UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-1102

PATRICIA HYATT,

Plaintiff - Appellant,

versus

TOWN OF LAKE LURE; H. M. PLACE, III; TERRI

POTTS; BLAINE COX; GEORGE PRESSLEY; LEA

HULLINGER,

Defendants - Appellees.

Appeal from the United States District Court for the Western

District of North Carolina, at Asheville. Lacy H. Thornburg,

District Judge. (CA-02-94-1)

Argued: September 28, 2004 Decided: November 10, 2004

Before WILKINSON and WILLIAMS, Circuit Judges, and Roger W. TITUS,

United States District Judge for the District of Maryland, sitting

by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: James Thomas Davis, Forest City, North Carolina, for

Appellant. Sandra Moody King, RUSSELL & KING, Asheville, North

Carolina, for Appellees. 

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Patricia Hyatt set out to develop her lakeside property. She

believed that ordinances of the Town of Lake Lure permitted her to

do this. Town authorities disagreed. In response to adverse land

use decisions, Hyatt brought a panoply of federal and state

constitutional claims. Included were such questions as where she

could build an erosion-preventing seawall, whether she could

construct a boathouse, and the consequences of invading her

neighbors’ property while simultaneously violating the Town’s

zoning requirements. Constitutional provisions do not ordinarily

control such routine matters of local government administration.

We therefore affirm the district court’s grant of summary judgment

for the Town on the federal constitutional claims. We additionally

affirm the grant of summary judgment as to the state law claims

because they also lack merit. 

I.

The Town of Lake Lure, North Carolina (“Town”), acquired

ownership of its namesake, Lake Lure (“Lake”), in 1965. As part of

its regulation of local land use, and to protect the Lake, the Town

has adopted a number of ordinances. Most important among them, in

1992 it enacted its Lake Structures Regulations (“LSRs”) to govern

construction along the Lake and to require an anti-erosion seawall
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along the edge of the Lake for each lot with a lake structure. A

permit is required for any construction. 

Appellant Patricia Hyatt acquired title to a lakefront parcel

in April 2001. Her property had suffered severe erosion at the

shoreline -- a previous owner stated that there had been more than

15 feet of erosion in the past decade. In June 2001 she applied

for, and was granted, a Lake Structure Permit to construct a

seawall and boathouse. She made specific representations as to

dimensions and took some very general plans to the Town for review

at this time. The Town also granted a Land Disturbance Permit for

the construction of the boathouse and a driveway. 

Hyatt’s applications required her to accept conditions,

including that “structures are allowed on Lake Lure only by

permission of the town and the continued permission by the town to

allow a structure on the lake does not confer any rights of

ownership or possession.” She also had to acknowledge her

responsibility for any damage to adjacent property from erosion

caused by land disturbing activities. 

In the fall of 2001, Hyatt’s neighbor informed the Town that

Hyatt’s seawall had encroached upon his property. The town

reviewed surveys and performed its own physical inspection before

concluding that he was correct -- she had invaded both of her

neighbors’ property. And by building her seawall too far into the
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Lake, and filling behind it, she had also encroached upon the

Town’s property. 

The LSRs required that seawalls be built at 990 mean sea

level, which the regulations equated with the shoreline. One part

of the LSRs notes two methods for determining 990 MSL -- measuring

down five feet from manholes which should be at 995 MSL, or calling

and asking the Town. It prohibits filling in areas below the

shoreline. Another provision proscribes any fills without Town

approval. Hyatt made her own calculations and started work, such

that her boathouse would extend far into the Lake. She proceeded

to fill behind that point, leading to the complaint.

On November 21, 2001, the Town informed Hyatt of four LSR

infractions, penalized her $500 for each, and warned her of further

fines absent compliance. The violations concerned filling the

Lake, failing to locate her seawall at the shoreline as it existed

before the Lake was filled, locating the boathouse too far from the

shoreline, and encroaching onto her neighbor’s property. As the

district court noted, “Hyatt’s boathouse extended 43 feet out into

the lake as opposed to the 30 feet required by the ordinances and

the boathouse was not sufficiently far enough from the boundaries

of each of the lots adjacent to Hyatt’s property.” Hyatt v. Town

of Lake Lure, 314 F. Supp. 2d 562, 570 (W.D.N.C. 2003).

