1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-18-1994

Acierno v. Cloutier

Precedential or Non-Precedential:

Docket 93-7456

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Recommended Citation

"Acierno v. Cloutier" (1994). 1994 Decisions. Paper 160.

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 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 Nos. 93-7456 & 93-7617 

 

 FRANK E. ACIERNO 

v. 

 PHILIP CLOUTIER; RICHARD CECIL; ROBERT POWELL; 

 ROBERT WOODS; CHRISTOPHER ROBERTS; PENROSE HOLLINS; 

 KAREN VENEZKY; NEW CASTLE COUNTY; MICHAEL MITCHELL, 

 Philip Cloutier, Richard Cecil, 

 Robert Powell, Robert Woods, 

 Christopher Roberts, Penrose 

 Hollins and Karen Venezky, 

 Appellants in No. 93-7456 

 Michael T. Mitchell, 

 Appellant in No. 93-7617 

 

 Appeal from the United States District Court 

 for the District of Delaware 

 (D.C. Civ. No. 92-00385) 

 

 Argued March 25, 1994 

 Before: GREENBERG, COWEN and NYGAARD 

 Circuit Judges

 Submitted in banc August 30, 1994 

 Before: SLOVITER, Chief Judge, BECKER, STAPLETON, 

 MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN, 

 NYGAARD, ALITO, ROTH, LEWIS and McKEE 

 Circuit Judges 

 (Opinion Filed: October 18, 1994) 

Collins J. Seitz, Jr. 

Connolly, Bove, Lodge & Hutz 

1220 Market Building 

P.O. Box 2207 
Wilmington, DE 19899 

 COUNSEL FOR APPELLANTS 

 PHILIP CLOUTIER, RICHARD CECIL, 

 ROBERT POWELL, ROBERT WOODS, 

 CHRISTOPHER ROBERTS, PENROSE 

 HOLLINS, KAREN VENEZKY AND 

 NEW CASTLE COUNTY 

Barry M. Willoughby 

Young, Conaway, Stargatt & Taylor 

P.O. Box 391 

Rodney Square North, 11th Floor 

Wilmington, DE 19899-0391 

 COUNSEL FOR APPELLANT 

 MICHAEL T. MITCHELL 

Thomas S. Neuberger 

Suite 702 

200 West Ninth Street 

Ninth Street Plaza 

Wilmington, DE 19801-1646 

John J. Yannacone 

Yannacone, Fay, Baldo & Daly 

200 East State Street, Suite 107 

Media, PA 19063 

 COUNSEL FOR APPELLEE 

 FRANK E. ACIERNO 

 

 OPINION OF THE COURT 

 

COWEN, Circuit Judge. 

 In this action under 42 U.S.C. § 1983, the defendants 

have appealed the denial of their motions to dismiss on absolute 

and qualified immunity grounds. These appeals were first heard 

by a panel of this court, which was bound by Prisco v. United 

States Dep't of Justice, 851 F.2d 93 (3d Cir. 1988), cert. 
denied, 490 U.S. 1089 (1989). In that case it was held that a 

defendant may not appeal the denial of a claim of qualified 

immunity under the collateral order doctrine if the defendant 

would nevertheless be required to go to trial on a claim for 

injunctive relief. When the panel opinion was circulated to the 

full court before publication, the court voted to grant rehearing 

in banc for the purpose of reconsidering Prisco. Having done so, 

the full court has decided that Prisco should be overruled. Part 

IIB of this opinion, which represents the opinion of the court 

sitting in banc, addresses that issue. The issues addressed in 

the remainder of this opinion have been considered by the panel 

only. 

 In still another chapter in the extensive volume of 

litigation between Frank Acierno and the members of the New 

Castle County Council ("County Council") in Delaware concerning 

Acierno's various development projects, we are called upon to 

decide whether the members of the County Council are entitled to 

immunity from suit for their actions of enacting two ordinances 

which down-zoned Acierno's commercial property. We conclude that 

both the present and former members of the County Council are 

immune from suit because the actions they took with respect to 

Acierno's commercial property were either substantively and 

procedurally legislative in nature, or did not abrogate a clearly 

established property interest. Accordingly, we will reverse the 

district court's denial of the motion for summary judgment made 

by the present and former members of the County Council on 

immunity grounds. We will also reverse the district court's 
order denying First Assistant County Attorney Mitchell's motion 

to dismiss on immunity grounds. 

I. 

 A. Factual Background

 Plaintiff Frank E. Acierno, a real estate developer, 

purchased a thirty-eight acre parcel of land located in New 

Castle County, Delaware (the "property") on October 5, 1984 for 

slightly more than $1,000,000. As of April, 1971, the property 

had a classification under New Castle County's zoning ordinance 

as a "diversified planned unit development" ("DPUD"). A major 

land development plan for the property was approved by the County 

and recorded on April 11, 1974. The approved record development 

plan provided for the construction of a 322 unit apartment 

complex (to be called "The Maples Apartments"), together with the 

development of .87 acres of land for commercial use. 

 It is undisputed that Acierno's interest in owning the 

property was partly by reason of its DPUD zoning classification 

and the fact that the property was the subject of an approved 

record development plan. Before closing on the property, Acierno 

sought and received assurances from the New Castle County 

Department of Planning ("Department of Planning") regarding the 

current zoning and record plan status of the property. In 

response to Acierno's request, the Department of Planning issued 

a letter opinion which stated the following: "The land is still 

currently zoned Diversified Planned Unit Development (DPUD). The 

status of the record plan is that it is current and, therefore, 
the uses permitted are noted on the plan subject to limitations 

regarding the density, commercial area, etc." Appendix ("App.") 

(No. 93-7456) at 131. In reliance on these factors, Acierno paid 

a premium of approximately $900,000 for the property. At the 

time of purchase, the description of the property specifically 

noted that the parcel had been approved by County officials for 

the construction of 322 apartment units. 

 In October, 1985, Acierno filed with the Department of 

Planning a revised development plan for the property, which was 

now to be known as the "Westhampton project." Thereafter, in 

December, 1985, the County Council issued a resolution pursuant 

to section 23-81(21) of the County Code1 requesting that the 

Department of Planning provide a recommendation as to whether the 

existing record plan for the property should be voided. The 

County Council issued this resolution based on concerns that DPUD 

rezonings were not being developed in a timely fashion, that the 

density of housing might adversely impact on the general quality 

of life in the County, that an updated review of traffic, water, 

 

1. Then County Code § 23-81(21) provided in relevant part as 

follows: 

 If construction has not been completed within . . . five (5) 

years after the date of approval of the record 

development plan for the [planned unit development 

("PUD")] or the date of approval of the record 

development plan of the last stage of PUD, if submitted 

in stages, whichever is longer, then the approval shall 

be voidable at the discretion of county council, upon 

recommendation of the department of planning. 

New Castle County, Del., Code § 23-81(21) (repealed 1987); App. 

(No. 93-7456) at 355. 
and sewer facilities was necessary, and that the Subdivision 

Advisory Committee should review the project in light of the 

character of the existing neighborhood. The record reflects that 

the project was the only DPUD-zoned property with a record 

development plan subject to review by the County. 

 In response to the resolution, the Department of 

Planning solicited comments from various municipal departments 

and determined that the property had adequate traffic, water, and 

sewer capacity. Therefore, the Department of Planning did not 

make a recommendation that the County Council void the record 

development plan. Two months later, the then Council Attorney 

sent a memorandum to the County Council pertaining to the 

resolution. The memo stated that there was nothing more for the 

County Council to consider since the voiding provision of the New 

Castle County Code, § 23-81(21), "indicates that the [Department 

of Planning] must affirmatively support the voiding of a record 

plan before Council's discretion comes into being. Without such 

prerequisite support, Council has no discretion to act. If this 

were not the case, review by the [Department of Planning] would 

be meaningless." App. (No. 93-7456) at 140. 

 On March 11, 1986, then County Council President Karen 

Peterson informed Acierno that nothing remained for the County 

Council to consider regarding the resolution and that no further 

ordinances or resolutions had been proposed concerning the 

property. Acierno then undertook a revision of the subdivision 
plan2 for the property to address concerns raised by the County 

regarding the planned use for the site. The Department of 

Planning informed Acierno that his revised and updated 

subdivision plan for the Westhampton project was approved and 

recorded on April 18, 1986. A subsequent revised subdivision 

plan, superseding the April plan, was approved and recorded on 

December 5, 1986. 

 During 1987 the County Council revised, updated, and 

amended the DPUD zoning classification. At the time a workshop 

concerning the zoning amendment effort was held in October, 1987, 

the proposed amended DPUD ordinance contained a "savings clause" 

which provided as follows: 

 Section 4. This ordinance shall become effective 

immediately upon its adoption and approval except for 

rezoning applications currently pending DPUD approval 

which shall be exempt from the provisions of this 

ordinance, but subject to the provisions of the Code in 

effect at the time of rezoning to DPUD. 

App. (No. 93-7456) at 92. This proposed DPUD ordinance, known as 

"Substitute Ordinance No. 1 to Ordinance 87-025," was not enacted 

into law. In response to suggestions made during the workshop, 

the savings clause was revised to read as follows: 

 Section 4. This ordinance shall become effective 

immediately upon its adoption and approval except for 

rezoning applications currently pending DPUD approval 

which shall be exempt from the provisions of this 

ordinance except Section 23-81(18), but subject to the 

provisions in the Code in effect at the time of 

rezoning to DPUD. 

 

2. The County Code distinguishes between a "record plan" and 

major and minor "subdivision plans." See New Castle County, 

Del., Code § 20-3 (defining these terms). 
App. (No. 93-7456) at 113 (emphasis added).3 This revised DPUD 

ordinance, known as "Substitute Ordinance No. 2 to Ordinance 87-

025," was adopted into law by the County Council on October 13, 

1987. Id. at 93, 113. The language of the savings clause is 

relevant to this dispute because Acierno alleges that the County 

Council, through an opinion issued by First Assistant County 

Attorney Michael T. Mitchell, relied upon the unenacted version 

to conclude that it had discretion to void Acierno's record 

development plan. 

 In 1988, Acierno further revised the Westhampton 

project subdivision plan and submitted it for County review. In 

June, 1988, the Department of Planning informed Acierno that the 

subdivision plan, superseding the December 5, 1986 subdivision 

plan, was approved and recorded. By December, 1988 when a 

further revised subdivision plan was approved and recorded, 

Acierno had spent in excess of $1,000,000 to further his 

development plans for the property, including expenses for 

mortgage interest, engineering fees, and real estate taxes. It 

is not disputed, however, that Acierno never obtained a building 

 

3. Current County Code § 23-81(18) allows a landowner with DPUDzoned property 10 years from the date of the original rezoning 

ordinance to develop the parcel as proposed. If the property has 

not been fully developed at the end of the 10 year sunsetting 

period, the landowner must submit current support facilities 

information establishing the adequacy of these facilities in the 

opinion of the Department of Planning in order to continue with 

the development as approved. New Castle County, Del., Code § 23-

81(18). This provision replaced former County Code § 23-81(21), 

which provided a five year window after the date of the approval 

of the PUD record development plan before the County Council had 

discretion to void the record plan. Id. § 23-81(21) (repealed 

1987); see supra note 1. 
permit from the County allowing him to start construction of the 

Westhampton project. 

