                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-18-1994

Acierno v. Cloutier
Precedential or Non-Precedential:

Docket 93-7456




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Recommended Citation
"Acierno v. Cloutier" (1994). 1994 Decisions. Paper 160.
http://digitalcommons.law.villanova.edu/thirdcircuit_1994/160


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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT



                        Nos. 93-7456 & 93-7617



                          FRANK E. ACIERNO

                                  v.

         PHILIP CLOUTIER; RICHARD CECIL; ROBERT POWELL;
      ROBERT WOODS; CHRISTOPHER ROBERTS; PENROSE HOLLINS;
      KAREN VENEZKY; NEW CASTLE COUNTY; MICHAEL MITCHELL,

                                   Philip Cloutier, Richard Cecil,
                                   Robert Powell, Robert Woods,
                                   Christopher Roberts, Penrose
                                   Hollins and Karen Venezky,
                                   Appellants in No. 93-7456

                                   Michael T. Mitchell,
                                   Appellant in No. 93-7617



           Appeal from the United States District Court
                  for the District of Delaware
                     (D.C. Civ. No. 92-00385)


                        Argued March 25, 1994
              Before:    GREENBERG, COWEN and NYGAARD
                            Circuit Judges

                Submitted in banc August 30, 1994
       Before: SLOVITER, Chief Judge, BECKER, STAPLETON,
        MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN,
              NYGAARD, ALITO, ROTH, LEWIS and McKEE
                          Circuit Judges

               (Opinion Filed:     October 18, 1994)


Collins J. Seitz, Jr.
Connolly, Bove, Lodge & Hutz
1220 Market Building
P.O. Box 2207
Wilmington, DE   19899

          COUNSEL FOR APPELLANTS
          PHILIP CLOUTIER, RICHARD CECIL,
          ROBERT POWELL, ROBERT WOODS,
          CHRISTOPHER ROBERTS, PENROSE
          HOLLINS, KAREN VENEZKY AND
          NEW CASTLE COUNTY

Barry M. Willoughby
Young, Conaway, Stargatt & Taylor
P.O. Box 391
Rodney Square North, 11th Floor
Wilmington, DE 19899-0391

          COUNSEL FOR APPELLANT
          MICHAEL T. MITCHELL

Thomas S. Neuberger
Suite 702
200 West Ninth Street
Ninth Street Plaza
Wilmington, DE 19801-1646

John J. Yannacone
Yannacone, Fay, Baldo & Daly
200 East State Street, Suite 107
Media, PA 19063

          COUNSEL FOR APPELLEE
          FRANK E. ACIERNO



                         OPINION OF THE COURT



COWEN, Circuit Judge.



          In this action under 42 U.S.C. § 1983, the defendants

have appealed the denial of their motions to dismiss on absolute

and qualified immunity grounds.    These appeals were first heard

by a panel of this court, which was bound by Prisco v. United
States Dep't of Justice, 851 F.2d 93 (3d Cir. 1988), cert.
denied, 490 U.S. 1089 (1989).    In that case it was held that a

defendant may not appeal the denial of a claim of qualified

immunity under the collateral order doctrine if the defendant

would nevertheless be required to go to trial on a claim for

injunctive relief.   When the panel opinion was circulated to the

full court before publication, the court voted to grant rehearing

in banc for the purpose of reconsidering Prisco.   Having done so,

the full court has decided that Prisco should be overruled.      Part

IIB of this opinion, which represents the opinion of the court

sitting in banc, addresses that issue.    The issues addressed in

the remainder of this opinion have been considered by the panel

only.

          In still another chapter in the extensive volume of

litigation between Frank Acierno and the members of the New

Castle County Council ("County Council") in Delaware concerning

Acierno's various development projects, we are called upon to

decide whether the members of the County Council are entitled to

immunity from suit for their actions of enacting two ordinances

which down-zoned Acierno's commercial property.    We conclude that

both the present and former members of the County Council are

immune from suit because the actions they took with respect to

Acierno's commercial property were either substantively and

procedurally legislative in nature, or did not abrogate a clearly

established property interest.    Accordingly, we will reverse the

district court's denial of the motion for summary judgment made

by the present and former members of the County Council on

immunity grounds.    We will also reverse the district court's
order denying First Assistant County Attorney Mitchell's motion

to dismiss on immunity grounds.



                                  I.

                     A. Factual Background

          Plaintiff Frank E. Acierno, a real estate developer,

purchased a thirty-eight acre parcel of land located in New

Castle County, Delaware (the "property") on October 5, 1984 for

slightly more than $1,000,000.    As of April, 1971, the property

had a classification under New Castle County's zoning ordinance

as a "diversified planned unit development" ("DPUD").    A major

land development plan for the property was approved by the County

and recorded on April 11, 1974.    The approved record development

plan provided for the construction of a 322 unit apartment

complex (to be called "The Maples Apartments"), together with the

development of .87 acres of land for commercial use.

