                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-2150


ACORN LAND, LLC, d/b/a PCS Homes,

                Plaintiff - Appellant,

           v.

BALTIMORE COUNTY, MARYLAND, A Body Corporate and Politic;
PEOPLE’S COUNSEL FOR BALTIMORE COUNTY,

                Defendants - Appellees.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Catherine C. Blake, District Judge.
(1:09-cv-00422-CCB)


Argued:   May 12, 2010                   Decided:   September 21, 2010


Before GREGORY, Circuit Judge, C. Arlen BEAM, Senior Circuit
Judge of the United States Court of Appeals for the Eighth
Circuit, sitting by designation, and Samuel G. WILSON, United
States District Judge for the Western District of Virginia,
sitting by designation.


Affirmed   in  part,   reversed  in   part,  and       remanded   with
instructions by unpublished per curiam opinion.


ARGUED: J. David Breemer, PACIFIC LEGAL FOUNDATION, Sacramento,
California, for Appellant.   James Joseph Nolan, Jr., BALTIMORE
COUNTY OFFICE OF LAW, Towson, Maryland; Peter Max Zimmerman,
Towson, Maryland, for Appellees. ON BRIEF: John E. Beverungen,
County Attorney, BALTIMORE COUNTY OFFICE OF LAW, Towson,
Maryland, for Appellee Baltimore County, Maryland.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

     Following the Baltimore County Council’s (Council) decision

to rezone Acorn Land, LLC’s (Acorn) property, Acorn filed suit

against Baltimore County (County) in Maryland state court. Acorn

sought,    among    other   relief,    a       declaratory   judgment    that   the

rezoning constituted an unlawful taking under the United States

Constitution       and   violated     Acorn’s       substantive    due     process

rights.    The County removed the case to federal court, where the

district court dismissed Acorn’s claims as unripe.                       Acorn now

appeals the district court’s dismissal of those claims, and we

reverse in part and affirm in part.



                                       I.

     We accept the well-pleaded facts in Acorn’s complaint 1 as

true and recite them in the light most favorable to Acorn.                      See

Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009).                       In

April 2004, Acorn purchased a tract of land within Baltimore

County’s    Urban-Rural     Demarcation          Line   (URDL)   zoned    “Density

Residential 1” (DR-1). 2       The property is directly adjacent to an

     1
      Specifically, we “consider the complaint in its entirety,
as well as . . . documents incorporated into the complaint by
reference.” Matrix Capital Mgmt. Fund, LP v. BearingPoint, Inc.,
576 F.3d 172, 176 (4th Cir. 2009) (quotation omitted).
     2
      Properties zoned DR-1 may accommodate one single family
dwelling per acre.


                                           3
interstate    highway    and    the   University          of    Maryland,     Baltimore

County    Research    Park,     and   is       otherwise        surrounded       by    lots

containing single family dwellings.                     Shortly after purchasing

the property, Acorn filed a petition to amend the property’s

water/sewer       classification               to       facilitate          residential

development.          Specifically,            the     property’s         then-existing

water/sewer     classification          was         W-6/S-6,      “Area     of        Future

Consideration,” 3 and Acorn petitioned to amend the classification

to   W-3/S-3,   “Capital       Facilities            Area.” 4      Acorn’s       petition

explained that public water and sewer mains, which existed in

close proximity to its property, could easily be extended to

serve the property.

     Several public agencies reviewed Acorn's petition and all

recommended its approval to the Baltimore County Planning Board

(Planning Board).        In September 2004, after considering these

recommendations, the Planning Board likewise recommended to the

Council that Acorn’s petition be granted.                       In January 2005, the

Council    reviewed     the    Planning        Board’s      water/sewer      amendment

recommendations       for     several      properties,           including        Acorn’s


     3
      “Areas of Future Consideration” are areas to be considered
in the design of major facilities for growth and development
beyond the Land Use Master Plan.
     4
      “Capital Facilities Areas” are areas in which water and
sewerage facilities are required and possible.



