UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-2150

ACORN LAND, LLC, d/b/a PCS Homes,

Plaintiff - Appellant,

v.

BALTIMORE COUNTY, MARYLAND, A Body Corporate and Politic; 

PEOPLE’S COUNSEL FOR BALTIMORE COUNTY,

Defendants - Appellees.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. Catherine C. Blake, District Judge. 

(1:09-cv-00422-CCB)

Argued: May 12, 2010 Decided: September 21, 2010

Before GREGORY, Circuit Judge, C. Arlen BEAM, Senior Circuit 

Judge of the United States Court of Appeals for the Eighth 

Circuit, sitting by designation, and Samuel G. WILSON, United 

States District Judge for the Western District of Virginia, 

sitting by designation.

Affirmed in part, reversed in part, and remanded with 

instructions by unpublished per curiam opinion.

ARGUED: J. David Breemer, PACIFIC LEGAL FOUNDATION, Sacramento, 

California, for Appellant. James Joseph Nolan, Jr., BALTIMORE 

COUNTY OFFICE OF LAW, Towson, Maryland; Peter Max Zimmerman, 

Towson, Maryland, for Appellees. ON BRIEF: John E. Beverungen, 

County Attorney, BALTIMORE COUNTY OFFICE OF LAW, Towson, 

Maryland, for Appellee Baltimore County, Maryland.
2

Unpublished opinions are not binding precedent in this circuit.
3

PER CURIAM:

Following the Baltimore County Council’s (Council) decision

to rezone Acorn Land, LLC’s (Acorn) property, Acorn filed suit 

against Baltimore County (County) in Maryland state court. Acorn 

sought, among other relief, a declaratory judgment that the 

rezoning constituted an unlawful taking under the United States 

Constitution and violated Acorn’s substantive due process 

rights. The County removed the case to federal court, where the 

district court dismissed Acorn’s claims as unripe. Acorn now 

appeals the district court’s dismissal of those claims, and we 

reverse in part and affirm in part.

I.

We accept the well-pleaded facts in Acorn’s complaint1 as 

true and recite them in the light most favorable to Acorn. See

Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009). In 

April 2004, Acorn purchased a tract of land within Baltimore 

County’s Urban-Rural Demarcation Line (URDL) zoned “Density 

Residential 1” (DR-1).2

 1

Specifically, we “consider the complaint in its entirety, 

as well as . . . documents incorporated into the complaint by 

reference.” Matrix Capital Mgmt. Fund, LP v. BearingPoint, Inc., 

576 F.3d 172, 176 (4th Cir. 2009) (quotation omitted). 

 The property is directly adjacent to an 

2

Properties zoned DR-1 may accommodate one single family 

dwelling per acre. 
4

interstate highway and the University of Maryland, Baltimore 

County Research Park, and is otherwise surrounded by lots 

containing single family dwellings. Shortly after purchasing 

the property, Acorn filed a petition to amend the property’s 

water/sewer classification to facilitate residential 

development. Specifically, the property’s then-existing 

water/sewer classification was W-6/S-6, “Area of Future 

Consideration,”3 and Acorn petitioned to amend the classification 

to W-3/S-3, “Capital Facilities Area.”4

Several public agencies reviewed Acorn's petition and all 

recommended its approval to the Baltimore County Planning Board 

(Planning Board). In September 2004, after considering these 

recommendations, the Planning Board likewise recommended to the 

Council that Acorn’s petition be granted. In January 2005, the 

Council reviewed the Planning Board’s water/sewer amendment 

recommendations for several properties, including Acorn’s 

 Acorn’s petition 

explained that public water and sewer mains, which existed in 

close proximity to its property, could easily be extended to 

serve the property.

 3

“Areas of Future Consideration” are areas to be considered 

in the design of major facilities for growth and development 

beyond the Land Use Master Plan.

4

“Capital Facilities Areas” are areas in which water and 

sewerage facilities are required and possible.
5

property. Acorn’s petition received opposition from citizens as 

well as state senators and delegates. While the Council adopted 

the Planning Board’s recommendations as to all other properties, 

the Council, without explanation, took no action on Acorn’s 

petition. As a result, no change was made to the tract’s 

water/sewer classification and Acorn was prevented from 

proceeding with residential development.