          It is undisputed that Acierno's interest in owning the

property was partly by reason of its DPUD zoning classification

and the fact that the property was the subject of an approved

record development plan.   Before closing on the property, Acierno

sought and received assurances from the New Castle County

Department of Planning ("Department of Planning") regarding the

current zoning and record plan status of the property.    In

response to Acierno's request, the Department of Planning issued

a letter opinion which stated the following: "The land is still

currently zoned Diversified Planned Unit Development (DPUD).    The

status of the record plan is that it is current and, therefore,
the uses permitted are noted on the plan subject to limitations

regarding the density, commercial area, etc."   Appendix ("App.")

(No. 93-7456) at 131.   In reliance on these factors, Acierno paid

a premium of approximately $900,000 for the property.     At the

time of purchase, the description of the property specifically

noted that the parcel had been approved by County officials for

the construction of 322 apartment units.

          In October, 1985, Acierno filed with the Department of

Planning a revised development plan for the property, which was

now to be known as the "Westhampton project."   Thereafter, in

December, 1985, the County Council issued a resolution pursuant

to section 23-81(21) of the County Code1 requesting that the

Department of Planning provide a recommendation as to whether the

existing record plan for the property should be voided.    The

County Council issued this resolution based on concerns that DPUD

rezonings were not being developed in a timely fashion, that the

density of housing might adversely impact on the general quality

of life in the County, that an updated review of traffic, water,

1
 . Then County Code § 23-81(21) provided in relevant part as
follows:

     If construction has not been completed within . . . five (5)
          years after the date of approval of the record
          development plan for the [planned unit development
          ("PUD")] or the date of approval of the record
          development plan of the last stage of PUD, if submitted
          in stages, whichever is longer, then the approval shall
          be voidable at the discretion of county council, upon
          recommendation of the department of planning.

New Castle County, Del., Code § 23-81(21) (repealed 1987); App.
(No. 93-7456) at 355.
and sewer facilities was necessary, and that the Subdivision

Advisory Committee should review the project in light of the

character of the existing neighborhood.    The record reflects that

the project was the only DPUD-zoned property with a record

development plan subject to review by the County.

            In response to the resolution, the Department of

Planning solicited comments from various municipal departments

and determined that the property had adequate traffic, water, and

sewer capacity.    Therefore, the Department of Planning did not

make a recommendation that the County Council void the record

development plan.    Two months later, the then Council Attorney

sent a memorandum to the County Council pertaining to the

resolution.    The memo stated that there was nothing more for the

County Council to consider since the voiding provision of the New

Castle County Code, § 23-81(21), "indicates that the [Department

of Planning] must affirmatively support the voiding of a record

plan before Council's discretion comes into being.    Without such

prerequisite support, Council has no discretion to act.     If this

were not the case, review by the [Department of Planning] would

be meaningless."    App. (No. 93-7456) at 140.

            On March 11, 1986, then County Council President Karen

Peterson informed Acierno that nothing remained for the County

Council to consider regarding the resolution and that no further

ordinances or resolutions had been proposed concerning the

property.    Acierno then undertook a revision of the subdivision
plan2 for the property to address concerns raised by the County

regarding the planned use for the site.    The Department of

Planning informed Acierno that his revised and updated

subdivision plan for the Westhampton project was approved and

recorded on April 18, 1986.    A subsequent revised subdivision

plan, superseding the April plan, was approved and recorded on

December 5, 1986.

            During 1987 the County Council revised, updated, and

amended the DPUD zoning classification.    At the time a workshop

concerning the zoning amendment effort was held in October, 1987,

the proposed amended DPUD ordinance contained a "savings clause"

which provided as follows:
          Section 4. This ordinance shall become effective
          immediately upon its adoption and approval except for
          rezoning applications currently pending DPUD approval
          which shall be exempt from the provisions of this
          ordinance, but subject to the provisions of the Code in
          effect at the time of rezoning to DPUD.


App. (No. 93-7456) at 92.     This proposed DPUD ordinance, known as

"Substitute Ordinance No. 1 to Ordinance 87-025," was not enacted

into law.   In response to suggestions made during the workshop,

the savings clause was revised to read as follows:
          Section 4. This ordinance shall become effective
          immediately upon its adoption and approval except for
          rezoning applications currently pending DPUD approval
          which shall be exempt from the provisions of this
          ordinance except Section 23-81(18), but subject to the
          provisions in the Code in effect at the time of
          rezoning to DPUD.


