UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 95-50426

FM PROPERTIES OPERATING COMPANY

Plaintiff - Appellee

VERSUS

CITY OF AUSTIN

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

August 14, 1996

Before SMITH, DUHÉ, and DeMOSS, Circuit Judges.

DUHÉ, Circuit Judge:

FM Properties Operating Company (“FMP”) sued the City of

Austin, Texas, under 42 U.S.C. § 1983, claiming the City

arbitrarily and capriciously rejected its application for a land

development permit, thereby violating its Fourteenth Amendment

substantive due process rights. The district court entered

judgment on a jury verdict in favor of FMP, and the City appealed.

Because we find that FMP has failed to state a constitutional

claim, we reverse the judgment and remand to the district court to
1A “project” is “an endeavor over which a regulatory agency

exerts its jurisdiction and for which a permit is required before

initiation of the endeavor.” Tex. Gov’t Code Ann. § 481-142(3)

(West 1990) (amended 1995). “Endeavor” is not a defined term in

the Act.

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dismiss.

I.

A. House Bill 4

In 1987, the Texas Legislature enacted the Texas Department of

Commerce Act, Acts 1987, 70th Leg., ch. 374, § 1 (eff. Sept. 1,

1987) (current version at Tex. Gov’t Code Ann. § 481.101 et seq.

(West 1990 & Supp. 1996)). At all times pertinent to this

litigation, § 481.143(a) (“House Bill 4”) provided:

The approval, disapproval, or conditional approval of an

application for a permit shall be considered by each

regulatory agency solely on the basis of any orders,

regulations, ordinances, or other duly adopted requirements in

effect at the time the original application for the permit is

filed. If a series of permits is required for a project, the

orders, regulations, ordinances, or other requirements in

effect at the time the original application for the first

permit in that series is filed shall be the sole basis for

consideration of all subsequent permits required for the

completion of the project.

Tex. Gov’t Code Ann. § 481.143(a) (West 1990) (emphasis added)

(amended 1995).1 On September 1, 1987, the effective date of House

Bill 4, the Austin City Manager delivered to the City Council a

proposed interpretation of House Bill 4 that advocated treating the

land development process as involving, in House Bill 4 rubric, two

separate “projects.” The City Council unanimously adopted this

construction, and since 1987 has divided land development
3

activities into two projects, each involving a “separate and

independent series” of permits--i.e., that series of permits

necessary for subdividing unplatted, raw land into legal lots and

that series of permits necessary for vertical construction on

existing legal lots.

In the subdivision project, the application for preliminary

subdivision plat approval is the first in the series of necessary

permits. Under the City Council’s House Bill 4 policy, the filing

of this initial application freezes those ordinances and

regulations in effect on that date, such that the City Council’s

consideration of the remaining permits required to obtain final

subdivision plat approval is controlled by those regulations and

ordinances, regardless of any subsequent enactments, amendments, or

repeals. Likewise, a site plan application is the first permit

application in the series of permits required for approval of

construction on subdivided property. The filing of the site plan

application freezes those ordinances and regulations in effect on

its filing date to govern the remainder of this permit process.

In August 1991, the City Attorney submitted a legal opinion to

the City Council stating that its House Bill 4 policy was valid

under Texas law. In the opinion letter, the City Attorney

explained the purpose of the two-project policy:

It is well known that property is often subdivided for

speculative reasons with no plans beyond enhancing the

property’s value and making it marketable. The City has no

way to determine what a person envisions as the ultimate

result when particular applications are filed. Therefore,
2Texas law allows municipalities to enact water quality standards

applicable to the preservation and development of lands outside of

4

short of making a factual determination as to what each

person’s “project” is when each application is filed, the only

way to resolve this issue is to make a reasonable

determination as to what ordinarily constitutes a “project.”

The City has done this by using the Series 1 and Series 2

divisions, which is a reasonable, objective, and factually

based treatment of development applications.

If any action, including zoning . . . , were to freeze

development regulations, the result would be to eliminate

recent subdivision and site development regulations (including

watershed regulations) for much of the property within the

city and the extraterritorial jurisdiction. Virtually all of

the property within the city limits has been zoned, and much

of the property within the extraterritorial jurisdiction has

been, or is in the process of, being subdivided; this would

mean that these properties would be subject to regulations

which may already be outdated. Furthermore, the

interpretation favored by those who disagree with the City’s

policy would essentially prohibit any changes to subdivision

and site development regulations. This would permit persons

to develop property under outdated and substandard

regulations.