On January 10, 2007, Acorn filed a petition for writ of 

mandamus in the Circuit Court for Baltimore County to compel the 

Council to forward the Planning Board’s recommendation to amend 

the property’s water/sewer classification to the Maryland 

Department of the Environment (MDE) for review. On April 7, 

2008, the circuit court held that mandamus relief was warranted

and ordered the County to forward the Planning Board’s 

recommendation to the MDE. Notably, the court determined that 

Acorn met Baltimore County’s established objective criteria for 

water/sewer reclassification and that the Council’s denial of 

Acorn’s petition was “arbitrary and capricious.” The County 

appealed this decision, and upon the County’s motion, the 

circuit court stayed enforcement of its order pending the 

appeal.

Meanwhile, in November 2007, after Acorn filed its petition 

for writ of mandamus, a county councilman filed a petition to 
6

rezone Acorn’s tract as “Agricultural Protection 2” (RC-2),5 as 

part of the County’s 2008 Comprehensive Zoning Map Process 

(CZMP). On April 24, 2008, the Planning Board recommended to 

the Council that Acorn’s tract remain zoned as DR-1. The 

Council reviewed the Planning Board’s recommendation, but 

nevertheless decided to rezone Acorn’s tract as “RuralResidential” (RC-5).6

 Due to this zoning reclassification, the 

maximum residential density on Acorn’s property was cut in half, 

and Acorn’s water/sewer classification changed from W-6/S-6 to 

W-7/S-7, “No Planned Community or Multi-Use Service.”7

On October 8, 2008, following the Council’s decision to 

rezone Acorn’s tract, the County dismissed its appeal of the 

circuit court’s mandamus order as moot. In its notice of 

dismissal, the County explained that, as a result of its 

reclassification to the RC-5 zone, Acorn’s property was subject

to a different water/sewer classification and the County could 

no longer comply with the circuit court’s order to forward the 

 

 5

Property zoned RC-2 is primarily used to foster and protect 

agriculture, though limited residential development is 

permitted.

6

Under the RC-5 zoning classification, property may be put 

to agricultural use or may accommodate one single family 

dwelling per two acres. 

7

Areas classified as “No Planned Community or Multi-Use 

Service” are areas of planned, low-density growth for which 

metropolitan water and sewerage facilities are neither planned 

nor intended. 
7

Planning Board’s recommendation to the MDE. Thus, the Council’s 

decision to rezone Acorn’s property effectively allowed the 

County to sidestep the circuit court’s order.

Based on the above events, Acorn filed a complaint for 

declaratory judgment in the Circuit Court for Baltimore County 

on January 23, 2009, asserting, among other claims, that the 

Council’s actions (1) were “arbitrary and capricious” and 

violated Acorn’s substantive due process rights, and (2) 

effected an unlawful taking without just compensation in 

violation of both the Maryland Constitution and the United 

States Constitution. Upon the County’s notice of removal, the 

suit was removed to the District of Maryland in February 2009, 

and the federal district court granted the People’s Counsel for 

Baltimore County’s motion to join and/or intervene. See Acorn 

Land, LLC v. Baltimore County, 648 F. Supp. 2d 742, 744 n.1 (D. 

Md. 2009). The County and the People’s Counsel (defendants)

filed motions to dismiss.

The district court dismissed Acorn’s state constitutional 

claims because Acorn failed to exhaust applicable state 

remedies. Then, the district court dismissed Acorn’s federal 

substantive due process and takings claims as unripe due to 

Acorn’s failure to petition the County Board of Appeals to 

reclassify Acorn’s property back to the DR-1 zoning 

classification. On appeal, Acorn challenges only the district 
8

court’s dismissal of its federal claims. For the reasons 

discussed below, we reverse in part and affirm in part.

II.

Acorn’s sole argument on appeal is that the district court 

erroneously dismissed its as-applied federal takings and 

substantive due process claims for lack of ripeness. 

Specifically, Acorn asserts that it need not petition the County 

Board of Appeals for reclassification to ripen its claims. We 

review the district court’s dismissal for lack of ripeness de 

novo. Miller v. Brown, 462 F.3d 312, 316 (4th Cir. 2006). 

A.

