                   United States Court of Appeals,

                           Eleventh Circuit.

                             No. 95-9578.

  DeKALB STONE, INC., d.b.a. Houseworth Rock Quarry, Plaintiff-
Appellant,

                                   v.

 COUNTY OF DeKALB, GEORGIA, a political subdivision of the State
of Georgia;    Liane Levetan;    Elaine Boyer;   Gale Walldorff;
Jackqueline B. Scott, et al., Defendants-Appellees.

                            Feb. 27, 1997.

Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:95-CV-2077-FMH), Frank M. Hull, Jr.,
District Judge.

Before BIRCH, BLACK and CARNES, Circuit Judges.

     PER CURIAM:

     Appellant DeKalb Stone, Inc. (DeKalb Stone) seeks to enjoin

DeKalb   County    from   enforcing     zoning    laws,     asserting   that

enforcement constitutes an arbitrary and capricious violation of

its substantive due process rights.         The district court denied

Appellant's motion for preliminary injunction, finding that a

county   executive's   arbitrary   and   capricious       deprivation   of    a

state-created property right does not violate substantive due

process under the Fourteenth Amendment.          We affirm.

                             I. BACKGROUND

     Appellant and its predecessors have operated some type of rock

quarry on their property since the turn of this century.           In 1956,

the County zoned the property agricultural-residential.            In 1963,

the property was rezoned for single family residential use.                  No

further official action was taken regarding this property until

1989, when Appellant sought a business license to operate the
quarry.     The County denied the license because of a lack of

evidence that the quarry was a legal nonconforming use of the

property. Appellant appealed to the Board of Zoning Appeals (BOA),

which    found   sufficient   evidence    that   the   quarry   was   a   legal

nonconforming use.     In a one-sentence opinion, the BOA held:

     This is to advise that the Board of Appeals, at its meeting of
     11/08/89, reached the following decision on the above
     application:    Approved appeal;    overturned administrative
     decision that quarry operated at 7262 South Goddard Road is
     not a legal non-conforming use (183 acre quarry approved as a
     legal non-conforming use).

Upon receiving this determination, Appellant invested in equipment

and construction, preparing to blast and crush rock as part of a

modernized quarrying operation.          Notably, neither party appealed

the BOA's finding of a legal nonconforming use.1

     In 1990, after residents complained about the blasting, the

County warned Appellant to stop blasting until it obtained a

development permit.      The County explained that the blasting and

crushing exceeded the scope of the nonconforming use approved in

the BOA decision.      In its negotiations with the County over the

development permit, Appellant agreed to purchase a buffer zone of

70 acres around the quarry.      In an apparent change of course, the

County then served Appellant with three summonses to Recorders


     1
      It is only speculation and has no bearing on the issues in
this appeal, but we note that the parties may have lacked
incentive to appeal because each party perceived that it had
prevailed. The County might have believed the quarry would be
limited to the hand picking of dimensional stone while DeKalb
Stone might have believed that it had approval to conduct general
quarrying operations, including unrestricted blasting and
crushing. A factual dispute remains in this case as to whether
Appellant was engaging in blasting and crushing prior to the BOA
decision so that such activities would have comprised part of the
legal nonconforming use sanctioned by the BOA.
Court for violations of zoning regulations.                      One summons charged

that       Appellant     illegally    expanded       the    nonconforming       use   by

purchasing the 70-acre buffer zone.              The County ultimately ordered

Appellant to stop work in the quarry.

       Despite the fact that Appellant never intended to quarry the

70-acre buffer zone, the Recorders Court found that the purchase

constituted an illegal expansion of the nonconforming use and fined

Appellant $1000.           Shortly after the Recorders Court decision was

issued, the County denied Appellant's application for a development

permit.       Appellant did not appeal the denial of the development

permit to the BOA, but it did petition the Georgia Superior Court

for    a    writ   of    certiorari    from    the    Recorders     Court   decision.

Although the Georgia Superior Court granted the writ, Appellant

voluntarily dismissed the state case and filed this federal action.

