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 the Northern District of Alabama

_________________________

(September 18, 2003)

Before BIRCH and HULL, Circuit Judges, and EDENFIELD*

, District Judge. 
2

PER CURIAM:

In this case, a municipality issued a land disturbance permit for a

residentially-zoned piece of property. The work to be accomplished under the

permit was for the admitted purpose of developing the property commercially, that

is, for a purpose inconsistent with the property’s zoning status at that time, and the

permit did not contain an explicit expiration date. After years of litigation over the

proper scope of the disturbance activity, and, correlatively, years 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 his due process rights. 

The question in this case, essentially, is whether constitutional due process

was due. We find that substantive due process concerns are not implicated by the

actions of the City in this case, and so affirm the district court’s decision for the

City on that claim. We find, however, that the district court erred in recognizing a

federally protectable right as to Greenbriar, and, therefore, in holding that the City

violated Greenbriar’s procedural due process rights. 

I. BACKGROUND

The factual findings of the district court, following a bench trial, are

essentially undisputed. The crucial portions of those findings follow. Greenbriar
3

Village LLC (“Greenbriar”) owns a 10-acre piece of property at the intersection of

Green Valley Road and U. S. Highway 280 in the city of Mountain Brook,

Alabama (the “City”). This property is zoned for residential use and has been so

zoned since Greenbriar purchased the property in 1990.

Over the last decade, Greenbriar has repeatedly contended that the property

is not suitable for residential use and has used all available avenues to attempt to

convince the City to re-zone the property for commercial activity. In 1992,

Greenbriar applied for and was denied re-zoning of the property for use as an

office development. In 1997, Greenbriar filed a request for re-zoning, again

denied, to support a proposed “Greenbriar Village” shopping center, which would

include retail stores, a grocery store, and a gas station. Greenbriar brought suit to

challenge this denial, but lost in the trial court and eventually abandoned appeal

because of an inadequate 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 authorize the clearing of a commercial site. It is uncontested that 

Greenbriar’s entire purpose for obtaining the Permit was to prepare for the

eventuality of the property being re-zoned for commercial use. The Permit itself

contained no expiration date, and the applicable ordinances at the time did not
4

provide for automatic expiration. Greenbriar used the Permit to clear the property,

remove accumulated garbage and, later, move trees and earth. Under the authority

of the Permit, Greenbriar has stockpiled tons of rock and fill material on the

property over the last several years. Greenbriar has never proffered a residential

purpose for clearing the land, and the activity to date on the land does not seem in

any way directed toward that end. 

Though the Permit was issued for the clearing of a commercial site, the

City’s attorney, upon realizing the disconnect, specifically informed Greenbriar

that the Permit did not authorize any use contrary to the current zoning status 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 scheme to deny a permit for that reason.

In March 1999, Greenbriar applied yet again for re-zoning for commercial

use, and this request was denied yet again in October 1999. Greenbriar again

challenged this denial in state court. During the pendency of this action, the City

ordered Greenbriar to stop work under the Permit, and Greenbriar challenged that

order in a mandamus proceeding in state court. The state court found that the

Permit authorized the clearing activity underway on Greenbriar’s property and
5

directed the City to rescind the stop-work order immediately. Thus, from 1998 to

2001, Greenbriar used the Permit to conduct various land improvement 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 commercial use had been authorized by the City through re-zoning.

In September 2001, and in the context of the above contentiousness, the

City passed Ordinance 1485, which is the crux of the alleged constitutional

violations in this case. Subsection (k) of Ordinance 1485 provided that all permits

issued before 12 July 1999 would expire automatically thirty days after the

effective date of the ordinance. This portion of the ordinance allowed the City to

start on a clean slate, with the end of fully enacting a more internally consistent

permit system. Other portions of Ordinance 1485 amended the municipal code to

require that any land disturbance work be done in anticipation of a currentlyauthorized use and to provide that all new permits would expire if work was

suspended or abandoned or, at the outer limit, if two years had passed from

issuance. The City admits that its experiences with Greenbriar were part of the

impetus towards the passage of Ordinance 1485, and it is apparent that the

changes accomplished by that Ordinance would serve to correct the

inconsistencies that allowed Greenbriar to obtain a non-expiring land disturbance
1

 It is unclear from the record how this notice was served. Gregg Doody, an attorney and

the principal drafter of the ordinance, testified that the city council discussed sending notice to

the parties affected by the ordinance but he did not know the specifics of the notice or whether

the entities received it. Greenbriar Village, 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 manner 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 found that Greenbriar’s land disturbance Permit “demonstrated to the

