UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

AUBREY E. HENRY, 

Plaintiff-Appellant,

v.

THE JEFFERSON COUNTY PLANNING

COMMISSION; SCOTT COYLE,

Commission Member, in his

individual capacity; H. RICHARD

FLAHERTY, Commission Member, in

his individual capacity; PAUL

GRIGER, Commission Member, in

his individual capacity; SAM

DONLEY, Commission Member, in

his individual capacity; JIM KNODE,

Commission Member, in his  No. 01-1948

individual capacity; ERNIE BENNER,

Commission Member, in his

individual capacity; GILBERT PAGE

WRIGHT, Commission Member, in

his individual capacity; LYLE

CAMPBELL TABB, Commission

Member, in his individual capacity;

PAUL J. RACO, Director of Planning

and Zoning, in his individual and

official capacity; JEFFERSON COUNTY;

JEFFERSON COUNTY BOARD OF ZONING

APPEALS,

Defendants-Appellees,

and 
STATE OF WEST VIRGINIA, 

Defendant. 

PACIFIC LEGAL FOUNDATION,

Amicus Curiae. 

Appeal from the United States District Court

for the Northern District of West Virginia, at Martinsburg.

W. Craig Broadwater, District Judge.

(CA-96-40-3, CA-99-25-3)

Argued: February 28, 2002

Decided: May 7, 2002

Before WILKINSON, Chief Judge, and NIEMEYER and

MICHAEL, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion. 

COUNSEL

ARGUED: James Sherman Burling, PACIFIC LEGAL FOUNDATION, Sacramento, California, for Amicus Curiae. Michael Douglas

Lorensen, BOWLES, RICE, MCDAVID, GRAFF & LOVE,

P.L.L.C., Martinsburg, West Virginia, for Appellees. John Christian

Yoder, Harpers Ferry, West Virginia, for Appellant.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

2 HENRY v. JEFFERSON COUNTY PLANNING COMM’N
OPINION

PER CURIAM: 

The Jefferson County Planning and Zoning Commission denied, by

unanimous vote, Aubrey Henry’s application for a conditional use

permit to build a 76-unit townhouse development on 9.8 acres of land

in Jefferson County, West Virginia. Henry sued the Commission and

others, asserting that the local zoning ordinance was unconstitutionally vague on its face and that the denial of the permit to build the

townhouse project amounted to an unconstitutional taking of his property without just compensation and violated his due process and equal

protection rights. The district court granted summary judgment to the

defendants on the vagueness challenge to the zoning ordinance and

dismissed Henry’s other claims on the grounds of Burford abstention.

In reviewing that decision in an earlier appeal, we affirmed the ruling

that the ordinance was not unconstitutionally vague, vacated the dismissal of the remaining claims, and remanded for further proceedings.

The district court then granted summary judgment to the defendants

on these remaining claims, and Henry appeals for a second time. He

is joined by the Pacific Legal Foundation as amicus curiae. We now

affirm the district court’s grant of judgment to the defendants on the

substantive due process claim and vacate the judgment on the takings

claim because the latter claim is not ripe for review. 

I.

Aubrey Henry is part owner of a 13.69-acre tract of land located

in Jefferson County, West Virginia. Henry owned and operated a restaurant on this property beginning in 1979, when he took over the restaurant from his parents. In 1988 Jefferson County enacted a new

Zoning Development and Review Ordinance which zoned the property as a Rural-Agricultural District. Henry’s restaurant was a nonconforming use under the new ordinance, but he was permitted to

continue operating the restaurant under a grandfather clause. In 1993

the restaurant burned to the ground. Henry discussed rebuilding the

restaurant with Paul Raco, the Director of the Jefferson County Planning and Zoning Commission. According to Henry, Raco told him

that he should not bother applying for a permit to rebuild the restaurant because he would not be able to satisfy a number of necessary

HENRY v. JEFFERSON COUNTY PLANNING COMM’N 3
conditions. Instead, Raco allegedly told Henry to submit an alternative plan to build townhouses. If this was approved, then supposedly

it would be easier for Henry to get approval at a later time to rebuild

his restaurant. 