For example, a developer would not have to build in accordance

with the latest building, fire, plumbing, mechanical, or

electrical codes, but would be permitted to build under codes

that might be years old. In addition, the developer would not

be required to comply with drainage and watershed regulations.

This would result in shoddy development and create an obvious

public safety problem which could expose the developer, and

possibly the City, to liability for personal injury. This

result is contrary to the public interest in health, safety,

and welfare.

B. Factual history

In 1987, FMP’s predecessor in interest purchased 4,000 acres

in the Barton Creek Watershed outside of Austin. When purchased

its development was governed by the City’s 1986 Comprehensive

Watershed Ordinance.2 Early in 1991, the 1986 ordinance was
the municipalities’ corporate limits, in an area referred to as the

municipalities’ extraterritorial jurisdiction. See, e.g., Tex.

Local Gov’t Code Ann. § 212.003(a) (West Supp. 1996) and § 401.002

(West 1988); Tex. Water Code Ann. § 26.177(b) (West Supp. 1996).

FMP’s property is in the City’s extraterritorial jurisdiction.

3The City’s Land Development Code requires that land development

applications be approved in the following order, as applicable:

(1) zoning (if property is within city limits); (2) subdivision

(preliminary and final plat approval); (3) site plan (if usage

other than single family residential); and (4) building permits.

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replaced with an interim watershed ordinance effective for six

months. When the interim ordinance expired, the City Council

passed a two month moratorium on development. The City Council

then replaced the moratorium with the 1991 Composite Watershed

Ordinance.

Thereafter, on April 8, 1992, FMP’s predecessor in interest

submitted thirteen applications for preliminary subdivision plat

approval to the City.3 Two months later, FMP’s predecessor in

interest transferred the 4,000 acres to FMP. Between December 1992

and April 1993, the City approved all thirteen preliminary

subdivision plans.

On July 28, 1992, FMP filed a site plan application proposing

development of a 198-unit multifamily complex called “The Falls.”

Under the City’s Land Development Code, the site plan application

would expire on July 26, 1993, if all steps for its approval were

not completed by then. The City alerted FMP that the site plan

application could not be approved until a final subdivision plat

was approved and extended FMP’s site plan application approval
4The City admits that had FMP timely completed those steps

prerequisite to consideration of a site plan application, the 41-

unit site plan application would have complied with the 1991

Composite Watershed Ordinance.

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deadline to August 23, 1993. FMP then filed a final subdivision

plat application and amended its site plan application to reduce

the size of the development to 41 units. Final subdivision plat

approval was received on August 24, 1993, the day after FMP’s site

plan application expired. The City rejected the site plan

application for that reason.4 FMP refiled the 41-unit site plan

application in October 1993.

After FMP filed its original site plan application, a citizen

initiative to strengthen water quality protection in the Barton

Creek area resulted in passage of a referendum in August 1992

referred to as the SOS Ordinance. The City Council thereafter

codified the SOS Ordinance effective September 14, 1992, replacing

the 1991 Composite Watershed Ordinance.

Because FMP’s original site plan application expired, the City

Council considered FMP’s October 1993 site plan application the

first permit application necessary for approval of construction of

The Falls. Since this application was filed after enactment of the

SOS Ordinance, the City Council judged the application for

compliance with that ordinance, as opposed to the 1991 Composite

Watershed Ordinance which was in effect when FMP’s predecessor

filed for preliminary subdivision plat approval. Finding the site

plan application did not comply with the requirements of the SOS
5On the City’s motion, the district court dismissed FMP’s Fifth

Amendment takings claim as unripe. FMP then amended its complaint

to raise only Fourteenth Amendment substantive due process and

equal protection claims. By a subsequent voluntary motion, FMP

dismissed all of its claims, except the substantive due process

complaint based on the City’s decision to deny its October 1993

site plan application.

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Ordinance, the City Council rejected it.

C. Course of proceedings

FMP sued the City under 42 U.S.C. § 1983 claiming the City

violated FMP’s Fifth and Fourteenth Amendment rights and seeking

declaratory and injunctive relief, and damages. Following several

motions FMP’s complaint was reduced to a single claim that the City

arbitrarily and capriciously rejected the October 1993 site plan

application.5 FMP moved for partial summary judgment, and the

district court referred FMP’s motion to a magistrate judge who

concluded that (1) as a matter of law, House Bill 4 created in FMP

a property interest in having those ordinances and regulations in

effect on April 8, 1992, the date it filed for preliminary

subdivision plat approval, applied throughout the process of

developing The Falls, and (2) as a matter of law, the City is

collaterally estopped by the state-court decision in Quick v. City

of Austin (holding that the SOS Ordinance is void) from reasserting

the validity of that ordinance in this litigation. The district

court approved the magistrate’s report, and a jury trial was held

on FMP’s lone remaining constitutional claim.