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

v. City of Mountain 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 Greenbriar to cease work on its property under its existing

valid permit.” Id. After passage of the Ordinance, Greenbriar’s Permit 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 all of the

contractors who held land disturbance permits, informing them of the upcoming

council meeting in which the amendment would be discussed and adopted.1

 For
7

Greenbriar’s Permit, notice was sent to Saiia Construction LLC, the contractor

whose name appears on an increased bond for work on the property, filed in

November 2002. The name of Saiia Construction appears nowhere on the land

disturbance Permit itself. Rather, the only entity identified on the face of the

Permit is Greenbriar. The district court concluded, based on evidence entered at

trial, that “the City specifically chose not to send notice to Greenbriar of the

proposed ordinance by the means customarily used.” Id. at 1287. All preceding

notices and correspondence regarding the Greenbriar property had been sent 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 enactment of the ordinance, and after the Permit expired by virtue

of the plain language of subsection (k), the City sent a letter directly to De Buys,

informing him that the Permit had expired, but that the City would withhold

application of the ordinance for approximately a month, until 1 December 2001, to

allow Greenbriar time to discuss the matter with City officials. On 1 December

2001, following an exchange of letters between Greenbriar and the City that

ultimately resolved nothing, the Permit expired and all work stopped on the

property, except for emergency environmental work occasioned by heavy rains. 
2

 Greenbriar also presented a claim of denial of equal protection at trial, but the district

court’s rejection of that claim has not been challenged or briefed by Greenbriar on appeal. Thus,

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 contends that the revocation of the Permit violated its rights

under the Due Process Clause of the Fourteenth Amendment to the Constitution. 

The district court, following a bench trial, found that Greenbriar’s procedural due

process rights were violated, rejected any substantive due process claim, and

entered an injunction prohibiting the City from using Ordinance 1485 to deprive

Greenbriar of the Permit.2

 The City appeals the district court’s finding of a

procedural due process violation, and Greenbriar cross-appeals the rejection of its

substantive due process claim. We review a trial court’s findings of fact for clear

error and its legal conclusions de novo. Georgia Manufactured Hous. v. Spalding

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

zoning decisions, as a general rule, will not usually be found by a federal court to

implicate constitutional guarantees and with a disinclination to sit as a zoning

board of review. See Spence v. Zimmerman, 873 F.2d 256, 262 (11th Cir. 1989). 

A. Substantive Due Process

The district court agreed with the City of Mountain Brook that no
3

 The question presented in McKinney was “whether, under the Fourteenth Amendment,

a government employee possessing a state-created property interest in his employment states a

substantive due process claim, rather than a procedural due process claim, when he alleges 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 process claim could succeed, and we affirm. “The substantive

component of the Due Process Clause protects those rights that are ‘fundamental,’

that is, rights that are ‘implicit in the concept of ordered liberty.” McKinney v.

Pate, 20 F.3d 1550, 1556 (11th Cir. 1994) (en banc). Fundamental rights are those

rights created by the Constitution. DeKalb Stone, Inc. v. County of DeKalb, Ga.,

106 F.3d 956, 959 n.6 (11th Cir. 1997) (per curiam). “Property interests, of

course, are not created by the Constitution. Rather they are created 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. Wilson, 311 F.3d 1340,

1356 (11th Cir. 2002). Thus, to the extent that Greenbriar predicates its

substantive due process claim directly on the denial of its state-granted and -

defined property right in the permit, no substantive due process claim is viable. 

See McKinney, 20 F.3d at 1560; Morley’s Auto Body, Inc. v. Hunter, 70 F.3d

1209, 1217 n.5 (1995).3
a state employee is fired in violation of the First Amendment for expressing his views. 

See Beckwith v. City of Daytona Beach 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 procedures were used

for the deprivation. That type of inquiry falls squarely within what we have defined (and

clarified explicitly in McKinney) as a procedural due process claim.

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 an en banc court decided McKinney. Our own research in

the area reveals that many of the cases cited by Greenbriar are flagged as being cast into doubt or

impliedly overruled 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 respect to its Permit was unconstitutionally

irrational and arbitrary, and that the substantive component of the Due Process

Clause protects generally against arbitrary and irrational action by the government.

