Tri-County Paving, Incorporated v.  Ashe County; Ashe County Board of Commissioners

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 TRI-COUNTY PAVING, INCORPORATED,
Plaintiff-Appellant,
v. No. 01-1931 
ASHE COUNTY; ASHE COUNTY
BOARD OF COMMISSIONERS,
Defendants-Appellees. 
Appeal from the United States District Court
for the Western District of North Carolina, at Statesville.
Richard L. Voorhees, District Judge.
(CA-99-105-5-V)
Argued: December 5, 2001
Decided: February 22, 2002
Before WILKINSON, Chief Judge, and WILKINS and
LUTTIG, Circuit Judges.
Affirmed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Judge Wilkins and Judge Luttig joined.
COUNSEL
ARGUED: Donald Merritt Nielsen, KILPATRICK STOCKTON,
L.L.P., Winston-Salem, North Carolina, for Appellant. James Redfern
Morgan, Jr., WOMBLE, CARLYLE, SANDRIDGE & RICE,
P.L.L.C., Winston-Salem, North Carolina, for Appellees. ON
BRIEF: Stephen R. Berlin, KILPATRICK STOCKTON, L.L.P.,
Winston-Salem, North Carolina, for Appellant.

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OPINION
WILKINSON, Chief Judge:
Plaintiff Tri-County Paving, Inc. ("TCP") claims that Ashe County,
North Carolina and the Ashe County Board of Commissioners (col-
lectively "the County") violated its due process and equal protection
rights by not issuing a building permit for TCP’s proposed asphalt
plant, by enacting a one-year moratorium on the building of asphalt
plants, and by subsequently enacting a Polluting Industries Develop-
ment Ordinance. TCP seeks damages and injunctive relief pursuant to
42 U.S.C. § 1983 and the North Carolina Constitution. The district
court granted summary judgment for the County. Because TCP was
not deprived of a property interest without due process of law, and
because the County’s actions were rationally related to a legitimate
state interest, we affirm the judgment of the district court.
I.
In the mid-1990’s, Tri-County Paving began to consider construct-
ing an asphalt plant on its property in an unincorporated portion of
Ashe County, North Carolina. Some time prior to August 1997 and
again in August 1998, TCP’s principal shareholders, Leonard and
Lucian Jordan, informally discussed their plans to construct the plant
with George Yates, Chairman of the Ashe County Board of Commis-
sioners. In August 1998, TCP purchased a used asphalt plant and
moved the disassembled plant to its property. Leonard Jordan also
informed the County Planner that TCP was applying to the North Car-
olina Department of Environment and Natural Resources
("NCDENR") for an air quality permit to operate the plant and
requested a consistency determination. On August 26, 1998, the
County Planner wrote that TCP’s proposed site did not violate any
existing County ordinances.
However, TCP’s plans to construct and operate an asphalt plant
soon met with community resistance. At the October 5, 1998 Com-
missioners’ meeting, Chairman Yates voiced concerns over TCP’s
proposed plant and urged the citizens of the Town of West Jefferson
to exercise territorial jurisdiction rights to stop the project. The news
of TCP’s plans quickly spread through the small, rural county. Two
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citizen advocacy groups, the Ashe County Citizens Against Pollution
and the Blue Ridge Environmental Defense League, requested that a
discussion of TCP’s proposed plant be included on the agenda of the
October 19 Commissioners’ meeting.
Meanwhile, on October 15, Leonard Jordan’s daughter-in-law
requested a building permit for the asphalt plant from the County
Inspector’s Office. She was told that TCP had to submit a set of
signed and sealed blueprints before the County could issue a building
permit.1 The following day, TCP returned to the office to again seek
a permit. Taking the evidence in the light most favorable to TCP, the
Jordans submitted a set of properly signed and sealed blueprints. It is
undisputed however that Robert Reed, the Director of Building
Inspections, never issued a building permit to TCP for the plant.