The jury found that the City violated FMP’s substantive due
8

process right by denying its site plan application for

noncompliance with the SOS Ordinance and returned a verdict for FMP

for $113,888 in damages. In accordance with the verdict, the

district court entered judgment in favor of FMP and ordered the

City to pay FMP damages of $113,888, to consider any future permit

applications for land development under the regulations and

ordinances in effect at the time the original preliminary

subdivision plat application is filed, to consider any land

development permit application filed by FMP with respect to its

property in the Barton Creek Watershed under the regulations and

ordinances in effect when FMP filed its original preliminary

subdivision plat applications, and to approve FMP’s October 1993

site plan application for The Falls development upon FMP’s showing

that it complies with the regulations and ordinances in effect when

FMP filed its original preliminary subdivision plat application for

that project. The City appealed.

II.

Amidst the flurry of arguments made by the City assailing the

district court’s decision, we find a single issue dispositive of

this appeal. The City maintains that FMP has failed to state a

substantive due process claim. Specifically, the City contends

that its House Bill 4 policy and its decision pursuant thereto to

apply the SOS Ordinance to FMP’s October 1993 site plan application

were neither arbitrary nor capricious. Rather, the City claims the
6The City objected at trial to, and argues on appeal that the

district court erred by, submitting the first special interrogatory

to the jury on the ground that the interrogatory posed only a

question of law, the resolution of which is outside the province of

the jury. FMP, however, alleges that the City acted arbitrarily

and capriciously, inasmuch as its conduct was motivated by an

improper goal to deny FMP the right to develop its property, and

contends this issue is one of fact. As such, argues FMP, the

question was properly submitted to the jury, the jury clearly found

arbitrariness in the actions of the City leading up to and

culminating in the denial of FMP’s site plan application, and these

factual findings are to be reviewed only for clear error.

The contested interrogatory asked: “Do you find by a

preponderance of the evidence that the Defendant violated the

Plaintiff’s constitutional right to substantive due process when it

disapproved the site plan application for ‘the Falls’ development

project on November 11, 1993, by insisting that the application

comply with the SOS Ordinance?” Clearly, this poses a question of

law. See Hatton v. Wicks, 744 F.2d 501, 503 (5th Cir. 1984) (“The

sole question which is before us, then, is whether the existence of

these facts and these events constitutes a violation of appellant

Hatton’s civil rights under the due process of law clause of the

Fourteenth Amendment. That question obviously is a question of

law, a question of the interpretation and application of the

Constitution.”).

Likewise, the district court charged the jury: “With respect to

the first element [of a cause of action under § 1983], deprivation

of a property interest rises to the level of a substantive due

process violation if the conduct was arbitrary and capricious,

which means that it was done for an improper motive and lacking in

any conceivable rational basis.” (Emphasis added). Continuing,

the district court instructed the jury that “[t]o establish that

9

policy is necessary to prevent the application of outdated,

substandard rules and regulations to the development process, and

its decision respecting FMP’s site plan application furthered this

purpose. Accordingly, the City argues its actions are rationally

related to the legitimate government purpose of protecting the

public health, safety, and welfare, and FMP has failed to state a

claim for violation of its substantive due process rights. We

agree.6
the [City] acted arbitrarily and capriciously, [FMP] must prove

that the [City] could have had no legitimate reason for its

decision to apply the SOS Ordinance to [FMP’s] site plan

application.” These instructions, as a whole, asked the jury to

determine whether a rational basis existed for the City Council’s

action.

Whether a particular zoning action has the requisite rational

relationship to a legitimate government interest is a question of

law to be decided by the court. See Midnight Sessions, Ltd. v.

City of Philadelphia, 945 F.2d 667, 682 (3d Cir. 1991), cert.

denied, 503 U.S. 984 (1992), cited with approval by Parkway Garage,

Inc. v. City of Philadelphia, 5 F.3d 685, 692 (3d Cir. 1993); cf.