First, Acorn’s complaint asserts that the Council’s zoning 

decisions constitute a regulatory taking without just 

compensation in violation of the Fifth Amendment, which applies 

to states through the Fourteenth Amendment. Chicago, Burlington

& Quincy R.R. Co. v. Chicago, 166 U.S. 226, 241 (1897). To 

present a ripe regulatory takings claim, the plaintiff must 

demonstrate that: (1) the government entity charged with 

implementing the regulations in question has issued a “final 

decision regarding the application of the regulations to the 

property at issue,” and (2) the plaintiff has sought and been 

denied just compensation through available and adequate state 
9

procedures for seeking just compensation. Williamson County 

Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 

172, 186, 195 (1985). Notably, the Supreme Court has clarified 

that Williamson’s ripeness prongs are “prudential hurdles,” 

Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 725, 734 (1997), 

not jurisdictional requirements. Stop the Beach Renourishment, 

Inc. v. Florida Dep’t of Envtl. Prot., 130 S. Ct. 2592, 2610 

(2010). Here, the only issue properly before this court is 

whether Acorn satisfied Williamson’s first, “final decision” 

prong.8

As a preliminary matter, we note that Williamson’s final 

decision requirement is intended to inform the courts’

determination of whether a regulation, as applied, constitutes a 

regulatory taking. As discussed in more detail below, a 

property regulation constitutes a taking if it goes “too far.” 

Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001). Simply 

put, the determination of whether a regulation goes too far 

 8

The defendants contend that Acorn also failed to satisfy 

Williamson’s second, “just compensation” prong. However, the 

defendants did not raise this argument below or in their opening 

appellate brief. Indeed, it was not until the panel requested 

the parties to address Williamson’s second prong that the 

defendants finally pressed this argument. Therefore, because 

Williamson’s just compensation prong is not a jurisdictional 

requirement, we deem this argument waived. Beach, 130 S. Ct. at 

2610; see also United States v. Jones, 308 F.3d 425, 427 n.1 

(4th Cir. 2002) (holding that an argument not raised in the 

opening appellate brief is waived). 
10

"cannot be resolved in definitive terms" until there is a final 

decision demonstrating "'the extent of permitted development' on 

the land in question." Id. at 618 (quoting MacDonald, Sommer & 

Frates v. Yolo County, 477 U.S. 340, 351 (1986)).

For a developer to obtain a final decision, she must 

generally submit “a plan for development of [her] property as 

the ordinances permit,” Agins v. City of Tiburon, 447 U.S. 255, 

260 (1980), rev'd on other grounds, Lingle v. Chevron U.S.A., 

Inc. 544 U.S. 528, 532 (2005). Then, “where the regulatory 

regime offers the possibility of a variance from its facial 

requirements, [the developer] must go beyond submitting a plan 

for development and actually seek such a variance to ripen his 

claim.” Suitum, 520 U.S. at 736-37. Consequently, “the final 

decision requirement is not satisfied when a developer submits, 

and a land-use authority denies, a grandiose development 

proposal, leaving open the possibility that lesser uses of the 

property might be permitted." Palazzolo, 533 U.S. at 619. 

These general rules support the principle that “a landowner may 

not establish a taking before a land-use authority has the 

opportunity, using its own reasonable procedures, to decide and 

explain the reach of a challenged regulation.” Id. at 620.

That said, there are several notable exceptions to these 

general rules. First, developers need not engage in futile acts 

to obtain a final decision. Indeed, the final decision prong is 
11

satisfied “once it becomes clear that the agency lacks the 

discretion to permit any development, or the permissible uses of 

the property are known to a reasonable degree of certainty.” 

Id. In the same vein, the final decision prong is satisfied 

where "a zoning agency . . . has dug in its heels and made clear 

that all . . . applications will be denied." Murphy v. New 

Milford Zoning Comm'n, 402 F.3d 342, 349 (2d Cir. 2005). Next, 

landowners are not required to resort to “repetitive or unfair 

land-use procedures” to obtain a final decision. Palazzolo, 533 

U.S. at 621. And finally, the final decision prong does not 

require landowners to exhaust administrative remedies.9

 9

In Williamson, the Court explained that plaintiffs need not 

exhaust state administrative remedies to satisfy the final 

decision prong where their claim is predicated on 42 U.S.C. § 

1983. Williamson, 473 U.S. at 192-93. Here, the defendants

argue that Acorn must exhaust state administrative remedies 

because it did not cite § 1983 in its complaint. We disagree. 

“Federal and state court decisional law is virtually unanimous 

that a complaint need not specifically refer to § 1983, so long 

as the essential elements of the claim are [pled].” Hill v. 