Furthermore, TCP’s application for a building permit remained
deficient in several respects. TCP did not submit a written application
for a building permit, even though the North Carolina Building Code
and Ashe County ordinances expressly require a written application
before a building permit can be issued.2 Further, it is undisputed that
TCP did not have a wastewater permit and that, under North Carolina
law, a wastewater permit is required before a building permit can be
issued.3 TCP did not obtain a wastewater permit until October 18,
1The North Carolina Building Code ("N.C.B.C."), which applies to all
local governments, requires signed and sealed architectural and engineer-
ing drawings for commercial projects over 2,500 square feet or valued
over $90,000. See N.C.B.C. §§ 302.1, 302.3, and 302.4; Ashe County
Ordinance § 150.22.
2N.C.B.C. § 301.3 provides that an application for a building permit
"shall be filed with the [local] Inspection Department on a form fur-
nished for that purpose." And in its building regulations, Ashe County
Ordinance § 150.21 states that "[w]ritten application shall be made for all
permits required by this chapter and shall be made on forms provided by
the Department of Inspections."
3N.C. Gen. Stat. § 130A-338 provides that "[w]here construction, loca-
tion or relocation is proposed to be done upon a . . . place of business
. . . no permit required for . . . construction, location or relocation activity
under any provision of general or special law shall be issued until an
authorization for wastewater system construction has been issued."
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1999 — over a year after TCP applied for a building permit. It is also
undisputed that TCP’s initial application to the NCDENR for an air
permit was incomplete and that the NCDENR did not issue an air per-
mit until May 10, 1999 — almost seven months after TCP applied for
a building permit. Under North Carolina law, TCP could not have
commenced construction of its asphalt plant without an air permit.4 In
fact, on November 17, 1998, the NCDENR called TCP’s engineer to
inform him that if TCP "commenced construction" of the plant with-
out an air permit, TCP would be in violation of state law. Robert Reed
also stated under oath that he "wouldn’t have issued a [building] per-
mit without an air quality control [permit]."
Following their failed attempt to obtain a building permit, Leonard
and Lucian Jordan attended the October 19, 1998 Commissioners’
meeting, where a spirited public debate ensued regarding TCP’s pro-
posed asphalt plant. It is clear that the Jordans had notice that TCP’s
plant would be discussed at the meeting and that the Jordans spoke
on behalf of the project during the meeting. The Commissioners ulti-
mately passed, by a vote of 3-2, an ordinance placing a one-year mor-
atorium on the construction of asphalt plants in unincorporated
portions of Ashe County. Because the first vote on the moratorium
was not unanimous, a second reading was required and the morato-
rium was scheduled to be taken up at the next Commissioners’ meet-
ing on November 18, 1998. The Jordans had notice that TCP’s asphalt
plant would be discussed at the November meeting by virtue of their
attendance at the first meeting. And Leonard Jordan actually attended
the second meeting, where the moratorium again passed by a vote of
3-2. The moratorium included a provision allowing a party to appeal
to the Commissioners for a variance in cases of severe hardship.
However, TCP did not apply for or receive a variance under the mora-
torium.
Near the end of the moratorium period, the Commissioners passed
the Ashe County Polluting Industries Development Ordinance
("PIDO"), which required a polluting industry to obtain a special use
4N.C. Gen. Stat. § 143-215.108 makes clear that until a party has
applied for and received an air permit from NCDENR they may not
"[b]uild, erect, use or operate any equipment which may result in the
emission of air contaminants or which is likely to cause air pollution."
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permit from the County Planning Department, and prohibited the
location of a polluting industry within 1,000 feet of a residence or
within 1,320 feet of any school, daycare, hospital or nursing home.
See Ashe County Ordinance §§ 159.01-159.08, § 159.99. Because it
does not have a comprehensive zoning ordinance, the County enacted
both the moratorium and the PIDO pursuant to its general police
power under N.C. Gen. Stat. § 153A-121, which allows a county to
pass ordinances to protect the health, safety, or welfare of its citizens.
Like the moratorium, the PIDO contained a variance process and
authorized the County Planning Board to issue a variance if strict
adherence to the PIDO "would cause an unnecessary hardship." Ashe
County Ordinance § 159.07. TCP did not receive a variance or permit
to construct its asphalt plant after the enactment of the PIDO.