League of United Latin Am. Citizens v. Clements, 999 F.2d 831, 871

(5th Cir. 1993) (en banc), cert. denied, 510 U.S. 1071 (1994)

(noting that “[w]ith issues of substantive due process, equal

protection, and the First Amendment, the weight of a state’s

interest has always been a legal question, not a factual one.”). 

On this record, then, the jury made no findings of fact of which

we are apprised, and the district court erred insofar as it

submitted only a question of law to the jury. Such error warrants

reversing and remanding this cause for a new trial. But, because

we conclude as a matter of law that FMP has failed to state a

constitutional violation, and thus we reverse the judgment and

render a decision in favor of the City, we do not rely on this

error to resolve this appeal.

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FMP disagrees with the City’s characterization of this case.

FMP claims that over a three year period the City intentionally

delayed processing its permit applications and purposefully

manipulated drainage and water-quality standards pertaining to the

Barton Creek Watershed to prevent its development efforts. As a

result, argues FMP, the City violated its substantive due process

rights by engaging in an arbitrary and capricious course of conduct

aimed at preventing it from developing its Barton Creek property,

which conduct culminated in the November 1993 City Council decision

to deny FMP’s site plan application.

While FMP’s amended complaint and appellate brief attempt to
11

place a “totality of the circumstances” slant on its allegations of

unconstitutional misconduct by the City, in its intervening

pleading for voluntary dismissal of its equal protection and

alternate substantive due process claims, FMP admitted that

dismissal of those claims “leaves a single constitutional claim to

be decided by the jury: whether the City of Austin violated FM

Properties’ substantive due process rights when the City insisted

that the site plan application for the Falls filed October 25,

1993, comply with the SOS Ordinance.” Thus, FMP pared its

substantive due process claim to the minimal accusation that the

City acted arbitrarily and capriciously in November 1993 when it

insisted that FMP’s October 1993 site plan application comply with

the SOS Ordinance and refused to approve the application for

noncompliance.

Based on FMP’s concessions, the district court, when charging

the jury instructed:

The Plaintiff claims that the Defendant, while acting

“under color of state law,” intentionally deprived the

Plaintiff of rights under the Constitution of the United

States.

Specifically, Plaintiff claims that the City of Austin

violated Plaintiff’s substantive due process rights when it

arbitrarily and capriciously disapproved Plaintiff’s site plan

application for “The Falls” development project on November

11, 1993, by insisting that the resubmitted application comply

with the SOS Ordinance.

Further, the district court instructed the jury that, in the event

it determined damages were due FMP, those damages were “limited to

compensatory damages accruing after November 11, 1993, . . . which
7The second special interrogatory simply asked, in the event of

an affirmative answer to the first interrogatory, for the amount of

damages. 

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directly resulted from the denial of the site plan application for

‘the Falls’ development project.” FMP did not object to either

instruction. Additionally, of the two special interrogatories

submitted to the jury, the first asked the jury whether the

evidence established “that the [City] violated [FMP’s]

constitutional right to substantive due process when it disapproved

the site plan application for ‘the Falls’ development project on

November 11, 1993, by insisting that the application comply with

the SOS Ordinance.”7 Again, FMP raised no objection.

This case was tried, and the jury was instructed, on the

narrow issue of the constitutionality of the City’s decision to

deny FMP’s October 1993 site plan application. Neither in posttrial motions, nor on appeal, does FMP raise as error the district

court’s failure to instruct the jury or to submit an interrogatory

on a course-of-conduct theory of unconstitutional wrongdoing. As

such, FMP abandoned this claim in the district court, MacArthur v.

University of Tex. Health Ctr. at Tyler, 45 F.3d 890, 895 (5th Cir.

1995), and we do not consider on appeal a claim not presented to

the district court, Portiss v. First Nat’l Bank of New Albany, 34

F.3d 325, 331 (5th Cir. 1994); McLean v. International Harvester

Co., 902 F.2d 372, 374 (5th Cir. 1990). Thus, we need only decide

whether the City violated FMP’s substantive due process rights by
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denying FMP’s October 1993 site plan application for noncompliance

with the SOS Ordinance.

We begin our analysis by noting that FMP’s focus on the City

Council’s decision to deny its site plan application is misplaced.

FMP has never contended that its site plan application complied

with the SOS Ordinance, and the decision to deny FMP’s site plan

application resulted from a straight-forward application of the

City Council’s House Bill 4 policy. Consequently, if the City

Council can divide the land development process into two separate

projects or series of permits, as its House Bill 4 policy proposes,

then surely its denial of FMP’s site plan application pursuant to

a routine application of this legitimate practice was rational.