2
 . The County Code distinguishes between a "record plan" and
major and minor "subdivision plans." See New Castle County,
Del., Code § 20-3 (defining these terms).
App. (No. 93-7456) at 113 (emphasis added).3   This revised DPUD

ordinance, known as "Substitute Ordinance No. 2 to Ordinance 87-

025," was adopted into law by the County Council on October 13,

1987.   Id. at 93, 113.   The language of the savings clause is

relevant to this dispute because Acierno alleges that the County

Council, through an opinion issued by First Assistant County

Attorney Michael T. Mitchell, relied upon the unenacted version

to conclude that it had discretion to void Acierno's record

development plan.

           In 1988, Acierno further revised the Westhampton

project subdivision plan and submitted it for County review.      In

June, 1988, the Department of Planning informed Acierno that the

subdivision plan, superseding the December 5, 1986 subdivision

plan, was approved and recorded.    By December, 1988 when a

further revised subdivision plan was approved and recorded,

Acierno had spent in excess of $1,000,000 to further his

development plans for the property, including expenses for

mortgage interest, engineering fees, and real estate taxes.    It

is not disputed, however, that Acierno never obtained a building
3
 . Current County Code § 23-81(18) allows a landowner with DPUD-
zoned property 10 years from the date of the original rezoning
ordinance to develop the parcel as proposed. If the property has
not been fully developed at the end of the 10 year sunsetting
period, the landowner must submit current support facilities
information establishing the adequacy of these facilities in the
opinion of the Department of Planning in order to continue with
the development as approved. New Castle County, Del., Code § 23-
81(18). This provision replaced former County Code § 23-81(21),
which provided a five year window after the date of the approval
of the PUD record development plan before the County Council had
discretion to void the record plan. Id. § 23-81(21) (repealed
1987); see supra note 1.
permit from the County allowing him to start construction of the

Westhampton project.

          The County Council again introduced a resolution in

April, 1991 requesting the Department of Planning's

recommendation whether to void the existing record development

plan for the property.   The record reflects that the County

Council had concerns similar to those present when a voiding

resolution had been introduced in December, 1985.   Acting upon

this resolution and enclosing a copy of the December, 1988

subdivision plan, the then Director of the Department of Planning

contacted the Delaware Department of Transportation for comments

concerning road access and traffic impact.

          In a memorandum to the County Council dated May 22,

1991, the then Director advised the County Council that

Subdivision Advisory Committee members had been asked to comment

on the Westhampton project and to identify any issues that might

preclude development of the site as depicted by the record

development and subdivision plans.   The memo stated that various

government agencies had identified deficiencies in the

subdivision plan, but acknowledged that the situation could be

remedied by Acierno through voluntary revisions to the plan.     In

fact, Acierno responded to the Department of Planning by letter

dated May 29, 1991 that he intended to cooperate in order to

address and resolve any deficiencies.   By June, 1991, Acierno had

submitted a wetlands delineation report, thereby fulfilling one

of the cited deficiencies.
            Defendant-appellant Michael T. Mitchell, First

Assistant County Attorney, was also involved in reviewing the

voiding resolution proposed in April, 1991.    He provided a legal

memorandum to the County Council on July 2, 1991 which set forth

his opinion as to whether the Council had authority to void

Acierno's approved record development plan.    Mitchell's opinion

concluded that the County Council had discretion to void the

record development plan for the Westhampton project upon

recommendation by the Department of Planning because the old

five-year sunsetting provision of the County Code, repealed § 23-

81(21), applied rather than the newly enacted ten-year sunsetting

provision, § 23-81(18).   In coming to this conclusion, Mitchell

relied upon the unenacted savings clause contained in Substitute

Ordinance No. 1 to Ordinance 87-025, rather than the enacted

savings clause which was introduced as part of Substitute No. 2

to that ordinance.

            From May, 1991 through April, 1992 Acierno proceeded

with his development efforts by attempting to remedy the

purported deficiencies in the Westhampton plan.    Some changes in

the proposed development were incorporated into a revised plan

which was submitted to the Department of Planning for review and

approval.    The Department of Planning allegedly informed Acierno

in September, 1991 that he had complied with all material

deficiencies contained in the May 22, 1991 memorandum from the

Department of Planning to the County Council.    The County Council

tabled the resolution to void Acierno's record development plan

in September, 1991.
            The resolution was reexamined the next Spring.    In a

letter to the County Council dated April 2, 1992, the Department

of Planning indicated that Acierno had submitted a new

subdivision plan which resolved the wetlands, fire prevention,

and a majority of the public works concerns.    The traffic and

road access issues were the only remaining deficiencies that had

not been completely resolved.    The Department of Planning

concluded:
            In summary, it would appear that the only remaining
            issue with respect to our memorandum of May 22, 1991,
            is access through the Oakwood Hills subdivision. The
            Department has been given no indication that the
            applicant will voluntarily remove this access from the
            plan. Further, we see no evidence that any meaningful
            dialogue is ongoing between the applicant and community
            to find a compromise position. Should [the County]
            Council be of the opinion that this issue warrants
            voiding of the plan, the Department would recommend
            that it proceed with action on [the voiding resolution]
            as this appears to be the only method of bringing
            closure on this issue.