North Tex. State Hosp., No. 7:09-CV-158-0, 2010 WL 330209, at *2 

(N.D. Tex. Jan. 26, 2010) (emphasis in original); see, e.g.,

Smith-Berch, Inc. v. Baltimore County, 68 F. Supp. 2d 602, 626 

(D. Md. 1999). To state a cause of action under § 1983, a 

plaintiff must establish “(1) the deprivation of a right secured 

by the Constitution or a federal statute; (2) by a person; (3) 

acting under color of state law.” Jenkins v. Medford, 119 F.3d 

1156, 1159-60 (4th Cir. 1997). Acorn pled these essential 

elements. 

 In other 

words, landowners need not resort to clearly remedial 

procedures, such as appealing to an administrative board where 
12

the board is empowered only to review, not participate in, the 

lower agency’s decisionmaking. Williamson, 473 U.S. at 193.

Here, in short, to begin residentially developing its 

property, Acorn submitted a petition to amend its property’s 

water/sewer classification and the Planning Board recommended 

its approval. However, after receiving opposition from citizens 

and state politicians, the Council blocked Acorn’s petition, 

without explanation, through what the Circuit Court of Baltimore 

County deemed “arbitrary and capricious” conduct. Once the 

circuit court ordered the Council to forward the Planning 

Board’s recommendation to the MDE, the Council appealed that 

decision, obtained a stay of enforcement, and then conveniently 

avoided the circuit court’s order by rezoning Acorn’s property. 

The rezoning both cut the property’s maximum residential density 

by half and placed the property in the lowest water/sewer 

classification. 

Based on these well-pled facts, we hold that Acorn 

satisfied Williamson’s final decision prong. To be sure, we 

acknowledge that Williamson would generally require Acorn to 

seek a density variance to ripen its claim and that Acorn has 

not sought such a variance here. However, the Baltimore County 

Zoning Regulations do not permit an increase in residential 

density through variance procedures. Indeed, Baltimore County 

Zoning Regulations section 307.1 provides that the Zoning 
13

Commissioner and the County Board of Appeals, upon appeal, may 

grant height and area variances, but “[n]o increase in 

residential density beyond that otherwise allowable by the 

Zoning Regulations shall be permitted as a result of any such 

grant of a variance.” 

Moreover, we reject the defendants’ argument that 

petitioning the County Board of Appeals for zoning 

reclassification is equivalent to seeking a density variance 

under Williamson and that Acorn must therefore petition for 

reclassification to ripen its claim. Under Maryland law,

“reclassification” or “rezoning” is “a change in the existing 

zoning law itself, so far as the subject property is concerned,” 

Cadem v. Nanna, 221 A.2d 703, 707 (Md. 1966) (alteration 

omitted), whereas a variance is “an authorization for [that] . . 

. which is prohibited by a zoning ordinance.” Mueller v. 

People’s Counsel for Baltimore County, 934 A.2d 974, 989 (Md. 

Ct. Spec. App. 2007) (alterations in original) (quotation 

omitted). In other words, reclassification applies an entirely 

different zoning classification to the property in question, 

whereas the approval/denial of a variance helps define how the 

property’s existing zoning classification applies. This 

distinction is important because, under Williamson, a land-use 

authority must only have the opportunity “to decide and explain 

the reach of [the] challenged regulation.” Palazzolo, 533 U.S. 
14

at 620 (emphasis added). Accordingly, we find that requiring 

Acorn to petition for reclassification is tantamount to 

requiring Acorn to exhaust state administrative remedies—a 

requirement expressly prohibited in Williamson. Williamson, 473

U.S. at 193. 

Lastly, we duly recognize that in some cases, pursuant to 

fair and reasonable zoning procedures, developers may be 

required to submit multiple plans, applications, and the like to 

ripen their takings claims. See, e.g., id. 473 U.S. at 176-82. 

Here, however, Acorn was subjected to unfair and unreasonable 

zoning procedures when the Council blocked Acorn’s water/sewer 

petition, without explanation, after the petition met the 

County’s objective criteria for amending Acorn’s property’s 

water/sewer classification. Indeed, the Circuit Court for 

Baltimore County went so far as to deem such action “arbitrary 

and capricious.” Then, once the circuit court ordered the 

Council to forward the Planning Board’s recommendation to the 

MDE, the Council again effectively denied Acorn water/sewer 

access by rezoning Acorn’s property. In light of such 

sophistry, it is clear that the Council has “dug in its heels” 

and will not allow Acorn to receive necessary access to public 

water/sewer systems to residentially develop its property. 