Accordingly, FMP’s complaint actually emerges as a claim that the

House Bill 4 policy, in and of itself, is so arbitrary and

capricious as to deprive FMP of its substantive due process rights.

“We have long insisted that review of municipal zoning is

within the domain of the states, the business of their own

legislatures, agencies, and judiciaries, and should seldom be the

concern of federal courts.” Shelton v. City of College Station,

780 F.2d 475, 477 (5th Cir.) (en banc), certs. denied, 477 U.S. 905

and 479 U.S. 822 (1986). Nonetheless, when challenges to such

land-use decisions aspire to constitutional stature, we view those

decisions as “quasi-legislative” in nature, and thus sustainable

against a substantive due process challenge if there exists

therefor “any conceivable rational basis.” Id.; South Gwinnett
14

Venture v. Pruitt, 491 F.2d 5, 7 (5th Cir.) (en banc), certs

denied, 416 U.S. 901 and 419 U.S. 837 (1974). In other words, such

government action comports with substantive due process if the

action is rationally related to a legitimate government interest.

Schafer v. City of New Orleans, 743 F.2d 1086, 1089 (5th Cir.

1984); Couf v. DeBlaker, 652 F.2d 585, 588 (5th Cir. 1981), cert.

denied, 455 U.S. 921 (1982); Stone v. City of Maitland, 446 F.2d

83, 87 (5th Cir. 1971). Only if such government action is “clearly

arbitrary and unreasonable, having no substantial relation to the

public health, safety, morals, or general welfare,” may it be

declared unconstitutional. Village of Euclid v. Ambler Realty Co.,

272 U.S. 365, 395 (1926); Shelton, 780 F.2d at 483 (“Only if the

governmental body could have had no legitimate reason for its

decision” is federal judicial interference proper.). 

FMP’s argument that the City Council’s House Bill 4 policy is

arbitrary and capricious is two-fold: (1) the City Council’s

interpretation of House Bill 4 is incorrect and so irrational; and

(2) the City Council’s interpretation bears no rational

relationship to any legitimate government interest. With respect

to the correctness of the City Council’s interpretation of House

Bill 4, we note that “[t]he power to decide, to be wrong as well as

right on contestable issues, is both privilege and curse of

democracy.” National Paint & Coatings Ass’n v. City of Chicago, 45

F.3d 1124, 1127 (7th Cir.), cert. denied, __ U.S. __, 115 S.Ct.

2579 (1995). Ergo, “the due process clause does not require a
8After FMP amended its complaint, the City moved the district

court to abstain from deciding this case under Railroad Comm’n of

Tex. v. Pullman Co., 312 U.S. 496 (1941), and Burford v. Sun Oil

Co., 319 U.S. 315 (1943). The City argued that, because the case

focused solely upon important issues of state and local land use

planning policy, and specifically the proper interpretation of

House Bill 4, federal intrusion into this area of immense state

concern was unwarranted and inappropriate. The district court,

however, disagreed and refused to abstain.

The City is correct that FMP’s alleged constitutional injury

boils down to a claim that the City incorrectly interpreted state

law. However, because the correctness of the City’s interpretation

of House Bill 4 is irrelevant on the record of this case to whether

FMP has stated a claim for deprivation of its substantive due

process rights, and thus resolution of this case does not require

that we immerse ourselves into any important issues of state law,

we concur in the district court’s refusal to abstain.

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state to implement its own law correctly[, nor does] [t]he

Constitution . . . insist that a local government be right.”

Gosnell v. City of Troy, 59 F.3d 654, 658 (7th Cir. 1995)

(citations omitted). Indeed, “[c]onverting alleged violations of

state law into federal . . . due process claims improperly

bootstraps state law into the Constitution.” Stern v. Tarrant

County Hosp. Dist., 778 F.2d 1052, 1056 (5th Cir. 1985) (en banc),

cert. denied, 476 U.S. 1108 (1986). As such, assuming, without

deciding, that the City Council has wrongly interpreted House Bill

4, a violation of state law is alone insufficient to state a

constitutional claim under the Fourteenth Amendment.8 See id.; see

also Neuwirth v. Louisiana State Bd. of Dentistry, 845 F.2d 553,

558 (5th Cir. 1988), Brennan v. Stewart, 834 F.2d 1248, 1255 n.11

(5th Cir. 1988); Smith v. City of Picayune, 795 F.2d 482, 488 (5th

Cir. 1986).
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As to FMP’s claim that the City Council’s House Bill 4 policy

has no rational relationship to any legitimate government interest,

we observe that “the ‘true’ purpose of the [policy], (i.e., the

actual purpose that may have motivated its proponents, assuming

this can be known) is irrelevant for rational basis analysis. The

question is only whether a rational relationship exists between the

[policy] and a conceivable legitimate governmental objective.”

