                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 08-1483


LUCILE M. HORNE; OPHELIA M. HORNE,

                Plaintiffs – Appellants,

           v.

MAYOR & CITY COUNCIL OF BALTIMORE,

                Defendant – Appellee.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Richard D. Bennett, District Judge.
(1:07-cv-01110-RDB)


Argued:   September 22, 2009                 Decided:   October 28, 2009


Before MOTZ and KING, Circuit Judges, and Mark S. DAVIS, United
States District Judge for the Eastern District of Virginia,
sitting by designation.


Affirmed by unpublished per curiam opinion.


John Henry Morris, Jr., LAW OFFICE OF JOHN H. MORRIS, JR.,
Baltimore, Maryland, for Appellants. Matthew Wade Nayden, Chief
Solicitor,   BALTIMORE  CITY   SOLICITOR’S  OFFICE,  Baltimore,
Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      In April 2007, Lucile M. Horne and Ophelia M. Horne (the

“Hornes”)   filed    a    civil    action      in   the   District    of    Maryland

against the Mayor and City Council of Baltimore (the “City”),

contending that the City had contravened the Hornes’ Fifth and

Fourteenth Amendment rights by granting a zoning variance on

neighboring      property     without          adequate      notice        or   just

compensation.       By its Opinion and Order of February 27, 2008,

the   district    court     granted      the    City’s     motion     to    dismiss,

pursuant    to   Federal    Rule    of    Civil      Procedure      12(b)(6),    for

failure to state a claim upon which relief can be granted.                       See

Horne v. Mayor & City Council of Balt., No. 1:07-cv-01110 (D.

Md. Feb. 27, 2008) (the “Opinion”). 1                The Hornes have appealed

the dismissal and, as explained below, we affirm.



                                         I.

                                         A.

      For many years the Hornes have owned a townhouse located at

1223 North Eden Street in Baltimore, Maryland. 2                 As the end unit



      1
       The Opinion is found at J.A. 13-24. (Citations herein to
“J.A.__” refer to the contents of the Joint Appendix filed by
the parties in this appeal.)
      2
        The facts recounted herein are derived from the
allegations made in the Hornes’ complaint, found at J.A. 3-10.



                                         2
in a series of row houses on North Eden Street, their townhouse

is attached on its southern side to the townhouse at 1221 North

Eden Street.        On its northern side, the Hornes’ property abuts

the rear of the lot at 1401 East Preston Street (the “Preston

Street property”).         Prior to 2002, the Preston Street property

contained a townhouse and a small walkway on the rear portion

thereof (the “setback”), the consequence of a Baltimore zoning

stricture limiting construction to no closer than twenty-five

feet of the rear property line (the “setback requirement”).

     In    October      2002,    the    townhouse   at   the   Preston     Street

property     was    firebombed      because   its    residents,      the   Dawson

family, had opposed the neighborhood’s illegal drug trade.                     For

nearly three years, the Preston Street property was essentially

vacant, containing only the burned-out shell of the Dawsons’

townhouse.         In   June    2005,   developer   James   French    sought    to

transform the ruins of the Dawsons’ townhouse into a three-story

community center, to be named in honor of the Dawson family.

His initial building permit request was denied, however, as he

had not received approval to use the Preston Street property for

a community center or complied with the setback requirement.

Thus, to secure the necessary approvals, French filed an appeal

(“Appeal No. 497-05”) with Baltimore’s Board of Municipal and

Zoning Appeals (the “Board”).



                                          3
     The Board scheduled a public hearing to address the issues

in Appeal No. 497-05 for July 12, 2005.                      A notice listing the

time, date, and location of the public hearing was posted at the

Preston Street property.              Although not specifically mentioning

the setback requirement issue, the notice explained that the

public    hearing     would    address      “Appeal       497-05    for   a   permit    to

construct a new three-story community center on the[] premises.”

Opinion 3.        Prior to the hearing, the Hornes saw the notice

posted    at    the   Preston    Street     property.         The    Hornes    did     not

attend the hearing, however, as they then had no objection to

the construction of the community center.