                                           4
property.     Acorn’s petition received opposition from citizens as

well as state senators and delegates.                   While the Council adopted

the Planning Board’s recommendations as to all other properties,

the   Council,       without   explanation,        took       no    action       on    Acorn’s

petition.       As    a    result,   no     change      was    made       to    the    tract’s

water/sewer      classification            and   Acorn         was     prevented          from

proceeding with residential development.

      On January 10, 2007, Acorn filed a petition for writ of

mandamus in the Circuit Court for Baltimore County to compel the

Council to forward the Planning Board’s recommendation to amend

the   property’s          water/sewer      classification            to        the    Maryland

Department of the Environment (MDE) for review.                                 On April 7,

2008, the circuit court held that mandamus relief was warranted

and   ordered        the    County    to     forward          the    Planning         Board’s

recommendation to the MDE.                Notably, the court determined that

Acorn met Baltimore County’s established objective criteria for

water/sewer reclassification and that the Council’s denial of

Acorn’s petition was “arbitrary and capricious.”                                 The County

appealed    this      decision,      and    upon     the      County’s          motion,   the

circuit    court      stayed    enforcement        of    its        order       pending   the

appeal.

      Meanwhile, in November 2007, after Acorn filed its petition

for writ of mandamus, a county councilman filed a petition to



                                            5
rezone Acorn’s tract as “Agricultural Protection 2” (RC-2), 5 as

part       of   the    County’s      2008   Comprehensive            Zoning     Map   Process

(CZMP).          On April 24, 2008, the Planning Board recommended to

the    Council        that    Acorn’s     tract    remain    zoned         as    DR-1.     The

Council         reviewed       the    Planning     Board’s       recommendation,           but

nevertheless          decided        to   rezone       Acorn’s       tract       as   “Rural-

Residential” (RC-5). 6               Due to this zoning reclassification, the

maximum residential density on Acorn’s property was cut in half,

and Acorn’s water/sewer classification changed from W-6/S-6 to

W-7/S-7, “No Planned Community or Multi-Use Service.” 7

       On October 8, 2008, following the Council’s decision to

rezone Acorn’s tract, the County dismissed its appeal of the

circuit         court’s      mandamus     order   as    moot.         In   its    notice    of

dismissal,         the    County      explained     that,       as    a    result     of   its

reclassification to the RC-5 zone, Acorn’s property was subject

to a different water/sewer classification and the County could

no longer comply with the circuit court’s order to forward the
       5
      Property zoned RC-2 is primarily used to foster and protect
agriculture,    though   limited   residential   development   is
permitted.
       6
      Under the RC-5 zoning classification, property may be put
to agricultural use or may accommodate one single family
dwelling per two acres.
       7
      Areas classified as “No Planned Community or Multi-Use
Service” are areas of planned, low-density growth for which
metropolitan water and sewerage facilities are neither planned
nor intended.



                                              6
Planning Board’s recommendation to the MDE.                        Thus, the Council’s

decision    to     rezone     Acorn’s       property        effectively           allowed     the

County to sidestep the circuit court’s order.

     Based    on    the      above    events,       Acorn       filed    a    complaint       for

declaratory judgment in the Circuit Court for Baltimore County

on January 23, 2009, asserting, among other claims, that the

Council’s     actions        (1)     were     “arbitrary         and     capricious”          and

violated     Acorn’s       substantive         due       process        rights,       and     (2)

effected     an    unlawful        taking         without       just     compensation         in

violation    of     both     the     Maryland       Constitution            and   the   United

States Constitution.            Upon the County’s notice of removal, the

suit was removed to the District of Maryland in February 2009,

and the federal district court granted the People’s Counsel for

Baltimore County’s motion to join and/or intervene.                                 See Acorn

Land, LLC v. Baltimore County, 648 F. Supp. 2d 742, 744 n.1 (D.

Md. 2009).        The County and the People’s Counsel (defendants)

filed motions to dismiss.