Murphy, 402 F.3d at 349. Thus, under these circumstances, we 

conclude that it would be both futile and unfair to require 
15

Acorn to jump through any additional administrative hoops to 

obtain a “final decision.” Palazzolo, 533 U.S. at 621 

(“Government authorities, of course, may not burden property by 

imposition of repetitive or unfair land-use procedures in order 

to avoid a final decision.”). 

For the foregoing reasons, we are satisfied that the 

“permissible uses of [Acorn’s] property are known to a 

reasonable degree of certainty,” and Williamson’s first prong is 

satisfied. Id. at 620.

B.

Acorn’s complaint also asserts that the Council’s zoning 

decisions were arbitrary and capricious and therefore violated 

Acorn’s substantive due process rights.10

 10The defendants argue that Acorn’s complaint does not 

sufficiently allege a federal substantive due process claim 

because Acorn does not cite the Fourteenth Amendment. Like the 

district court, however, we assume that Acorn relied on both the 

Due Process Clause of the Fourteenth Amendment to the United 

States Constitution and Maryland’s state constitutional 

equivalent. See Acorn Land, 648 F. Supp. 2d at 747 n.6. After 

all, Maryland “precedent states clearly that the Maryland and 

Federal due process provisions have been read ‘in pari 

materia.’” Koshko v. Haining, 921 A.2d 171, 194 n.22 (Md. 

2007). 

 This claim, like 

Acorn’s regulatory takings claim, is not ripe until the claimant 

has obtained a final decision from the government entity charged 
16

with implementing the regulations in question.11 See Southview 

Assocs., Ltd. v. Bongartz, 980 F.2d 84, 96-97 (2d Cir. 1992). 

Given that Acorn has obtained a final decision from the Council, 

its substantive due process claim, like its takings claim, is 

ripe for review.

III.

On the merits of Acorn’s claims, the defendants argue that 

Acorn’s complaint does not state plausible takings or 

substantive due process claims. Under Federal Rule of Civil 

Procedure 8(a)(2), a pleading must contain a “short and plain 

statement of the claim showing that the pleader is entitled to 

relief.” “To survive a motion to dismiss, a complaint must 

contain sufficient factual matter, accepted as true, to state a 

claim to relief that is plausible on its face.” Ashcroft v. 

Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation 

omitted). This “plausibility” standard is satisfied “when the 

plaintiff pleads factual content that allows the court to draw 

the reasonable inference that the defendant is liable for the 

 11We note, however, that arbitrary and capricious 

substantive due process claims are not subject to Williamson’s 

second, “just compensation” prong. Front Royal & Warren County 

Indus. Park Corp. v. Town of Front Royal, 135 F.3d 275, 283 n.3 

(4th Cir. 1998); Southview Assocs., Ltd. v. Bongartz, 980 F.2d 

84, 96-97 (2d Cir. 1992). 
17

misconduct alleged.” Id. We consider the sufficiency of 

Acorn’s claims in turn, beginning with its as-applied takings 

claim. 

A.

“[T]o make out a takings claim, a plaintiff must 

demonstrate that the government took property without just 

compensation.” Presley v. City of Charlottesville, 464 F.3d 

480, 485 (4th Cir. 2006) (alteration omitted). In the 

regulatory takings context, a property regulation that goes "too 

far" will be recognized as a taking. Palazzolo, 533 U.S. at 

617. Notably, even if a regulation falls short of denying all 

economically beneficial use of a landowner’s property, “a taking 

nonetheless may have occurred, depending on a complex of factors 

including the regulation's economic effect on the landowner, the 

extent to which the regulation interferes with reasonable 

investment-backed expectations, and the character of the 

government action." Id. (citing Penn Central Transp. Co. v. 

New York City, 438 U.S. 104, 124 (1978)). This ad hoc, multifactor inquiry is “informed by the purpose of the Takings 

Clause, which is to prevent the government from forcing some 

people alone to bear public burdens which, in all fairness and 

justice, should be borne by the public as a whole.” Id. at 617-

18 (internal quotation omitted). 
18

We find that Acorn has pled facts that plausibly state a 

regulatory takings claim under the ad hoc, multi-factor test 

articulated above. First, Acorn’s complaint plausibly pleads 

that the Council’s decision to rezone Acorn’s property had an 

adverse economic effect on Acorn. Specifically, Acorn’s 

complaint asserts that the decision, which effectively denied 

public water/sewer access, prohibited Acorn from residentially 

developing its property. Acorn also pled that, due to its 

property’s location and size, Acorn’s property is not suited for 

non-development and/or agricultural uses. Finally, Acorn’s 

complaint states that the Council’s decision caused $25 million 

in damages. 