App. (No. 93-7456) at 39.

            After notice and a public hearing, on April 14, 1992

the County Council enacted Ordinance 91-190 voiding the approved

record development plan and related subdivision plans for the

property.    The next day, defendant-appellant Philip Cloutier,

then a member of the County Council, informed the Director of

Planning that he intended to introduce an ordinance to rezone the

property from DPUD back to R-2, its residential zoning

classification prior to its rezoning to DPUD in 1971.    As

required by statute, legal notice of the proposed zoning

ordinance was published on June 20, 1992; below the title of the
proposed ordinance contained in the notice was bracketed language

indicating that enactment would rezone the property from DPUD to

an R-2 zoning classification.

          A statutorily required public hearing was held before

the Department of Planning and Planning Board on July 7, 1992

concerning the proposed rezoning ordinance.    Two weeks later, the

Department of Planning recommended the adoption of a substitute

ordinance which would rezone the property from DPUD to an R-1-B

classification instead of an R-2 classification.    The R-1-B

zoning classification, which requires an average minimum lot size

of 15,000 square feet, is less restrictive than the R-2 zoning

classification, which requires an average minimum lot size of

21,780 square feet.    Compare New Castle County, Del., Code § 23-

39(3) (the R-1-B residence district requires a minimum lot area

of 15,000 square feet) with id. § 23-39(6) (the R-2 residence

district requires a one-half acre or 21,780 square feet minimum

lot area).

             On September 9, 1992 the County Council enacted

Substitute No. 1 to Ordinance No. 92-119 rezoning the property

from DPUD to an R-1-B zoning classification.     This action was

taken even though all public notices concerning the rezoning had

indicated that upon enactment the property would be rezoned from

DPUD to an R-2 classification.     The effect of the rezoning was

that Acierno had to suspend his plans to develop a large

apartment building on the property because the R-1-B zoning

classification permits only a variety of less intensive uses.
The district court made a finding of fact that Acierno had spent

more than $1,000,000 pursuing his plan to develop the property.4



                     B. Procedural Background

          Acierno filed a complaint on July 1, 1992 in the United

States District Court for the District of Delaware alleging that

the defendants, through the voiding of his approved record

development plan and the rezoning of his property, violated his

constitutional rights.   The original complaint named as

defendants the County and present and former members of the

County Council.5   The complaint was subsequently amended in

April, 1993 to include First Assistant County Attorney Michael T.

Mitchell as a party defendant.

          The amended complaint contains two counts.   In count

one, Acierno seeks compensatory damages and injunctive relief

against all defendants pursuant to 42 U.S.C. § 1983.

Specifically, Acierno alleges that the defendants violated his

equal protection and procedural and substantive due process

rights by down-zoning his property.   In count two, Acierno seeks
4
 . The district court did not clarify whether this figure of
$1,000,000 includes the premium of $900,000 that it found Acierno
paid for the property in reliance on the existing DPUD zoning
classification and approved record development plan when he
purchased the property in 1984. In light of our disposition of
these appeals, resolution of this factual ambiguity is not
necessary and in no way impacts on our decision in this case.
5
 . The defendants who are presently serving as members of the
County Council are Richard Cecil, Robert Woods, Christopher
Roberts, Penrose Hollins, and Karen Venezky. The defendants who
are former members of the County Council are Philip Cloutier and
Robert Powell.
injunctive relief against the County under an equitable estoppel

theory.

          The present and former County Council members had filed

an answer to the original complaint in which they allege defenses

of legislative and qualified immunity.    These defendants and the

County filed a motion for summary judgment on December 4, 1992.

After the filing of various motions and responses which are not

relevant to this appeal, the district court made a determination

to treat the motion by the defendants other than Mitchell as a

motion for partial summary judgment.    In a Memorandum Opinion and

Order dated June 9, 1993, the district court granted the motion

for summary judgment on Acierno's procedural due process claim,6

but denied the motion as to the substantive due process and equal

protection claims.   See Acierno v. Cloutier, No. 92-385, 1993 WL

215133, at *23-26 (D. Del. June 9, 1993), aff'd in part, rev'd in

part, __ F.3d __, 1994 WL 319783 (3d Cir., Jul 07, 1994) (No. 93-

7456, 93-7617), vacated and reh'g in banc granted, __ F.3d __,

1994 WL 401516 (3d Cir., Aug 04, 1994) (No. 93-7456, 93-7617).

The district court also concluded that the defendants were not

entitled to summary judgment with respect to their defenses of

legislative and qualified immunity.    Id. at *27-30.




