     Case: 15-30556      Document: 00513404005         Page: 1    Date Filed: 03/02/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 15-30556
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
G & H DEVELOPMENT, L.L.C.,                                                  March 2, 2016
                                                                           Lyle W. Cayce
              Plaintiff–Appellant,                                              Clerk

v.

BENTON-PARISH METROPOLITAN PLANNING COMMISSION;
BENTON-PARISH METROPOLITAN BOARD OF ADJUSTMENT; POLICE
JURY BOSSIER PARISH; PARISH OF BOSSIER,

              Defendants–Appellees.




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:13-CV-272


Before STEWART, Chief Judge, and OWEN and COSTA, Circuit Judges.
PER CURIAM:*
       The district court rejected G&H’s procedural and substantive due
process claims with respect to its application to develop a tract of land. We
affirm.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                       I
      G&H Development, L.L.C. (G&H) owns a 55-acre parcel of land in
Bossier Parish, Louisiana that it sought to develop into a subdivision of 154
lots containing single-family dwellings. G&H applied to the Benton Parish
Metropolitan Planning Commission (the MPC) to have the property rezoned
from Residence-Agriculture (R-A) zoning to One-Family Residence (R-1)
zoning; it also filed with the MPC a subdivision plat for approval. After a
hearing, the MPC voted to deny the rezoning application and declared the
subdivision application therefore to be moot. G&H appealed the denial to the
Bossier Parish Police Jury, which upheld the MPC’s denial and mootness
determination after a hearing. The mootness determination was premised on
the belief that the property’s existing zoning status was not compatible with
the proposed subdivision plat. G&H did not seek judicial review of the decision
in state court.
      G&H subsequently developed a new subdivision plat—which was similar
to the first but proposed eleven fewer lots—and submitted the new plat to the
MPC without an accompanying application for rezoning. Nancy Penwell, the
MPC’s Zoning Administrator, decided not to submit this application to the
MPC because it was not accompanied by an application for rezoning, which
would have been required according to her understanding of the Bossier Parish
Code of Ordinances (the Bossier Parish Code or the Code). Counsel for the
MPC accordingly returned the application to G&H with an explanation that
the application required an accompanying application for rezoning.        G&H
appealed this decision to the Benton-Parish Board of Adjustment. The Board
of Adjustment held a hearing at which it did not permit G&H to call Penwell
to testify under oath. The Board of Adjustment denied the appeal. G&H
subsequently appealed to the Police Jury, which refused to consider the merits


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of the appeal on the ground that it lacked jurisdiction to do so. The Police Jury
advised G&H that the proper place for its appeal was in state district court.
       G&H did not seek review in state court but instead filed a lawsuit in
federal court against various named defendants, including the Board of
Adjustment, the Police Jury, and Bossier Parish, seeking declaratory
judgments establishing that its rights to due process and equal protection
under the United States and Louisiana constitutions had been violated; that
any zoning regulations pertaining to the property at issue are null and void
because the MPC has never certified a general zoning plan; and that G&H is
entitled to a certificate of approval from the MPC for its second subdivision
application. It also sought an injunction requiring the MPC to issue such
certificate, and it sought damages for “its expenses for surveying, engineering,
platting, legal and other professional fees, etc. and other costs and expenses
paid and incurred in its efforts to develop the Property.”
       In multiple rulings, the district court rejected all of G&H’s procedural
due process, substantive due process, and equal protection claims. On appeal,
G&H only contests the dismissal of its procedural due process claim against
the Board of Adjustment and the grant of summary judgment with respect to
its substantive due process claim against the MPC and the Police Jury.
                                            II
       We review a district court’s dismissal under Rule 12(b)(6) de novo,
“accepting all well-pleaded facts as true and viewing those facts in the light
most favorable to the plaintiff[].” 1 We “review a grant of summary judgment
de novo, viewing all evidence in the light most favorable to the nonmoving




       1Morris v. Livingston, 739 F.3d 740, 745 (5th Cir. 2014) (quoting Randall D. Wolcott,
M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011)).
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party and drawing all reasonable inferences in that party’s favor.” 2 Summary
judgment is proper “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” 3
                                             III
       G&H argues that it was denied procedural due process at the hearing for
its second subdivision application because it was not afforded the opportunity
to be heard “in a meaningful manner.” 4 It states that the Board of Adjustment
did not allow G&H to submit testimony under oath or to cross-examine
Penwell, and that the Board of Adjustment was represented by the same
lawyer who was representing the MPC, which was a party to the hearing. The
Board responds that the hearing complied with the relevant provisions of the
Bossier Parish Code, which require “[p]ublic notice” of a hearing of appeal and
“due notice” to the appellant.          Those provisions further provide that the
chairman “may administer oaths and compel attendance of witnesses” and that
the Board “shall not be bound by legal rules of evidence.” The Board notes that
G&H has not alleged that it lacked notice of the hearing or that it was denied
the right to participate.
       “The fundamental requirement of due process is the opportunity to be
heard at a meaningful time and in a meaningful manner.” 5 The district court
concluded that it was enough that G&H received notice of the Board of
Adjustment and Police Jury hearings and was allowed to be heard at both.
Even assuming that the zoning decision made in this case was adjudicative,




       2 Kariuki v. Tarango, 709 F.3d 495, 501 (5th Cir. 2013) (quoting Pierce v. Dep’t of the
Air Force, 512 F.3d 184, 186 (5th Cir. 2007)).
       3 FED. R. CIV. P. 56(a).
       4 Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (citation and internal quotation marks

omitted).
       5 Id. (citation and internal quotation marks omitted).

