IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-30556

G & H DEVELOPMENT, L.L.C., 

 Plaintiff–Appellant,

v.

BENTON-PARISH METROPOLITAN PLANNING COMMISSION; 

BENTON-PARISH METROPOLITAN BOARD OF ADJUSTMENT; POLICE 

JURY BOSSIER PARISH; PARISH OF BOSSIER, 

 Defendants–Appellees.

Appeal from the United States District Court 

for the Western District of Louisiana

USDC No. 5:13-CV-272

Before STEWART, Chief Judge, and OWEN and COSTA, Circuit Judges.

PER CURIAM:*

The district court rejected G&H’s procedural and substantive due 

process claims with respect to its application to develop a tract of land. We 

affirm.

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

March 2, 2016

Lyle W. Cayce

Clerk

 Case: 15-30556 Document: 00513404005 Page: 1 Date Filed: 03/02/2016
No. 15-30556

2

I

G&H Development, L.L.C. (G&H) owns a 55-acre parcel of land in 

Bossier Parish, Louisiana that it sought to develop into a subdivision of 154 

lots containing single-family dwellings. G&H applied to the Benton Parish 

Metropolitan Planning Commission (the MPC) to have the property rezoned 

from Residence-Agriculture (R-A) zoning to One-Family Residence (R-1) 

zoning; it also filed with the MPC a subdivision plat for approval. After a 

hearing, the MPC voted to deny the rezoning application and declared the 

subdivision application therefore to be moot. G&H appealed the denial to the 

Bossier Parish Police Jury, which upheld the MPC’s denial and mootness 

determination after a hearing. The mootness determination was premised on 

the belief that the property’s existing zoning status was not compatible with 

the proposed subdivision plat. G&H did not seek judicial review of the decision 

in state court.

G&H subsequently developed a new subdivision plat—which was similar 

to the first but proposed eleven fewer lots—and submitted the new plat to the 

MPC without an accompanying application for rezoning. Nancy Penwell, the 

MPC’s Zoning Administrator, decided not to submit this application to the 

MPC because it was not accompanied by an application for rezoning, which 

would have been required according to her understanding of the Bossier Parish 

Code of Ordinances (the Bossier Parish Code or the Code). Counsel for the 

MPC accordingly returned the application to G&H with an explanation that 

the application required an accompanying application for rezoning. G&H 

appealed this decision to the Benton-Parish Board of Adjustment. The Board 

of Adjustment held a hearing at which it did not permit G&H to call Penwell 

to testify under oath. The Board of Adjustment denied the appeal. G&H 

subsequently appealed to the Police Jury, which refused to consider the merits 

 Case: 15-30556 Document: 00513404005 Page: 2 Date Filed: 03/02/2016
No. 15-30556

3

of the appeal on the ground that it lacked jurisdiction to do so. The Police Jury 

advised G&H that the proper place for its appeal was in state district court.

G&H did not seek review in state court but instead filed a lawsuit in 

federal court against various named defendants, including the Board of 

Adjustment, the Police Jury, and Bossier Parish, seeking declaratory 

judgments establishing that its rights to due process and equal protection 

under the United States and Louisiana constitutions had been violated; that 

any zoning regulations pertaining to the property at issue are null and void 

because the MPC has never certified a general zoning plan; and that G&H is 

entitled to a certificate of approval from the MPC for its second subdivision 

application. It also sought an injunction requiring the MPC to issue such 

certificate, and it sought damages for “its expenses for surveying, engineering, 

platting, legal and other professional fees, etc. and other costs and expenses 

paid and incurred in its efforts to develop the Property.”

In multiple rulings, the district court rejected all of G&H’s procedural 

due process, substantive due process, and equal protection claims. On appeal, 

G&H only contests the dismissal of its procedural due process claim against 

the Board of Adjustment and the grant of summary judgment with respect to 

its substantive due process claim against the MPC and the Police Jury.

