Aubrey E. Henry v. Jefferson County Planning Commission

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
AUBREY E. HENRY,
Plaintiff-Appellant,
v.
JEFFERSON COUNTY PLANNING
COMMISSION; SCOTT COYLE,
Commission Member, in his
individual capacity; H. RICHARD
FLAHERTY, Commission Member, in
his individual capacity; PAUL
GRIGER, Commission Member, in
his individual capacity; SAM
DONLEY, Commission Member, in
his individual capacity; JIM KNODE,
No. 99-2122
Commission Member, in his
individual capacity; ERNIE BENNER,
Commission Member, in his
individual capacity; GILBERT PAGE
WRIGHT, Commission Member, in
his individual capacity; LYLE
CAMPBELL TABB, Commission
Member, in his individual capacity;
PAUL J. RACO, Director of Planning
and Zoning, in his individual and
official capacity; JEFFERSON COUNTY;
JEFFERSON COUNTY BOARDOF ZONING
APPEALS,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of West Virginia, at Martinsburg.
W. Craig Broadwater, District Judge.
(CA-96-40-3)

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Argued: April 7, 2000
Decided: June 9, 2000
Before WILKINSON, Chief Judge, NIEMEYER, Circuit Judge,
and HAMILTON, Senior Circuit Judge.
_________________________________________________________________
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: John Christian Yoder, Harpers Ferry, West Virginia, for
Appellant. Michael Douglas Lorensen, BOWLES, RICE,
MCDAVID, GRAFF & LOVE, P.L.L.C., Martinsburg, West Vir-
ginia, for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Aubrey Henry (Henry) sued Jefferson County, West Virginia, the
Jefferson County Planning Commission, its individual members, and
the Jefferson County Board of Zoning Appeals (collectively the
County), in the United States District Court for the Northern District
of West Virginia, challenging the denial of his application for a condi-
tional use permit to build a townhouse development on property he
owned in Jefferson County. Henry asserted five claims, including a
takings claim, a substantive due process claim, two equal protection
claims, and a procedural due process claim. The district court dis-
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missed all but the procedural due process claim on the ground of Bur-
ford abstention. With respect to the remaining claim, the district court
granted the County's motion for summary judgment. For reasons that
follow, we vacate the district court's dismissal of the takings claim,
the substantive due process claim, and the two equal protection claims
and remand those claims for further proceedings. However, we affirm
the district court's grant of the County's motion for summary judg-
ment with respect to the procedural due process claim.
I
On July 7, 1988, Jefferson County adopted the Jefferson County
Zoning and Development Review Ordinance (the Zoning Ordinance)
which, among other things, zoned certain areas of Jefferson County
as a Rural-Agricultural District. The purpose of the Rural-
Agricultural District "is to provide a location for low density single
family residential development in conjunction with providing contin-
ued farming activities." Jefferson County, W. Va., Zoning and Devel-
opment Review Ordinance § 5.13 (1990) (amending the original
enactment of July 7, 1988). "A primary function of the low density
residential development permitted within [the Rural-Agricultural Dis-
trict] is to preserve the rural character of the County and the agricul-
tural community." Id. The Zoning Ordinance provides a list of sixteen
permitted uses allowed in the Rural-Agricultural District, see id.
§ 5.7(a), and eight prohibited uses, see id. § 4.4. Uses that are not
expressly permitted, but also not expressly prohibited, are allowed if
the property owner can obtain a conditional use permit from the Jef-
ferson County Planning Commission (the Commission) via the Devel-
opment Review System contained in the Zoning Ordinance. See id.
§ 4.1.
The Development Review System consists of two to four stages:
(1) application for a conditional use permit by the property owner to
the Commission; (2) evaluation by the Commission's staff of the
application, under the point system contained in Article 6 of the Zon-
ing Ordinance, to determine whether the property at issue is better
used for agricultural purposes as opposed to residential, commercial,
or industrial development; (3) if the application receives a numerical
score indicating that the property qualifies for possible residential,
commercial, or industrial development, the Commission's staff holds
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a compatibility assessment meeting (at which the public is allowed to
comment) to determine the compatibility of the proposed develop-
ment to the "existing areas adjacent to the site" and to the nature of
the zoned district involved; and (4) if any compatibility issues remain
unresolved after the compatibility assessment meeting, the Commis-
sion holds public hearings to discuss the unresolved issues. See id. art.
