UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

THOMAS WOLF; BARBARA WOLF,
Plaintiffs-Appellants,

v.
                                                                     No. 96-1017
FAUQUIER COUNTY WATER AND
SANITATION AUTHORITY,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, District Judge.
(CA-95-864)

Argued: July 17, 1996

Decided: August 20, 1996

Before MURNAGHAN, Circuit Judge, and BUTZNER and
PHILLIPS, Senior Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Daniel M. O'Connell, Jr., O'CONNELL & MAYHUGH,
P.C., Warrenton, Virginia, for Appellants. Stephen Michael Sayers,
HUNTON & WILLIAMS, McLean, Virginia, for Appellee. ON
BRIEF: Arthur E. Schmalz, Cassandra C. Collins, HUNTON &
WILLIAMS, McLean, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Appellee, the Fauquier County Water and Sanitation Authority of
Fauquier County, Virginia, sells water and sewer availabilities, or
taps, permitting hookup to its water supply and sewage disposal sys-
tems. In December 1991, Appellants, Thomas and Barbara Wolf, pur-
chased property in the County. Their predecessor in title had paid
$11,200 for eight pairs of water and sewer taps and connected through
them with the Authority's water and sewer systems.

After the Wolfs remodeled the property, rendering many of the
eight pairs of hookups unnecessary, they asked the Authority to repur-
chase most of the unneeded taps, for a per-tap price equal to the price
then charged by the Authority--$6,500 for each sewer tap and $5,000
for each water tap--less ten percent. After first indicating that it
would repurchase the taps for a price equal to ninety percent of the
price paid by the Wolfs' predecessor, the Authority took the position
that it would not repurchase the taps since they had already been
physically connected to the Authority's systems. It also announced
that Fauquier County's regulations forbad selling taps to a third party.

The Wolfs filed a complaint in the United States District Court for
the Eastern District of Virginia, claiming that the Authority had vio-
lated their substantive due process and equal protection rights and
seeking $62,400 in damages. On December 22, 1995, the District
Court granted the Authority's motion for summary judgment. Having
reviewed the matter de novo, see Pleasant Valley Hosp. v. Shalala, 32
F.3d 67, 69 (4th Cir. 1994), we affirm.

In order to show that their substantive due process rights have been
violated, the Wolfs are required to show (1) that, when they pur-
chased the property, they acquired a property interest arising from
their predecessor's purchase of the availabilities, (2) that the Author-

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ity has deprived them of that property interest, and (3) that the
Authority's actions have fallen "so far beyond the outer limits of
legitimate governmental action that no process could cure the defi-
ciency." See Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810,
827 (4th Cir. 1995). With respect to the first prong of that analysis,
the Wolfs must show "`a legitimate claim of entitlement'" grounded
in "`existing rules or understandings that stem from an independent
source such as state law.'" Gardner v. City of Baltimore Mayor and
City Council, 969 F.2d 63, 68 (4th Cir. 1992) (quoting Board of
Regents v. Roth, 408 U.S. 564, 577 (1972)). With respect to the third
prong, the Wolfs must show that the Authority's actions were "so
arbitrary and irrational, so unjustified by any circumstance or govern-
mental interest, as to be literally incapable of avoidance by any pre-
deprivation procedural protections or of adequate rectification by any
post-deprivation state remedies." Rucker v. Harford County, Md., 946
F.2d 278, 281 (4th Cir. 1991), cert. denied, 502 U.S. 1097 (1992).

We have concluded that the Wolfs' claim fails to meet those
requirements. With respect to the first element of their claim, the
Wolfs have no property right arising from their predecessor's pur-
chase of the availabilities. The County's regulations make clear that
the purchase of an availability only purchases the right to connect to
the County's water or sewer system; once that connection has been
made, the property right has been exercised and extinguished.* Pay-
ment of an availability fee "grants the applicant the right to access the
Authority's water or sewer system for up to three years after his pay-
ment date for the specific parcel(s) listed on the application." Rules
and Regulations and Construction Specifications and Standards of
Fauquier County, Virginia ("Rules and Regulations") § 2.8(B)(2). If
the applicant "fail[s] to connect to the Authority's water or sewer sys-
tem and to fully utilize the assigned availability within three years of
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*The Wolfs have argued that the existence of contrary testimony by
their expert witness rendered summary judgment inappropriate. We find
that, in light of the plain language of the County's regulations, no reason-
able trier of fact could have returned a verdict in favor of the Wolfs and
that summary judgment in the Authority's favor was therefore proper.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) ("[T]here
is no issue for trial unless there is sufficient evidence favoring the non-
moving party for a jury to return a verdict for that party.").

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the payment date," the Authority will revoke the applicant's right to
tap into the system unless it "determines that the applicant has been
proceeding diligently in good faith to complete the project and is
likely to complete the project within a reasonable time." Id.
§ 2.8(B)(3), (4). If an availability is "unused and unconnected," the
Authority will repurchase it for ninety percent of the availability fee
paid by the applicant. Id. § 2.8(B)(5). Those regulations indicate that
the difference between purchasing an availability and making use of
the County's sewer or water system is, in a sense, the difference
between opening a door and entering a room: the first is fully accom-
plished before the second begins.

We further find that the Authority's actions are not"so arbitrary
and irrational . . . as to be literally incapable of avoidance by any pre-
deprivation procedural protections or of adequate rectification by any
post-deprivation state remedies." Rucker, 946 F.2d at 281. The
Authority uses the funds it acquires by charging availability fees to
pay the costs of building, maintaining, and upgrading the County's
water and sewer systems. Rules and Regulations § 3.1(A). By repur-
chasing only "unused and unconnected" availabilities, the Authority
has struck a balance between helping to mitigate the losses suffered
by persons whose construction projects have been thwarted in one
manner or another and maintaining the Authority's fiscal health. The
Wolfs' substantive due process claim therefore fails.

The Wolfs also have contended that their equal protection rights
have been violated because the Authority has agreed to repurchase
availabilities from the Resolution Trust Corporation. Because the
Wolfs' claim does not concern a suspect or quasi-suspect class or a
fundamental right, it is governed by the "rational relation" standard of
review. See Smith Setzer & Sons v. South Carolina Procurement
Review Panel, 20 F.3d 1311, 1320 (4th Cir. 1994). Under that stan-
dard, any pertinent classification made by the Authority must be ratio-
nally related to a legitimate governmental interest. Id. If it is "`at least
debatable'" whether the Authority could rationally have decided that
the given classification would further a legitimate governmental pur-
pose, the Wolfs' equal protection challenge must be rejected. Id. at
1323 (quoting Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456,
464 (1981)).

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The same difference alluded to regarding due process applies to
equal protection: unlike the availabilities purchased by the Wolfs'
predecessor, the availabilities involved in the RTC case had not been
connected to the County's water and sewer systems and so continued
to exist. As we have indicated, we believe that the Authority could
reasonably have decided that distinguishing between connected and
unconnected taps was necessary in order to strike a balance between
fairness and fiscal wisdom.

The District Court's decision to grant the Authority's motion for
summary judgment is accordingly

AFFIRMED.

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