We specifically discussed the dangers of broadening the scope of substantive due

process in this fashion 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 deprivations of

state-created rights, which would include land-use rights, cannot support a

substantive due process claim, not even if the plaintiff alleges that the government

acted arbitrary and irrationally. 20 F.3d at 1559. Constitutional due process is

satisfied for these deprivations when proper procedures are employed.4

 Id. 
5

 Spence is a pre-McKinney case that examined the merits of a substantive due process

claim resulting from the deprivation of a building permit. Of course, after McKinney, a factual

situation similar to Spence would be analyzed differently.

11

Even if we were to find that the deprivation of the land disturbance Permit

did implicate constitutional substantive due process protections, the City’s actions

were not so arbitrary or irrational as to compel us to find for Greenbriar. See City

of Cyahoga Falls, Ohio v. Buckeye Community Hope Foundation, , 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 code. See Spence, 873 F.2d at 260.5

When construction on or development of a property is not completed in an

expeditious manner, all types of costs accrue to the community at large: “rodents,

transients, sand erosion or vandals, injuring the surrounding neighborhood

economically, environmentally, and aesthetically.” Id. For these reasons, a “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.” Id.

Greenbriar argues that the City revoked its Permit based on some sort of
12

personal vendetta against it. Certainly, the amendments to the City ordinances did

affect Greenbriar more than any of the other permit holders in the city. Just as

certainly, the disagreements between the City and Greenbriar about the use of the

property were most contentious, 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 targeted Greenbriar specifically by enacting

this ordinance, we still find that their action could not have violated substantive

due process. Even with this evidence that the City targeted Greenbriar out of

animosity, it is equally clear that the City was also motivated in part by a

legitimate desire to enact a comprehensive and internally consistent land use

system. It follows from these reasonable and legitimate governmental objectives

that even if the Permit was a fundamental right protected by substantive due

process, the City’s actions were not constitutionally arbitrary and irrational, and

the rights of the stale permit holder were not violated by revocation. Id. However,

all of this discussion is merely academic, and the core reason that a substantive

due process claim does not exist in this case is that no interest protected by a

fundamental right is being deprived.

B. Procedural Due Process

“Due process” cases typically focus on whether governments can take away
6

 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 federally protectable 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 without affording its owner an adequate notice and opportunity to be

heard. See, e.g. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306,

314-16, 70 S. Ct. 652, 657-58 (1950). When courts analyze 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 examine 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 protectable right; and (3) the process actually provided, be it before or

after the deprivation. See, e.g., Tri-County Paving, Inc. v. Ashe County, 281 F.3d

430, 436 (4th Cir. 2002).

Sometimes courts can moot the examination of one or two of those

analytical components by passing on another. Thus, in a substantive due process

case, the Supreme Court did not did not decide whether aggrieved parties

possessed a property interest because the challenged government conduct was
14

simply not “egregious or arbitrary.” City of Cuyahoga Falls, ___ U.S. at ___, 123

S. Ct. at 1396. Similarly, in Tri-County Paving, the court assumed a property

interest existed, but concluded that the aggrieved party there failed to exploit

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 right for purposes of his due process claims. Id. at 275-76. It

did not, therefore, consider the amount of process due or the process provided.

Here, we need not consider whether the district court correctly decided that

the City failed to provide Greenbriar with adequate due process. Instead, we

examine whether Greenbriar held a federally protectable property right in the first

place, because no procedural due process claim exists until a sufficiently certain

property right under state law is first shown. Both Greenbriar and the district

court focused on the City code–specifically, the code’s gaps and the City’s

subsequent gap-repair efforts–to support the existence of Greenbriar’s estoppelbased property right. See Greenbriar Village, 202 F. Supp. 2d at 1290 (finding

that Greenbriar’s “property rights under applicable Alabama law rests in the

doctrine of equitable estoppel”); id. at 1291-92 (finding that Greenbriar made

expenditures in reliance on the City’s land-disturbance permit and that Greenbriar
7

 The injunction, after all, is permanent and, in the future, Greenbriar undoubtedly will

point to its land-clearing expenditures as “vesting” additional estoppel-based property rights,

thereby demanding, via mandamus, a commercial zoning change. 