6
 . Acierno has not cross-appealed the granting of the
defendants' motion for summary judgment with respect to the
procedural due process claim, and thus, we have no occasion to
address this theory of the complaint in this opinion or to
consider whether we would have had jurisdiction over a cross-
appeal.
          The district court separately addressed the defenses of

legislative and qualified immunity.   The district court

articulated a two-part test for entitlement to legislative

immunity which requires that the action taken be legislative in

nature rather than administrative, and that the action be taken

in accordance with statutory procedures.   Id. at *27.     The court

concluded that the enactment of the two ordinances which down-

zoned Acierno's property was administrative, rather than

legislative, because the two ordinances were directed at a single

property owner and not the community at large.     Id.   The court

further held that the members of the County Council were not

entitled to legislative immunity because they did not strictly

comply with Delaware law when rezoning the property from DPUD to

an R-1-B zoning classification.   Id. at *27-29.

          Turning to the defense of qualified immunity, the

district court concluded that because Acierno had a vested right

to develop his property pursuant to the DPUD zoning

classification and approved record plan, see id. at *9-19, which

was clearly established by Delaware state law at the time of the

rezoning decisions, no reasonable official would have believed

that the rezoning actions were lawful.   Id. at *29.     In rejecting

the qualified immunity defense, the district court also found

that a reasonable official would have known that the voiding of

the record plan was precluded by County law.   Id.     Thus, the

district court decided that the members of the County Council

were not entitled to immunity from suit.
            Defendant Mitchell filed a motion to dismiss the

amended complaint on the grounds that it fails to state

cognizable due process and equal protection claims against him

and that he is entitled to qualified immunity from suit.      The

district court rejected Mitchell's motion to dismiss in a

separate Memorandum Opinion and Order dated September 1, 1993.

Acierno v. Cloutier, No. 92-385, slip op. at 13-19 (D. Del. Sept.

1, 1993).    Addressing the defense of qualified immunity, the

district court denied Mitchell's motion because it found that

Mitchell had knowingly, or through his own incompetence, relied

on unadopted legislation when issuing his legal opinion as to

whether the County Council had authority to void the approved

record development plan.    Id., slip op. at 19-20.



                                 II.

                 A. Jurisdiction of the District Court

            Plaintiff Acierno filed this action pursuant to 42

U.S.C. § 1983 alleging that the defendants violated his

constitutional rights by down-zoning his property.       Thus, the

district court had subject matter jurisdiction over the federal

question claims by virtue of 28 U.S.C. §§ 1331 and 1343.       It had

supplemental jurisdiction over the state law claim under 28

U.S.C. § 1367.    In these appeals, the members of the County

Council and defendant Mitchell contend that the district court

improperly denied their motions to dismiss or for summary

judgment on the grounds of immunity from suit.
                    B. Appellate Jurisdiction

          Ordinarily we do not have appellate jurisdiction to

review district court orders denying motions to dismiss or for

summary judgment because there is no final order within the

meaning of 28 U.S.C. § 1291.   W.D.D., Inc. v. Thornbury Township,

850 F.2d 170, 171 (3d Cir.) (in banc) (per curiam), cert. denied,

488 U.S. 892, 109 S. Ct. 228 (1988).   The Supreme Court, however,

has held that courts of appeals have appellate jurisdiction under

the "collateral order" doctrine of Cohen v. Beneficial Industrial

Loan Corp., 337 U.S. 541, 69 S. Ct. 1221 (1949), to consider

whether a defendant is entitled to absolute immunity from suit.

Nixon v. Fitzgerald, 457 U.S. 731, 741-43, 102 S. Ct. 2690, 2697-

98 (1982); see also Schrob v. Catterson, 967 F.2d 929, 934 (3d

Cir. 1992) ("Schrob II"); Schrob v. Catterson, 948 F.2d 1402,

1406-07 (3d Cir. 1991) ("Schrob I").   This principle of appellate

jurisdiction has been extended to orders rejecting a defendant's

entitlement to qualified immunity from suit to the extent that

the decision turns on issues of law.   Mitchell v. Forsyth, 472

U.S. 511, 524-30, 105 S. Ct. 2806, 2814-17 (1985); see also

Kulwicki v. Dawson, 969 F.2d 1454, 1459-61 (3d Cir. 1992).
          In adhering to this theory of appellate jurisdiction,

we have recognized that an order denying a defense of immunity is

reviewable before trial because entitlement to "immunity from

federal claims encompasses not only immunity from liability, but

also immunity from suit."   Brown v. Grabowski, 922 F.2d 1097,

1105 (3d Cir. 1990), cert. denied, 501 U.S. 1218, 111 S. Ct. 2827
(1991).   See also Federal Ins. Co. v. Richard I. Rubin & Co., 12
F.3d 1270, 1281 (3d Cir. 1993) (sovereign immunity is an immunity

from trial), cert. denied, __ U.S. __, 114 S. Ct. 2101 (1994).