     The district court dismissed Acorn’s state constitutional

claims     because      Acorn        failed       to     exhaust        applicable          state

remedies.        Then, the district court dismissed Acorn’s federal

substantive       due   process      and    takings       claims       as    unripe     due    to

Acorn’s    failure      to    petition      the        County    Board       of    Appeals     to

reclassify        Acorn’s       property          back      to      the       DR-1      zoning

classification.         On appeal, Acorn challenges only the district

                                              7
court’s   dismissal     of     its    federal    claims.        For    the   reasons

discussed below, we reverse in part and affirm in part.



                                         II.

     Acorn’s sole argument on appeal is that the district court

erroneously     dismissed       its     as-applied     federal        takings    and

substantive     due     process        claims    for      lack    of      ripeness.

Specifically, Acorn asserts that it need not petition the County

Board of Appeals for reclassification to ripen its claims.                        We

review the district court’s dismissal for lack of ripeness de

novo.   Miller v. Brown, 462 F.3d 312, 316 (4th Cir. 2006).



                                         A.

     First, Acorn’s complaint asserts that the Council’s zoning

decisions     constitute        a      regulatory      taking     without       just

compensation in violation of the Fifth Amendment, which applies

to states through the Fourteenth Amendment.                Chicago, Burlington

& Quincy R.R. Co. v. Chicago, 166 U.S. 226, 241 (1897).                           To

present   a   ripe    regulatory       takings   claim,    the    plaintiff     must

demonstrate    that:     (1)     the     government     entity        charged   with

implementing the regulations in question has issued a “final

decision regarding the application of the regulations to the

property at issue,” and (2) the plaintiff has sought and been

denied just compensation through available and adequate state

                                          8
procedures      for   seeking     just   compensation.            Williamson    County

Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S.

172, 186, 195 (1985).           Notably, the Supreme Court has clarified

that       Williamson’s   ripeness       prongs   are       “prudential      hurdles,”

Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 725, 734 (1997),

not jurisdictional requirements.               Stop the Beach Renourishment,

Inc. v. Florida Dep’t of Envtl. Prot., 130 S. Ct. 2592, 2610

(2010).        Here, the only issue properly before this court is

whether      Acorn    satisfied      Williamson’s      first,     “final     decision”

prong. 8

       As a preliminary matter, we note that Williamson’s final

decision       requirement      is     intended       to    inform     the     courts’

determination of whether a regulation, as applied, constitutes a

regulatory      taking.      As      discussed    in       more   detail     below,    a

property regulation constitutes a taking if it goes “too far.”

Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001).                            Simply

put,   the     determination      of   whether    a    regulation     goes     too    far

       8
      The defendants contend that Acorn also failed to satisfy
Williamson’s second, “just compensation” prong.     However, the
defendants did not raise this argument below or in their opening
appellate brief.   Indeed, it was not until the panel requested
the parties to address Williamson’s second prong that the
defendants finally pressed this argument.     Therefore, because
Williamson’s just compensation prong is not a jurisdictional
requirement, we deem this argument waived. Beach, 130 S. Ct. at
2610; see also United States v. Jones, 308 F.3d 425, 427 n.1
(4th Cir. 2002) (holding that an argument not raised in the
opening appellate brief is waived).



                                           9
"cannot be resolved in definitive terms" until there is a final

decision demonstrating "'the extent of permitted development' on

the land in question."            Id. at 618 (quoting MacDonald, Sommer &

Frates v. Yolo County, 477 U.S. 340, 351 (1986)).

      For    a   developer     to    obtain        a    final     decision,     she    must

generally submit “a plan for development of [her] property as

the ordinances permit,” Agins v. City of Tiburon, 447 U.S. 255,

260 (1980), rev'd on other grounds, Lingle v. Chevron U.S.A.,

Inc. 544 U.S. 528, 532 (2005).                      Then, “where the regulatory

regime    offers     the    possibility      of     a    variance    from     its   facial

requirements, [the developer] must go beyond submitting a plan

for development and actually seek such a variance to ripen his

claim.”      Suitum, 520 U.S. at 736-37.                  Consequently, “the final

decision requirement is not satisfied when a developer submits,

and   a     land-use       authority    denies,          a   grandiose      development

proposal, leaving open the possibility that lesser uses of the

property     might    be    permitted."            Palazzolo,      533   U.S.    at    619.