In July 1999, TCP initiated this action, alleging that the County
violated its due process and equal protection rights by denying it a
building permit and by passing the moratorium and the PIDO. TCP
also alleged that the PIDO was unconstitutionally vague.5 TCP sought
relief pursuant to 42 U.S.C. § 1983 and the North Carolina Constitution.6
The district court granted summary judgment to the County with
respect to all of TCP’s claims. The court held that TCP’s procedural
due process claim failed because TCP did not have a vested property
right to construct or operate an asphalt plant. The court concluded that
TCP’s substantive due process claim also failed because TCP lacked
a valid property interest and because the County’s actions were not
beyond the broad limits of legitimate governmental action. The dis-
trict court similarly rejected TCP’s equal protection claim, finding
that the County’s actions were rationally related to a legitimate gov-
5TCP did not raise a takings claim. Therefore, we have no reason to
consider any takings issues raised in Tahoe-Sierra Preservation Council,
Inc. v. Tahoe Regional Planning Agency, 216 F.3d 764 (9th Cir. 2000),
cert. granted, 121 S. Ct. 2589 (2001).
6TCP has failed to assert any distinction between its federal and state
claims. And 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. See, e.g.,
Simeon v. Hardin, 451 S.E.2d 858, 871 (N.C. 1994); In re Moore, 221
S.E.2d 307, 309 (N.C. 1976); see also Browning-Ferris Indus. v. Wake
County, 905 F. Supp. 312, 323 (E.D.N.C. 1995).
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ernmental end. Finally, the district court rejected TCP’s vagueness
claim, finding that the terms in the PIDO were "reasonably determin-
able by people of common intelligence." TCP appeals.
II.
A.
We begin by considering TCP’s procedural due process claim. In
order to state a valid procedural due process claim, TCP must demon-
strate: (1) that it had a property interest; (2) of which the County
deprived it; (3) without due process of law. Sylvia Dev. Corp. v. Cal-
vert County, 48 F.3d 810, 826 (4th Cir. 1995). It is well-settled that
the Fourteenth Amendment itself does not create property interests.
"Rather, they are created and their dimensions are defined by existing
rules or understandings that stem from an independent source such as
state law." Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972). Further,
to have a property interest in a benefit, a person must have a "legiti-
mate claim of entitlement to it." Id. A mere "abstract need or desire
for it" or "a unilateral expectation of it" is insufficient. Id.
Due process of law generally requires that a deprivation of property
"be preceded by notice and opportunity for hearing appropriate to the
nature of the case." Mullane v. Cent. Hanover Bank & Trust Co., 339
U.S. 306, 313 (1950). See also Cleveland Bd. of Educ. v. Loudermill,
470 U.S. 532, 542 (1985). However, "to determine whether a proce-
dural due process violation has occurred, courts must consult the
entire panoply of predeprivation and postdeprivation process provided
by the state." Fields v. Durham, 909 F.2d 94, 97 (4th Cir. 1990) (cit-
ing Zinermon v. Burch, 494 U.S. 113, 126 (1990)). The 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. For example, the Supreme Court held in City of East-
lake v. Forest City Enterprises, Inc., 426 U.S. 668 (1976), that a local
government could, consistent with the Due Process Clause, make zon-
ing decisions through the political process in a referendum with no
hearings of any kind. See id. at 677, 679; see also River Park, Inc. v.
City of Highland Park, 23 F.3d 164, 166-67 (7th Cir. 1994) (discuss-
ing Eastlake and concluding that "the procedures ‘due’ in zoning
cases are minimal").
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B.
We will assume without deciding that TCP had a property interest
in obtaining a building permit to construct an asphalt plant and that
the County deprived TCP of this property interest. However, the
County did not deprive TCP of its property interest without due pro-
cess of law. Summary judgment was therefore appropriate on TCP’s
procedural due process claim. TCP was provided with more than con-
stitutionally adequate pre- and postdeprivation process in this case.