     After the public hearing, the Board granted Appeal No. 497-

05, including the requested variance from the twenty-five-foot

setback    requirement        (the    “setback       variance”).          Because      the

Hornes did not reside in their townhouse at 1223 North Eden

Street, they were not aware that the setback variance had been

granted    until      nearly     a     year       later,     in     May   2006,      when

construction of the community center had progressed to the point

that it abutted the northern wall of their property.

                                            B.

     On    April      30,     2007,   the        Hornes    filed    their     two-count

complaint against the City under the provisions of 42 U.S.C.

§ 1983.        In the first count of their complaint, they alleged

that their property interest in the setback requirement had been

                                            4
abridged without due process, in contravention of the Fourteenth

Amendment, when the Board granted the setback variance for the

Preston      Street      property    without           sufficient        notice.        In   the

second count of their complaint, the Hornes asserted that, due

to the lack of such notice, the setback variance constituted an

unconstitutional           taking    under           the    Fifth       Amendment.           More

specifically,         they    alleged       in       the    second      count    that    “[b]y

denying     to    Plaintiffs       due    and        complete    notice     of    the   issues

affecting        their    property       . . .        and   to    the    extent     that     the

Plaintiffs have suffered economic loss relating [thereto] . . .,

the Defendants’ zoning decision constitutes a taking under the

Fifth Amendment . . . for which Plaintiffs have been denied just

compensation.”           J.A. 9.

       On    September       11,    2007,    the        City     moved    to     dismiss     the

entirety of the § 1983 complaint under Rule 12(b)(6), asserting

that   the     Hornes      lacked    a   constitutionally            protected       property

interest in the setback requirement and thus failed to state any

claim under the Fifth or Fourteenth Amendment upon which relief

could be granted.             By its Opinion of February 27, 2008, the

district court agreed and granted the City’s motion to dismiss.

In so ruling, the court recognized that “to state a claim under

both constitutional provisions, [the Hornes] must allege that

they    have      a   constitutionally               protected      property       interest.”

Opinion 7.         The court ruled that the Hornes’ putative property

                                                 5
interest was “not a legitimate property interest giving rise to

a   § 1983    claim       under       either     the     Fifth      or     Fourteenth

Amendment[].”      Id.     Specifically, the court concluded that the

Board’s retention of “unfettered discretion to grant or deny the

requested    variance”      precluded      the    Hornes’        assertion     of   any

“constitutionally        cognizable     property        right”    in     the   setback

requirement or any variances therefrom.                 Id. at 9. 3

     The Hornes have filed a timely notice of appeal, and we

possess jurisdiction pursuant to 28 U.S.C. § 1291.



                                         II.

     We   review    de     novo   a    district        court’s    dismissal     of    a

complaint under Rule 12(b)(6).                 See Duckworth v. State Admin.

Bd. of Election Laws, 332 F.3d 769, 772 (4th Cir. 2003).                             Our

focus in conducting such a review is on the legal sufficiency of

the complaint, Giarratano v. Johnson, 521 F.3d 298, 302 (4th

Cir. 2008), and, in making our review, we must accept as true


     3
       In the alternative, the Opinion observed that any property
interest in the setback variance would belong only to the owners
of the Preston Street property, in that a person cannot derive a
property interest solely from the effect that neighboring
property has on the value of one’s own property. See Opinion 9-
10.    As explained below, the Hornes’ Fifth and Fourteenth
Amendment claims are insufficient because the Board’s broad
discretionary authority undermines their asserted property
interest in the setback requirement. Thus, we need not further
address the district court’s alternate analysis.



                                          6
the complaint’s factual allegations and construe all facts and

reasonable      inferences       in        the       light    most        favorable      to    the

plaintiff,      see    Erickson       v.    Pardus,          551    U.S.    89,    94    (2007);

Venkatraman      v.    REI    Sys.,    Inc.,          417    F.3d    418,    420     (4th     Cir.

2005).       Nevertheless, to survive dismissal, the complaint must

contain      “enough    facts     to       state       a    claim    to     relief      that    is

plausible on its face.”                Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007).



                                             III.

       The     Fourteenth       Amendment            bars     the     States       and        their

instrumentalities from “depriv[ing] any person of life, liberty,

or property, without due process of law.”                             U.S. Const. amend.