 The County Council again introduced a resolution in 

April, 1991 requesting the Department of Planning's 

recommendation whether to void the existing record development 

plan for the property. The record reflects that the County 

Council had concerns similar to those present when a voiding 

resolution had been introduced in December, 1985. Acting upon 

this resolution and enclosing a copy of the December, 1988 

subdivision plan, the then Director of the Department of Planning 

contacted the Delaware Department of Transportation for comments 

concerning road access and traffic impact. 

 In a memorandum to the County Council dated May 22, 

1991, the then Director advised the County Council that 

Subdivision Advisory Committee members had been asked to comment 

on the Westhampton project and to identify any issues that might 

preclude development of the site as depicted by the record 

development and subdivision plans. The memo stated that various 

government agencies had identified deficiencies in the 

subdivision plan, but acknowledged that the situation could be 

remedied by Acierno through voluntary revisions to the plan. In 

fact, Acierno responded to the Department of Planning by letter 

dated May 29, 1991 that he intended to cooperate in order to 

address and resolve any deficiencies. By June, 1991, Acierno had 

submitted a wetlands delineation report, thereby fulfilling one 

of the cited deficiencies. 
 Defendant-appellant Michael T. Mitchell, First 

Assistant County Attorney, was also involved in reviewing the 

voiding resolution proposed in April, 1991. He provided a legal 

memorandum to the County Council on July 2, 1991 which set forth 

his opinion as to whether the Council had authority to void 

Acierno's approved record development plan. Mitchell's opinion 

concluded that the County Council had discretion to void the 

record development plan for the Westhampton project upon 

recommendation by the Department of Planning because the old 

five-year sunsetting provision of the County Code, repealed § 23-

81(21), applied rather than the newly enacted ten-year sunsetting 

provision, § 23-81(18). In coming to this conclusion, Mitchell 

relied upon the unenacted savings clause contained in Substitute 

Ordinance No. 1 to Ordinance 87-025, rather than the enacted 

savings clause which was introduced as part of Substitute No. 2 

to that ordinance. 

 From May, 1991 through April, 1992 Acierno proceeded 

with his development efforts by attempting to remedy the 

purported deficiencies in the Westhampton plan. Some changes in 

the proposed development were incorporated into a revised plan 

which was submitted to the Department of Planning for review and 

approval. The Department of Planning allegedly informed Acierno 

in September, 1991 that he had complied with all material 

deficiencies contained in the May 22, 1991 memorandum from the 

Department of Planning to the County Council. The County Council 

tabled the resolution to void Acierno's record development plan 

in September, 1991. 
 The resolution was reexamined the next Spring. In a 

letter to the County Council dated April 2, 1992, the Department 

of Planning indicated that Acierno had submitted a new 

subdivision plan which resolved the wetlands, fire prevention, 

and a majority of the public works concerns. The traffic and 

road access issues were the only remaining deficiencies that had 

not been completely resolved. The Department of Planning 

concluded: 

 In summary, it would appear that the only remaining 

issue with respect to our memorandum of May 22, 1991, 

is access through the Oakwood Hills subdivision. The 

Department has been given no indication that the 

applicant will voluntarily remove this access from the 

plan. Further, we see no evidence that any meaningful 

dialogue is ongoing between the applicant and community 

to find a compromise position. Should [the County] 

Council be of the opinion that this issue warrants 

voiding of the plan, the Department would recommend 

that it proceed with action on [the voiding resolution] 

as this appears to be the only method of bringing 

closure on this issue. 

App. (No. 93-7456) at 39. 

 After notice and a public hearing, on April 14, 1992 

the County Council enacted Ordinance 91-190 voiding the approved 

record development plan and related subdivision plans for the 

property. The next day, defendant-appellant Philip Cloutier, 

then a member of the County Council, informed the Director of 

Planning that he intended to introduce an ordinance to rezone the 

property from DPUD back to R-2, its residential zoning 

classification prior to its rezoning to DPUD in 1971. As 

required by statute, legal notice of the proposed zoning 

ordinance was published on June 20, 1992; below the title of the 
proposed ordinance contained in the notice was bracketed language 

indicating that enactment would rezone the property from DPUD to 

an R-2 zoning classification. 

 A statutorily required public hearing was held before 

the Department of Planning and Planning Board on July 7, 1992 

concerning the proposed rezoning ordinance. Two weeks later, the 

Department of Planning recommended the adoption of a substitute 

ordinance which would rezone the property from DPUD to an R-1-B 

classification instead of an R-2 classification. The R-1-B 

zoning classification, which requires an average minimum lot size 

of 15,000 square feet, is less restrictive than the R-2 zoning 

classification, which requires an average minimum lot size of 

21,780 square feet. Compare New Castle County, Del., Code § 23-

39(3) (the R-1-B residence district requires a minimum lot area 

of 15,000 square feet) with id. § 23-39(6) (the R-2 residence 

district requires a one-half acre or 21,780 square feet minimum 

lot area). 

 On September 9, 1992 the County Council enacted 

Substitute No. 1 to Ordinance No. 92-119 rezoning the property 

from DPUD to an R-1-B zoning classification. This action was 

taken even though all public notices concerning the rezoning had 

indicated that upon enactment the property would be rezoned from 

DPUD to an R-2 classification. The effect of the rezoning was 

that Acierno had to suspend his plans to develop a large 

apartment building on the property because the R-1-B zoning 

classification permits only a variety of less intensive uses. 
The district court made a finding of fact that Acierno had spent 

more than $1,000,000 pursuing his plan to develop the property.4

 B. Procedural Background

 Acierno filed a complaint on July 1, 1992 in the United 

States District Court for the District of Delaware alleging that 

the defendants, through the voiding of his approved record 

development plan and the rezoning of his property, violated his 

constitutional rights. The original complaint named as 

defendants the County and present and former members of the 

County Council.5 The complaint was subsequently amended in 

April, 1993 to include First Assistant County Attorney Michael T. 

Mitchell as a party defendant. 

 The amended complaint contains two counts. In count 

one, Acierno seeks compensatory damages and injunctive relief 

against all defendants pursuant to 42 U.S.C. § 1983. 

Specifically, Acierno alleges that the defendants violated his 

equal protection and procedural and substantive due process 

rights by down-zoning his property. In count two, Acierno seeks 

 

4. The district court did not clarify whether this figure of 

$1,000,000 includes the premium of $900,000 that it found Acierno 

paid for the property in reliance on the existing DPUD zoning 

classification and approved record development plan when he 

purchased the property in 1984. In light of our disposition of 

these appeals, resolution of this factual ambiguity is not 

necessary and in no way impacts on our decision in this case. 

5. The defendants who are presently serving as members of the 

County Council are Richard Cecil, Robert Woods, Christopher 

Roberts, Penrose Hollins, and Karen Venezky. The defendants who 

are former members of the County Council are Philip Cloutier and 

Robert Powell. 
injunctive relief against the County under an equitable estoppel 

theory. 

 The present and former County Council members had filed 

an answer to the original complaint in which they allege defenses 

of legislative and qualified immunity. These defendants and the 

County filed a motion for summary judgment on December 4, 1992. 

After the filing of various motions and responses which are not 

relevant to this appeal, the district court made a determination 

to treat the motion by the defendants other than Mitchell as a 

motion for partial summary judgment. In a Memorandum Opinion and 

Order dated June 9, 1993, the district court granted the motion 

for summary judgment on Acierno's procedural due process claim,6

but denied the motion as to the substantive due process and equal 

protection claims. See Acierno v. Cloutier, No. 92-385, 1993 WL 

215133, at *23-26 (D. Del. June 9, 1993), aff'd in part, rev'd in 

part, __ F.3d __, 1994 WL 319783 (3d Cir., Jul 07, 1994) (No. 93-

7456, 93-7617), vacated and reh'g in banc granted, __ F.3d __, 

1994 WL 401516 (3d Cir., Aug 04, 1994) (No. 93-7456, 93-7617). 

The district court also concluded that the defendants were not 

entitled to summary judgment with respect to their defenses of 

legislative and qualified immunity. Id. at *27-30. 

 

6. Acierno has not cross-appealed the granting of the 

defendants' motion for summary judgment with respect to the 

procedural due process claim, and thus, we have no occasion to 

address this theory of the complaint in this opinion or to 

consider whether we would have had jurisdiction over a crossappeal. 
 The district court separately addressed the defenses of 

legislative and qualified immunity. The district court 

articulated a two-part test for entitlement to legislative 

immunity which requires that the action taken be legislative in 

nature rather than administrative, and that the action be taken 

in accordance with statutory procedures. Id. at *27. The court 

concluded that the enactment of the two ordinances which downzoned Acierno's property was administrative, rather than 

legislative, because the two ordinances were directed at a single 

property owner and not the community at large. Id. The court 

further held that the members of the County Council were not 

entitled to legislative immunity because they did not strictly 

comply with Delaware law when rezoning the property from DPUD to 

an R-1-B zoning classification. Id. at *27-29. 

 Turning to the defense of qualified immunity, the 

district court concluded that because Acierno had a vested right 

to develop his property pursuant to the DPUD zoning 

classification and approved record plan, see id. at *9-19, which 

was clearly established by Delaware state law at the time of the 

rezoning decisions, no reasonable official would have believed 

that the rezoning actions were lawful. Id. at *29. In rejecting 

the qualified immunity defense, the district court also found 

that a reasonable official would have known that the voiding of 

the record plan was precluded by County law. Id. Thus, the 

district court decided that the members of the County Council 

were not entitled to immunity from suit. 
 Defendant Mitchell filed a motion to dismiss the 

amended complaint on the grounds that it fails to state 

cognizable due process and equal protection claims against him 

and that he is entitled to qualified immunity from suit. The 

district court rejected Mitchell's motion to dismiss in a 

separate Memorandum Opinion and Order dated September 1, 1993. 

Acierno v. Cloutier, No. 92-385, slip op. at 13-19 (D. Del. Sept. 

1, 1993). Addressing the defense of qualified immunity, the 

district court denied Mitchell's motion because it found that 

Mitchell had knowingly, or through his own incompetence, relied 

on unadopted legislation when issuing his legal opinion as to 

whether the County Council had authority to void the approved 

record development plan. Id., slip op. at 19-20. 

II. 