Allegedly in reliance on this advice, Henry in early 1994 sought a

conditional use permit for a 76-unit townhouse project on 9.8 acres

of the property. Because the land had reverted to agricultural use after

the restaurant burned down, Henry’s proposed use was not allowed

as of right. Henry properly sought a conditional use permit under Jefferson County’s Development Review System. After processing

Henry’s proposal according to this system, the Commission unanimously voted to deny the permit. The Commission denied the permit

based on the project’s high housing unit density (which was much

greater than the density in the surrounding area), its effect on the adjacent park, and its general incompatibility with the neighborhood. 

Pursuant to state law procedure, Henry appealed this decision to

the Jefferson County Board of Zoning Appeals. The Board affirmed

the Commission’s findings and decision. Henry then challenged the

Board’s decision through the West Virginia state court system. He

sought certiorari in state circuit court, which affirmed the Commission’s decision. Henry then sought review in the Supreme Court of

Appeals of West Virginia, which remanded the case to the Board with

instructions that the Board support its decision with more thorough

fact-finding. The Board gave Henry the opportunity to present more

evidence, but Henry requested instead that the Board expedite the

decision without another hearing. The Board then issued a six-page

decision affirming the denial. The Board concluded that the Zoning

Commission had properly followed the public hearing procedures set

out in the ordinance. It also concluded that the proposed development,

with a density of 7.75 housing units per acre, was incompatible with

the relative density of the surrounding area, which consisted mainly

of one single family home per two acres or more of land. The Board

found the proposed development incompatible with the purpose of the

Rural-Agricultural District, which was intended "to provide a location

for low density single family residential development in conjunction

with providing continued farming activities" and "to preserve the rural

character of the County and the agricultural community." Jefferson

County, W.Va., Zoning and Development Review Ordinance § 5.7

4 HENRY v. JEFFERSON COUNTY PLANNING COMM’N
(1988). Henry again sought certiorari in the circuit court, which

affirmed the Board’s decision. The Supreme Court of Appeals of

West Virginia denied review. Throughout this state review process,

Henry challenged the legal and factual sufficiency of the Commission’s decision. At no time during this process did Henry seek compensation for the denial of his permit. See, e.g., Henry v. Jefferson

County Planning Comm’n, 496 S.E.2d 239 (W.Va. 1997). 

Henry also brought suit in federal district court, challenging the

constitutionality of the ordinance, alleging an unconstitutional taking

of his property, and claiming due process and equal protection violations. As noted above, we affirmed the district court’s ruling that the

ordinance was not unconstitutionally vague in a prior appeal, but we

remanded Henry’s remaining claims for further proceedings. On

remand, the district court granted summary judgment to the defendants on these claims. Henry now appeals the district court’s ruling

on his takings and substantive due process claims, but he does not

appeal the court’s ruling on the equal protection claim. 

II.

We first address Henry’s takings claim. The Takings Clause of the

Fifth Amendment to the Constitution, applicable to the states through

the Fourteenth Amendment, provides that "private property [shall not]

be taken for public use, without just compensation." U.S. Const.

amend. V. As the Supreme Court has explained, "[t]he Fifth Amendment does not proscribe the taking of property; it proscribes taking

without just compensation." Williamson County Regional Planning

Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 194

(1985). Thus, the mere taking of a landowner’s property does not violate the Fifth Amendment; the violation occurs only when the property is taken and the landowner has been denied just compensation.

That is to say, "the property owner cannot claim a violation of the Just

Compensation Clause until [he] has used [State compensation] procedure[s] and been denied just compensation." Id. at 195. So long as the

state provides a "reasonable, certain and adequate provision for

obtaining compensation," a landowner’s takings claim is not ripe until

he has exhausted state compensation procedures.1Id. (quotations

omitted). 