II

We review a district court’s dismissal under Rule 12(b)(6) de novo, 

“accepting all well-pleaded facts as true and viewing those facts in the light 

most favorable to the plaintiff[].”1 We “review a grant of summary judgment 

de novo, viewing all evidence in the light most favorable to the nonmoving 

 

1 Morris v. Livingston, 739 F.3d 740, 745 (5th Cir. 2014) (quoting Randall D. Wolcott,

M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011)).

 Case: 15-30556 Document: 00513404005 Page: 3 Date Filed: 03/02/2016
No. 15-30556

4

party and drawing all reasonable inferences in that party’s favor.”2 Summary 

judgment is proper “if the movant shows that there is no genuine dispute as to 

any material fact and the movant is entitled to judgment as a matter of law.”3

III

G&H argues that it was denied procedural due process at the hearing for 

its second subdivision application because it was not afforded the opportunity 

to be heard “in a meaningful manner.”4 It states that the Board of Adjustment 

did not allow G&H to submit testimony under oath or to cross-examine 

Penwell, and that the Board of Adjustment was represented by the same 

lawyer who was representing the MPC, which was a party to the hearing. The 

Board responds that the hearing complied with the relevant provisions of the 

Bossier Parish Code, which require “[p]ublic notice” of a hearing of appeal and 

“due notice” to the appellant. Those provisions further provide that the 

chairman “may administer oaths and compel attendance of witnesses” and that 

the Board “shall not be bound by legal rules of evidence.” The Board notes that 

G&H has not alleged that it lacked notice of the hearing or that it was denied 

the right to participate.

“The fundamental requirement of due process is the opportunity to be 

heard at a meaningful time and in a meaningful manner.”5 The district court 

concluded that it was enough that G&H received notice of the Board of 

Adjustment and Police Jury hearings and was allowed to be heard at both. 

Even assuming that the zoning decision made in this case was adjudicative, 

 

2 Kariuki v. Tarango, 709 F.3d 495, 501 (5th Cir. 2013) (quoting Pierce v. Dep’t of the 

Air Force, 512 F.3d 184, 186 (5th Cir. 2007)).

3 FED. R. CIV. P. 56(a).

4 Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (citation and internal quotation marks 

omitted).

5 Id. (citation and internal quotation marks omitted).

 Case: 15-30556 Document: 00513404005 Page: 4 Date Filed: 03/02/2016
No. 15-30556

5

rather than legislative or quasi-legislative,6 and that the rejection of G&H’s 

application entailed the deprivation of a property interest, such that 

procedural due process rights attached,7 G&H was not denied those rights. 

Mathews v. Eldridge requires “some form of hearing . . . before an individual is 

finally deprived of a property interest,” but it does not require the particular 

procedural protections that G&H demands.8 “[T]he Mathews balancing test 

‘permits varied types of hearings, from informal to more formal evidentiary 

hearings,’”9 depending on the application of the Mathews factors to a given 

case.10 As the Board points out, G&H’s amended complaint does not indicate 

how its inability to cross-examine Penwell deprived it of a meaningful 

opportunity to be heard or increased the risk of an erroneous deprivation. 

G&H also misleadingly asserts that it was not permitted to present 

“testimony.” What G&H apparently means by this is only that it was not 

allowed to cross-examine Penwell or to compel unwilling witnesses to testify; 

but representatives of G&H spoke at length, and there is no evidence that G&H 

 

6 Compare Jackson Court Condos., Inc. v. City of New Orleans, 874 F.2d 1070, 1074 

(5th Cir. 1989) (“[W]here a zoning decision has been made by an elected body . . . we have 

characterized the action as legislative or ‘quasi-legislative’ negating procedural due process 

claims.”), with Cty. Line Joint Venture v. City of Grand Prairie, 839 F.2d 1142, 1144 (5th Cir.

1988) (“[A] municipal body’s action may be more likely termed adjudicative if an appointed 

group, such as a zoning board, makes a specific decision regarding a specific piece of 

property.”).

7 Cf. Shelton v. City of College Station, 780 F.2d 475, 482 (5th Cir. 1986) (“[A] state’s 

use of an adjudication-like mechanism for zoning decisions does not by itself trigger [a 

procedural due process] inquiry or create [protected] property rights.”).