       Appellant now seeks a declaratory judgment that it has the

right to continue its blasting and crushing as part of the quarry's

legal nonconforming use.              In addition, it seeks a preliminary

injunction         barring    the     County     from      enforcing      the   zoning

regulations.2           The district court denied Appellant's motion for

preliminary injunction on the ground that Appellant did not show a

substantial        likelihood    of    success       on    the   merits   because     no

substantive due process claim is cognizable when an executive

official arbitrarily and capriciously deprives a plaintiff of a




       2
      At oral argument, the parties indicated that discovery
continued in anticipation of a hearing regarding a permanent
injunction.
state-created property right.3

                         II. STANDARD OF REVIEW

         This Court has recently summarized the mixed standard to be

applied    when   reviewing   the    grant    or   denial   of   a   preliminary

injunction:

     We review the factfindings of the district court, to the
     extent they are properly presented on appeal, under the
     clearly erroneous standard. The district court's application
     of the law is subject to de novo review.      We review the
     district court's grant of injunctive relief for abuse of
     discretion, meaning we must affirm unless we at least
     determine that the district court has made a "clear error of
     judgment," or has applied an incorrect legal standard.

SunAmerica Corp. v. Sun Life Assurance Co. of Can., 77 F.3d 1325,

1333 (11th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 79, 136

L.Ed.2d 37 (1996) (citations omitted).

                              III. DISCUSSION

          Appellant   asserts       that     the   County   arbitrarily      and

capriciously denied its substantive due process right by enforcing

zoning regulations against it, thereby depriving it of the legal

nonconforming use of its property.4            The arbitrary and capricious

     3
      The district court also found that Appellant had abandoned
any procedural due process argument for the purpose of the motion
for preliminary injunction. While the district court addressed
the procedural due process argument, Appellant does not raise
that issue on appeal.
     4
      Appellant makes three other arguments which require only
minimal discussion. First, Appellant argues that its "vested
property interests are protected against confiscation by DeKalb
County under the Fifth Amendment." This is not a takings case,
however, because Appellant never argued that it was deprived of
all economic use of its property interest.

          Second, Appellant argues that the County is barred from
     relitigating the question of whether it has the right to
     blast and crush under the BOA decision. Appellees correctly
     note that whereas the issue before the BOA was the existence
     of a legal nonconforming use, this case is about the scope
cause of action stems from the Fourteenth Amendment which commands:

"No state shall ... deprive any person of life, liberty, or

property, without due process of law...."       U.S. Const. amend. XIV,

§ 1.       The Supreme Court has interpreted this clause to provide two

distinct guarantees:       substantive due process and procedural due

process. Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 983,

108 L.Ed.2d 100 (1990).      Substantive due process includes both the

protections of most of the Bill of Rights, as incorporated through

the Fourteenth Amendment, and also the more general protection

against "certain arbitrary, wrongful government actions regardless

of the fairness of the procedures used to implement them."         Id.

(quoting Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662,

665, 88 L.Ed.2d 662 (1986)) (internal quotation marks omitted);

see also Collins v. City of Harker Heights, 503 U.S. 115, 125, 112

S.Ct. 1061, 1068, 117 L.Ed.2d 261 (1992).

           In analyzing Appellant's claim that the County's arbitrary

and capricious actions are barred by substantive due process, we

begin by considering the nature of the right of which Appellant has

allegedly been deprived.5         Appellant states that it has been

       of that use. As a result, a factual dispute remains as to
       the meaning of the word "quarry" as intended by the BOA.
       Res judicata does not apply here.

            Finally, Appellant argues that the district court
       misconstrued the zoning ordinance with respect to provisions
       barring expansion of a nonconforming use. Consideration of
       this issue, like all state law issues raised in this case,
       becomes unnecessary in light of our holding that Appellant
       has presented no federal cause of action.
       5
      As the district court noted, the exact nature of
Appellant's claimed property interest is not clear. For purposes
of this appeal, we assume without deciding that Appellant
possessed some type of protected property interest. As a result,
deprived of the right to use its land as a nonconforming use under

existing zoning laws. It is well established that land use rights,

as property rights generally, are state-created rights.         Board of

Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct.

2701, 2709, 33 L.Ed.2d 548 (1972);     Spence v. Zimmerman, 873 F.2d

256, 258 (11th Cir.1989).     The district court properly held that

any property right possessed by Appellant was a state-created land

use right.6

      Also fundamental to an understanding of this issue is the fact

that enforcement of existing zoning regulations is an executive,

not legislative, act.    We have previously held that a "legislative

act   involves    policy-making   rather    than   mere   administrative

application of existing policies.          Acts of zoning enforcement

rather than rulemaking are not legislative."          Crymes v. DeKalb

County, 923 F.2d 1482, 1485 (11th Cir.1991) (citations omitted).