1With regard to exhaustion in takings claims, it is important to distinguish between Williamson’s "final decision" requirement and its "just

HENRY v. JEFFERSON COUNTY PLANNING COMM’N 5
Here, Henry has not pursued state compensation procedures, nor

does he present evidence that there is no such procedure available. If

the West Virginia courts had made clear that no state process exists

for seeking compensation in these circumstances, then Henry could

plausibly claim that he had been denied just compensation. Likewise,

if a state compensation process existed but the West Virginia courts

had made clear that, for example, a landowner is never entitled to

compensation for zoning restrictions on property, then Henry could

claim that he had been denied just compensation without having to

pursue a clearly meritless claim. See Naegele Outdoor Advertising,

Inc. v. City of Durham, 803 F.Supp. 1068, 1072-73 (M.D.N.C. 1992)

(takings claim ripe because prior North Carolina court decisions made

clear that no compensation was due when a challenged ordinance contained an amortization period), aff’d, 19 F.3d 11 (4th Cir. 1994) (per

curiam), cert. denied, 513 U.S. 928. While it appears that West Vircompensation" requirement. A takings claim is "not ripe until the government entity charged with implementing the [challenged] regulations has

reached a final decision regarding the application of the regulations to

the property at issue." Williamson, 473 U.S. at 186. However, once a

final decision has been reached by the initial decisionmaker, a landowner

need not exhaust state procedures for review of that final decision in

order to ripen a takings claim. Id. at 192-94. Here, Henry has in fact

exhausted state procedures for reviewing the Commission’s denial of his

conditional use permit. While he did not need to pursue such review in

order to satisfy Williamson’s "final decision" requirement, we do not

suggest that pursuing state review is a pointless or unadvisable course of

action. Indeed, in this case the Supreme Court of Appeals of West Virginia required the Board of Zoning Appeals to justify its conclusions

with more extensive fact-finding, even though the permit denial was ultimately upheld. State review provides a valuable check on potentially

arbitrary local decisionmaking and is often a better course of action than

immediately seeking federal review. We simply note that exhausting

state procedures to review a "final decision" is not required to ripen a

federal takings claim. In contrast, a landowner must exhaust state compensation requirements in order to demonstrate that a Fifth Amendment

violation has occurred. As stated above, while Henry did exhaust state

procedures to review the Commission’s decision, he did not seek compensation during that process. Cf. McFillan v. Berkeley County Planning

Comm’n, 438 S.E.2d 801 (W.Va. 1993) (considering takings claim raised

during the course of review of Commission’s decision). 

6 HENRY v. JEFFERSON COUNTY PLANNING COMM’N
ginia does not have a statutory inverse condemnation procedure, a

West Virginia landowner, at least in some circumstances, may seek

compensation for damage to property by bringing a mandamus action

against a state official to compel that official to institute statutory

eminent domain proceedings. See Shaffer v. West Virginia Dep’t of

Transp., 542 S.E.2d 836 (W.Va. 2000); Carter v. City of Bluefield, 54

S.E.2d 747 (W.Va. 1949). We do not speculate as to whether mandamus would be available in this particular case; it is enough to observe

that the West Virginia courts have generally recognized this compensation procedure in the past and that Henry has not demonstrated that

the procedure is unavailable in this case. Accordingly, Henry has not

established that his property has been taken without just compensation. Because the Fifth Amendment only prohibits the taking of property without just compensation, Henry’s takings claim is not ripe and

must be dismissed without prejudice.2

2Commentators have criticized the use of the term "ripeness" to

describe the "just compensation" requirement, stating that "the ripeness

label gives the erroneous impression that litigation in state court will

ripen a federal takings claim. In reality . . . preclusion and the RookerFeldman doctrine often will bar federal court relitigation." Douglas T.

Kendall et al., Choice of Forum and Finality Ripeness: The Unappreciated Hot Topics in Regulatory Takings Cases, 33 Urb. Law. 405, 409

(2001). See also Julian C. Juergensmeyer & Thomas E. Roberts, Land

Use Planning and Control Law 450-51 (1998). The point is well taken.

A determination that a claim is unripe often suggests that a litigant will

eventually be able to return to federal court for a decision on the merits.