7, §§ 7.3-7.7. After completion of the requisite stages, the Commis-
sion formally votes to grant or deny the application for the permit. See
id. § 7.6(g).
Pursuant to section 7.6 of the Zoning Ordinance, the compatibility
of the proposed development at issue to the areas adjacent to the site
and to the nature of the zoned district involved is determined by,
among other things, the following criteria: (1) compatibility with fed-
eral, state, and local regulations; (2) similarity of the proposed devel-
opment type (residential, commercial, or industrial) to existing
development types; (3) the adequacy of roads and highways to
accommodate the traffic to be generated by the development; (4) the
present and future transportation patterns in the area; (5) the consis-
tency with land-use plans and regulations of incorporated municipali-
ties immediately adjacent to the proposed development; (6) any
variance which is known to be required at the time the application is
submitted; and (7) all items submitted with the application. See id.
§ 7.6(b).
Henry is the part-owner of 11.69 acres of real property, known as
the Town Run Property (the Town Run Property), located on U.S.
Highway 480 in Jefferson County, West Virginia. In 1994, Henry
developed a plan to build seventy-six townhouses on 9.8 acres of the
Town Run Property, with the remainder reserved for two single-
family dwellings. Of relevance to this appeal, townhouses are not
listed as a permitted or prohibited use in the Rural-Agricultural Dis-
trict. Because townhouse development is not a permitted use in the
Rural-Agricultural District, Henry was required to seek a conditional
use permit in order to proceed with his plan.
On January 25, 1994, Henry filed an application with the Commis-
sion requesting a conditional use permit for the proposed develop-
ment of seventy-six townhouses on the Town Run Property (the
Application or Henry's Application). The Application stated that the
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development "in many ways conforms to parts of the comprehensive
plan for Jefferson County." (J.A. 66). The Application further stated
that the development would help to "eliminate sprawl by concentrat-
ing 76 units on 9.80 acres of land." Id. The Application indicated that
parts of the Town Run Property were located adjacent to residential
subdivisions.
As required in the Zoning Ordinance, the Commission's staff eval-
uated the Application under the point system contained in Article 6
of the Zoning Ordinance. As a result, the Commission's staff assigned
the Application a total of 39.04 points, which qualified it for a com-
patibility assessment meeting. The Commission's staff held such a
meeting on March 23, 1994, during which neighbors raised concerns
about the proposed townhouse development. Opponents to the devel-
opment expressed concerns about the development's incompatibility
with the surrounding neighborhood and the possible impact on a
nearby stream, wetlands, and an adjacent recreational park.
Taking the neighbors' concerns into consideration, the Commis-
sion's staff formulated an assessment of the Application outlining
twenty-one conditions that, if complied with, would alleviate the
neighbors' concerns. For example, the assessment required Henry to
erect an eight-foot fence along one side of the Town Run Property,
to provide lighting that would not glare onto the adjacent recreational
park, and to provide an area for the pets of townhouse residents to
defecate. Of the twenty-one conditions outlined, Henry only agreed
to comply with five. The Commission's staff, therefore, listed the
remaining sixteen as "unresolved" compatibility issues.
The Commission conducted public hearings on the unresolved
compatibility issues on April 26, 1994, and May 24, 1994. At each
hearing, opponents of the Application voiced concern about, among
other things, the density of the townhouse development and its effects
on traffic, the low-density nature of the Rural-Agricultural District,
sewage, schools, and the use of the adjacent recreational park. At the
close of the May 24, 1994 public hearing, the Commission voted to
deny the Application. The Jefferson County Board of Zoning Appeals
(the Board) affirmed the Commission's decision.
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Henry appealed the Application's denial to the Circuit Court of Jef-
ferson County, which affirmed. Henry then appealed to the West Vir-
ginia Supreme Court of Appeals, which, on November 21, 1997,
reversed the Circuit Court's affirmance and remanded the case to the
Board for more particular findings of fact. See Henry v. Jefferson
County Planning Comm'n, 496 S.E.2d 239, 242 (W. Va. 1997). On
remand, the Board entered a decision and order on March 19, 1998,
setting forth detailed findings of fact and conclusions of law. Of note,
the Board concluded that "the proposed townhouse project fails to be
compatible with the housing developments in close proximity as a
result of the vast disparity in the relative density. . . and the character
of the housing."1 (J.A. 84). Further, the Board concluded that "the
proposed townhouse project is a high-density multi-family project and
is not in conformity with the purpose of the Rural-Agricultural Dis-
trict." Id. Therefore, the Board denied the Application.