These general rules support the principle that “a landowner may

not   establish      a   taking     before     a       land-use    authority     has    the

opportunity, using its own reasonable procedures, to decide and

explain the reach of a challenged regulation.”                      Id. at 620.

      That said, there are several notable exceptions to these

general rules.       First, developers need not engage in futile acts

to obtain a final decision.            Indeed, the final decision prong is

                                          10
satisfied     “once    it   becomes   clear      that   the   agency    lacks   the

discretion to permit any development, or the permissible uses of

the property are known to a reasonable degree of certainty.”

Id.       In the same vein, the final decision prong is satisfied

where "a zoning agency . . . has dug in its heels and made clear

that all . . . applications will be denied."                     Murphy v. New

Milford Zoning Comm'n, 402 F.3d 342, 349 (2d Cir. 2005).                    Next,

landowners are not required to resort to “repetitive or unfair

land-use procedures” to obtain a final decision.                 Palazzolo, 533

U.S. at 621.          And finally, the final decision prong does not

require landowners to exhaust administrative remedies. 9                 In other

words,      landowners      need   not        resort    to    clearly    remedial

procedures, such as appealing to an administrative board where


      9
      In Williamson, the Court explained that plaintiffs need not
exhaust state administrative remedies to satisfy the final
decision prong where their claim is predicated on 42 U.S.C. §
1983.   Williamson, 473 U.S. at 192-93.     Here, the defendants
argue that Acorn must exhaust state administrative remedies
because it did not cite § 1983 in its complaint.     We disagree.
“Federal and state court decisional law is virtually unanimous
that a complaint need not specifically refer to § 1983, so long
as the essential elements of the claim are [pled].”       Hill v.
North Tex. State Hosp., No. 7:09-CV-158-0, 2010 WL 330209, at *2
(N.D. Tex. Jan. 26, 2010) (emphasis in original); see, e.g.,
Smith-Berch, Inc. v. Baltimore County, 68 F. Supp. 2d 602, 626
(D. Md. 1999).    To state a cause of action under § 1983, a
plaintiff must establish “(1) the deprivation of a right secured
by the Constitution or a federal statute; (2) by a person; (3)
acting under color of state law.” Jenkins v. Medford, 119 F.3d
1156, 1159-60 (4th Cir. 1997).       Acorn pled these essential
elements.



                                         11
the board is empowered only to review, not participate in, the

lower agency’s decisionmaking.                 Williamson, 473 U.S. at 193.

       Here,    in     short,    to    begin        residentially          developing        its

property, Acorn submitted a petition to amend its property’s

water/sewer      classification          and    the   Planning          Board    recommended

its approval.         However, after receiving opposition from citizens

and   state     politicians,      the     Council      blocked          Acorn’s      petition,

without explanation, through what the Circuit Court of Baltimore

County    deemed      “arbitrary      and      capricious”            conduct.       Once    the

circuit      court     ordered    the     Council          to    forward       the     Planning

Board’s recommendation to the MDE, the Council appealed that

decision, obtained a stay of enforcement, and then conveniently

avoided the circuit court’s order by rezoning Acorn’s property.

The rezoning both cut the property’s maximum residential density

by    half    and     placed    the    property       in        the    lowest    water/sewer

classification.