XIV.      As    the    Supreme    Court          has   observed,          “[t]he   Fourteenth

Amendment’s procedural protection of property is a safeguard of

the security of interests that a person has already acquired in

specific benefits.           These interests — property interests — may

take many forms.”            Bd. of Regents of State Colls. v. Roth, 408

U.S. 564, 576 (1972).

       The     Fifth    Amendment,          pursuant         to     its     Takings      Clause,

forbids the taking of private property “for public use without

just compensation.”            U.S. Const. amend. V.                      By virtue of the

Fourteenth Amendment, the Takings Clause applies to state and

local governments, such as Baltimore City.                            Penn Cent. Transp.

                                                 7
Co. v. City of N.Y., 438 U.S. 104, 122 (1978); Ballard Fish &

Oyster Co. v. Glaser Constr. Co., 424 F.2d 473, 474 (4th Cir.

1970).        Under the Fifth Amendment, therefore, the City may not

take     an    individual’s       property,          either        through        governmental

regulation or physical invasion, without just compensation.

       Significantly, in order to state a claim under either the

Fifth    or    the     Fourteenth    Amendment,           the     Hornes     must    allege    a

cognizable property interest.                      “Property interests, of course,

are not created by the Constitution,” but stem instead “from an

independent source such as state law.”                          Roth, 408 U.S. at 577.

As such, we must assess whether, under either state or local

law, the Hornes can legitimately assert a property interest in

the    setback    requirement       on       the    Preston       Street     property.        In

conducting       this    analysis,      we     are       mindful     that,    to    possess    a

protected       property      interest,        one        “must      have    more    than     an

abstract       need     or   desire      for        it     . . .     [or]     a     unilateral

expectation of it,” and “must, instead, have a legitimate claim

of entitlement to it.”            Id.

       First,     we    assess    whether          the    Hornes’        asserted     property

right stems from any principle of Maryland law.                                   In its 1941

decision in Chayt v. Maryland Jockey Club of Baltimore City, the

Court of Appeals of Maryland concluded that property owners had

“no    vested     right      in   the    continuance            of      [a   restriction      on

neighboring       property].”           18    A.2d       856,     859    (1941).       “Since,

                                               8
therefore,        appellants       acquired         no    vested       right        under       the

original Zoning Ordinance,” Maryland’s highest court ruled that,

“it   follows          that     the     amending         ordinance          placing      nearby

properties in a lower classification . . . deprives appellants

of no legal rights inasmuch as it takes nothing from them that

they have a right to insist upon.”                          Id.      Predicated on this

precedent,        the     Maryland      courts       have    declined         to       forestall

changes on one piece of property simply because of its effects

on neighboring properties.                See, e.g., Hoffman v. Mayor & City

Council of Balt., 79 A.2d 367, 370 (1951) (explaining that “[i]f

a residential neighborhood desires protection by a border of

unused property, necessarily it must provide its own property,

not appropriate its neighbors’, for this purpose,” as zoning

restrictions        exist       “for     the        protection         of     the      property

restricted and not to give protection to surrounding property”)

(internal       quotation       marks     and       citations      omitted);           see    also

England    v.     Mayor    &    Council    of       Rockville,       185     A.2d      378,     380

(1962) (“Restrictions imposed under the police power must be

related to the general welfare and cannot be supported on the

basis of benefit to surrounding property.”).

      Second,      to     complete      our     analysis        we     must     also         assess

whether any provision of local law — here the Zoning Code of

Baltimore       City    (the    “Code”)    —        grants   the     Hornes        a   property

interest     in     the       setback    requirement.             In        conducting         this

                                                9
assessment,     we     must     adhere      to     the    “claim       of   entitlement”

standard      that     governs      challenges       to     zoning        and     municipal

decisions.      See, e.g., Biser v. Town of Bel Air, 991 F.2d 100,

104 (4th Cir. 1993); Gardner v. Balt. Mayor & City Council, 969

F.2d 63, 68-69 (4th Cir. 1992).                  Pursuant thereto, if the Board

possesses “‘[a]ny significant discretion’” in deciding whether

to grant the setback variance, the Hornes have “no legitimate

entitlement      and,     hence,      no     cognizable       property          interest.”