 A. Jurisdiction of the District Court

 Plaintiff Acierno filed this action pursuant to 42 

U.S.C. § 1983 alleging that the defendants violated his 

constitutional rights by down-zoning his property. Thus, the 

district court had subject matter jurisdiction over the federal 

question claims by virtue of 28 U.S.C. §§ 1331 and 1343. It had 

supplemental jurisdiction over the state law claim under 28 

U.S.C. § 1367. In these appeals, the members of the County 

Council and defendant Mitchell contend that the district court 

improperly denied their motions to dismiss or for summary 

judgment on the grounds of immunity from suit. 
 B. Appellate Jurisdiction

 Ordinarily we do not have appellate jurisdiction to 

review district court orders denying motions to dismiss or for 

summary judgment because there is no final order within the 

meaning of 28 U.S.C. § 1291. W.D.D., Inc. v. Thornbury Township, 

850 F.2d 170, 171 (3d Cir.) (in banc) (per curiam), cert. denied, 

488 U.S. 892, 109 S. Ct. 228 (1988). The Supreme Court, however, 

has held that courts of appeals have appellate jurisdiction under 

the "collateral order" doctrine of Cohen v. Beneficial Industrial 

Loan Corp., 337 U.S. 541, 69 S. Ct. 1221 (1949), to consider 

whether a defendant is entitled to absolute immunity from suit. 

Nixon v. Fitzgerald, 457 U.S. 731, 741-43, 102 S. Ct. 2690, 2697-

98 (1982); see also Schrob v. Catterson, 967 F.2d 929, 934 (3d 

Cir. 1992) ("Schrob II"); Schrob v. Catterson, 948 F.2d 1402, 

1406-07 (3d Cir. 1991) ("Schrob I"). This principle of appellate 

jurisdiction has been extended to orders rejecting a defendant's 

entitlement to qualified immunity from suit to the extent that 

the decision turns on issues of law. Mitchell v. Forsyth, 472 

U.S. 511, 524-30, 105 S. Ct. 2806, 2814-17 (1985); see also

Kulwicki v. Dawson, 969 F.2d 1454, 1459-61 (3d Cir. 1992). 

 In adhering to this theory of appellate jurisdiction, 

we have recognized that an order denying a defense of immunity is 

reviewable before trial because entitlement to "immunity from 

federal claims encompasses not only immunity from liability, but 

also immunity from suit." Brown v. Grabowski, 922 F.2d 1097, 

1105 (3d Cir. 1990), cert. denied, 501 U.S. 1218, 111 S. Ct. 2827 

(1991). See also Federal Ins. Co. v. Richard I. Rubin & Co., 12 
F.3d 1270, 1281 (3d Cir. 1993) (sovereign immunity is an immunity 

from trial), cert. denied, __ U.S. __, 114 S. Ct. 2101 (1994). 

The Supreme Court has instructed that the first step in reviewing 

a district court's qualified immunity decision is to determine 

whether the plaintiff has "allege[d] the violation of a clearly 

established constitutional right" at all. Siegert v. Gilley, 500 

U.S. 226, __, 111 S. Ct. 1789, 1793 (1991); see also D.R. by L.R. 

v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364, 

1368 (3d Cir. 1992) (in banc), cert. denied, __ U.S. __, 113 S. 

Ct. 1045 (1993). This threshold inquiry requires us to determine 

whether the constitutional right asserted by Acierno was 

"`clearly established' at the time the defendants acted," and 

whether Acierno "has asserted a violation of a constitutional 

right at all." Siegert, 500 U.S. at 232, 111 S. Ct. at 1793.7

 

7. The Supreme Court's majority opinion in Siegert, when read as 

a whole, seems to suggest that where practicable or expedient an 

appellate court should first address whether the plaintiff has 

alleged a cognizable constitutional claim at all, before turning 

to the question of whether the constitutional right asserted was 

"clearly established" at the time the defendant acted. 500 U.S. 

at 232-33, 111 S. Ct. at 1793-94. In fact, we have emphasized 

this aspect of the Siegert decision in a subsequent case where we 

decided to address all plaintiffs' allegations of constitutional 

error as a predicate question to whether the constitutional 

rights were "clearly established" at the time the defendant 

acted. See D.R. by L.R., 972 F.2d at 1368. Nevertheless, 

concurring in the judgment in Siegert, Justice Kennedy recognized 

that in certain cases, like the one before the Supreme Court in 

that case, it is an "altogether normal procedure" for the court 

of appeals to decide the case "on the ground that appear[s] to 

offer the most direct and appropriate resolution," 500 U.S. at 

235, 111 S. Ct. at 1795 (Kennedy, J, concurring in the judgment), 

which in difficult constitutional cases will sometimes be whether 

the constitutional right was "clearly established" at the time 

the defendant acted. Furthermore, the majority opinion in 

Siegert does not state that courts of appeals must always as an 

initial inquiry address whether a constitutional violation has 
 The present case involves two appeals: (1) the 

defendants who are current and former members of the County 

Council have appealed the district court's order denying their 

motion for summary judgment insofar as the court rejected their 

defenses of legislative and qualified immunity from suit; and (2) 

defendant Mitchell has appealed the district court order denying 

his motion to dismiss insofar as the court rejected his defense 

of qualified immunity from suit. Although all parties agree that 

we have jurisdiction under the collateral order doctrine to 

consider the issues of legislative and qualified immunity, they 

disagree on the scope of our appellate jurisdiction. 

 The Nixon case makes clear that we have appellate 

jurisdiction to consider whether the former members of the County 

Council are entitled to absolute legislative immunity. 457 U.S. 

at 741-43, 102 S. Ct. at 2697-98; see also Schrob I, 948 F.2d at 

(..continued) 

been alleged by the plaintiff. In fact, in cases decided after 

both Siegert and D.R. by L.R., we have opted to address whether 

the constitutional right asserted was "clearly established" at 

the time the defendant acted, without initially deciding whether 

a constitutional violation was alleged at all. See Rappa v. New 

Castle County, 18 F.3d 1043, 1077-79 (3d Cir. 1994); Abdul-Akbar 

v. Watson, 4 F.3d 195, 201-05 (3d Cir. 1993). 

 In cases such as the present one, where the court would be 

required to undertake a detailed analysis of unreported and 

undeveloped state and county law issues in order to determine 

whether a cognizable constitutional claim was alleged at all, we 

believe a more prudent course is to first address whether the 

constitutional right asserted by the plaintiff was "clearly 

established" at the time the defendant acted. We will follow 

such a course in this case because, as will be explained infra, 

the state and county law issues which we would need to decide in 

order to determine whether Acierno possessed a vested right to 

develop his commercial property before the rezoning ordinances 

were passed are particularly difficult and undeveloped. 
1406-07; Venen v. Sweet, 758 F.2d 117, 121-22 (3d Cir. 1985); 

Forsyth v. Kleindienst, 599 F.2d 1203, 1207-09 (3d Cir. 1979), 

cert. denied, 453 U.S. 913, 101 S. Ct. 3147 (1981). The scope of 

our jurisdiction to consider the issues of qualified immunity, 

and legislative immunity as concerns the present members of the 

County Council, is a more complex question, however, especially 

in light of the fact that Acierno seeks prospective injunctive 

relief against several of the defendants. When deciding the 

appealability of qualified immunity issues in Mitchell, a case in 

which only monetary damages were sought, the Supreme Court 

expressly left open the question whether a case involving claims 

for injunctive relief would change the equation. 472 U.S. at 519 

n.5, 105 S. Ct. at 2812 n.5. We subsequently addressed that 

question and held that the denial of a defendant's claim to 

entitlement to qualified immunity is not immediately appealable 

when the plaintiff has requested injunctive relief. Prisco v. 

United States Dep't of Justice, 851 F.2d 93, 95-96 (3d Cir. 

1988), cert. denied, 490 U.S. 1089, 109 S. Ct. 2428 (1989). 

 As a result, plaintiff Acierno submits that we must 

dismiss these appeals insofar as they involve present County 

Council members Cecil, Woods, Roberts, Hollins, and Venezky, and 

First Assistant County Attorney Mitchell, because he seeks 

prospective injunctive relief against these parties. With 

respect to former County Council members Cloutier and Powell, 

against whom it is impossible to obtain prospective injunctive 

relief, Acierno concedes that the order denying their motion for 
summary judgment on legislative and qualified immunity grounds is 

immediately appealable. 

 The present members of the County Council argue that 

Prisco was wrongly decided. They bring to our attention the 

prevailing rule among all of our sister courts of appeals that, 

despite the existence of a request for injunctive relief, pretrial orders denying a defendant's entitlement to qualified 

immunity are immediately appealable. See Burns v. County of 

Cambria, Pa., 971 F.2d 1015, 1019-20 (3d Cir. 1992)(canvassing 

cases from the nine circuits which disagree with Prisco), cert. 

denied, __ U.S. __, 113 S. Ct. 1049 (1993). Defendants who are 

present members of the County Council insist that Prisco should 

be overruled because it undermines the policy rationale behind 

appeals where immunity was pled and, additionally, because of the 

ease with which the Prisco rule can be invoked to circumvent a 

defendant's right to an immediate appeal. On the other hand, 

Acierno asserts that the long-standing policy of preventing 

piece-meal appeals still warrants adherence to the Prisco rule 

and that a careful review by the appellate courts of the request 

for injunctive relief would prevent any abuse of the rule by 

plaintiffs. 

 Since a panel does not have the occasion to reconsider 

a prior panel opinion and is bound to follow our precedent, it is 

only now, sitting in banc, that we may reexamine the rationale of 

Prisco. See Internal Operating Procedures, United States Court 

of Appeals for the Third Circuit, Rule 9.1 (prior reported 

opinions can be overruled only by the court sitting in banc). In 
light of recent opinions which call into question the continued 

vitality of Prisco, we now consider whether the Prisco rule 

should meet its demise. At stake in these proceedings is whether 

we should now hear the appeals of the present County Council 

members or, alternatively, dismiss their appeals for lack of an 

appealable order as they involve issues of whether these members 

(against whom injunctive relief is sought) are entitled to 

absolute or qualified immunity. 

 In Prisco, we recognized that a suit seeking both 

prospective relief and money damages does not end for a party 

successfully asserting a defense of either absolute or qualified 

immunity.8 Prisco, 851 F.2d at 96. We observed that the policy 

 

8. Specifically, we held, "that in an action in which claims for 

prospective relief remain pending, a party against whom they 

remain pending may not appeal from the denial of a motion for 

summary judgment on immunity grounds." Prisco, 851 F.2d at 96 

(footnote omitted). Although the Prisco case did not explicitly 

involve an issue of absolute immunity, its holding extends to 

absolute as well as qualified immunity. Defendants argue that we 

were incorrect in asserting such a broad proposition of law in 

light of Supreme Court of Virginia v. Consumers Union of United 

States, Inc., 446 U.S. 719, 731-34, 100 S. Ct. 1967, 1974-75 

(1980). Defendants read Consumers Union as standing for the 

proposition that legislative immunity confers an immunity from 

suit for both injunctive relief as well as damages. See also

Spallone v. United States, 493 U.S. 265, 278, 110 S. Ct. 625, 633 

(1990) (indicating that it had been previously decided in 

Consumers Union that legislative immunity extends to actions for 

both damages and injunctive relief). We note that the Supreme 

Court has never held that legislative immunity applies to both 

claims for damages and injunctive relief. A close reading of 

Consumers Union indicates that the Supreme Court merely pointed 

to an obvious circuit split which existed at the time and, we 

believe, remains unresolved today. There are at least two 

courts of appeals that have suggested that the Supreme Court has 

definitively spoken on this issue and has held that absolute 

immunity is a bar to injunctive relief. See Risser v. Thompson, 

930 F.2d 549, 551 (7th Cir.), cert. denied, 112 S. Ct. 180 

(1991); Alia v. Michigan Supreme Court, 906 F.2d 1100, 1102 (6th 
rationale for granting qualified immunity is that, "we do not 

want officials to make discretionary decisions with one wary eye 

on their pocketbook." Prisco, 851 F.2d at 95. We then concluded 

that such a rationale does not apply to suits for injunctive 

relief. Id. In our discussion, we balanced the marginal benefit 

to a government official from an interlocutory appeal on the 

issue of damages against the systemic harms of permitting piecemeal interlocutory review of discrete issues in a case which will 

be ongoing. Prisco, 851 F.2d at 96. We must now reassess our 

prior analysis and determine whether the balance that existed at 

the time of Prisco is still valid today. 