TCP failed to take advantage of much of it. And when TCP did take
advantage of the available process, the outcome was not what it had
hoped for. But procedural due process does not require certain results
— it requires only fair and adequate procedural protections.
The County provided TCP with an abundance of predeprivation
process. First, there is no evidence that TCP was denied the opportu-
nity to submit the documentation necessary to qualify for a building
permit. TCP was allowed full access to the County Building Inspec-
tor’s office on numerous occasions and the Jordans often spoke
directly with Robert Reed, the Director of Building Inspections,
regarding TCP’s permit application. Lucian Jordan stated in deposi-
tion testimony that he and Leonard Jordan applied for a permit "sev-
eral times in October and November 1998 and many times after that"
and "would just drop in [at Reed’s office] and tell them we needed
a building permit." Leonard Jordan similarly testified that he and
Lucian "asked for a building permit on many occasions." However,
TCP never submitted a complete application — it lacked a written
application, a wastewater permit, and an air quality permit. The
County was under no obligation to issue a building permit without the
required documentation and permits. Indeed, if the County had issued
a building permit it would have violated North Carolina statutes, the
North Carolina Building Code, and an Ashe County ordinance. See
N.C.B.C. § 301.3 (written application requirement); Ashe County
Ordinance § 150.21 (same); N.C. Gen. Stat. § 130A-338 (wastewater
permit requirement); N.C. Gen. Stat. § 143-215.108 (air quality per-
mit requirement).
The County also provided TCP with adequate process before the
moratorium and the PIDO were enacted by giving TCP both notice
and an opportunity to be heard. The Jordans were given notice that
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TCP’s asphalt plant would be discussed at the Commissioners’ meet-
ing on October 19, 1998. Lucian Jordan testified that the County
Manager informed him and Leonard that "there was a group that was
going to speak at the Commissioners’ meeting in opposition to [the
plant]." The Commissioners’ meeting was open to the public and the
Jordans attended. At the meeting, members of citizen advocacy
groups spoke against the asphalt plant, while the Jordans spoke on
behalf of it. The Jordans explained that they had spoken "to Chairman
Yates several months ago and told him of their intentions to build a
plant," that they had received a consistency determination from the
County Planner, and that they "ha[d] been working with [the County
Planner] and the [NCDENR] to apply for permits." The Commission-
ers listened to both sides of the debate before passing the moratorium.
During the October meeting, the Jordans were given notice that the
plant and the moratorium would again be discussed at the November
18, 1998 Commissioners’ meeting. Leonard Jordan testified that he
attended this second meeting and that he also attended the Commis-
sioners’ meeting on November 15, 1999, when the PIDO was dis-
cussed and passed. TCP was given the opportunity to comment at
these public meetings. TCP simply lost the political battle in the
County. If, as Eastlake teaches, a community can make land-use deci-
sions through a popular referendum with no hearings of any kind and
still satisfy the mandates of due process, certainly conducting open
community meetings and giving affected parties the opportunity to
speak on behalf of their project is constitutionally sufficient.