8 Mathews, 424 U.S. at 333 (citing Wolff v. McDonnell, 418 U.S. 539, 557-558 (1974)). 9 Bowlby v. City of Aberdeen, 681 F.3d 215, 221 (5th Cir. 2012) (quoting Ecee, Inc. v. 

FERC, 645 F.2d 339, 352 (5th Cir. 1981)).

10 See Mathews, 424 U.S. at 334-35 (“[I]dentification of the specific dictates of due 

process generally requires consideration of three distinct factors: First, the private interest 

that will be affected by the official action; second, the risk of an erroneous deprivation of such 

interest through the procedures used, and the probable value, if any, of additional or 

substitute procedural safeguards; and finally, the Government’s interest, including the 

function involved and the fiscal and administrative burdens that the additional or substitute 

procedural requirement would entail.”).

 Case: 15-30556 Document: 00513404005 Page: 5 Date Filed: 03/02/2016
No. 15-30556

6

was prevented from including any information or testimony of willing 

witnesses in its presentation. That G&H decided to forgo its right under 

Louisiana state law to appeal the Board of Adjustment’s decision in state court 

only strengthens our conclusion that any deprivation that occurred was not 

erroneous.11

IV

G&H also argues that it was deprived of substantive due process with 

respect to its first subdivision application because the MPC acted in an 

arbitrary and capricious manner in denying the application as moot. G&H 

primarily argues that its proposed subdivision plat was consistent with R-A 

zoning, and thus that the MPC was incorrect in assuming that the subdivision 

plan would require rezoning.

Section 126-716 of the Bossier Parish Code establishes “[d]welling, [o]nefamily” as a use by right of property zoned R-A, provided that the minimum 

building site area of a one-family dwelling within the R-A district is 6,000 feet. 

The same section of the Code states that R-A districts are composed “mainly of 

unsubdivided lands,” and that “[i]t is intended that land in R-A districts will 

be reclassified to its appropriate residential or commercial 

category . . . whenever such land is subdivided into urban building sites.”

In determining whether the MPC and the Police Jury violated G&H’s 

right to substantive due process by assuming that the first subdivision 

application was not consistent with R-A zoning, it is not our task to determine 

whether their interpretation of the Code was correct. As the district court 

pointed out, and as we have repeatedly noted, “the due process clause does not 

 

11 See LA. STAT. ANN. § 33:4780.88 (“Any person or persons jointly or severally 

aggrieved by any decision by the board of adjustment relative to any officer, department, 

board, or bureau of the parish may present a petition to the district court of the parish or 

municipality in which the property affected is located.”).

 Case: 15-30556 Document: 00513404005 Page: 6 Date Filed: 03/02/2016
No. 15-30556

7

require a state to implement its own law correctly,” and accordingly “a violation 

of state law is alone insufficient to state a constitutional claim under the 

Fourteenth Amendment.”12 A municipal zoning decision “comports with 

substantive due process if the action is rationally related to a legitimate 

government interest.”13 Here, it was rational for the MPC to conclude that the 

Code’s assertion of “intent” that land in R-A districts be rezoned “whenever 

such land is subdivided into urban building sites” established a requirement of 

such rezoning. Moreover, the record does not indicate that the MPC’s 

interpretation of Section 126-716 in this case was inconsistent with its 

interpretation in other cases. G&H only contests the proper interpretation of 

local law and relies on precedent that governs how state courts should review

municipal legal determinations; these are not the same standards that apply 

to a federal court engaging in a substantive due process analysis. The district 

court was correct to conclude that G&H’s substantive due process rights were 

not violated.

* * *

For the foregoing reasons, the ruling of the district court is AFFIRMED.

 

12 FM Properties Operating Co. v. City of Austin, 93 F.3d 167, 174 (5th Cir. 1996) 

(citation and internal quotation marks omitted).

13 Id.

 Case: 15-30556 Document: 00513404005 Page: 7 Date Filed: 03/02/2016