 In Siegert v. Gilley, the Supreme Court reaffirmed the 

principle that "[o]ne of the purposes of immunity, absolute or 

qualified, is to spare a defendant not only unwarranted 

liability, but unwarranted demands customarily imposed upon those 

defending a long drawn out lawsuit." Siegert, 500 U.S. 226, 232, 

111 S. Ct. 1789, 1793 (1991). We note that Prisco tends to 

minimize this strong public policy reason which favors 

jurisdiction over interlocutory immunity appeals. 

(..continued) 

Cir. 1990). However, a substantial number of courts of appeals, 

including the Third Circuit, believe the issue is unresolved by 

the Supreme Court, and have held that absolute immunity is a bar 

to damages only, and not to prospective or injunctive relief. 

See Schrob II, 967 F.2d at 939 (3d Cir. 1992); Fry v. Melaragno, 

939 F.2d 832, 839 (9th Cir. 1991); Chrissy F. v. Mississippi 

Dep't of Public Welfare, 925 F.2d 844, 849 (5th Cir. 1991), cert. 

denied, 114 S. Ct. 1336 (1994); Executive 100, Inc. v. Martin 

County, 922 F.2d 1536, 1539 (11th Cir.), cert. denied, 112 S. Ct. 

55 (1991); Schloss v. Bouse, 876 F.2d 287, 292 (2nd Cir. 1989). 
 In Schrob II, this Court reviewed authority from other 

courts of appeals that struck the balance in favor of recognizing 

appellate jurisdiction even where injunctive relief claims are 

present. The Schrob II panel noted that other courts of appeals 

have "criticized Prisco for qualitatively equating the burdens 

associated with defending against a suit for money damages with 

the burdens associated with defending a suit for injunctive 

relief." Schrob II, 967 F.2d at 940. See also Burns, 971 F.2d 

at 1020 (expressing "dissatisfaction with the Prisco rule"). As 

other courts have observed, even though injunctive relief claims 

may continue after appeal, "considerable differences [exist] in 

both time and expense in defending a case that involves both 

damages and equitable relief as contrasted to a case that 

involves equitable relief alone." Young v. Lynch, 846 F.2d 960, 

962 (4th Cir. 1988). See also DiMartini v. Ferrin, 889 F.2d 922, 

925 (9th Cir. 1989), amended, 906 F.2d 465 (9th Cir. 1990), cert.

denied, 501 U.S. 1204, 111 S. Ct. 2796 (1991). 

 As the Court of Appeals for the Seventh Circuit 

explained in Scott v. Lacy, 811 F.2d 1153, 1153-54 (7th Cir. 

1987), "a public official who is a defendant in a suit [for 

injunctive relief] is not `on trial' at all. The suit seeks 

relief against him in his official capacity; he need not attend 

the trial, which will be conducted by attorneys representing the 

governmental body." Indeed, a suit against elected officials in 

their official capacity is functionally a suit against the 

government entity. 
 The procedure dictated by Prisco undermines the reasons 

for recognizing qualified immunity -- to permit a public servant 

to concentrate on official duties without the distraction and 

worries which are the inevitable consequence of disruptive 

litigation. While a defendant who loses a claim for injunctive 

relief is simply ordered to refrain from taking certain action in 

his or her official capacity, an official who is denied qualified 

immunity must be concerned with personal liability without the 

right of appeal, to which he or she would otherwise have been 

entitled. See Kennedy v. City of Cleveland, 797 F.2d 297, 306 

(6th Cir. 1986)("The exposure to personal liability in damages 

and the potential need for retention of private counsel to 

protect against that risk is quite different from the problem 

faced by an official who is charged only in an official 

capacity."). 

 The instant case highlights the inconsistency of the 

Prisco decision with the public policy furthered by interlocutory 

review of immunity determinations. The former County Council 

members, who no longer have official duties that would be subject 

to disruption by the litigation, would be spared further 

involvement, while the present Council members would be forced to 

go forward with their official duties still burdened by the 

distraction and worries of the litigation. This is directly 

contrary to the policy behind the immunity doctrine of protecting 

the present elected officials from suit and possible personal 

liability when making discretionary decisions. Additionally, as 

noted in Schrob II, a plaintiff "can easily circumvent a 
defendant's right to immediate appeal simply by adding a claim 

for equitable relief." Schrob II, 967 F.2d at 940. 

 We believe that a balancing approach similar to the one 

we used to decide Prisco still has merit today. However, after 

carefully re-examining the policy and practical considerations of 

such a rule, we conclude that Prisco failed to give adequate 

weight to the benefits derived by public officials of being freed 

from the unpleasantries and demands on their time due to 

continued litigation. Prisco also weighs too heavily the harms 

associated with interlocutory appeals. We therefore overrule 

Prisco. 

 In addition to arguing that Prisco was wrongly decided, 

Mitchell also seeks to distinguish Prisco by arguing that Acierno 

has made no viable claim for injunctive relief against him. 

Assuming arguendo that a claim for injunctive relief was made 

against Mitchell, we nonetheless have appellate jurisdiction to 

consider whether Mitchell was entitled to dismissal on qualified 

immunity grounds in light of the above discussion which overrules 

Prisco. 

 In sum, we have appellate jurisdiction to consider 

whether the present and former members of the County Council are 

entitled to absolute legislative and qualified immunity from 

suit. We also have appellate jurisdiction to consider whether 

the district court erred in denying First Assistant County 

Attorney Mitchell's motion to dismiss on qualified immunity 
grounds.9 In our consideration of the qualified immunity issue 

as it relates to the substantive due process claim, we will first 

determine whether plaintiff Acierno has asserted a violation of a 

clearly established constitutional right at all. 

III. 

 In this case we must decide whether the district court 

correctly denied the members of the County Council's motion for 

summary judgment on legislative and qualified immunity grounds, 

and First Assistant County Attorney Mitchell's motion to dismiss 

on qualified immunity grounds. Because "[t]his appeal presents a 

purely legal question concerning the scope of the immunity 

doctrine," we exercise plenary review over the district court's 

denial of the summary judgment motion on legislative immunity 

grounds. Donivan v. Dallastown Borough, 835 F.2d 486, 487 (3d 

Cir. 1987), cert. denied, 485 U.S. 1035, 108 S. Ct. 1596 (1988). 

 

9. With these appeals, the defendants argue that the district 

court erred as a matter of law in failing to grant their motion 

for summary judgment as to Acierno's claim alleging a violation 

of the Equal Protection Clause of the Fourteenth Amendment. It 

is not clear from the district court's opinion that the 

defendants argued that they are entitled to absolute legislative 

immunity or qualified immunity with respect to this allegation. 

Furthermore, in their brief submitted to this court the 

defendants did not argue that their immunity defenses also 

relieve them of liability on the equal protection claim. 

Accordingly, because our jurisdiction is limited to addressing 

the defenses of legislative and qualified immunity for the 

members of the County Council and Mitchell, we do not express any 

opinion concerning whether Acierno possesses a viable claim for a 

violation of the Equal Protection Clause or whether there are 

immunity defenses for any of the defendants to such a claim. 
 We also exercise plenary review over the denial of the 

summary judgment motion and motion to dismiss on qualified 

immunity grounds because this issue presents a "purely legal" 

question. Burns, 971 F.2d at 1020; Lee v. Mihalich, 847 F.2d 66, 

67 (3d Cir. 1988). To the extent that the district court 

interpreted state and county law in determining whether Acierno 

had a vested right to develop the property, the district court is 

not entitled to any deference. Salve Regina College v. Russell, 

499 U.S. 225, 231, 111 S. Ct. 1217, 1221 (1991); cf. Grimes v. 

Vitalink Communications Corp., 17 F.3d 1553, 1557 (3d Cir. 1994). 

Thus, the determinations regarding state and county law necessary 

to decide whether the defendants are entitled to qualified 

immunity will be reviewed de novo. Salve Regina College, 499 

U.S. at 231, 111 S. Ct. at 1221. 

IV. 

A. 

 We first address the issue of whether the members of 

the County Council are entitled to absolute legislative immunity 

for their actions because in the event we agree with their 

position, such a ruling would obviate the need for evaluating 

their claim to entitlement to qualified immunity. The Supreme 

Court has held that individual members of state legislatures are 

absolutely immune from suit for damages under 42 U.S.C. § 1983 

when conducting legitimate legislative activity. Tenney v. 

Brandhove, 341 U.S. 367, 376-79, 71 S. Ct. 783, 788-89 (1951). 

After the Supreme Court extended this protection of absolute 
immunity to regional legislators functioning in a capacity 

comparable to that of members of a state legislature, Lake 

Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 

391, 402-06, 99 S. Ct. 1171, 1178-79 (1979), we further extended 

it to protect members of local legislative bodies for actions 

taken in a purely legislative capacity. Aitchison v. Raffiani, 

708 F.2d 96, 98-99 (3d Cir. 1983); see also Ryan v. Burlington 

County, N.J., 889 F.2d 1286, 1290 (3d Cir. 1989).10

 The County Council, whose members are elected, is a 

local governmental body that has been given a combination of 

legislative and administrative powers. See Del. Code Ann. tit. 

9, §§ 1146, 4901 (1989). "It is only with respect to the 

legislative powers delegated to them by the state legislatures 

that the members of local governing boards are entitled to 

absolute immunity." Ryan, 889 F.2d at 1290. Thus, our task in 

making this immunity determination requires us to examine whether 

the members of the County Council were acting in an 

administrative or legislative capacity when they enacted the 

ordinances down-zoning Acierno's property. Abraham v. Pekarski, 

 

10. In Bass v. Attardi, 868 F.2d 45, 49-50 (3d Cir. 1989), we 

held that members of a municipal planning board, acting pursuant 

to their governmental function as defined by state statute when 

making land use decisions, were absolutely immune in their 

individual capacities from a damage suit brought under 42 U.S.C. 