On April 17, 1998, Henry filed a petition with the Jefferson County
Circuit Court seeking review of the Board's March 19, 1998 decision
and order. On August 31, 1998, the Circuit Court affirmed the Board
again. The West Virginia Supreme Court of Appeals subsequently
denied Henry's petition for certiorari of this affirmance.
During the pendency of Henry's state court litigation, he also pur-
sued the present federal court litigation. Specifically, on May 24,
1996, Henry filed this action.2 On November 22, 1996, the district
_________________________________________________________________
1 The Board made a factual finding that Henry's proposed townhouse
development "is located in close proximity to two other housing develop-
ments, Ledge Lowe Estates and Morgana, which consist of single family
homes on lots of 2 acres or more." (J.A. 82).
2 Of relevance to one of Henry's arguments on appeal, on September
19, 1996, over two years after the denial of Henry's Application for a
conditional use permit, the Commission approved a conditional use per-
mit for the Lowe project. The Lowe project proposed to build a confer-
ence center with 174 sleeping rooms and amenities on 70.52 acres. The
Lowe project was located approximately 115 yards across U.S. Highway
480 from the Town Run Property but was zoned in the Residential-
Growth District. "The Residential-Growth District is intended to provide
for a variety of residential uses and densities which can be supported by
central or public water and sewer and adequate roadways and services."
Zoning and Development Review Ordinance § 5.4. Further, the
Residential-Growth District "encourages commercial growth." Id.
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court stayed its proceedings pending a decision by the West Virginia
Supreme Court of Appeals in the state court litigation. After the West
Virginia Supreme Court of Appeals issued its decision on November
21, 1997, Henry moved to lift the stay and for permission to file an
amended complaint. The district court granted both motions.
Henry's amended complaint alleges the following five claims
based upon the County's denial of the Application: (1) the County
took his property without just compensation in violation of the Tak-
ings Clause of the Fifth Amendment to the United States Constitution
as applied to the States via the Fourteenth Amendment; (2) the
County violated his right to substantive due process under the Due
Process Clause of the Fourteenth Amendment; (3) the Commission
lacked a rational basis for its denial, and therefore, violated the Equal
Protection Clause of the Fourteenth Amendment; (4) the Commission
sought to prevent members of a suspect class from obtaining afford-
able housing, and therefore, violated the Equal Protection Clause; and
(5) the County violated his right to procedural due process under the
Due Process Clause. Given that the state court litigation was still
pending at that time, the County moved to dismiss all five claims on
the ground of Burford abstention.3
On September 24, 1998, based upon the Burford abstention doc-
trine, the district court dismissed, without prejudice, all of Henry's
claims but the procedural due process claim. The County then moved
for summary judgment on that claim, which the district court granted
on July 21, 1999. Henry timely filed this appeal challenging the dis-
trict court's disposition of all of his claims. 4
_________________________________________________________________
3 In Burford v. Sun Oil Co. , 319 U.S. 315 (1943), the Court held that
although a federal district court sitting in equity possesses subject matter
jurisdiction over a civil action, it may, in its sound discretion, refuse to
exercise such jurisdiction in certain circumstances if abstention is neces-
sary to show "proper regard for the rightful independence of state gov-
ernments in carrying out their domestic policy." Id. at 317-18 (quotation
marks omitted).
4 After the district court's dismissal of Henry's takings claim, his sub-
stantive due process claim, and his two equal protection claims, on
March 23, 1999, Henry filed a new complaint in federal district court
reasserting these same claims. This new lawsuit challenges precisely the
same conduct alleged in the dismissed counts but has been stayed pend-
ing the outcome of this appeal.
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II
We first address Henry's challenge to the district court's dismissal,
based upon the Burford abstention doctrine, of his takings claim, his
substantive due process claim, and his two equal protection claims.
As stated previously, under the Burford abstention doctrine, although
a federal district court sitting in equity possesses subject matter juris-
diction over a civil action, it may, in its sound discretion, refuse to
exercise such jurisdiction in certain circumstances if abstention is
necessary to show "proper regard for the rightful independence of
state governments in carrying out their domestic policy." 319 U.S. at
317-18 (quotation marks omitted). Significantly, a federal district
court's discretionary authority to dismiss a civil action under the Bur-
ford abstention doctrine is limited to civil actions where the relief
sought by the plaintiff is equitable or otherwise discretionary. See
Quackenbush v. AllState Ins. Co., 517 U.S. 706, 728-31 (1996); Front
Royal v. Town of Front Royal, 135 F.3d 275, 282 (4th Cir. 1998).5 We
do note, however, that "Burford might support a federal court's deci-
sion to postpone adjudication of a damages action pending the resolu-
tion by the state courts of a disputed question of state law."
