UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WARREN AMOS; FRANCIS AMOS;
CLYDE M. BERRY; PATRICIA CADLE;
HARLESS CADLE; CONNIE DEBAUGH;
MARYANN DEVITA; GARY ELLIS;
HERBERT GOODMAN, JR.; MARLENE
HARRIS; STEPHEN JONES; MARTHA JONES;
MARIE KETCHUM; DONALD MEINCKE;
BONNIE MEINCKE; WENDY PARENT; LENN
PANICAUEETIL; SY LONDON; JOYCE
LONDON; STEVE SELDON; GEORGE
THACKER; ELMER TOLER; JERRY
WARSING; JED THOMAS; JANICE THOMAS;
                                                     No. 96-2216
DEBORAH SELDON; MICHAEL MURPHY;
LARRY NEWCOMB; SUZIE NEWCOMB;
JERRY NGHIEM; MARY NGHIEM; JAMES
ROSE; THOMAS D. SCHETTINO, SR.,
Plaintiffs-Appellants,

v.

J. L. MCHALE, Chairperson; ARTHUR S.
WARREN, Vice Chairperson; HARRY G.
DANIEL; FREDDIE W. NICHOLAS, SR.;
EDWARD B. BARBER; LANE B. RAMSEY;
WILLIAM DUPLER; ROBERT S. HODDER,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert R. Merhige, Jr., Senior District Judge.
(CA-95-887-3)

Submitted: March 17, 1998

Decided: April 3, 1998
Before NIEMEYER and HAMILTON, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Beverly D. Crawford, Sa'ad El-Amin, EL-AMIN & CRAWFORD,
Richmond, Virginia, for Appellants. Steven L. Micas, County Attor-
ney, Jeffrey L. Mincks, Deputy County Attorney, Lisa C. Dewey,
Assistant County Attorney, COUNTY ATTORNEY'S OFFICE,
Chesterfield, Virginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Appellants brought suit against Appellees for allegedly improperly
allowing the Appellants' homes to be built on shrink-swell soil. On
appeal, Appellants assert error in the district court's dismissal of the
following claims: (1) Appellees' policy of approving zoning and
building permits and Appellees' building inspections of Appellants'
homes in violation of applicable building codes constituted a "taking"
of Appellants' property without just compensation["Count One"]; (2)
Appellees' failure to enforce building codes violated Appellants' sub-
stantive due process rights ["Count Two"]; and (3) Appellees' abuse
of power by approving the zoning applications and by failing to
enforce building codes violated Appellants' substantive due process
rights ["Count Three"]. The district court determined that Count One

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was not ripe and Counts Two and Three failed to state a claim. Find-
ing no error, we affirm.

First, Appellants assert that the district court erred in finding that
their inverse condemnation claim was not ripe for judicial review. A
plaintiff may not bring a federal constitutional taking action "if a State
provides an adequate procedure for seeking just compensation . . .
until [he has] used the procedure and been denied just compensation."
Williamson Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 195
(1985). Virginia law sets forth an adequate procedure for seeking just
compensation. See Va. Code Ann. § 8.01-187 (Michie 1992). Appel-
lants do not challenge the finding that they have not filed a state
declaratory judgment action to determine if they are entitled to just
compensation. Thus, despite Appellants' contention that a county pro-
gram establishes that the county does not intend to compensate them,
we conclude that the district court properly determined that Appel-
lants' inverse condemnation claim was not ripe for decision. See
Williamson, 473 U.S. at 195.

Next, Appellants allege that Appellees' failure to enforce building
codes violated their substantive due process rights. Specifically,
Appellants claim that Appellees' failure to enforce building codes is
evidenced by Appellees' granting of zoning applications and approv-
ing building plans in violation of building codes. In order to establish
that a defendant violated a plaintiff's substantive due process rights,
a plaintiff must show the following: (1) Plaintiff has property or a
cognizable property interest; (2) defendants deprived him of his prop-
erty or property interest; and (3) defendants' actions fall so far outside
the limits of legitimate governmental action that no process could
cure the deficiency. See Sylvia Dev. Corp. v. Calvert County,
Maryland, 48 F.3d 810, 827 (4th Cir. 1995). The property interest
must rise to the level of a "legitimate claim of entitlement." Biser v.
Town of Bel Air, 991 F.2d 100, 104 (4th Cir. 1993) (quoting Board
of Regents v. Roth, 408 U.S. 564, 577 (1972)). To establish a legiti-
mate claim of entitlement, the property owner must aver that the
deciding authority did not have discretion in the decision. See Sylvia,
48 F.3d at 826; Biser, 991 F.2d at 104.

We find that the district court did not err in dismissing Counts Two
and Three for failure to state a claim. In these counts, Appellants fail

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to allege that the Appellees had no discretion to grant the zoning
applications and approve the building plans. Because Appellants did
not aver a property interest rising to a legitimate claim of entitlement,
we find that the district court did not err in dismissing Counts Two
and Three for failure to state a claim.

Accordingly, we affirm the district court's order. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.

AFFIRMED

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