§ 1983. Acierno does not allege that the members of the County 

Council were acting in a non-governmental function, e.g., outside 

of powers delegated to them by state law, when they enacted the 

two ordinances which down-zoned his property. Therefore, for 

purposes of deciding this case, we will assume without deciding 

that the members of the County Council were acting within their 

statutorily defined governmental function when the two ordinances 

were enacted. 
728 F.2d 167, 174 (3d Cir.), cert. denied, 467 U.S. 1242, 104 S. 

Ct. 3513 (1984). 

 We have established a two-part test to determine 

whether actions are to be regarded as legislative for immunity 

purposes: (1) the action must be "substantively" legislative, 

which requires that it involve a policy-making or line-drawing 

decision; and (2) the action must be "procedurally" legislative, 

which requires that it be undertaken through established 

legislative procedures. Ryan, 889 F.2d at 1290-91. In order to 

provide a further inquiry to help define the first part of the 

Ryan test, we stated that decisions affecting a single individual 

or a small number of people do not implicate legislative power 

and, thus, such actions are administrative in nature. Id. at 

1291. Furthermore, in prior cases we have indicated that such an 

inquiry is an appropriate factor to consider when determining 

whether an action is legislative or administrative, see Donivan, 

835 F.2d at 488; Rogin v. Bensalem Township, 616 F.2d 680, 693-94 

(3d Cir. 1980), cert. denied, 450 U.S. 1029, 101 S. Ct. 1737 

(1981), but we have not held this inquiry to be conclusive. 

 When the district court conducted its analysis under 

the first part of the Ryan test, it focused only on the factor of 

whether the action was directed toward a single individual or the 

community at large. The district court stated, "legislative acts 

are those which apply generally to the entire community, whereas 

acts specifically directed at one or a few individuals are 

executive or administrative acts." Acierno v. Cloutier, No. 92-
385, 1993 WL 215133, at *27 (D. Del. June 9, 1993).11 Based on 

the fact that passage of the two ordinances did not rezone any 

other landowner's property, the district court held that the 

County Council's actions with respect to Acierno's property were 

administrative in nature. Id.

 We believe the district court erred in its application 

of the "substantive prong" of the Ryan test by placing too much 

emphasis on the factor of whether the action was directed at a 

single individual or the community at large. It is difficult to 

find fault with the district court, however, because we concede 

that the prior decisions of this court are somewhat unclear as to 

what are the relevant factors, and how much weight each should be 

given, in deciding whether zoning and other land use actions are 

substantively legislative or administrative in nature. 

Furthermore, there is a consistent thread running through the 

case law which indicates that courts often point to the narrow 

target of an action as indicative of an administrative, rather 

than legislative, act. See, e.g., Cutting v. Muzzey, 724 F.2d 

259, 261 (1st Cir. 1984)(planning board's decision "to insist on 

completion of a particular road before granting approval of a 

specific proposed subdivision" was an action based on specific 

 

11. The district court cited the following cases for this 

proposition: Donivan, 835 F.2d at 488; Rogin, 616 F.2d at 693; 

Ryan v. Burlington County, N.J., 708 F. Supp. 623, 640 (D.N.J.), 

aff'd, 889 F.2d 1286 (3d Cir. 1989); and de Botton v. Marple 

Township, 689 F. Supp. 477, 482-83 (E.D. Pa. 1988). As we 

already stated, in Donivan and Rogin we did rely in part on this 

factor, but we did not hold that this inquiry is dispositive of 

the administrative/legislative determination. 
rather than legislative facts tending to single out specific 

individuals and affect them differently than others; thus, the 

action was administrative rather than legislative in nature); 

Scott v. Greenville County, 716 F.2d 1409, 1422-23 (4th Cir. 

1983)(county council members who reviewed a specific building 

permit application assumed a non-legislative role); Jodeco, Inc. 

v. Hann, 674 F. Supp. 488, 495 (D.N.J. 1987)("Official acts 

affecting the community at-large might tip the balance in favor 

of a finding of legislative conduct, while acts directed at one 

or a few individuals might be dispositive of executive or 

administrative conduct."). 

 In Jodeco, the district court commented that there was 

no definitive standard in this circuit for distinguishing between 

legislative and non-legislative actions. 674 F. Supp. at 494-95. 

Although in Ryan we clarified the test somewhat by indicating 

that actions must be both substantively and procedurally 

legislative in nature in order to be entitled to absolute 

immunity, we believe that the "substantive prong" of the standard 

requires further elaboration. To fill the gap which has been 

left open in our prior cases dealing with legislative immunity, 

we repeat the standard employed by the district court in Jodeco: 

 [In order to distinguish] legislative from nonlegislative functions, . . . the appropriate inquiry 

[is] whether the conduct of the defendant zoning 

officials involved either the enactment or amendment of 

zoning legislation or simply the enforcement of already 

existing zoning laws. Acts performed pursuant to the 

former are legislative in character and the officials 

performing them are entitled to absolute immunity, 

while acts performed pursuant to the latter are 

administrative, executive, or ministerial and the 

officials performing them may only receive the 
protection of qualified immunity. Factored into this 

equation should be the impact that such official 

conduct has on the citizens of the municipality. 

Official acts affecting the community at-large might 

tip the balance in favor of a finding of legislative 

conduct, while acts directed at one or a few 

individuals might be dispositive of executive or 

administrative conduct. 

674 F. Supp. at 494-95. We have previously cited with approval 

the court's analysis in Jodeco concluding that members of 

planning boards in New Jersey are entitled to absolute immunity 

because their responsibilities "are so integrally related to the 

judicial process . . . ." Id. at 496. See Bass v. Attardi, 868 

F.2d 45, 50 (3d Cir. 1989). Likewise, we now adopt the court's 

analysis of the legislative/administrative determination as our 

own. 

 In the present case, the members of the County Council 

acted to down-zone Acierno's property through two separate, 

albeit related, actions. The first action was the enactment of 

an ordinance on April 14, 1992 voiding the approved record 

development plan and related subdivision plans for the property. 

The second action was the enactment of an ordinance on September 

9, 1992 rezoning the property from DPUD to an R-1-B zoning 

classification. Accordingly, we must consider each of these 

actions under the standard articulated above. 

 The enactment of the ordinance voiding the 

approved record development plan was undertaken by the County 

Council pursuant to the authority of the sunsetting provision of 

the County Code, § 23-81(18), which allows the Council to revoke 

development rights after the passage of ten years to ensure that 
facilities and infrastructure are sufficient. This ordinance was 

passed in an effort to facilitate enforcement of existing zoning 

laws, not to facilitate enactment or amendment of new zoning laws 

involving broad-based policy or line-drawing determinations. 

Furthermore, the ordinance affected only one piece of property, 

and thus was aimed at only one landowner, Frank Acierno. We thus 

conclude that the County Council's enactment of Ordinance 91-190 

on April 14, 1992, which voided the approved record development 

plan and related subdivision plans for the property, was an 

administrative, not legislative, action. The members of the 

County Council are not entitled to legislative immunity with 

respect to this action.12

 We now turn to the County Council's second action, the 

enactment of Substitute 1 to Ordinance 92-119 which rezoned the 

property from DPUD to an R-1-B zoning classification. This 

action of rezoning the property was undertaken pursuant to the 

legislative powers delegated to the County Council under Delaware 

state law. See Del. Code Ann. tit. 9, §§ 2601-2614 (1989 & Supp. 

1992). Furthermore, the rezoning of the property was 

accomplished through the ordinance procedure, which we have found 

necessary in order for the action to be substantively legislative 

in character. Donivan, 835 F.2d at 488-89. If not for the fact 

 

12. The parties disagree as to whether the entire rezoning 

process, which involved the enactment of the two ordinances, was 

accomplished consistently with all the procedures required by 

state law. In light of our conclusion that the enactment of 

Ordinance 91-190 was not substantively legislative in character, 

we need not address whether this action also violated the 

"procedural prong" of the Ryan test. 
that the ordinance was aimed at one parcel of property and one 

landowner, the action would appear to be substantively 

legislative, not administrative, in nature. 

 Nevertheless, this case requires us to address the 

difficult question of whether a rezoning action that is otherwise 

substantively legislative in character is removed from the scope 

of actions protected by the absolute immunity doctrine merely 

because it was directed at one parcel of property. In Ryan, we 

did state that "[w]here the decision affects a small number or a 

single individual, the legislative power is not implicated, and 

the act takes on the nature of administration." 889 F.2d at 

1291. However, we did not intend this consideration as a brightline rule which automatically overrides other important 

indications that an action is substantively legislative in 

character. Rather, we intended this consideration as a factor 

that is usually important but may not be dispositive of the 

administrative/legislative outcome. This reading of Ryan is 

confirmed by the manner in which the Ryan court applied its test. 

While noting that the decision at issue "did not affect the 

community as a whole," the court went on to state that "[t]his is 

a strong indication that legislative line-drawing was not 

implicated." Id. Therefore, the Ryan court itself did not apply 

the factor that the decision was directed at a single individual 

or a small group as a dispositive consideration which trumps 

other relevant factors. 

 Although we have indicated that the factor of an action 

being directed at one property or one landowner is an important 
consideration, other courts have concluded that the rezoning of a 

single parcel of land to a less intensive use through the 

enactment of an ordinance is legislative activity. See Fralin & 

Waldron, Inc. v. County of Henrico, Va., 474 F. Supp. 1315, 1320-

21 (E.D. Va. 1979)(members of planning board were engaged in 

legislation when acting to rezone a single parcel of property); 

Shellburne, Inc. v. New Castle County, 293 F. Supp. 237, 244 (D. 

Del. 1968)("the members of the County Council were acting within 

the scope of legitimate legislative activity when they voted to 

rezone plaintiff's property"). Delaware state law is to the same 

effect. See Shellburne, Inc. v. Buck, 240 A.2d 757, 758 (Del. 

1968). Furthermore, the cases in which the factor of the zoning 

ordinance being directed at only a single or few property owners 

has been dispositive of the administrative/legislative 

determination generally have been variance or special exception 

decisions, not rezoning decisions. See, e.g., Rogin, 616 F.2d at 

693 n.60 (denial of use variance); Cutting, 724 F.2d at 261 

(subdivision approval); Scott, 716 F.2d at 1422-23 (denial of 

building permit); Jodeco, 674 F. Supp. at 496 (denial of variance 

applications). 

 Finally, we also believe that the members of a county 

legislature who enact a rezoning ordinance affecting only one 

property or landowner may still be acting in a policy-making or 

line-drawing manner. In the present case, the subject property 

consisted of thirty-eight acres of unimproved land with an 

approved development plan calling for 322 apartment units and 

some commercial use. Through the normal review process, specific 
concerns arose such as whether the development plan complied with 

wetlands regulations, the fire prevention code, and public works 

regulations, and that the project as planned may pose serious 

traffic and road access problems. In response to these concerns 

and, ultimately, Acierno's failure to address all of them 

adequately in a timely fashion, the County Council acted to 

regulate the intensity of development on this fairly large parcel 

of land by passing the rezoning ordinance. 