       Based     on    these     well-pled          facts,        we    hold     that    Acorn

satisfied Williamson’s final decision prong.                              To be sure, we

acknowledge      that    Williamson       would       generally         require      Acorn    to

seek a density variance to ripen its claim and that Acorn has

not sought such a variance here.                    However, the Baltimore County

Zoning    Regulations      do    not     permit       an    increase       in    residential

density through variance procedures.                        Indeed, Baltimore County

Zoning       Regulations       section      307.1     provides          that     the     Zoning

                                               12
Commissioner and the County Board of Appeals, upon appeal, may

grant     height      and        area        variances,             but     “[n]o       increase     in

residential        density        beyond          that    otherwise             allowable      by    the

Zoning Regulations shall be permitted as a result of any such

grant of a variance.”

      Moreover,           we     reject           the         defendants’          argument         that

petitioning         the         County        Board            of        Appeals        for      zoning

reclassification          is     equivalent          to       seeking       a    density      variance

under    Williamson        and       that     Acorn       must       therefore          petition     for

reclassification           to    ripen        its       claim.            Under     Maryland        law,

“reclassification” or “rezoning” is “a change in the existing

zoning law itself, so far as the subject property is concerned,”

Cadem    v.     Nanna,         221   A.2d         703,    707        (Md.       1966)    (alteration

omitted), whereas a variance is “an authorization for [that] . .

.   which     is    prohibited          by    a    zoning           ordinance.”          Mueller      v.

People’s Counsel for Baltimore County, 934 A.2d 974, 989 (Md.

Ct.     Spec.      App.    2007)        (alterations                in    original)          (quotation

omitted).       In other words, reclassification applies an entirely

different       zoning     classification                to    the       property       in    question,

whereas the approval/denial of a variance helps define how the

property’s         existing          zoning        classification                applies.           This

distinction is important because, under Williamson, a land-use

authority must only have the opportunity “to decide and explain

the reach of [the] challenged regulation.”                                  Palazzolo, 533 U.S.

                                                   13
at 620 (emphasis added).                Accordingly, we find that requiring

Acorn     to     petition       for     reclassification         is   tantamount       to

requiring       Acorn     to     exhaust      state    administrative         remedies—a

requirement expressly prohibited in Williamson.                       Williamson, 473

U.S. at 193.

       Lastly, we duly recognize that in some cases, pursuant to

fair     and    reasonable        zoning      procedures,        developers     may    be

required to submit multiple plans, applications, and the like to

ripen their takings claims.                See, e.g., id. 473 U.S. at 176-82.

Here, however, Acorn was subjected to unfair and unreasonable

zoning procedures when the Council blocked Acorn’s water/sewer

petition,       without     explanation,           after   the    petition     met     the

County’s       objective       criteria     for      amending    Acorn’s      property’s

water/sewer       classification.             Indeed,      the   Circuit      Court   for

Baltimore County went so far as to deem such action “arbitrary

and    capricious.”            Then,   once    the    circuit     court    ordered     the

Council to forward the Planning Board’s recommendation to the

MDE,    the     Council    again       effectively      denied    Acorn      water/sewer

access     by    rezoning        Acorn’s      property.          In   light    of     such

sophistry, it is clear that the Council has “dug in its heels”

and will not allow Acorn to receive necessary access to public

water/sewer       systems       to     residentially       develop     its     property.

Murphy, 402 F.3d at 349.                Thus, under these circumstances, we

conclude that it would be both futile and unfair to require

                                              14
Acorn to jump through any additional administrative hoops to

obtain     a    “final      decision.”        Palazzolo,     533     U.S.    at     621

(“Government authorities, of course, may not burden property by

imposition of repetitive or unfair land-use procedures in order

to avoid a final decision.”).

     For       the   foregoing     reasons,    we   are     satisfied       that    the

“permissible         uses    of    [Acorn’s]    property     are     known     to    a

reasonable degree of certainty,” and Williamson’s first prong is

satisfied.       Id. at 620.



                                         B.