          The question therefore becomes whether a substantive due

process cause of action exists where an executive actor deprived

Appellant of a state-created property right.        Appellant cites no



we do not reach Appellant's vested rights argument, nor any other
argument regarding the existence of a property right.
      6
      Appellant also argues that "the right to freely use one's
property is fundamental and implicit in the concept of ordered
liberty." It is true that property rights have been important
common law rights throughout history and that they are protected
in many situations by procedural due process. Nevertheless,
common law rights are not equivalent to fundamental rights, which
are created only by the Constitution itself. See, e.g., Regents
of Univ. of Mich. v. Ewing, 474 U.S. 214, 229, 106 S.Ct. 507,
515, 88 L.Ed.2d 523 (1985) (Powell, J., concurring); McKinney v.
Pate, 20 F.3d 1550, 1556 (11th Cir.1994) (en banc), cert. denied,
--- U.S. ----, 115 S.Ct. 898, 130 L.Ed.2d 783 (1995). Any right
in the nonconforming use is a state-created right. As a result,
Appellant's fundamental rights argument fails.
authority to support the existence of such a claim, and we find

considerable authority to the contrary.            This Court held en banc

that a plaintiff did not present a substantive due process claim

when he alleged an executive deprivation of a state-created right.

McKinney v. Pate, 20 F.3d 1550 (11th Cir.1994) (en banc), cert.

denied, --- U.S. ----, 115 S.Ct. 898, 130 L.Ed.2d 783 (1995).               In

McKinney, an employee alleged that the county arbitrarily and

capriciously deprived him of his substantive due process right to

employment when it fired him.          Id. at 1554-55.      McKinney admitted

that   he   was    provided   a    procedurally   adequate   pre-termination

hearing, but charged that the hearing was fundamentally biased

because of conflicts with other city officials.              Id. at 1555.    In

analyzing McKinney's claim, the Court first noted that any property

interest in employment was a state-created right.                 Id. at 1556.

The Court held that rights created by state law (e.g., tort and

employment law) are protected by procedural, not substantive, due

process     because   substantive      due   process   protects   only   rights

created by the Constitution. Id. Consequently, McKinney presented

no substantive due process claim.            See also Collins, 503 U.S. at

128, 112 S.Ct. at 1070;           Regents of the Univ. of Mich. v. Ewing,

474 U.S. 214, 226, 106 S.Ct. 507, 514, 88 L.Ed.2d 523 (1985);

Bishop v. Wood, 426 U.S. 341, 349-50, 96 S.Ct. 2074, 2079-80, 48

L.Ed.2d 684 (1976).

       We recently reiterated this logic in the context of state

education rights.       C.B. ex rel. Breeding v. Driscoll, 82 F.3d 383

(11th Cir.1996).        In accordance with school board policy and

procedures,       several   students    were    suspended    after   telephone
conferences with parents.           Id. at 385-87.           The Court held that

because the decision to suspend a student is an executive act, any

deprivation      of    the   state-created    right      to    attend   school   is

protected only by the guarantee of procedural due process.                   Id.

         Moreover, we have briefly addressed the unavailability of this

cause of action in the context of state-created property rights.

Where a property owner alleged that town executives arbitrarily and

capriciously refused to issue a certificate of occupancy—another

variety of state-created land use right—we held that no substantive

due process claim had been stated.           Boatman v. Town of Oakland, 76

F.3d 341, 346 (11th Cir.1996);           see also Kauth v. Hartford Ins. Co.

of Ill., 852 F.2d 951, 956-58 (7th Cir.1988).                  As in     McKinney,

Breeding, and Boatman, Appellant has alleged an executive violation

of   a    state-created      property    right,   not    a    deprivation   of   any

constitutional right.

                                 IV. CONCLUSION

         Federal courts must not usurp the roles of agencies, review

boards, and state courts in reviewing the wisdom of executive

actions.      We conclude that the district court did not abuse its

discretion in denying the preliminary injunction and discern no

legal or factual error.          Precedent and logic demonstrate that the

cause of action pled by Appellant does not exist;                       therefore,

Appellant cannot show a substantial likelihood of success on the

merits.       The     district   court    properly      denied   the    motion   for

preliminary injunction.

         AFFIRMED.