 Under these circumstances, a blind adherence to the 

principle that legislation affecting a single property or owner 

is administrative rather than legislative would eviscerate the 

overarching aim of protecting local legislators from suit under 

the absolute immunity doctrine when they make broad policy 

decisions to further the communities in which they serve. 

Therefore, we hold that the members of the County Council in 

enacting Substitute 1 to Ordinance 92-119, which rezoned the 

property from DPUD to an R-1-B zoning classification, were acting 

in a substantively legislative manner. Nevertheless, as we made 

clear in Ryan, the members of the County Council are not entitled 

to absolute legislative immunity for this action unless it was 

also procedurally legislative. 889 F.2d at 1290-91. 

 The enactment of Substitute 1 to Ordinance 92-119 was 

procedurally legislative if it was undertaken through established 

legislative procedures. Id. That is, the members of the County 

Council are entitled to absolute immunity for this action if they 

followed "the statutory procedures specified for such action." 

Abraham, 728 F.2d at 174. Addressing the "procedural prong" of 
the Ryan test, the district court held that the members of the 

County Council failed to comply with specified statutory 

procedures in rezoning the property from DPUD to an R-1-B zoning 

classification. Acierno v. Cloutier, No. 92-385, 1993 WL 215133, 

at *27 (D. Del. June 9, 1993). Specifically, the district court 

found that the County Council violated title 9, section 1152(b) 

of the Delaware Code by enacting an ordinance which had been 

"amended as to [a] matter of substance which [was] not embraced 

within the title of the ordinance" without subjecting the 

ordinance "to all of the procedures . . . required in the case of 

a newly introduced ordinance." Id. at *28 (quoting Del. Code 

Ann. tit. 9, § 1152(b)). 

 Acierno took issue with the procedure employed to 

rezone his property because the County Council ultimately adopted 

an ordinance rezoning the property to an R-1-B classification, 

while bracketed language below the title of the originally 

proposed ordinance, for which the County Council had complied 

with all requisite procedures, stated that the ordinance would 

rezone the property to an R-2 classification. In the district 

court, the members of the County Council argued that this change 

did not affect the title of the ordinance and, in any event, was 

not a material amendment because the R-1-B zoning classification 

is less restrictive than the R-2 zoning classification. The 

district court rejected these arguments because the very purpose 

of the ordinance was to change the zoning classification, and 

because the actual language which was changed was part of the 
title of the ordinance and was not for informational purposes 

only. 

 On appeal, the members of the County Council argue that 

the district court's "technical objection" to the allegedly 

deficient notice does not prevent members of municipal 

legislative bodies from establishing legislative immunity. We 

reject the notion that our decision in Abraham stands for the 

broad proposition that a mere technical violation of the 

statutory procedures specified for legislative action, by itself, 

converts an otherwise legislative action into an administrative 

action. Rather, in Abraham, we looked to the failure to follow 

procedures established by state law, which were required to be 

followed in order to legislate, as indicative that a township 

board had invoked its managerial powers in dismissing an 

employee. 728 F.2d at 174-75. Thus, we viewed the compliance 

with statutory procedures as a prerequisite for finding an action 

legislative in character, but we did not hold that a mere 

technical violation of a statutory procedure would have the 

effect of converting an otherwise legislative action into an 

administrative action to which absolute immunity does not apply. 

 Addressing the "procedural prong" of the immunity 

determination, in Ryan we stated that "[t]his principle requires 

that constitutionally accepted procedures of enacting the 

legislation must be followed in order to assure that the act is a 

legitimate, reasoned decision representing the will of the people 

which the governing body has been chosen to serve." 889 F.2d at 

1291. In the present case, it is undisputed that the members of 
the County Council followed all the statutory procedures required 

in order to enact an ordinance: (1) a legal notice of the 

proposed zoning ordinance was published; (2) a public hearing was 

held before the Department of Planning and Planning Board; and 

(3) the adopted ordinance, though amended during the Planning 

Board hearing, was enacted by vote at a public meeting of the 

County Council. Even though the version of the ordinance 

ultimately enacted, Substitute 1 to Ordinance 92-119, was not 

formally put through all the statutory procedures after the 

amendment was agreed upon at the public hearing held before the 

Department of Planning and Planning Board, we believe that the 

members of the County Council engaged in legislative activity and 

took the steps necessary to rezone the property in compliance 

with Delaware law. 

 We also believe there to be an important distinction 

between general adherence to legislative procedure for the 

purposes of taking legislative action as a matter of federal law, 

as opposed to full compliance with all technical requirements for 

such legislative action to be valid under state or county law. 

It may well be that if in fact state law required the substitute 

to the originally proposed ordinance to also go through all the 

statutorily required notice procedures and hearings, then Acierno 

would be able to successfully attack the validity of Substitute 1 

to Ordinance 92-119 in an administrative or state court 

proceeding. But the fact that Acierno may have an alternative 

remedy based on an alleged failure of the legislative body to 

follow state-mandated procedures does not mean that, as a matter 
of federal law, the resulting action is transformed from one that 

is procedurally legislative into one that is not. 

 Therefore, we hold that in making the determination of 

whether a particular action was procedurally legislative or not, 

the court need only be satisfied that the municipal body is 

acting pursuant to the basic legislative procedure. In the 

present case, we find no indication in the record that the 

members of the County Council bypassed state-mandated procedures 

in bad faith when enacting Substitute 1 to Ordinance 92-119. 

Rather, the record reflects that the County Council followed the 

ordinance procedure, published notice of its intended action, and 

held the appropriate public hearings before enacting the rezoning 

ordinance. Consequently, we hold that the district court erred 

in holding that a possible violation of the publication notice 

requirement destroyed the legislative character of the County 

Council's act of enacting Substitute 1 to Ordinance 92-119.13

 

13. The members of the County Council also argue that their 

action of rezoning the property did not violate the "procedural 

prong" of the Ryan test (1) because that portion of the ordinance 

which indicated the precise zone the property would be changed to 

was not part of the title of the ordinance, and thus was not a 

material alteration; (2) because Acierno does not have standing 

to complain since he attended and participated in the public 

hearings; (3) because he was not prejudiced since the R-1-B 

zoning classification allows for more intensive development than 

the R-2 zoning classification; and (4) because the remedy that 

the district court's ruling would require -- a return to the 

Planning Board for review and subsequent republication -- would 

be unnecessarily duplicative since it made the recommendation 

that the proposed ordinance be amended in the first place. In 

light of our conclusion that the enactment of Substitute 1 to 

Ordinance 92-119 was procedurally legislative, we need not 

address these contentions. 
 In sum, we conclude that the members of the County 

Council are entitled to absolute legislative immunity for 

rezoning Acierno's property through the enactment of Substitute 1 

to Ordinance 92-119 because that action was substantively and 

procedurally legislative in character. Nevertheless, the members 

of the County Council are not entitled to legislative immunity 

for the enactment of Ordinance 91-190, which voided the approved 

record development plan and related subdivision plans for the 

property, because that action was administrative in nature, not 

legislative. We will reverse in part, and affirm in part, that 

part of the district court's order denying the defendants' motion 

for summary judgment on legislative immunity grounds. Therefore, 

we must address whether the members of the County Council are 

entitled to protection under the more limited doctrine of 

qualified immunity for their action voiding the approved record 

development plan for the property. 

B. 

 Addressing the defendants' claim of entitlement to 

qualified immunity from suit requires us to determine whether 

Acierno possessed a "clearly established" constitutional right to 

develop his property which was abrogated by the County Council 

through the action of voiding his record development plan and 

subdivision plan. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 

S. Ct. 2727, 2738 (1982). In his amended complaint, Acierno 

alleges that he had a vested right to develop the property 

pursuant to the DPUD zoning classification and the approved 
record development plan. The district court agreed with Acierno 

and found that his vested right to develop the property arose 

from independent Delaware state and County law sources. However, 

our review of County law and Delaware state law reveals that if 

Acierno did possess a vested right to develop his property as 

zoned, that right was not so "clearly established" as to strip 

the members of the County Council and First Assistant County 

Attorney Mitchell from an entitlement to qualified immunity. 

Thus, we will reverse the district court's denial of the 

defendants' motion for summary judgment on qualified immunity 

grounds for the members of the County Council, and its denial of 

Mitchell's motion to dismiss on qualified immunity grounds. 

 When considering whether members of local legislative 

bodies are entitled to immunity from suit, we have recognized 

that there is a compelling need for such a protective doctrine 

because of the severe chilling effect numerous suits for damages 

would have on prospective officials. See Jodeco, Inc. v. Hann, 

674 F. Supp. 488, 493 (D.N.J. 1987)(cited with approval in Bass 

v. Attardi, 868 F.2d 45, 49-50 (3d Cir. 1989)). We also believe 

that adherence to the immunity doctrine is necessary in order to 

allow elected and appointed officials to make intelligent land 

use decisions without the constant fear of litigation infecting 

the decision-making process. Bass, 868 F.2d at 50 n.11 (quoting 

Anastasio v. Planning Bd., 209 N.J. Super. 499, 526, 507 A.2d 

1194, 1208, certification denied, 107 N.J. 46, 526 A.2d 136 

(1986)). Recognizing similar concerns, the Supreme Court has 

indicated that the qualified immunity defense has evolved to 
provide "ample protection to all but the plainly incompetent or 

those who knowingly violate the law." Malley v. Briggs, 475 U.S. 

335, 341, 106 S. Ct. 1092, 1096 (1986); see also Schrob I, 948 

F.2d 1402, 1421 (3d Cir. 1991). 

 In Harlow v. Fitzgerald, the Supreme Court announced 

that the test for determining whether government officials are 

entitled to qualified immunity for their actions involves an 

objective, rather than subjective, inquiry. 457 U.S. at 815-18, 

102 S. Ct. at 2736-38. The Supreme Court stated, "government 

officials performing discretionary functions generally are 

shielded from liability for civil damages insofar as their 

conduct does not violate clearly established statutory or 

constitutional rights of which a reasonable person would have 

known." Id. at 818, 102 S. Ct. at 2738; see also Burns v. County 

of Cambria, Pa., 971 F.2d 1015, 1021 (3d Cir. 1992), cert. 

denied, __ U.S. __, 113 S. Ct. 1049 (1993). 

 Subsequently, the Supreme Court has clarified that the 

first inquiry in considering a claim to entitlement to qualified 

immunity is to examine whether the plaintiff has "allege[d] the 

violation of a clearly established constitutional right." 