However, predeprivation process was not the only avenue open to
TCP. Postdeprivation process was likewise available. And a "due pro-
cess violation actionable under § 1983 is not complete when the
deprivation occurs; it is not complete unless and until the State fails
to provide due process." Fields, 909 F.2d at 98 (quoting Zinermon,
494 U.S. at 126).
There were numerous postdeprivation remedies available to TCP to
rectify what it believed to be a wrongful denial of its right to build
an asphalt plant. TCP failed to take advantage of them. First, TCP
could have applied to the Commissioners for a variance under the
moratorium, or could have applied to the County Planning Board for
a variance under the PIDO. The moratorium contained a provision
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allowing parties to apply to the Commissioners for a variance in "situ-
ations where a severe hardship may arise," and mandated that the
Commissioners "hold a public hearing on the subject" before making
a decision on any variance request. The PIDO contained a similar pro-
vision allowing parties to apply to the Planning Board for a variance
"[w]here strict adherence to the provisions of [the PIDO] would cause
an unnecessary hardship." Ashe County Ordinance § 159.07. Yet TCP
did not apply for a variance under the moratorium and has never prop-
erly applied for one under the PIDO.7
Additionally, TCP had remedies available to it in the state courts
but chose not to utilize them. For example, TCP could have petitioned
a state court for a writ of mandamus to compel the County to issue
a building permit if it was unlawfully withheld. North Carolina courts
have stated that mandamus is the proper procedure to compel local
officials to issue a building permit when a party shows that it has met
all of the permit requirements. See, e.g., Lee v. Walker, 68 S.E.2d 664,
671-72 (N.C. 1952); Clinard v. City of Winston-Salem, 91 S.E. 1039,
1040 (N.C. 1917); Buckland v. Town of Haw River, 541 S.E.2d 497,
499 (N.C. Ct. App. 2000).8 TCP also could have filed an inverse con-
demnation suit in state court. See, e.g., Robertson v. City of High
Point, 497 S.E.2d 300, 302-03 (N.C. Ct. App. 1998); Smith v. City of
Charlotte, 339 S.E.2d 844, 847-48 (N.C. Ct. App. 1986); N.C. Gen.
Stat. § 40A-51. 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.
7There is some dispute about this. TCP claims that it applied for a vari-
ance under the PIDO after the district court issued its opinion in this
case. However, there is no evidence in the record to support TCP’s
claim, and it is undisputed that TCP has not received a variance. In any
event, the point is the availability of adequate process, not the outcome.
8TCP correctly notes that the statutory authority in N.C. Gen. Stat.
§§ 1-511 to 1-513 for North Carolina courts to grant a writ of mandamus
was repealed effective January 1, 1970. However, North Carolina courts
have subsequently held that the writ of mandamus is still available
through the equitable remedy of mandatory injunction, and that the sub-
stantive grounds for granting the writ have not changed. See, e.g., Sutton
v. Figgatt, 185 S.E.2d 97, 99 (N.C. 1971); Carter v. N.C. Bd. of Registra-
tion, 357 S.E.2d 705, 709 (N.C. Ct. App. 1987).
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III.
A.
We next turn to TCP’s claim that the County violated its equal pro-
tection rights. The Supreme Court has made clear that when no funda-
mental right or suspect classification is at issue, the Equal Protection
Clause allows a legislative body wide latitude in drawing classifica-
tions. Social or economic legislation "will be sustained if the classifi-
cation drawn . . . is rationally related to a legitimate state interest."
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985)
(citing City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976)). TCP
does not allege that the County has burdened a fundamental right or
employed a suspect classification. Therefore, we apply the most def-
erential standard of review to the County’s actions under the Equal
Protection Clause. See, e.g., Sylvia, 48 F.3d at 820; Int’l Sci. & Tech.
Inst., Inc. v. Inacom Communications, Inc., 106 F.3d 1146, 1156-57
(4th Cir. 1997).
B.
The district court properly granted summary judgment with respect
to TCP’s equal protection claim. First, as the district court noted, we
need look only to the text of the moratorium and the PIDO to uncover
the County’s legitimate governmental purpose. The moratorium stated
that its purpose was "to protect the public health, safety, general wel-
fare, and property values of citizens of Ashe County from potential
adverse health effects caused by [asphalt] facilities." The PIDO stated
a similar purpose with respect to all polluting industries and went on
to make clear that it was intended to "allow for the placement and
growth of polluting industrial activities, while maintaining the health,
safety and general welfare standards of established residential and
commercial areas in Ashe County." Ashe County Ordinance § 159.02.
Further, there is no evidence that the County’s objectives were any
less legitimate when it denied TCP’s building permit. Promoting the
health, safety, and well-being of the County’s citizens are basic gov-
ernmental functions. And this court will not substitute its policy judg-
ments as to the exercise of the police power for those of a
democratically elected local government. See, e.g., Sylvia, 48 F.3d at
820.