Smithfield Concerned Citizens for Fair Zoning v. Town of

Smithfield, 907 F.2d 239, 246 (1st Cir. 1990). If the question is

at least debatable, there is no substantive due process violation.

Village of Euclid, 272 U.S. at 388; Shelton, 780 F.2d at 483

(quoting Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464

(1981)).

Through experience, the City discovered that subdivision of a

tract of land often precedes construction on the same tract by a

number of years and that these activities are frequently undertaken

by different parties. The City Council, therefore, adopted its

House Bill 4 policy treating these two activities as separate

projects to ensure land developers would be made to comply with the

most current standards at each stage of development. Assuring such

compliance would avoid inferior, and thus potentially hazardous,

construction as well as ecologically and environmentally

insensitive development, thereby advancing the health, safety, and
9Supreme Court jurisprudence “[has] not elaborated on the

standards for determining what constitutes a ‘legitimate state

interest[,]’ [but has] made clear . . . that a broad range of

governmental purposes and regulations satisfy these requirements.”

Nollan v. California Coastal Comm’n, 483 U.S. 825, 834-35 (1987).

It is settled, however, that zoning actions “must find their

justification in some aspect of the police power, asserted for the

public welfare.” Village of Euclid, 272 U.S. at 388. In this

vein, the Court has stated:

The concept of the public welfare is broad and inclusive. . . .

The values it represents are spiritual as well as physical,

aesthetic as well as monetary. It is within the power of the

legislature to determine that the community should be beautiful

as well as healthy, spacious as well as clean, well-balanced as

well as carefully patrolled.

Village of Belle Terre v. Boraas, 416 U.S. 1, 6 (1974) (quoting

Berman v. Parker, 348 U.S. 26, 33 (1954)).

In this case, the City Council’s House Bill 4 policy is intended

to protect the citizens of Austin, as well as to preserve the

landscape, waterways, and other environmental aspects considered

unique to the Austin area, by forcing land developers to comply not

only with the most up-to-date building quality and safety

standards, but also with the most advanced water quality, drainage,

and other environmentally related regulations. Based on the

expansiveness of the concept of the “public welfare” in this

context, we conclude that these objectives constitute legitimate

government interests.

17

welfare of the City and its citizens.9

The City Council’s legislative findings with respect to its

House Bill 4 policy are cloaked with a presumption of validity, 

Schafer, 743 F.2d at 1089 (citing Goldblatt v. Town of Hempstead,

369 U.S. 590 (1962)); South Gwinnett Venture, 491 F.2d at 7, and so

we give them much deference, see Horizon Concepts, Inc. v. City of

Balch Springs, 789 F.2d 1165, 1167-68 (5th Cir. 1986). In fact,

our deference is so substantial that FMP, to successfully challenge

this legislative judgment, “‘must convince the court that the
18

legislative facts on which the [decision] is apparently based could

not reasonably be conceived to be true by the governmental

decisionmaker.’” Shelton, 780 F.2d at 479 (quoting Vance v.

Bradley, 440 U.S. 93, 110-11 (1979)). FMP has made no such

showing, and thus we are bound to accept the City Council’s

findings. Horizon Concepts, Inc., 789 F.2d at 1168. Rational

basis review under the Due Process Clause of the Fourteenth

Amendment does not authorize the federal judiciary to sit as a

superlegislature to judge the wisdom or desirability of state

legislative policy determinations. Exxon Corp. v. Governor of

Maryland, 437 U.S. 117, 124 (1978) (citing Ferguson v. Skrupa, 372

U.S. 726, 731 (1963)). Thus, accepting as we must the City

Council’s determinations, we conclude that the existence of a

rational relationship between the House Bill 4 policy and the City

Council’s stated goal of guarding against the hazards of

substandard land development is at least debatable, such that FMP

has failed, in this respect, to state a constitutional violation.

III.

Because we conclude that FMP has failed to show that the City

Council’s decision to deny its site plan application worked a

deprivation of its Fourteenth Amendment substantive due process

rights, we REVERSE the judgment of the district court and REMAND to

the district court to DISMISS this cause.