Siegert v. Gilley, 500 U.S. 226, 231, 111 S. Ct. 1789, 1793 

(1991); see supra note 7. In a recent discussion of the "clearly 

established" right aspect of the qualified immunity 

determination, we stated: 

 The right an official is alleged to have violated must 

have been "clearly established" in a "particularized" 

sense. Anderson v. Creighton, 483 U.S. [635,] 640, 107 

S. Ct. [3034,] 3039 [(1987)]. That is, "[t]he contours 

of the right must be sufficiently clear that a 
reasonable official would understand that what he is 

doing violates that right." Id. Thus, qualified 

immunity does not apply if "reasonable officials in the 

defendants' position at the relevant time could have 

believed, in light of what was in the decided case law, 

that their conduct would be unlawful." Good v. Dauphin 

County Social Servs. for Children and Youth, 891 F.2d 

1087, 1092 (3d Cir. 1989). 

Abdul-Akbar v. Watson, 4 F.3d 195, 202 (3d Cir. 1993). 

 When complaining of a violation of substantive due 

process rights, a plaintiff must prove that the governmental 

authority acted to "infringe[] a property interest encompassed by 

the Fourteenth Amendment." Midnight Sessions, Ltd. v. City of 

Philadelphia, 945 F.2d 667, 679 (3d Cir. 1991), cert. denied, __ 

U.S. __, 112 S. Ct. 1668 (1992). As the Supreme Court has 

previously stated: 

 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--rules or understandings that secure 

certain benefits and that support claims of entitlement 

to those benefits. 

Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709 

(1972). 

 Thus, as the district court did in this case, when 

analyzing substantive due process claims courts are required to 

turn to state and local law to determine whether the plaintiff 

possessed a property interest which was abrogated by the 

governmental action. The question of whether the property 

interest requirement has been met is generally a matter of law 

for the court to decide. RRI Realty Corp. v. Incorporated 
Village of Southampton, 870 F.2d 911, 918 (2d Cir.), cert. 

denied, 493 U.S. 893, 110 S. Ct. 240 (1989). 

 In denying the defendants their claim to entitlement to 

qualified immunity, the district court first found that Acierno 

had a protected property interest. The court concluded that 

Acierno had a protected property interest in both the approved 

record development plan and the DPUD zoning classification, and 

that this property interest was independently derived from both 

New Castle County and Delaware state law sources. Since the 

district court addressed Acierno's property interest as arising 

from these independent sources, we will follow suit in our 

discussion. 

 The district court first determined that Acierno had a 

vested right pursuant to County law. For purposes of this 

analysis, the court assumed that the County Council had relied 

upon the repealed "five-year sunset provision" of the County 

Code, § 23-81(21)(repealed 1987), as the authority for its power 

to void the record development plan. Assuming that provision was 

properly applied, the district court concluded that it gave 

Acierno "a legitimate claim of entitlement to the continuing 

validity of the record plan and the zoning classification to 

which it related, and to develop the [p]roperty consistent 

therewith." Acierno v. Cloutier, No. 92-385, 1993 WL 215133, at 

*10 (D. Del. June 9, 1993). The district court reached this 

conclusion on the grounds that as a factual matter the record 

plan which was voided in April, 1992 was the subdivision plan 

approved and recorded in December, 1988, and that the County 
Council had no discretion whatsoever to act until, at the 

earliest, the expiration of the five-year sunset period. 

 First, the district court indicated that by reason of a 

legal memorandum issued in 1986, the County Council knew that its 

discretion to void a record plan did not even come into existence 

until the Planning Department made such a recommendation. The 

district court concluded that Acierno had a property interest 

arising from a legitimate claim of absolute entitlement to 

develop the property consistent with the approved record plan and 

DPUD zoning classification during the five-year sunset period 

beginning from the date the plan was approved in December, 1988. 

In addition, the court concluded that he had a property interest 

arising from a legitimate claim of entitlement to develop the 

property without interference from the County after the 

expiration of the five-year sunset period but before the Planning 

Department made a formal recommendation to void the record plan. 

Finally, the court determined that if the repealed five-year 

sunset provision did not apply, but rather the ten-year sunset 

provision contained in current County Code § 23-81(18) was 

applicable, Acierno had a property interest arising from a 

legitimate claim of entitlement to develop the property without 

interference from the County because the current ten-year sunset 

provision contains no language providing the County with 

authority to void record development plans. 

 The defendants argue that the district court's analysis 

is flawed because a landowner does not obtain a vested right to 

develop property before acquiring a building permit and 
commencing construction through some ground-breaking activity. 

Furthermore, they contend that the district court failed to 

appreciate the important distinction between Acierno's record 

development plan, originally recorded in 1974, and the 

subsequently filed subdivision plans which were submitted and 

recorded in 1986 and 1988. The defendants argue that the fiveyear sunset provision governs, and that if the five-year sunset 

provision had been applied from the date the PUD record 

development plan was approved in 1974, the district court would 

have concluded that Acierno had no vested right to develop his 

property based on County law because the County properly 

exercised its discretion to void the record development plan well 

after the five-year sunset period expired in 1979. 

 The district court also found that Acierno had acquired 

a property interest under the applicable Delaware state law 

doctrines of vested rights and equitable estoppel. The 

defendants argued in the district court that Delaware follows the 

majority rule of state courts and requires a developer to obtain 

a building permit and to commence some ground breaking activity 

before a vested right to develop attaches. This rule of vested 

rights, which is known as the "permit plus rule," was recognized 

by the Delaware Supreme Court: 

 It is generally recognized that the issuance of a 

building permit does not, alone, confer any right 

against a later zoning change. Otherwise stated, a 

permit is not per se protected against a zoning change 

subsequently adopted. The acquisition of vested rights 

requires more. As of the time of the zoning change, 

there must have been a substantial change of position, 

expenditures, or incurrence of obligations, made 

lawfully and in good faith under the permit, before the 
land owner becomes entitled to complete the 

construction and to use the premises for a purpose 

prohibited by a subsequent zoning change. This is the 

rule supported by a great majority of the cases. 

Shellburne, Inc. v. Roberts, 224 A.2d 250, 254 (Del. 1966). 

 Apparently seizing on the Delaware Supreme Court's 

inclusion of the word "alone," the district court read this 

passage as indicating that the vested rights rule in Delaware 

does not preclude property owners from acquiring a vested right 

to develop as long as there has been a substantial change of 

position or expenditure, even though they have not obtained a 

building permit. In support of this interpretation of the 

Delaware rule, the district court turned to several cases in 

which the Delaware courts had subsequently applied the vested 

rights and equitable estoppel doctrines "to a broad range of 

circumstances." Acierno v. Cloutier, No. 92-385, 1993 WL 215133, 

at *12 (D. Del. June 9, 1993). 

 In particular, the district court focused on two 

unreported cases from the lower state courts which it read as 

refuting the defendants' contention that under Delaware law a 

landowner has no vested right to continue development after an 

adverse zoning change unless prior to the change he had obtained 

a building permit and materially changed his position in reliance 

thereon. See Wilmington Materials, Inc. v. Town of Middleton, 

Civ. A. No. 10392, 1988 WL 135507, at *6-9 (Del. Ch. Dec. 16, 

1988)(relying on the equitable estoppel and vested rights 

doctrines, the court enjoined town from enforcing a zoning 

amendment to prevent the development of a property even though no 
permit had been issued); New Castle County v. Mitchell, Civ. A. 

No. 6231, 1981 WL 15144, at *3-7 (Del. Ch. Nov. 25, 1981)(because 

property owner had begun renovations to make his property 

suitable for an adult entertainment center and had applied for a 

building permit before the planned location was rezoned to a 

classification in which such uses were not allowed, the court 

determined that the property owner had acquired a vested right 

and that the principle of equitable estoppel entitled the 

plaintiff to continue his business at that location). 

 The district court then discussed an unpublished 

criminal decision in order to refute the defendants' claim that 

the above unpublished cases are inconsistent with Shellburne and 

other relevant Delaware Supreme Court precedent. See State v. 

Raley, Cr. A. No. S90-07-0002, 1991 WL 18114 (Del. Super. Ct. 

Feb. 8, 1991), aff'd without opinion, 604 A.2d 418 (Del. 1991).14

 The defendants argue on appeal that the common law rule 

of vested rights set forth in Shellburne, the "permit plus" rule, 

is the law of Delaware and a majority of other states. While a 

minority of jurisdictions confer a vested right at the time 

application for a building permit is made, a majority of states 

have adopted the view that a developer must possess a building 

permit and make a substantial change in position or expenditures, 

 

14. In Raley, the state charged the defendant with violating 

certain Delaware Marina Facility Regulations enacted after he 

received an administrative permit. Citing Wilmington Materials

and Mitchell, the court concluded that the vested rights doctrine 

in Delaware did not give the defendant a constitutional right to 

develop the marine facility as planned under the prior 

regulations. 
or incur substantial obligations in reliance thereon, in order 

for rights to vest. 4 Arden H. Rathkopf et al., Rathkopf's The 

Law of Zoning and Planning § 50.03, at 50-12, 50-25 (4th ed. 

1975). Moreover, in some states specific statutes, regulations, 

or zoning ordinances themselves confer rights upon developers 

already engaged in developing their property to remain exempt 

from zoning code or regulations changes for a period of time and 

to acquire vested rights by subsequent action. Id. § 50.02, at 

50-5 to -9. 

 The defendants further contend that the "permit plus" 

rule adopted by the Delaware Supreme Court in Shellburne has been 

reaffirmed by that court and several lower state courts. See

Mayor of New Castle v. Rollins Outdoor Advertising, Inc., 475 

A.2d 355, 360 (Del. 1984)(in banc)(In Shellburne "we held that a 

property owner has no vested right in a zoning classification, 

and that a building permit does not, per se, confer any right 

against a later zoning change. But we ruled that under certain 

circumstances, such as where an owner had made a substantial 

change of position or a substantial expenditure, a vested right 

arises from good faith reliance upon a building permit."); Miller 

v. Board of Adjustment, 521 A.2d 642, 647 (Del. Super. Ct. 1986) 

(vested right requires a permit plus a change of position); 

Willdel Realty, Inc. v. New Castle County, 270 A.2d 174, 178 

(Del. Ch. 1970), aff'd, 281 A.2d 612 (Del. 1971); Barrows v. City 

of Lewes, Civ. A. No. 83C-MR 32, slip op. at 3 (Del. Super. Ct. 

Mar. 27, 1985)("The issuance of a building permit is the first 

prerequisite of such a [vested rights] claim based on financial 
detriment. A fortiori, when a building permit is not issued, 

indeed, when an application for such a permit is not made, 

plaintiff has no right, vested or otherwise, to construct 

anything on his property."). The defendants argue that the 

district court was obliged to follow the majority vested rights 

rule of "permit plus" as articulated by the highest court in 

Delaware and not as stated in unreported lower court decisions 

which are to the contrary. See Colantuno v. Aetna Ins. Co., 980 

F.2d 908, 909 (3d Cir. 1992)("[W]hen federal courts are required 

to interpret or apply state law, we consider and accept the 

decisions of the state's highest court as the ultimate authority 

of state law."). 

 The defendants characterize the district court's 

holding as improperly recognizing that once a property owner has 

record development and subdivision plans approved, the 

municipality is estopped from enacting any zoning changes which 

would abrogate the developer's vested rights even in the absence 

of any construction activity or other detrimental reliance. 