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Second, the County’s actions were rationally related to these legiti-
mate ends. We have previously stated that the relevant question under
rational-basis review is whether local officials "reasonably could have
believed that [their] action was rationally related to a legitimate gov-
ernmental interest." Front Royal & Warren County Indus. Park Corp.
v. Town of Front Royal, 135 F.3d 275, 290 (4th Cir. 1998). The actual
motivation for the County’s actions are irrelevant. See, e.g., United
States R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980). Here, the
County officials could certainly have believed that passing the mora-
torium and the PIDO were rationally related to their legitimate inter-
est in protecting the health and safety of Ashe County’s citizens. Both
the moratorium and the PIDO sought to limit polluting industries’
proximity to citizens, especially schoolchildren and those in need of
medical care. For example, the PIDO prohibited a polluting industry
from locating "within 1,000 feet, in any direction, of a residential
dwelling unit or commercial building," or "within 1,320 feet of any
school, daycare, hospital or nursing home facility." Ashe County
Ordinance § 159.06(B). It is rational for a community to decide that
it does not want polluting industries, such as asphalt plants, in close
proximity to residences, schools, daycare centers, hospitals, or nurs-
ing homes.
TCP attempts to save its equal protection claim by arguing that it
was treated differently from other "similarly situated" persons or busi-
nesses in the County. The Supreme Court made clear in Village of
Willowbrook v. Olech, 528 U.S. 562 (2000), that a party can bring an
equal protection claim by alleging it has "been intentionally treated
differently from others similarly situated and that there is no rational
basis for the difference in treatment." Id. at 564. TCP argues that it
was treated differently from permit applicants who sought other sorts
of residential and commercial building permits, and differently from
the one existing asphalt plant in Ashe County.
We are unpersuaded. TCP has not provided evidence that it was
irrationally or arbitrarily treated differently from similarly situated
parties. In fact, TCP has failed to present evidence that the County
intentionally treated TCP differently from any similarly situated
entity. All TCP has shown is that other businesses in Ashe County
were granted building permits while its application was denied, and
that a 30-year old asphalt plant continued to operate in the County.
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The County’s granting of other building permits is irrelevant because
TCP has not shown that any other company applied for a permit to
construct a facility with environmental and safety concerns similar to
an asphalt plant. Nor has TCP shown that any other building permit
applicant met with the kind of public apprehension that TCP’s pro-
posed plant generated. The existing asphalt plant’s continued opera-
tion is likewise inapposite because the County’s actions dealt with
future, further development and did not affect existing industry. Thus,
TCP has failed to state a valid equal protection claim.
IV.
A.
Finally, we address TCP’s substantive due process claim. In order
to validly state such a claim, TCP must demonstrate: "(1) that [it] had
property or a property interest; (2) that the state deprived [it] of this
property or property interest; and (3) that the state’s action falls so far
beyond the outer limits of legitimate governmental action that no pro-
cess could cure the deficiency." Sylvia, 48 F.3d at 827. See also Front
Royal, 135 F.3d at 287-88. Substantive due process protections "run
only to state action so arbitrary and irrational, so unjustified by any
circumstance or governmental interest, as to be literally incapable of
avoidance by any pre-deprivation procedural protections or of ade-
quate rectification by any post-deprivation state remedies." Rucker v.
Harford County, 946 F.2d 278, 281 (4th. Cir. 1991).
B.
The district court properly granted summary judgment with respect
to TCP’s substantive due process claim. We will again assume with-
out deciding that TCP had a property interest and that the County
deprived it of that property interest. However, TCP’s claim that the
County violated its substantive due process rights fails as a matter of
law under the third prong of the Sylvia test. The County’s actions
clearly did not fall beyond the outer limits of legitimate governmental
action. In fact, quite the opposite is true. The County’s actions were
rationally related to a legitimate governmental purpose. Therefore,
TCP cannot demonstrate that the County’s actions were arbitrary or
irrational as required by Sylvia and Rucker.
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TCP argues that the County’s enactment of the moratorium and the
PIDO pursuant to N.C. Gen. Stat. § 153A-121’s general grant of
police power, rather than through the specific statutory provisions
governing zoning, violated North Carolina law. See Vulcan Materials
Co. v. Iredell County, 407 S.E.2d 283, 286 (N.C. Ct. App. 1991) (stat-
ing that "[i]f an ordinance substantially affects land use, it must be
enacted under the procedures which govern zoning and rezoning").