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rather than legislative or quasi-legislative, 6 and that the rejection of G&H’s
application entailed the deprivation of a property interest, such that
procedural due process rights attached, 7 G&H was not denied those rights.
Mathews v. Eldridge requires “some form of hearing . . . before an individual is
finally deprived of a property interest,” but it does not require the particular
procedural protections that G&H demands. 8 “[T]he Mathews balancing test
‘permits varied types of hearings, from informal to more formal evidentiary
hearings,’” 9 depending on the application of the Mathews factors to a given
case. 10 As the Board points out, G&H’s amended complaint does not indicate
how its inability to cross-examine Penwell deprived it of a meaningful
opportunity to be heard or increased the risk of an erroneous deprivation.
G&H also misleadingly asserts that it was not permitted to present
“testimony.” What G&H apparently means by this is only that it was not
allowed to cross-examine Penwell or to compel unwilling witnesses to testify;
but representatives of G&H spoke at length, and there is no evidence that G&H



       6 Compare Jackson Court Condos., Inc. v. City of New Orleans, 874 F.2d 1070, 1074
(5th Cir. 1989) (“[W]here a zoning decision has been made by an elected body . . . we have
characterized the action as legislative or ‘quasi-legislative’ negating procedural due process
claims.”), with Cty. Line Joint Venture v. City of Grand Prairie, 839 F.2d 1142, 1144 (5th Cir.
1988) (“[A] municipal body’s action may be more likely termed adjudicative if an appointed
group, such as a zoning board, makes a specific decision regarding a specific piece of
property.”).
       7 Cf. Shelton v. City of College Station, 780 F.2d 475, 482 (5th Cir. 1986) (“[A] state’s

use of an adjudication-like mechanism for zoning decisions does not by itself trigger [a
procedural due process] inquiry or create [protected] property rights.”).
       8 Mathews, 424 U.S. at 333 (citing Wolff v. McDonnell, 418 U.S. 539, 557-558 (1974)).
       9 Bowlby v. City of Aberdeen, 681 F.3d 215, 221 (5th Cir. 2012) (quoting Ecee, Inc. v.

FERC, 645 F.2d 339, 352 (5th Cir. 1981)).
       10 See Mathews, 424 U.S. at 334-35 (“[I]dentification of the specific dictates of due

process generally requires consideration of three distinct factors: First, the private interest
that will be affected by the official action; second, the risk of an erroneous deprivation of such
interest through the procedures used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the Government’s interest, including the
function involved and the fiscal and administrative burdens that the additional or substitute
procedural requirement would entail.”).
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was prevented from including any information or testimony of willing
witnesses in its presentation. That G&H decided to forgo its right under
Louisiana state law to appeal the Board of Adjustment’s decision in state court
only strengthens our conclusion that any deprivation that occurred was not
erroneous. 11
                                            IV
       G&H also argues that it was deprived of substantive due process with
respect to its first subdivision application because the MPC acted in an
arbitrary and capricious manner in denying the application as moot. G&H
primarily argues that its proposed subdivision plat was consistent with R-A
zoning, and thus that the MPC was incorrect in assuming that the subdivision
plan would require rezoning.
       Section 126-716 of the Bossier Parish Code establishes “[d]welling, [o]ne-
family” as a use by right of property zoned R-A, provided that the minimum
building site area of a one-family dwelling within the R-A district is 6,000 feet.
The same section of the Code states that R-A districts are composed “mainly of
unsubdivided lands,” and that “[i]t is intended that land in R-A districts will
be    reclassified      to    its    appropriate       residential     or     commercial
category . . . whenever such land is subdivided into urban building sites.”
       In determining whether the MPC and the Police Jury violated G&H’s
right to substantive due process by assuming that the first subdivision
application was not consistent with R-A zoning, it is not our task to determine
whether their interpretation of the Code was correct. As the district court
pointed out, and as we have repeatedly noted, “the due process clause does not



       11 See LA. STAT. ANN. § 33:4780.88 (“Any person or persons jointly or severally
aggrieved by any decision by the board of adjustment relative to any officer, department,
board, or bureau of the parish may present a petition to the district court of the parish or
municipality in which the property affected is located.”).
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require a state to implement its own law correctly,” and accordingly “a violation
of state law is alone insufficient to state a constitutional claim under the
Fourteenth Amendment.” 12          A municipal zoning decision “comports with
substantive due process if the action is rationally related to a legitimate
government interest.” 13 Here, it was rational for the MPC to conclude that the
Code’s assertion of “intent” that land in R-A districts be rezoned “whenever
such land is subdivided into urban building sites” established a requirement of
such rezoning.      Moreover, the record does not indicate that the MPC’s
interpretation of Section 126-716 in this case was inconsistent with its
interpretation in other cases. G&H only contests the proper interpretation of
local law and relies on precedent that governs how state courts should review
municipal legal determinations; these are not the same standards that apply
to a federal court engaging in a substantive due process analysis. The district
court was correct to conclude that G&H’s substantive due process rights were
not violated.
                                        *       *     *
      For the foregoing reasons, the ruling of the district court is AFFIRMED.




      12   FM Properties Operating Co. v. City of Austin, 93 F.3d 167, 174 (5th Cir. 1996)
(citation and internal quotation marks omitted).
        13 Id.

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