the district court focu sed on the City code–s pecifical ly, the code’s gaps and t he City’s subsequent gap-repa

ir efforts–to suppor

t the existence of G

reenbriar’s e stoppelbased property right. See Greenbriar Vil lage , 202 F. Supp. 2d at

1290 (finding that Greenbriar ’s “propert y rights under app

licable Alabam

a law rests in the doctrine of equitabl

e estoppel”); id. at 1291-92 (finding tha t Greenbriar m

ade expenditures in reliance on the City’s land-disturbance permit and that Greenbriar7 The injunction, af ter all, is perman

ent and, in the futu

re, Greenbria

r undoubtedly

will point to its land-cle

aring expenditur

es as “vesting”

additional estoppe

l-based propert

y rights, thereby demanding, via mandamus, a commercial zoning chang e.

15 did not obtain the permit in bad faith). There is no dispute that Greenbriar exploited an admitted gap in the City’s code, ultimately obtaining from the district court a de facto co

mmercia l zoning change m

erely because

the City was la

x in maintaining a gap in its code, and, later, a little too tricky in notifying Greenbriar of its legislative ef

forts to elimina

te it by sending noti

ce to a Greenbria

r principal, rather than to Gre

enbriar at its corp orate address. 7 Greenbriar thus a

dvanced a property

right derived from : (1) the City’ s error in creatin g a gap in it s code; (2) the City’s fai lure to timel y halt Greenb riar’s exploitation of it; (3)

Greenbriar’ s gamble (by engaging in comm

ercial-scale clearing of residentially zoned land) that it one day would successfully pressure the City to rezone the subject land to its liking; (4) Greenbriar’s exploitation of an open-ended (time-wise) land-disturbance permit to artificially crea te “detrimental reliance” o n a future-b ut-not-g uaranteed commercial rezon ing); and (5) the Cit y’s legally inartf

ul efforts to repai

r the gap (efforts

which led to this § 1983 a ction and the lower court’ s permanent inj unction). All of th at occurred on a la

nddisturbance permit that was so open-ended that Greenbriar itself conceded that16

courts should simpl

y fill in its gaps (

that the Permi

t was valid for “

a reasonable time”). See id. at 1298. Greenbriar ther

efore, at m

ost, held an uncerta

in property right

when the City violated its zoning-notice procedures. It was not “certain” until after the alleged due process deprivation occurred. Indeed, the “by-estoppel” property right was not even recognized until the district court announced it, and even at that on legal grounds different from those Greenbriar itself proffered. See idat 1290. (“Although Greenbriar also asserts that its property rights spring from the issuance to it of a [state poll

ution-discharge] Permit and because of its inherent ‘bundle of property rig hts,’ . . . this court find s that the mos t solid ba sis for Gree nbriar’s vested property

rights under applica

ble Alabama s

tate law rests in t

he doctrine of equitable estoppel. ”). Further, G reenbriar relie

d on land use procedure s to derive its property rig

ht. Our sister circui

ts have held that unce

rtainty in the ex

istence of a proper

ty right, especially one based on the exploitation of municipal code procedures that otherwise accord

ed no right to develop the property in quest

ion, does not add up to a federally protectabl e property claim. See Natale v. City of Ridgefield , 170 F.3d 258, 263 n.1, 2 64 (2d Cir. 1999) (A plaintiff seeking “

to establish a feder

ally protectable propert y interest in a state or lo cal permit for which [he] has app lied, . .17

. must show tha

t, at the time

the permit wa

s denied, there w

as no uncertainty regarding his entitle

ment to it under a

pplicable . . . l

aw, and the issuing a

uthority had no discretion to w

ithhold it in his particu

lar case”; such int

erest is defeated

by uncertainty “as to the meaning of [the] law. ”). The determining factor in such
cases may

be whether the per

mit-issuing gover

nment authority

lacks discretion to deny the permit on which the p laintiff bases his property right. Id. at 263 (“[E]ntit lement turns on w

hether the issuing aut

hority lacks disc

retion to deny the permit, i.e

, is required to issu

e it upon ascertainm

ent that certain obj ectively ascertainable cr

iteria have been m

et”); see also Crown Point I, L .L.C. v. Intermounta in Rural Ele c. Ass’n , 319 F.3d 1211, 1217 (10th Cir. 2003) (“[W]hen a party challe

nges a land use decisi

on by a governing bod

y on due process grounds, the proper i

nquiry is whethe

r that body had lim

ited discretion in gra

nting or denyi ng a par ticula r zonin g or use applic ation” ). Howev er, such “uncerta inty” is not limited to di scretion-based per mit issuances: There is no reason, however, to restrict the “uncertainty” that will preclude exist

ence of a federa

lly protectable

interest to the uncertainty tha

t inheres in an exer

cise of discretion. Uncertainty as to the meaning of applicable law also suffices. Indeed, if uncertainty as to the law did not pre

clude recognition of a federally pr otectable property inter

est, permit c

laimants would r

egularly be ent

itled to present to federa

l courts their dispute s concerning the inte rpretation of local and state la

nd use regulations. J

ust as federal cour

ts are not to be turned into zoning b oards of appeals, t hey are also not

be18

substituted for state

courts as adjudica

tors of the mea

ning of zoning and other land use re gulations. Natale , 170 F.3d at 263 (citation and footnote omitted). Here, there existed a reasonable debate over the meaning of Alabama law used to recognize the

Greenbriar prop erty right that it seeks to elevate t o a federally protectable level. That debate or “uncertainty ” existed all the way through to the briefin

g stage in the distric

t court, so it cert

ainly existed w

hen the City violated its zoning-notice procedures. The district court literally found that the property right came to exist over time, after the land-disturbance perm it was issued, as Greenbriar developed a detrimental reliance interest in the permit. E ven at that, the court only defined that property right’s broad contours and failed to say when the permit expired or wh en the undefined “reason able time” would end. Greenbriar , 202 F. Supp. 2d at 1292. As with Natale , Greenbriar th erefore lacked a

federally pr

otectable property interest. Gree

nbriar’s “e

ntitlement to the

permit[] s ought turned ultim ately on the resolution of the parties’ [] law dispute as to whether [Greenbriar] had . . . rights.” Natale , 170 F.3d 263; see also id. at 264 (property owner lacked prote

ctable property interest where the law became clear only after a state court’s “refined analysis of two state sta tutes and a state Sup reme Court decision”).19

Although Natale’s ratio nale traveled on a su bstantive due pro cess claim, we conclude that it is app

ropriately appl

ied to the procedura

l due process claim advanced here, a

s we see no supportable distinction direct ing us otherwise. T

he common and k

ey thread to the se cases is the unce rtainty of the pr

operty right, t

hus rendering it unprotectable under established federal due process doctrine. We, therefore, conc

lude that the distric

t court erred in re

cognizing a federa

lly protectable right under § 1983 and thus in holding that the City violated Greenbriar’s procedural d ue process rights.

III. CONCLUSION We affirm the dis trict cour t’s decisio n in favor o f the City on G reenbriar’s substantive due proce ss claim but rev erse the district court’s judgm ent for Greenbriar on its procedural due process claim. We therefore AFF IRM IN PART and REVERSE I

N PART the distr

ict court’s judg

ment, and RE

MAND with direction to the di strict court to vacat e its judgment.