While considering the violations Hyatt’s neighbor had raised,

the Town inspected Hyatt’s boathouse, and concluded that it did not
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comply with the permit either. It was marginally too big, and

there was a deck top accessory structure that lacked a permit. In

any event, the Town extended the 30-day deadline to remedy the

violations and allowed Hyatt to appear at the Town Council on

January 14, 2002. That meeting concerned Hyatt's request for an

after-the-fact approval to fill a portion of the Lake and to waive

fines. On January 16, the Town denied her requests, telling her to

either repair the situation, or apply for variances from the Lake

Structures Appeals Board (“LSAB”). She sought the variances, and

the LSAB, finding no special justification, denied them. Hyatt

appealed to the Town Council, and was represented by her attorney.

On May 14, the Council heard her arguments, including those based

on the Constitution. It denied her requests.

State law allows those disappointed with land use decisions to

petition the state courts. Hyatt filed suit in North Carolina

state court, but stayed that suit to pursue her claims before a

federal tribunal. 314 F. Supp. 2d at 579. She brought suit

against the Town and a number of its officials in the Western

District of North Carolina. Both her federal and state claims

invoked procedural and substantive due process and equal

protection, based on the Town's enforcement against her of the

LSRs, especially the calculation of where the seawall should be

located. After protracted litigation over these and other claims,
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the district court ruled in favor of the Town on all points,

leading to this appeal.

II.

We turn first to Hyatt’s federal claims. We review the

district court’s dismissal of these claims de novo. Sylvia Dev.

Corp. v. Calvert County, 48 F.3d 810, 817 (4th Cir. 1995). 

A.

Hyatt argues that the LSRs violate her right to substantive

due process because they are vague and arbitrary. In particular,

she claims that they provide for inconsistent methods of finding

990 mean sea level (MSL), the elevation at which she was to build

her seawall. 

First, we note that vagueness claims are traditionally aimed

at statutes with such broad and capacious language that citizens

cannot discern what is expected of them. Here the ordinance states

that 990 MSL can be found either by measuring down five feet from

the manholes which are at 995 MSL, or “by calling the Town Office

for the lake level reading at the dam on that particular day.”

Both methods are “sufficiently clear [] that people of common

intelligence can determine the meaning of [their] terms.” TriCounty Paving, Inc. v. Ashe County, 281 F.3d 430, 441 n.9 (4th Cir.

2002). 
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The arguable inconsistency of the two methods is what Hyatt

challenges. But Hyatt cannot show that she followed either of

them. The district court found that “using either method, Hyatt’s

seawall was nowhere near the shoreline as it existed before the

construction.” 314 F. Supp. 2d at 574. We further agree with the

district court’s conclusion that “[t]he problem in this case is not

that Hyatt could not ascertain the meaning of the regulation but

that she constructed her seawall in either total disregard or

without any consideration thereof.” Id. at 576. Hyatt’s elaborate

discussion of horizontal and vertical distances do not alter the

conclusion that she failed to follow either method of finding 990

MSL. Under such circumstances, a vagueness challenge to the LSRs

cannot proceed.

Moreover, it is hardly insignificant that the LSR regulations

explicitly invited Hyatt to contact the Town Office. This “safe

harbor” provided Hyatt an avenue of clarification which she

rejected. Hyatt’s “ability to clarify the meaning of the

regulation by [her] own inquiry, or by resort to an administrative

process,” Village of Hoffman Estates v. Flipside, Hoffman Estates,

Inc., 455 U.S. 489, 498 (1982), further undermines her vagueness

claim. 

“The degree of vagueness that the Constitution

tolerates . . . depends in part on the nature of the enactment.”

Id. Land use enactments are particularly resistant to facial
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vagueness challenges, because zoning law is often given specific

content through the very planning and permitting process that Hyatt

sought to circumvent. The Constitution, however, was not intended

to displace local zoning procedures. Rather, we have held that

“[r]esolving the routine land-use disputes that inevitably and

constantly arise among developers, local residents, and municipal

officials is simply not the business of the federal courts. There

is no sanction for casual federal intervention into what ‘has

always been an intensely local area of the law.’” Gardner v.

Baltimore, 969 F.2d 63, 67 (4th Cir. 1992) (quoting Rose, Planning

and Dealing: Piecemeal Land Controls as a Problem of Local

Legitimacy, 71 Calif. L. Rev. 839, 839 (1983)).

We thus affirm the district court’s rejection of Hyatt’s

vagueness and substantive due process claims.

B.