Litigants should be aware that in the context of takings jurisprudence, a

dismissal for ripeness does not imply that the litigant will eventually

have the opportunity to litigate the merits of their takings claim in federal

court. Often, by the time a federal takings claim is ripe, it is also precluded from being litigated. See Dodd v. Hood River County, 136 F.3d

1219 (9th Cir. 1998); Thomas E. Roberts, Ripeness and Forum Selection

in Fifth Amendment Takings Litigation, 11 J. Land Use & Envtl. L. 37,

72 (1995) ("Ironically, an unripe suit is barred at the moment it comes

into existence. Like a tomato that suffers vine rot, it goes from being

green to mushy red overnight."). Nevertheless, the Supreme Court has

referred to the "just compensation" predicate as a ripeness requirement,

see Williamson, 473 U.S. at 194, and we think the term, despite its potentially misleading connotations, most accurately explains why Henry’s

claim cannot be considered on the merits at this stage. State court litigation does ripen the federal claim; any subsequent bar to federal court litigation would not be a ripeness bar, but a claim or issue preclusion bar.

HENRY v. JEFFERSON COUNTY PLANNING COMM’N 7
III.

Henry also claims that the Commission’s denial of his conditional

use permit constituted a violation of his substantive due process

rights. To establish this, Henry must demonstrate: (1) that he had a

property interest in his proposed project; (2) that the state deprived

him of this 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 Development Corp. v. Calvert

County, 48 F.3d 810, 827 (4th Cir. 1995). 

In this case, Henry has failed to establish that he possesses a property interest in the conditional use permit to build the townhouses. We

have made clear that when a "land-use regulation[ ] grant[s] discretion

to [government] officials with regard to approval of the proposed

development, [a landowner] possess[es] no property interest protected

by the Fourteenth Amendment." Gardner v. City of Baltimore, 969

F.2d 63, 64 (4th Cir. 1992). If local regulations make it clear that a

landowner is entitled to a permit upon application or upon the meeting of certain conditions, then the landowner has a property interest

in that permit. See Scott v. Greenville County, 716 F.2d 1409, 1418

(4th Cir. 1983) ("Under South Carolina law settled well before he

applied for the building permit, Scott enjoyed an entitlement to the

issuance of a permit upon presentation of an application and plans

showing a use expressly permitted under the then-current zoning ordinance."). On the other hand, "[a]ny significant discretion conferred

upon the local agency [to issue or deny the permit] defeats the claim

of a property interest." Gardner, 969 F.2d at 68. See also Sylvia, 48

F.3d at 826-27. 

Here, it is clear that Henry is not entitled as a matter of right to a

permit for his high-density townhouse project. Rather, the issuance of

this permit is within the discretion of the Commission, guided by the

process and factors enumerated in the zoning ordinance. Accordingly,

Henry has no protected property interest in this permit, and his substantive due process claim has no merit. Henry also presses a substantive due process claim with regard to his restaurant. However, Henry

has yet to apply for or be denied a permit to rebuild his restaurant.

Even if, as Henry alleges, Raco told him that he would not be able

to obtain the restaurant permit, Henry must at least present the plan

8 HENRY v. JEFFERSON COUNTY PLANNING COMM’N
to the Commission and be turned down before he can claim that he

was deprived of the opportunity to rebuild. Thus, aside from whether

Henry even possesses a protected property interest in rebuilding the

restaurant, he has not yet been deprived of any such interest because

Jefferson County has not prohibited him from rebuilding. As noted

above, Henry’s substantive due process rights have not been violated

until, at the very least, he has been deprived of his property. Sylvia,

48 F.3d at 827. 

Henry also challenges the district court’s grant of qualified immunity to the individual defendants. Normally, the question of qualified

immunity arises only when some constitutional violation has

occurred. Here, the court reached the question of qualified immunity

because it disposed of the claims against the individual defendants

two months before it determined on the merits that Henry’s substantive due process right had not been violated. At this stage of the proceedings, because we agree that no due process violation has

occurred, there is no liability either individually or officially and the

question of immunity does not arise. 

IV.

In sum, Henry’s takings claim is not ripe because he has not sought

just compensation from the State of West Virginia and been denied

it. Thus, we vacate the district court’s grant of summary judgment to

the defendants on Henry’s takings claim and remand with instructions

to dismiss the claim without prejudice. We affirm the district court’s

grant of summary judgment to the defendants on Henry’s substantive

due process claim. 

AFFIRMED IN PART, VACATED

IN PART, AND REMANDED

HENRY v. JEFFERSON COUNTY PLANNING COMM’N 9