Biser,   991    F.2d     at   104    (quoting        Gardner,       969     F.2d    at    68)

(alteration in original).             This “standard focuses on the amount

of   discretion       accorded    the      issuing       agency   by      law,”    with    “a

cognizable      property         interest        exist[ing]         ‘only       when      the

discretion of the issuing agency is so narrowly circumscribed

that approval of a proper application is virtually assured.’”

Gardner, 969 F.2d at 68 (quoting RRI Realty Corp. v. Inc. Vill.

of Southampton, 870 F.2d 911, 918 (2d Cir. 1989)).                           Thus, it is

only when a zoning board is required by law to act in a specific

way with respect to a particular zoning variance that a person

can assert a cognizable property interest therein.                                 See id.;

accord Scott v. Greenville County, 716 F.2d 1409, 1418 (4th Cir.

1983).

      Under     the     Code,     the      Board     has     been      accorded        broad

discretion to “authorize a yard or setback that is less than

that otherwise required by the applicable regulation.”                                 § 15-

                                            10
203; see § 15-101.            As with the zoning provision in our Biser

decision,     the    Code     requires    the   Board,      in   making   a     variance

decision, to determine, inter alia, that the variance will not

“create hazardous traffic conditions,” “otherwise endanger the

public   safety,”       “be     detrimental      to    or   endanger      the       public

health, security, general welfare, or morals,” or “in any way be

contrary to the public interest;” the Board must also determine

that “the variance is in harmony with the purpose and intent of

th[e] article.”        § 15-219; see Biser, 991 F.2d at 104 (observing

that “[i]t is difficult to imagine a more flexible standard”).

To be sure, one of the required determinations is that “the

variance will not[] . . . be injurious to the use and enjoyment

of    other    property        in   the    immediate        vicinity[]        or        . . .

substantially        diminish       and   impair       property     values         in     the

neighborhood.”         § 15-219.      The fact that specific factors guide

the Board’s disposition of a variance request, however, in no

way    nullifies       the     reality    that      the     Board    possesses           the

discretion to make such determinations, and to either grant or

deny a requested variance.                In other words, contrary to the

Hornes’ assertion, the Board’s discretion to grant a setback

variance      exists    independent       of    a     determination,      by       way    of

example, that a particular variance will not adversely affect

neighboring properties or will be in harmony with the purposes

of the Code.        See § 15-203.

                                          11
     Because     the   Code    grants         the     Board       broad   discretion   in

deciding   whether     to     grant       a        setback    variance,      the   Hornes

possessed only a unilateral expectation in that regard.                                See

Biser, 991 F.2d at 104.            Hence, the Hornes had “‘no protectable

property interest’” in the setback variance.                           Gardner, 969 F.2d

at 69 (quoting United Land Corp. v. Clarke, 613 F.2d 497, 501

(4th Cir. 1980)).      Since the Hornes had no property interest in

the setback variance, they also had no property interest in a

setback requirement from which a variance could, in the Board’s

discretion, be granted. 4          In short, the Board’s broad discretion

obviates   any    claim       by    the        Hornes        of    a    constitutionally

cognizable property interest arising under either the Fifth or

Fourteenth Amendment. 5            As such, the district court correctly



     4
       Because the Board had such discretion to act with respect
to the setback variance, it is immaterial whether the asserted
property interest is characterized as, inter alia, in the
setback requirement, the setback variance, or the Board’s
decision regarding the variance.
     5
       The Hornes also assert a property interest in the process
by which the Board makes its zoning decisions. But, “[p]rocess
is not an end in itself.      Its constitutional purpose is to
protect a substantive interest to which the individual has a
legitimate claim of entitlement.” Olim v. Wakinekona, 461 U.S.
238, 250 (1983). Thus, absent an underlying property interest,
the Hornes possess no procedural due process rights in the
zoning decision proceedings.    See Mallette v. Arlington County
Employees’ Supplemental Ret. Sys. II, 91 F.3d 630, 635 (4th Cir.
1996) (explaining that “the statute at issue must create an
entitlement to the benefit before procedural due process rights
are triggered”) (internal quotation marks omitted).



                                              12
dismissed the complaint in its entirety for failure to state a

claim upon which relief can be granted.



                               IV.

     Pursuant to the foregoing, we affirm the district court’s

dismissal of the complaint.

                                                      AFFIRMED




                               13