     Acorn’s complaint also asserts that the Council’s zoning

decisions were arbitrary and capricious and therefore violated

Acorn’s    substantive       due    process    rights. 10     This    claim,       like

Acorn’s regulatory takings claim, is not ripe until the claimant

has obtained a final decision from the government entity charged




     10
       The defendants argue that Acorn’s complaint does not
sufficiently allege a federal substantive due process claim
because Acorn does not cite the Fourteenth Amendment. Like the
district court, however, we assume that Acorn relied on both the
Due Process Clause of the Fourteenth Amendment to the United
States    Constitution  and   Maryland’s  state   constitutional
equivalent. See Acorn Land, 648 F. Supp. 2d at 747 n.6. After
all, Maryland “precedent states clearly that the Maryland and
Federal due process provisions have been read ‘in pari
materia.’”    Koshko v. Haining, 921 A.2d 171, 194 n.22 (Md.
2007).



                                         15
with implementing the regulations in question. 11                    See Southview

Assocs., Ltd. v. Bongartz, 980 F.2d 84, 96-97 (2d Cir. 1992).

Given that Acorn has obtained a final decision from the Council,

its substantive due process claim, like its takings claim, is

ripe for review.



                                        III.

     On the merits of Acorn’s claims, the defendants argue that

Acorn’s     complaint        does     not        state   plausible    takings   or

substantive due process claims.                   Under Federal Rule of Civil

Procedure 8(a)(2), a pleading must contain a “short and plain

statement of the claim showing that the pleader is entitled to

relief.”     “To survive a motion to dismiss, a complaint must

contain sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face.”                       Ashcroft v.

Iqbal,     129    S.   Ct.    1937,     1949       (2009)   (internal    quotation

omitted).        This “plausibility” standard is satisfied “when the

plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the


     11
      We   note,   however,   that  arbitrary   and  capricious
substantive due process claims are not subject to Williamson’s
second, “just compensation” prong. Front Royal & Warren County
Indus. Park Corp. v. Town of Front Royal, 135 F.3d 275, 283 n.3
(4th Cir. 1998); Southview Assocs., Ltd. v. Bongartz, 980 F.2d
84, 96-97 (2d Cir. 1992).



                                            16
misconduct     alleged.”           Id.      We     consider     the    sufficiency        of

Acorn’s claims in turn, beginning with its as-applied takings

claim.



                                            A.

       “[T]o    make        out    a     takings     claim,      a    plaintiff         must

demonstrate     that        the    government      took    property        without      just

compensation.”         Presley v. City of Charlottesville, 464 F.3d

480,     485   (4th    Cir.        2006)    (alteration         omitted).          In   the

regulatory takings context, a property regulation that goes "too

far" will be recognized as a taking.                       Palazzolo, 533 U.S. at

617.     Notably, even if a regulation falls short of denying all

economically beneficial use of a landowner’s property, “a taking

nonetheless may have occurred, depending on a complex of factors

including the regulation's economic effect on the landowner, the

extent    to   which        the    regulation       interferes        with    reasonable

investment-backed           expectations,        and      the    character         of   the

government action."               Id. (citing Penn Central Transp. Co. v.

New York City, 438 U.S. 104, 124 (1978)).                       This ad hoc, multi-

factor    inquiry      is    “informed      by     the    purpose     of     the   Takings

Clause, which is to prevent the government from forcing some

people alone to bear public burdens which, in all fairness and

justice, should be borne by the public as a whole.”                          Id. at 617-

18 (internal quotation omitted).

                                            17
       We find that Acorn has pled facts that plausibly state a

regulatory takings claim under the ad hoc, multi-factor test

articulated above.         First, Acorn’s complaint plausibly pleads

that the Council’s decision to rezone Acorn’s property had an

adverse    economic      effect   on   Acorn.          Specifically,         Acorn’s

complaint asserts that the decision, which effectively denied

public water/sewer access, prohibited Acorn from residentially

developing     its    property.   Acorn      also   pled      that,    due   to   its

property’s location and size, Acorn’s property is not suited for

non-development       and/or   agricultural      uses.         Finally,      Acorn’s

complaint states that the Council’s decision caused $25 million

in damages.