Quackenbush, 517 U.S. at 730-31.
Because Henry has sought only monetary relief with respect to his
takings claim, his substantive due process claim, and his two equal
protection claims, the district court lacked the authority to dismiss
those claims on the basis of the Burford abstention doctrine. Accord-
ingly, we vacate the district court's September 24, 1998 order dis-
missing those claims and remand to the district court for further
proceedings.6
_________________________________________________________________
5 Prior to the Supreme Court's decision in Quackenbush, we held in a
case involving money damages, see Pomponio v. Fauquier County Bd.
of Supervisors, 21 F.3d 1319 (4th Cir. 1994), that "the appropriate course
of action in a Burford abstention case is to dismiss the suit." Id. at 1328.
In dismissing Henry's takings claim, substantive due process claim, and
two equal protection claims, the district court apparently relied upon this
now overruled portion of Pomponio.
6 We note that Henry has refiled these counts in a different case and
that the district court has stayed its proceedings in that case pending the
outcome of this appeal. On remand, the district court maintains the dis-
cretion to manage its docket and consolidate these claims if appropriate,
or stay the present action pending final disposition of the state court pro-
ceedings.
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III
Henry next argues that the district court erred in granting the Coun-
ty's motion for summary judgment on his procedural due process
claim. We disagree.
In relevant part, the Fourteenth Amendment provides that no State
shall "deprive any person of life, liberty, or property, without due pro-
cess of law." U.S. Const. amend. XIV, § 1. According to Henry, the
Zoning Ordinance deprives him of his property rights with respect to
the Town Run Property without due process of law, and therefore,
violates the Due Process Clause. Specifically, Henry argues the Zon-
ing Ordinance is so vague that it fails to provide a property owner
with sufficient notice and warning as to what requirements must be
met in order to obtain a conditional use permit, thereby affording the
Commission unbridled and unlimited discretion in determining
whether to grant or deny such a permit. As the precise source of this
alleged unbridled and unlimited discretion, Henry identifies what he
characterizes as the Zoning Ordinance's alleged lack of sufficiently
specific criteria to determine the compatibility of the proposed devel-
opment at issue with the areas adjacent to it and to the nature of the
zoned district involved.
The doctrine of vagueness in the due process context is based upon
the notion that the Due Process Clause requires an enactment to pro-
vide individuals with fair notice and warning as to what it requires.
See Connally v. General Constr. Co., 269 U.S. 385, 391 (1926). At
one time, "[t]he idea that excessive vagueness of an enactment vio-
lates due process [was] pretty much limited to criminal and other
penal statutes and regulations." Baer v. City of Wauwatosa, 716 F.2d
1117, 1123 (7th Cir. 1983). That idea, however, has since been
extended to licensing ordinances, see Village of Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499-500 (1982); Baer,
716 F.2d at 1123-24, and zoning ordinances, see Cornerstone Bible
Church v. City of Hastings, 948 F.2d 464, 473 (8th Cir. 1991); Wil-
liams v. City of Columbia, 906 F.2d 994, 998 (4th Cir. 1990).
Whether a challenged statutory enactment is unconstitutionally vague
is a legal question, which we review de novo. See Roach v. West Vir-
ginia Reg'l Jail & Correctional Facility Auth., 74 F.3d 46, 48 (4th
9

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Cir. 1996); see also Mason v. Florida Bar, 208 F.3d 952, 955 (11th
Cir. 2000).
In addressing Henry's vagueness challenge, we must determine
whether the challenged portions of the Zoning Ordinance are suffi-
ciently clear "to `give the person of ordinary intelligence a reasonable
opportunity to know what is prohibited,' and to`provide explicit stan-
dards for those who apply them.'" General Media Communications,
Inc. v. Cohen, 131 F.3d 273, 286 (2d Cir. 1997) (quoting Grayned v.