The Supreme Court has instructed that the first step in reviewing

a district court's qualified immunity decision is to determine

whether the plaintiff has "allege[d] the violation of a clearly

established constitutional right" at all.   Siegert v. Gilley, 500

U.S. 226, __, 111 S. Ct. 1789, 1793 (1991); see also D.R. by L.R.

v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364,

1368 (3d Cir. 1992) (in banc), cert. denied, __ U.S. __, 113 S.

Ct. 1045 (1993).   This threshold inquiry requires us to determine

whether the constitutional right asserted by Acierno was

"`clearly established' at the time the defendants acted," and

whether Acierno "has asserted a violation of a constitutional

right at all."   Siegert, 500 U.S. at 232, 111 S. Ct. at 1793.7

7
 . The Supreme Court's majority opinion in Siegert, when read as
a whole, seems to suggest that where practicable or expedient an
appellate court should first address whether the plaintiff has
alleged a cognizable constitutional claim at all, before turning
to the question of whether the constitutional right asserted was
"clearly established" at the time the defendant acted. 500 U.S.
at 232-33, 111 S. Ct. at 1793-94. In fact, we have emphasized
this aspect of the Siegert decision in a subsequent case where we
decided to address all plaintiffs' allegations of constitutional
error as a predicate question to whether the constitutional
rights were "clearly established" at the time the defendant
acted. See D.R. by L.R., 972 F.2d at 1368. Nevertheless,
concurring in the judgment in Siegert, Justice Kennedy recognized
that in certain cases, like the one before the Supreme Court in
that case, it is an "altogether normal procedure" for the court
of appeals to decide the case "on the ground that appear[s] to
offer the most direct and appropriate resolution," 500 U.S. at
235, 111 S. Ct. at 1795 (Kennedy, J, concurring in the judgment),
which in difficult constitutional cases will sometimes be whether
the constitutional right was "clearly established" at the time
the defendant acted. Furthermore, the majority opinion in
Siegert does not state that courts of appeals must always as an
initial inquiry address whether a constitutional violation has
          The present case involves two appeals: (1) the

defendants who are current and former members of the County

Council have appealed the district court's order denying their

motion for summary judgment insofar as the court rejected their

defenses of legislative and qualified immunity from suit; and (2)

defendant Mitchell has appealed the district court order denying

his motion to dismiss insofar as the court rejected his defense

of qualified immunity from suit.   Although all parties agree that

we have jurisdiction under the collateral order doctrine to

consider the issues of legislative and qualified immunity, they

disagree on the scope of our appellate jurisdiction.

          The Nixon case makes clear that we have appellate

jurisdiction to consider whether the former members of the County

Council are entitled to absolute legislative immunity.     457 U.S.

at 741-43, 102 S. Ct. at 2697-98; see also Schrob I, 948 F.2d at
(..continued)
been alleged by the plaintiff. In fact, in cases decided after
both Siegert and D.R. by L.R., we have opted to address whether
the constitutional right asserted was "clearly established" at
the time the defendant acted, without initially deciding whether
a constitutional violation was alleged at all. See Rappa v. New
Castle County, 18 F.3d 1043, 1077-79 (3d Cir. 1994); Abdul-Akbar
v. Watson, 4 F.3d 195, 201-05 (3d Cir. 1993).

     In cases such as the present one, where the court would be
required to undertake a detailed analysis of unreported and
undeveloped state and county law issues in order to determine
whether a cognizable constitutional claim was alleged at all, we
believe a more prudent course is to first address whether the
constitutional right asserted by the plaintiff was "clearly
established" at the time the defendant acted. We will follow
such a course in this case because, as will be explained infra,
the state and county law issues which we would need to decide in
order to determine whether Acierno possessed a vested right to
develop his commercial property before the rezoning ordinances
were passed are particularly difficult and undeveloped.
1406-07; Venen v. Sweet, 758 F.2d 117, 121-22 (3d Cir. 1985);

Forsyth v. Kleindienst, 599 F.2d 1203, 1207-09 (3d Cir. 1979),

cert. denied, 453 U.S. 913, 101 S. Ct. 3147 (1981).    The scope of

our jurisdiction to consider the issues of qualified immunity,

and legislative immunity as concerns the present members of the

County Council, is a more complex question, however, especially

in light of the fact that Acierno seeks prospective injunctive

relief against several of the defendants.   When deciding the

appealability of qualified immunity issues in Mitchell, a case in

which only monetary damages were sought, the Supreme Court

expressly left open the question whether a case involving claims

for injunctive relief would change the equation.   472 U.S. at 519

n.5, 105 S. Ct. at 2812 n.5.   We subsequently addressed that

question and held that the denial of a defendant's claim to

entitlement to qualified immunity is not immediately appealable

when the plaintiff has requested injunctive relief.    Prisco v.

United States Dep't of Justice, 851 F.2d 93, 95-96 (3d Cir.

1988), cert. denied, 490 U.S. 1089, 109 S. Ct. 2428 (1989).