       Next, Acorn has plausibly pled that the Council’s actions

interfered       with       Acorn’s         reasonable         investment-backed

expectations.        Indeed, the circuit court’s decision, which has

not been overturned and is incorporated into Acorn’s complaint,

holds that Acorn met the objective criteria for amending its

water/sewer classification and that the Council arbitrarily and

capriciously blocked Acorn’s petition.                 Based on the circuit

court’s order, we find that Acorn has plausibly pled that it had

a   reasonable       investment-backed      expectation       to      residentially

develop its property with public water/sewer access.                     Moreover,

we find that Acorn plausibly pled that the Council interfered

with    this   reasonable      expectation      when     it    rezoned       Acorn’s

                                       18
property    and    denied        Acorn’s    property    the     public      water/sewer

access necessary for such development.

     Moreover, we find that Acorn has plausibly pled that the

character     of     the      Council’s       actions     was       inequitable      and

illegitimate.        Indeed,       as    discussed     above,    Acorn’s      complaint

notes that the circuit court decided the Council arbitrarily and

capriciously blocked Acorn’s efforts to amend its water/sewer

petition.      This fact casts a shadow over the Council’s later

decision     to      rezone       Acorn’s        property,      which       effectively

sidestepped the circuit court’s order.                  Thus, Acorn’s complaint

plausibly    pleads       that     the     Council’s    actions      constituted      an

illegitimate       and    inequitable       attempt     to    prevent       Acorn   from

developing its property.                 Cf. Laurel Sand & Gravel, Inc. v.

Wilson, 519 F.3d 156, 165 (4th Cir. 2008) (finding no taking, in

part, because the “character of the government action here is

both legitimate and equitable”).

     Finally, Acorn pled that the County has not paid Acorn just

compensation for the regulatory taking.                      Accordingly, we hold

that Acorn has sufficiently pled a regulatory takings claim that

is plausible on its face.



                                            B.

     To make out an arbitrary and capricious substantive due

process     claim,       Acorn    must     demonstrate       “(1)    that    [it]   had

                                            19
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 process could cure the

deficiency.”      Sylvia Dev. Corp. v. Calvert County, 48 F.3d 810,

827   (4th    Cir.     1995)     (emphasis      in   original).      Although,   as

discussed above, we found that Acorn’s substantive due process

claim is ripe because Acorn obtained a “final decision,” we hold

that Acorn’s complaint does not plead a plausible arbitrary and

capricious substantive due process claim.

      Assuming        arguendo     that      Acorn’s     complaint     sufficiently

pleads the first two prongs of an arbitrary and capricious due

process claim, Acorn’s complaint fails under the third prong

because it did not plausibly plead that no state-court process

could cure Acorn’s injury.             Indeed, the “[Due Process] Clause is

violated only where the state courts can do nothing to rectify

the injury that the state has already arbitrarily inflicted.”

Love v. Pepersack, 47 F.3d 120, 123 (4th Cir. 1995).                      Notably,

under Maryland law, the state courts possess the authority to

strike down zoning decisions that are “arbitrary, capricious,

discriminatory or illegal.”               Trustees of McDonogh Educ. Fund &

Institute v. Baltimore County, 158 A.2d 637, 645 (Md. 1960).

Acorn’s complaint does not assert that seeking such relief in

state court would not rectify its injury.                   Thus, as to Acorn’s

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substantive due process claim, Acorn has failed to state a claim

that is plausible on its face.       See Sylvia, 48 F.3d at 829

(“[T]he fact that established state procedures were available to

address and correct illegal actions by the [Zoning] Board belies

the   existence   of   a   substantive     due   process   claim.”).

Accordingly, we affirm the district court’s decision to dismiss

this claim, albeit on different grounds.



                               IV.

      For the foregoing reasons, we affirm in part and reverse in

part, and remand for proceedings consistent with this opinion.



                                                  AFFIRMED IN PART,
                                              REVERSED IN PART, AND
                                         REMANDED WITH INSTRUCTIONS




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