TCP asserts that the County’s alleged violation of state law demon-
strates that the County acted arbitrarily and violated TCP’s substan-
tive due process rights. However, the district court concluded that the
County’s regulation of land use under its general police powers was
consistent with North Carolina law. Section 153A-121 explicitly
states that "[a] county may by ordinance define, regulate, prohibit, or
abate acts, omissions, or conditions detrimental to the health, safety,
or welfare of its citizens." And North Carolina courts after Vulcan
have stated that "[c]ounties may enact ordinances regulating land use
in two fashions: one, pursuant to a comprehensive zoning plan, N.C.
Gen. Stat. § 153A-341 (1991), and two, pursuant to their police pow-
ers, N.C. Gen. Stat. § 153A-121 (1991)." Maynor v. Onslow County,
488 S.E.2d 289, 291-92 (N.C. Ct. App. 1997).
More importantly, whether the County violated state law in regulat-
ing land use is not determinative of whether TCP’s substantive due
process rights were violated. If state law is transgressed, state courts
are open to redress that violation and remedy an unlawful deprivation
of property. We have repeatedly stated that "governmental actions
that are violative of state law are properly challenged in state courts
which exist, in part, to protect citizens from abuses of state law."
Front Royal, 135 F.3d at 288. See also Sylvia, 48 F.3d at 829; Love
v. Pepersack, 47 F.3d 120, 123 (4th Cir. 1995). And the fact that state
courts are available to redress and correct violations of state law "be-
lies the existence of a substantive due process claim." Sylvia, 48 F.3d
at 829. As previously discussed, the North Carolina courts were avail-
able for TCP to challenge the County’s actions. But TCP did nothing
to pursue its claim in state court. TCP cannot now argue that the
County’s alleged violation of state law infringed its substantive due
process rights.
This conclusion is entirely consistent with our opinion in Scott v.
Greenville County, 716 F.2d 1409 (4th Cir. 1983), where a developer
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claimed that Greenville County’s failure to issue him a building per-
mit for construction of low-income housing violated due process. In
Scott, the South Carolina Supreme Court had previously concluded
that there was "no basis for the intrusion by the County Council into
the zoning certificate and building permit process" at issue. Scott, 716
F.2d at 1419 (quoting Scott v. Carter, 257 S.E.2d 719, 722 (S.C.
1979)). Greenville County’s action was not related to any legitimate
interest such as protecting the health or welfare of county residents.
This court therefore concluded that, even if Scott failed to prove
racially discriminatory motivation in the county’s decisions, summary
judgment for the county was inappropriate because Scott’s property
interest had been "taken from him by manifest arbitrariness and
unfairness." Scott, 716 F.2d at 1421. In contrast, Ashe County’s
actions in this case were far from arbitrary — they were grounded in
rational health and safety concerns.9
V.
States and localities possess "traditional and primary power over
land and water use." Solid Waste Agency v. United States Army Corps
of Eng’rs, 531 U.S. 159, 174 (2001). Indeed, state and local govern-
ments have established political and judicial procedures to resolve
just the sort of question presented by this case. North Carolina law did
not run afoul of the Fourteenth Amendment’s basic guarantee of due
process. To go further and essentially require that law to guarantee
outcomes is to constitutionalize what remains at heart a local demo-
cratic dispute. We decline to do so, lest we wrest decisions from the
very people who will be most affected by them.
For the foregoing reasons, we affirm the judgment of the district
court.
AFFIRMED
9TCP also alleges that the PIDO is unconstitutionally vague or indefi-
nite. A law is unconstitutionally vague if it is not "sufficiently explicit
to inform those who are subject to it what conduct on their part will ren-
der them liable to its penalties," and if "men of common intelligence
must necessarily guess at its meaning and differ as to its application."
Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926). We agree with
the district court that the PIDO is sufficiently clear and that people of
common intelligence can determine the meaning of its terms.
14 TRI-COUNTY PAVING v. ASHE COUNTY

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