          As a result, plaintiff Acierno submits that we must

dismiss these appeals insofar as they involve present County

Council members Cecil, Woods, Roberts, Hollins, and Venezky, and

First Assistant County Attorney Mitchell, because he seeks

prospective injunctive relief against these parties.    With

respect to former County Council members Cloutier and Powell,

against whom it is impossible to obtain prospective injunctive

relief, Acierno concedes that the order denying their motion for
summary judgment on legislative and qualified immunity grounds is

immediately appealable.

          The present members of the County Council argue that

Prisco was wrongly decided.   They bring to our attention the

prevailing rule among all of our sister courts of appeals that,

despite the existence of a request for injunctive relief, pre-

trial orders denying a defendant's entitlement to qualified

immunity are immediately appealable.   See Burns v. County of

Cambria, Pa., 971 F.2d 1015, 1019-20 (3d Cir. 1992)(canvassing

cases from the nine circuits which disagree with Prisco), cert.

denied, __ U.S. __, 113 S. Ct. 1049 (1993).    Defendants who are

present members of the County Council insist that Prisco should

be overruled because it undermines the policy rationale behind

appeals where immunity was pled and, additionally, because of the

ease with which the Prisco rule can be invoked to circumvent a

defendant's right to an immediate appeal.     On the other hand,

Acierno asserts that the long-standing policy of preventing

piece-meal appeals still warrants adherence to the Prisco rule

and that a careful review by the appellate courts of the request

for injunctive relief would prevent any abuse of the rule by

plaintiffs.

          Since a panel does not have the occasion to reconsider

a prior panel opinion and is bound to follow our precedent, it is

only now, sitting in banc, that we may reexamine the rationale of

Prisco.   See Internal Operating Procedures, United States Court

of Appeals for the Third Circuit, Rule 9.1 (prior reported

opinions can be overruled only by the court sitting in banc).       In
light of recent opinions which call into question the continued

vitality of Prisco, we now consider whether the Prisco rule

should meet its demise.    At stake in these proceedings is whether

we should now hear the appeals of the present County Council

members or, alternatively, dismiss their appeals for lack of an

appealable order as they involve issues of whether these members

(against whom injunctive relief is sought) are entitled to

absolute or qualified immunity.

             In Prisco, we recognized that a suit seeking both

prospective relief and money damages does not end for a party

successfully asserting a defense of either absolute or qualified

immunity.8    Prisco, 851 F.2d at 96.   We observed that the policy
8
 . Specifically, we held, "that in an action in which claims for
prospective relief remain pending, a party against whom they
remain pending may not appeal from the denial of a motion for
summary judgment on immunity grounds." Prisco, 851 F.2d at 96
(footnote omitted). Although the Prisco case did not explicitly
involve an issue of absolute immunity, its holding extends to
absolute as well as qualified immunity. Defendants argue that we
were incorrect in asserting such a broad proposition of law in
light of Supreme Court of Virginia v. Consumers Union of United
States, Inc., 446 U.S. 719, 731-34, 100 S. Ct. 1967, 1974-75
(1980). Defendants read Consumers Union as standing for the
proposition that legislative immunity confers an immunity from
suit for both injunctive relief as well as damages. See also
Spallone v. United States, 493 U.S. 265, 278, 110 S. Ct. 625, 633
(1990) (indicating that it had been previously decided in
Consumers Union that legislative immunity extends to actions for
both damages and injunctive relief). We note that the Supreme
Court has never held that legislative immunity applies to both
claims for damages and injunctive relief. A close reading of
Consumers Union indicates that the Supreme Court merely pointed
to an obvious circuit split which existed at the time and, we
believe, remains unresolved today.   There are at least two
courts of appeals that have suggested that the Supreme Court has
definitively spoken on this issue and has held that absolute
immunity is a bar to injunctive relief. See Risser v. Thompson,
930 F.2d 549, 551 (7th Cir.), cert. denied, 112 S. Ct. 180
(1991); Alia v. Michigan Supreme Court, 906 F.2d 1100, 1102 (6th
rationale for granting qualified immunity is that, "we do not

want officials to make discretionary decisions with one wary eye

on their pocketbook."     Prisco, 851 F.2d at 95.   We then concluded

that such a rationale does not apply to suits for injunctive

relief.   Id.   In our discussion, we balanced the marginal benefit

to a government official from an interlocutory appeal on the

issue of damages against the systemic harms of permitting piece-

meal interlocutory review of discrete issues in a case which will

be ongoing.     Prisco, 851 F.2d at 96.   We must now reassess our

prior analysis and determine whether the balance that existed at

the time of Prisco is still valid today.