Hyatt also argues that the Town deprived her of procedural due

process in requiring her to comply with the Notice of Violation and

in denying her requests for variances. To succeed, Hyatt must

demonstrate that she had a property interest which the Town

deprived her of without due process of law. Sylvia, 48 F.3d at

826. But the procedures employed here satisfied due process.

After all, “[t]he procedures due in zoning cases, and by analogy

due in cases such as this one involving regulation of land use

through general police powers, are not extensive.” Tri-County, 281
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F.3d at 436 (citing City of Eastlake v. Forest City Enters., Inc.,

426 U.S. 668 (1976)).

As in Tri-County, Hyatt “was provided with more than

constitutionally adequate pre-and-postdeprivation process in this

case. [Hyatt] failed to take advantage of much of it. And when

[she] did take advantage of the available process, the outcome was

not what [she] had hoped for. But procedural due process does not

require certain results -- it requires only fair and adequate

procedural protections.” Tri-County, 281 F.3d at 436. Hyatt’s

procedural opportunities, both pre-and-postdeprivation, were ample.

After having been found by Town officials to be out of compliance

with her permit and the LSRs, Hyatt was able to appeal to the Town

Council. The Notice of Violation itself stated as much, and Hyatt

seized the opportunity, as she should have. Her two opportunities

to address the Town Council and the chance to appear before and

seek variances from the LSAB show that hers is not one of the cases

in which a municipality disregarded the fundamentals of fair

process. Hyatt was represented by counsel, and Town officials

considered her requests at some length. “[C]ertainly conducting

open community meetings and giving affected parties the opportunity

to speak on behalf of their project is constitutionally

sufficient.” Id. at 437.

In addition, Hyatt had the opportunity to pursue her case in

state court. She chose to stay her state action, however. But
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this again shows an unfortunate failure to grasp the import of

circuit precedent. Tri-County involved a very similar procedural

history, with claims parallel to Hyatt’s. In concluding that TCP

did not state a claim for a federal due process challenge, we

described a variety of state court remedies that TCP could have

sought. We noted, however, that “TCP chose not to pursue any of

these avenues of relief in the state courts. It therefore cannot

complain now that the state did not provide adequate procedures.”

Id. at 438. Hyatt is similarly disabled from challenging

successfully the very remedies she chose not to pursue. 

C.

Hyatt also claims that the Town violated her right to equal

protection of the law under the Fourteenth Amendment. She argues

that the Town subjected her to unprecedented scrutiny, and that it

singled her out by taking up her neighbor’s cause, using public

power to vindicate his private interests. Equal protection claims

like Hyatt’s are reviewed under a rational basis standard, and fail

if a challenged classification was rationally related to a

legitimate governmental objective. FCC v. Beach Communications,

Inc., 508 U.S. 307, 313 (1993); Tri-County, 281 F.3d at 438-39. 

Here the legitimate governmental purposes are self-evident.

The Town has both the right and the duty to protect the environment

and prevent overuse of the Lake. Regulations to determine each

property owner’s right to erect lakeside structures promote the
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value of predictability in development for both residents and the

Town. 

The Town’s actions in applying the ordinances to Hyatt were

rationally related to such purposes. Limiting fills and

development to the amount allowed by a permit serves to limit

erosion and Lake shrinkage. 

Nor was Hyatt, as she alleged, treated differently from

others. See Village of Willowbrook v. Olech, 528 U.S. 562 (2000)

(per curiam). “To prove that a statute has been administered or

enforced discriminatorily, more must be shown than the fact that a

benefit was denied to one person while conferred on another.”

Sylvia, 48 F.3d at 819. Hyatt fails to show even this. The Town,

by contrast, has shown that others have been penalized for

violating the LSRs. Indeed, the opposite of what Hyatt alleges is

true: the LSAB concluded that were it to grant variances to Hyatt,

with no extraordinary circumstances, it would “confer on [Hyatt]

special privileges that are denied to other owners in the same

district in which the property is located.” Not every property can

have the precise seawall or boathouse its owner desires. The

environmentally sound and aesthetically pleasing preservation of

the Lake justifies neutral regulations as to who can build, and how

much. 

In sum, we find no merit in Hyatt’s equal protection claims.
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D.

We affirm the grant of summary judgment as to Hyatt’s

remaining claims for the reasons given by the district court. We

specifically decline to consider the merits of the challenge to the

Sedimentation Control Ordinances, because Hyatt failed to

adequately raise the issue in district court. 

III.

Hyatt’s federal claims have also been brought under

corresponding provisions of the North Carolina Constitution. But

“North Carolina courts have consistently interpreted the due

process and equal protection clauses of the North Carolina

Constitution as synonymous with their Fourteenth Amendment

counterparts.” Tri-County, 281 F.3d at 435 n.6. In Tri-County,

the plaintiff alleged largely undifferentiated federal and North

Carolina constitutional questions. Hyatt has likewise not shown

any real distinction between her state and federal claims. 

For these reasons, and for those given by the district court,

we affirm the dismissal of the state law claims.

IV.

The judgment of the trial court is in all respects

AFFIRMED.