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 commercial zoning change merely because the City was lax in

maintaining a gap in its code, and, later, a little too tricky in notifying Greenbriar

of its legislative efforts to eliminate it by sending notice to a Greenbriar principal,

rather than to Greenbriar at its corporate address.7

 

Greenbriar thus advanced a property right derived from: (1) the City’s error

in creating a gap in its code; (2) the City’s failure to timely halt Greenbriar’s

exploitation of it; (3) Greenbriar’s gamble (by engaging in commercial-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 create “detrimental

reliance” on a future-but-not-guaranteed commercial rezoning); and (5) the City’s

legally inartful efforts to repair the gap (efforts which led to this § 1983 action and

the lower court’s permanent injunction). All of that occurred on a landdisturbance permit that was so open-ended that Greenbriar itself conceded that
16

courts should simply fill in its gaps (that the Permit was valid for “a reasonable

time”). See id. at 1298.

Greenbriar therefore, at most, held an uncertain 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 id at 1290. 

(“Although Greenbriar also asserts that its property rights spring from the issuance

to it of a [state pollution-discharge] Permit and because of its inherent ‘bundle of

property rights,’ . . . this court finds that the most solid basis for Greenbriar’s

vested property rights under applicable Alabama state law rests in the doctrine of

equitable estoppel.”). Further, Greenbriar relied on land use procedures to derive

its property right.

Our sister circuits have held that uncertainty in the existence of a property

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

otherwise accorded no right to develop the property in question, does not add up

to a federally protectable property claim. See Natale v. City of Ridgefield, 170

F.3d 258, 263 n.1, 264 (2d Cir. 1999) (A plaintiff seeking “to establish a federally

protectable property interest in a state or local permit for which [he] has applied, . .
17

. must show that, at the time the permit was denied, there was no uncertainty

regarding his entitlement to it under applicable . . . law, and the issuing authority

had no discretion to withhold it in his particular case”; such interest is defeated by

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

cases may be whether the permit-issuing government authority lacks discretion to

deny the permit on which the plaintiff bases his property right. Id. at 263

(“[E]ntitlement turns on whether the issuing authority lacks discretion to deny the

permit, i.e , is required to issue it upon ascertainment that certain objectively

ascertainable criteria have been met”); see also Crown Point I, L.L.C. v.

Intermountain Rural Elec. Ass’n, 319 F.3d 1211, 1217 (10th Cir. 2003) (“[W]hen

a party challenges a land use decision by a governing body on due process

grounds, the proper inquiry is whether that body had limited discretion in granting

or denying a particular zoning or use application”). However, such “uncertainty”

is not limited to discretion-based permit issuances:

There is no reason, however, to restrict the “uncertainty” that

will preclude existence of a federally protectable interest to the

uncertainty that inheres in an exercise of discretion. Uncertainty as to

the meaning of applicable law also suffices. Indeed, if uncertainty as

to the law did not preclude recognition of a federally protectable

property interest, permit claimants would regularly be entitled to

present to federal courts their disputes concerning the interpretation

of local and state land use regulations. Just as federal courts are not

to be turned into zoning boards of appeals, they are also not be
18

substituted for state courts as adjudicators of the meaning of zoning

and other land use regulations. 

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 property right that it seeks to elevate to a

federally protectable level. That debate or “uncertainty” existed all the way

through to the briefing stage in the district court, so it certainly existed when 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 permit was

issued, as Greenbriar developed a detrimental reliance interest in the permit. Even

at that, the court only defined that property right’s broad contours and failed to say

when the permit expired or when the undefined “reasonable time” would end. 

Greenbriar, 202 F. Supp. 2d at 1292.

As with Natale, Greenbriar therefore lacked a federally protectable property

interest. Greenbriar’s “entitlement to the permit[] sought turned ultimately 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 protectable

property interest where the law became clear only after a state court’s “refined

analysis of two state statutes and a state Supreme Court decision”). 
19

Although Natale’s rationale traveled on a substantive due process claim, we

conclude that it is appropriately applied to the procedural due process claim

advanced here, as we see no supportable distinction directing us otherwise. The

common and key thread to these cases is the uncertainty of the property right, thus

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

therefore, conclude that the district court erred in recognizing a federally

protectable right under § 1983 and thus in holding that the City violated

Greenbriar’s procedural due process rights. 

III. CONCLUSION 

We affirm the district court’s decision in favor of the City on Greenbriar’s

substantive due process claim but reverse the district court’s judgment for

Greenbriar on its procedural due process claim. We therefore AFFIRM IN PART

and REVERSE IN PART the district court’s judgment, and REMAND with

direction to the district court to vacate its judgment.