According to the defendants, recognition of such a vested rights 

doctrine is contrary to Delaware law and other reported land use 

decisions. See L.M. Everhart Constr., Inc. v. Jefferson County 

Planning Comm'n, 2 F.3d 48, 52 (4th Cir. 1993). In L.M. Everhart 

Construction, the plaintiff argued that Planning Commission 

approval of a subdivision plat created an absolute vested right 

to develop the parcel as approved. Rejecting this argument, the 

court stated that it was "tantamount to an assertion that, once 

approved, a subdivision plat is exempt from all future zoning and 
subdivision regulations. We can find no court that has adopted 

such a broad conception of vested rights." Id.15

 Finally, the defendants also attack the district 

court's reliance on the doctrine of equitable estoppel for its 

finding that Acierno had a vested right to develop his property 

as zoned. They contend that an equitable estoppel claim cannot 

form the basis for a legitimate claim of entitlement so as to 

support the existence of a property right as required in a § 1983 

substantive due process action. In Biser v. Town of Bel Air, 991 

F.2d 100 (4th Cir.), cert. denied, __ U.S. __, 114 S. Ct. 182 

(1993), the Court of Appeals for the Fourth Circuit addressed 

whether a state court order of equity estopping a municipality 

from denying a special exception from a zoning ordinance 

represented a legal claim of entitlement. The Biser court 

rejected the plaintiff's argument that a state court order based 

on equitable estoppel could create a state-law property interest: 

 In order to justify substantive due process protection, 

the legal right to a permit must exist before the local 

agency denies the permit application -- the claim of 

entitlement must come from "an existing legislative or 

administrative standard." Dean Tarry Corp. v. 

Friedlander, 826 F.2d 210, 213 (2d Cir. 1987)(emphasis 

added). Equitable estoppel does not recognize a pre-

 

15. The defendants also argue that the district court's 

interpretation of the doctrine of vested rights would obviate the 

need for a statutory provision enacted by New Castle County which 

addresses the rights of developers at the subdivision approval 

stage. Under County Code § 23-6, the approval of a subdivision 

plan protects the planned development against subsequent zoning 

changes for a period of three years. New Castle County, Del., 

Code § 23-6. The ordinance voiding Acierno's record development 

plan was enacted in April, 1992, more than three years after the 

most recent subdivision plan for the property was approved and 

filed in December, 1988. 
existing legal right; rather, estoppel bars a defendant 

from asserting a legal right that it would otherwise be 

entitled to enforce, based on that party's conduct. 

991 F.2d at 104. 

 What the above discussion concerning the district 

court's decision and the defendants' arguments on appeal 

demonstrates to us is that the vested rights law of both New 

Castle County and the State of Delaware at the time the County 

Council enacted Ordinance 91-190 was subject to considerable 

uncertainty and differing interpretations. While we decline to 

take a position as to whether the district court's prediction of 

what the Delaware Supreme Court would hold concerning vested 

rights, the "permit plus" rule, and equitable estoppel is correct 

as a matter of law, we do not believe that Acierno's property 

interest was "clearly established" under New Castle County and 

Delaware law at the time Ordinance 91-190 was enacted in 1992. 

Therefore, even if we were to conclude that the Delaware courts 

would agree substantially with the district court's analysis of 

vested rights, Acierno's property interest, if any existed, was 

not so "clearly established" as to strip the members of the 

County Council and Mitchell of their qualified immunity defenses. 

 In Anderson v. Creighton, the Supreme Court articulated 

the "clearly established" standard: 

 The contours of the [constitutional] right must be 

sufficiently clear that a reasonable official would 

understand that what he is doing violates that right. 

This is not to say that an official action is protected 

by qualified immunity unless the very action in 

question has previously been held unlawful, but it is 

to say that in the light of pre-existing law the 

unlawfulness must be apparent. 
483 U.S. 635, 640, 107 S. Ct. 3034, 3039 (1987)(citations 

omitted). We further clarified that this qualified immunity 

question involves two governing inquiries: 

 First, in order for the governing law to be 

sufficiently well established for immunity to be 

denied, it is not necessary that there have been a 

previous precedent directly in point . . . . The 

ultimate issue is whether, despite the absence of a 

case applying established principles to the same facts, 

reasonable officials in the defendants' position at the 

relevant time could have believed, in light of what was 

in the decided case law, that their conduct would be 

lawful. Second, even where the officials clearly 

should have been aware of the governing legal 

principles, they are nevertheless entitled to immunity 

if based on the information available to them they 

could have believed their conduct would be consistent 

with those principles. 

Good v. Dauphin County Social Servs. for Children and Youth, 891 

F.2d 1087, 1092 (3d Cir. 1989).16

 Applying this test in the present case, we need go no 

further than the first inquiry because we believe that reasonable 

county officials in Delaware charged with legislating and 

enforcing the New Castle County zoning scheme in 1992 could have 

believed that their action of voiding Acierno's record 

development plan was lawful. We come to this conclusion for 

several reasons. 

 First, we agree with the defendants that the highest 

court in Delaware has provided no clearer discussion of the 

 

16. Thus, the doctrine of qualified immunity protects the 

actions of municipal officials except when they act in a "plainly 

incompetent" manner or when they "knowingly violate the law." 

Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 1096 

(1986); see also Abdul-Akbar v. Watson, 4 F.3d 195, 205 (3d Cir. 

1993); Schrob v. Catterson, 948 F.2d 1402, 1421 (3d Cir. 1991). 
vested rights doctrine since Shellburne, Inc. v. Roberts, and 

that case adopts the restrictive, majority rule that vested 

rights do not attach without a "permit plus."17 The Delaware 

Supreme Court has subsequently reaffirmed the "permit plus" rule. 

See Rollins Outdoor Advertising, 475 A.2d at 360. Furthermore, 

published decisions of lower state courts in Delaware are to the 

same effect. E.g., Miller, 521 A.2d at 647; Shellburne, Inc. v. 

Conner, 315 A.2d 620, 622 (Del. Ch. 1974), aff'd, 336 A.2d 568 

(Del. 1975). Thus, Mitchell and the members of the County 

Council could have reasonably believed that they were lawfully 

acting to void Acierno's record development plan because he did 

not have a vested right to develop without first obtaining a 

building permit. 

 Second, the district court's analysis ultimately rests 

on a belief that the law of vested rights in Delaware has evolved 

beyond the "permit plus" rule and now involves a focus on whether 

the property owner suffered sufficient substantial reliance to 

have development rights vest. Even though the district court's 

conclusion was wholly derived from unpublished decisions, we 

believe that if the Delaware law has truly developed in this 

manner, the discretionary aspect of the determination of whether 

rights have vested supports our conclusion that reasonable zoning 

 

17. Moreover, the case apparently downplays the possibility that 

vested rights can attach solely through detrimental reliance, 

absent obtaining a building permit: "The plaintiff concedes that 

a property owner has no vested right in a zoning classification. 

This rule is not changed by financial detriment." Shellburne, 

Inc., 224 A.2d at 254 (emphasis added). 
officials could have believed that enactment of the voiding 

ordinance was a lawful action. We also note that in the very 

case the district court relied upon to conclude the Delaware law 

had developed in this manner, State v. Raley, Cr. A. No. S90-07-

0002, 1991 WL 18114 (Del. Super. Ct. Feb. 8, 1991), the property 

owner had already obtained a permit, which significantly 

undermines the court's reliance on this case as a source of 

authority for its reading of the law. 

 Third, the complex nature of the body of law which 

underlies the vested rights doctrine leads us to conclude that, 

in certain circumstances, even municipal officials who act in an 

unlawful manner may have reasonably believed they were acting 

lawfully. Commentators have recognized that the subject of 

vested rights 

 is one of the most troublesome areas of land use 

regulation . . . . Its solution has required the 

reconciliation of the doctrine of separation of powers 

with the constitutional requirements of substantive due 

process, a balancing of interests of the public as a 

whole and those of the individual property owners, and, 

in many cases, the element of good faith and bad faith 

and the resort to equity and equitable principles. 

4 Rathkopf, supra, § 50.01, at 50-2. When making land use 

decisions which involve the rezoning of a developer's property, 

local officials must analyze this complex body of law in order to 

ascertain whether a particular action will clearly abrogate a 

vested right the developer has acquired. The doctrine of 

qualified immunity is designed to protect reasonable officials in 

the exercise of their duties, which in the case of local 

legislators and administrators charged with making land use and 
zoning decisions often involves interpreting complicated issues 

of state and county law. 

 Therefore, we hold that under the vested rights 

doctrine as recognized in Delaware, Acierno's property interest, 

if any in fact existed, was not so clearly established as to 

defeat the members of the County Council and Mitchell of their 

claims to qualified immunity for their actions leading to the 

enactment of Ordinance 91-190. In addition, we also conclude 

that the law of equitable estoppel cannot provide the basis for a 

property interest which supports a substantive due process claim 

under § 1983 in federal court. Any claim of entitlement must 

derive from an existing legislative or administrative standard. 

Biser, 991 F.2d at 104. Although Acierno might be able to 

proceed directly against the County under a theory of equitable 

estoppel in order to attack the validity of the rezoning process, 

it does not support his damage claim brought pursuant to § 1983 

in federal court. Finally, without undertaking a complete 

analysis of whether Acierno might prevail in attacking the 

validity of Ordinance 91-190 because the County Council may have 

relied on an unadopted ordinance as the source for its authority, 

County law cannot provide the basis for vitiating the defendants' 

entitlement to qualified immunity because the issue was not 

settled under County law at the time they acted.18

 

18. With respect to this issue we note that we have found no 

reported state or federal cases which construe the DPUD ordinance 

provisions at issue in this case. We also note that the district 

court did not conclude that the five-year sunset provision was 

not applicable; it merely concluded that the County Council 

relied on an unadopted ordinance in voiding Acierno's record 
V. 

 In sum, with respect to the members of the County 

Council, the order of the district court denying their motion for 

summary judgment on legislative immunity and qualified immunity 

grounds will be reversed. The members of the County Council are 

entitled to legislative immunity for their action rezoning 

Acierno's property by enacting Substitute No. 1 to Ordinance 92-

119. They are entitled to qualified immunity for voiding 

Acierno's record development and subdivision plans by enacting 

Ordinance 91-190. Finally, the order of the district court 

denying First Assistant County Attorney Mitchell's motion to 

dismiss on qualified immunity grounds also will be reversed. 

(..continued) 

development plan. Our review of this issue leads us to conclude 

that even if the County Council did rely on an unadopted 

ordinance, reliance on the appropriate ordinance would have 

resulted in the same result--application of the five-year sunset 

provision which allows a record plan to be voided upon the 

recommendation of the Department of Planning. We reject any 

indication in the district court's opinion supporting the 

principle that the unknowing reliance on unadopted legislation as 

authority for an action should result in a per se denial of the 

qualified immunity defense.