City of Rockford, 408 U.S. 104, 108-09 (1972)); see Village of Hoff-
man Estates, 455 U.S. at 498 (same). In making this determination,
we are mindful that we have previously opined that the amount of dis-
cretion afforded a zoning board in determining whether a particular
land use is permissible is exceptionally high because zoning is an
inherently discretionary system. See AT&T Wireless PCS, Inc. v.
Winston-Salem Zoning Bd. of Adjustment, 172 F.3d 307, 316 (4th Cir.
1999); Gardner v. City of Baltimore Mayor & City Council, 969 F.2d
63, 67 (4th Cir. 1992) (recognizing that land-use decisions are a core
function of local government and that subdivision control is an inher-
ently discretionary system). We are also mindful that "[v]agueness
challenges to statutes not threatening First Amendment interests are
examined in light of the facts of the case at hand; the statute is judged
on an as-applied basis."7 Maynard v. Cartwright, 486 U.S. 356, 361
(1988).
Contrary to Henry's argument, we conclude that the Zoning Ordi-
nance contains sufficiently specific criteria to determine the compati-
bility of his proposed townhouse development with the areas adjacent
to the Town Run Property and with the nature of the Rural-
Agricultural District such that Henry is not without sufficient notice
and warning as to the requirements he must meet in order to obtain
the conditional use permit he seeks. Critically, the language and struc-
ture of the Zoning Ordinance leaves no doubt that the granting of a
conditional use permit turns upon whether the proposed development
at issue is compatible with the areas adjacent to the property at issue
and to the nature of the zoned district involved. Logically, the word
"compatible," as used in the Zoning Ordinance, has only one mean-
_________________________________________________________________
7 It is undisputed that the Zoning Ordinance does not threaten Henry's
First Amendment rights.
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ing: "capable of existing or living together in harmony." The Random
House Dictionary of the English Language 417 (1998); see Webster's
Third New International Dictionary 463 (1986) ("capable of existing
together without discord or disharmony"). Henry has made no argu-
ment suggesting otherwise. Thus, under the Zoning Ordinance, Henry
should not be granted a conditional use permit unless his proposed
townhouse development is capable of existing in harmony with the
areas adjacent to the Town Run Property and with the nature of the
Rural-Agricultural District.
Furthermore, the language and structure of the Zoning Ordinance
leaves a reasonable person no doubt as to the criteria that would be
used in determining whether Henry's proposed townhouse develop-
ment is in harmony with, i.e., compatible with, the areas adjacent to
the Town Run Property and with the nature of the Rural-Agricultural
District. Section 7.6 of the Zoning Ordinance expressly provides that,
in the compatibility assessment meeting, Henry was required to "ad-
dress the compatibility of his project to the existing areas adjacent to"
the Town Run Property. Zoning and Development Review Ordinance
§ 7.6(a). Section 7.6 further specifies eight criteria, which "those who
participate [in the compatibility assessment meeting] should address,
but are not limited to." Id. § 7.6(b).
Section 7.6(b) of the Zoning Ordinance specifies that the compati-
bility of the proposed development is determined by the "[s]imilarity
of proposed development type . . . to existing development types," the
compatibility of the proposed development with federal, state, and
local regulations, the adequacy of roads and highways to accommo-
date the proposed development, the present and future transportation
patterns in the area, the consistency of the proposed development with
land-use plans and regulations of adjacent municipalities, any vari-
ances required, and the relationship of the proposed development to
the Zoning Ordinance's plan for the Rural-Agricultural District. Id.
We emphasize that this last specified criteria provides a clear
benchmark for determining whether Henry's proposed development
is compatible with the purpose and function of the Rural-Agricultural
District. The Zoning Ordinance states that the purpose of the Rural-
Agricultural District "is to provide a location for low density single-
family residential development in conjunction with providing contin-
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ued farming activities." Id. § 5.13 (emphasis added). Accordingly,
"[a] primary function of the low density residential development per-
mitted within a [Rural-Agricultural District] is to preserve the rural
character of the County and the agricultural community." Id. (empha-
sis added). These statements give a reasonable person notice and
warning that a proposed development such as Henry's, which he does
not dispute is a high-density residential development, would not be in
harmony with, and thus not compatible with, the nature of the Rural-
Agricultural District.