Next, Acorn has plausibly pled that the Council’s actions 

interfered with Acorn’s reasonable investment-backed 

expectations. Indeed, the circuit court’s decision, which has 

not been overturned and is incorporated into Acorn’s complaint, 

holds that Acorn met the objective criteria for amending its 

water/sewer classification and that the Council arbitrarily and 

capriciously blocked Acorn’s petition. Based on the circuit 

court’s order, we find that Acorn has plausibly pled that it had 

a reasonable investment-backed expectation to residentially 

develop its property with public water/sewer access. Moreover, 

we find that Acorn plausibly pled that the Council interfered 

with this reasonable expectation when it rezoned Acorn’s 
19

property and denied Acorn’s property the public water/sewer 

access necessary for such development. 

Moreover, we find that Acorn has plausibly pled that the 

character of the Council’s actions was inequitable and 

illegitimate. Indeed, as discussed above, Acorn’s complaint 

notes that the circuit court decided the Council arbitrarily and 

capriciously blocked Acorn’s efforts to amend its water/sewer 

petition. This fact casts a shadow over the Council’s later 

decision to rezone Acorn’s property, which effectively 

sidestepped the circuit court’s order. Thus, Acorn’s complaint 

plausibly pleads that the Council’s actions constituted an 

illegitimate and inequitable attempt to prevent Acorn from 

developing its property. Cf. Laurel Sand & Gravel, Inc. v. 

Wilson, 519 F.3d 156, 165 (4th Cir. 2008) (finding no taking, in 

part, because the “character of the government action here is 

both legitimate and equitable”).

Finally, Acorn pled that the County has not paid Acorn just 

compensation for the regulatory taking. Accordingly, we hold 

that Acorn has sufficiently pled a regulatory takings claim that 

is plausible on its face.

B.

To make out an arbitrary and capricious substantive due 

process claim, Acorn must demonstrate “(1) that [it] had 
20

property or a property interest; (2) that the state deprived 

[it] of this property or property interest; and (3) that the 

state’s action falls so far beyond the outer limits of 

legitimate governmental action that no process could cure the 

deficiency.” Sylvia Dev. Corp. v. Calvert County, 48 F.3d 810, 

827 (4th Cir. 1995) (emphasis in original). Although, as 

discussed above, we found that Acorn’s substantive due process 

claim is ripe because Acorn obtained a “final decision,” we hold 

that Acorn’s complaint does not plead a plausible arbitrary and 

capricious substantive due process claim. 

Assuming arguendo that Acorn’s complaint sufficiently 

pleads the first two prongs of an arbitrary and capricious due 

process claim, Acorn’s complaint fails under the third prong 

because it did not plausibly plead that no state-court process 

could cure Acorn’s injury. Indeed, the “[Due Process] Clause is 

violated only where the state courts can do nothing to rectify 

the injury that the state has already arbitrarily inflicted.” 

Love v. Pepersack, 47 F.3d 120, 123 (4th Cir. 1995). Notably, 

under Maryland law, the state courts possess the authority to 

strike down zoning decisions that are “arbitrary, capricious, 

discriminatory or illegal.” Trustees of McDonogh Educ. Fund & 

Institute v. Baltimore County, 158 A.2d 637, 645 (Md. 1960). 

Acorn’s complaint does not assert that seeking such relief in 

state court would not rectify its injury. Thus, as to Acorn’s 
21

substantive due process claim, Acorn has failed to state a claim 

that is plausible on its face. See Sylvia, 48 F.3d at 829 

(“[T]he fact that established state procedures were available to 

address and correct illegal actions by the [Zoning] Board belies 

the existence of a substantive due process claim.”). 

Accordingly, we affirm the district court’s decision to dismiss 

this claim, albeit on different grounds.

IV.

For the foregoing reasons, we affirm in part and reverse in 

part, and remand for proceedings consistent with this opinion.

AFFIRMED IN PART,

REVERSED IN PART, AND

REMANDED WITH INSTRUCTIONS