We also know, pursuant to the Zoning Ordinance, that certain uses
are permitted in the Rural-Agricultural District while others are pro-
hibited. Obviously, the more similar a use in a proposed development
is to a permitted use, the more compatible the use will be with the
nature of the Rural-Agricultural District. Thus, where the Zoning
Ordinance specifies as permitted uses single-family dwellings, home
occupations, riding stables, child or elderly care facilities with four or
less individuals, forestry, and small markets for the sale of farm pro-
duce; a reasonable person would have notice and warning that a high-
density multi-family townhouse development is not similar to any
permitted use and would not be in harmony with the nature of the
Rural-Agricultural District.8
Finally, Henry argues that the language in section 7.6, allowing the
Commission to consider other criteria than those specified, provides
"absolutely no guidance or standard as to what other criteria may be
considered." (Appellant's Br. at 40). We disagree. It is clear from the
_________________________________________________________________
8 Henry points to the Commission's grant of a conditional use permit
for the Lowe project, in September 1996, as evidence that the Zoning
Ordinance does not provide sufficient standards for determining compati-
bility. We disagree. First, the Lowe project was located in the
Residential-Growth District, which "is intended to provide for a variety
of residential uses and densities," and "encourages commercial growth."
Zoning and Development Review Ordinance § 5.4. Second, the Commis-
sion considered and approved the application for the Lowe project over
two years after Henry's Application was denied. In sum, the grant of a
conditional use permit to the Lowe project has no relevance to the issue
of whether Henry had fair notice and warning of what requirements he
had to meet to build a townhouse development on the Town Run Prop-
erty in the Rural-Agricultural District in 1994.
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language of the Zoning Ordinance that the eight specified criteria in
section 7.6(b) are factors to be considered in determining whether
Henry's proposed development is (1) in harmony with the areas adja-
cent to it, i.e., adjacent developments, adjacent roads and highways,
and adjacent municipalities, or (2) in harmony with the nature of the
Rural-Agricultural District, i.e., federal, state, and local laws govern-
ing the Rural-Agricultural District, any variance required by the
Rural-Agricultural District, and the relationship of Henry's proposed
development to the overall Zoning Ordinance. A reasonable person
reading that language would have notice and warning that the Zoning
Ordinance implies that any other criteria the Commission considers
is similar to the specified criteria and addresses whether the proposed
development is in harmony with areas adjacent to it and in harmony
with the nature of the Rural-Agricultural District. See Hughey v.
United States, 495 U.S. 411, 419 (1990) (noting that "the principle of
ejusdem generis [provides] that a general statutory term should be
understood in light of the specific terms that surround it").
In sum, the compatibility criteria specified and clearly implied in
section 7.6 of the Zoning Ordinance, the express purpose and primary
function of the Rural-Agricultural District, and the inherently objec-
tive nature of a compatibility determination is more than sufficient to
provide Henry with sufficient notice and warning as to what require-
ments he must meet in order to obtain a conditional use permit. Thus,
the Zoning Ordinance does not provide the Commission unbridled
and unlimited discretion in determining whether to grant or deny
Henry a conditional use permit as he contends. See Cornerstone, 948
F.2d at 473-74 ("The city council has established the zoning policy
and objectives for each zone and has enumerated a comprehensive list
of permitted uses. . . . The city's statement of objectives, along with
available review procedures, sufficiently constrains the city planner's
discretion."); Williams, 906 F.2d at 998 (holding that a zoning board's
discretion was not unbridled and standardless where the criteria to be
used in deciding whether to grant an exception to the ordinance were
"contained in . . . the City's zoning ordinance and include `adverse
impact of the proposed use on the aesthetic character of the envi-
rons'"). Because we discern no violation of the Due Process Clause
in this case, we affirm the district court's grant of the County's
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motion for summary judgment with respect to Henry's procedural due
process claim.9
IV
In sum, we hold the district court erred in dismissing, under the
Burford abstention doctrine, Henry's takings claim, his substantive
due process claim, and his two equal protection claims. Accordingly,
we vacate the district court's September 24, 1998 order dismissing
those claims and remand for further proceedings. However, we reject
Henry's procedural due process challenge to the Zoning Ordinance
premised upon the doctrine of vagueness, and therefore, affirm the
district court's grant of the County's motion for summary judgment.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
_________________________________________________________________
9 We note that Henry's procedural due process claim does not directly
attack the Commission's determination that his proposed townhouse
development is incompatible with the existing uses of property adjacent
to the Town Run Property and the purpose and function of the Rural-
Agricultural District. Rather, such an attack is the subject of his substan-
tive due process claim, which we remand for further proceedings without
addressing its merit.
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