          In Siegert v. Gilley, the Supreme Court reaffirmed the

principle that "[o]ne of the purposes of immunity, absolute or

qualified, is to spare a defendant not only unwarranted

liability, but unwarranted demands customarily imposed upon those

defending a long drawn out lawsuit."      Siegert, 500 U.S. 226, 232,

111 S. Ct. 1789, 1793 (1991).    We note that Prisco tends to

minimize this strong public policy reason which favors

jurisdiction over interlocutory immunity appeals.



(..continued)
Cir. 1990). However, a substantial number of courts of appeals,
including the Third Circuit, believe the issue is unresolved by
the Supreme Court, and have held that absolute immunity is a bar
to damages only, and not to prospective or injunctive relief.
See Schrob II, 967 F.2d at 939 (3d Cir. 1992); Fry v. Melaragno,
939 F.2d 832, 839 (9th Cir. 1991); Chrissy F. v. Mississippi
Dep't of Public Welfare, 925 F.2d 844, 849 (5th Cir. 1991), cert.
denied, 114 S. Ct. 1336 (1994); Executive 100, Inc. v. Martin
County, 922 F.2d 1536, 1539 (11th Cir.), cert. denied, 112 S. Ct.
55 (1991); Schloss v. Bouse, 876 F.2d 287, 292 (2nd Cir. 1989).
           In Schrob II, this Court reviewed authority from other

courts of appeals that struck the balance in favor of recognizing

appellate jurisdiction even where injunctive relief claims are

present.   The Schrob II panel noted that other courts of appeals

have "criticized Prisco for qualitatively equating the burdens

associated with defending against a suit for money damages with

the burdens associated with defending a suit for injunctive

relief."   Schrob II, 967 F.2d at 940.   See also Burns, 971 F.2d

at 1020 (expressing "dissatisfaction with the Prisco rule").      As

other courts have observed, even though injunctive relief claims

may continue after appeal, "considerable differences [exist] in

both time and expense in defending a case that involves both

damages and equitable relief as contrasted to a case that

involves equitable relief alone."   Young v. Lynch, 846 F.2d 960,

962 (4th Cir. 1988).   See also DiMartini v. Ferrin, 889 F.2d 922,

925 (9th Cir. 1989), amended, 906 F.2d 465 (9th Cir. 1990), cert.

denied, 501 U.S. 1204, 111 S. Ct. 2796 (1991).

           As the Court of Appeals for the Seventh Circuit

explained in Scott v. Lacy, 811 F.2d 1153, 1153-54 (7th Cir.

1987), "a public official who is a defendant in a suit [for

injunctive relief] is not `on trial' at all.     The suit seeks

relief against him in his official capacity; he need not attend

the trial, which will be conducted by attorneys representing the

governmental body."    Indeed, a suit against elected officials in

their official capacity is functionally a suit against the

government entity.
            The procedure dictated by Prisco undermines the reasons

for recognizing qualified immunity -- to permit a public servant

to concentrate on official duties without the distraction and

worries which are the inevitable consequence of disruptive

litigation.    While a defendant who loses a claim for injunctive

relief is simply ordered to refrain from taking certain action in

his or her official capacity, an official who is denied qualified

immunity must be concerned with personal liability without the

right of appeal, to which he or she would otherwise have been

entitled.   See Kennedy v. City of Cleveland, 797 F.2d 297, 306

(6th Cir. 1986)("The exposure to personal liability in damages

and the potential need for retention of private counsel to

protect against that risk is quite different from the problem

faced by an official who is charged only in an official

capacity.").

            The instant case highlights the inconsistency of the

Prisco decision with the public policy furthered by interlocutory

review of immunity determinations.    The former County Council

members, who no longer have official duties that would be subject

to disruption by the litigation, would be spared further

involvement, while the present Council members would be forced to

go forward with their official duties still burdened by the

distraction and worries of the litigation.    This is directly

contrary to the policy behind the immunity doctrine of protecting

the present elected officials from suit and possible personal

liability when making discretionary decisions.    Additionally, as

noted in Schrob II, a plaintiff "can easily circumvent a
defendant's right to immediate appeal simply by adding a claim

for equitable relief."     Schrob II, 967 F.2d at 940.

             We believe that a balancing approach similar to the one

we used to decide Prisco still has merit today.     However, after

carefully re-examining the policy and practical considerations of

such a rule, we conclude that Prisco failed to give adequate

weight to the benefits derived by public officials of being freed

from the unpleasantries and demands on their time due to

continued litigation.     Prisco also weighs too heavily the harms

associated with interlocutory appeals.     We therefore overrule

Prisco.

             In addition to arguing that Prisco was wrongly decided,

Mitchell also seeks to distinguish Prisco by arguing that Acierno

has made no viable claim for injunctive relief against him.

Assuming arguendo that a claim for injunctive relief was made

against Mitchell, we nonetheless have appellate jurisdiction to

consider whether Mitchell was entitled to dismissal on qualified

immunity grounds in light of the above discussion which overrules

Prisco.

             In sum, we have appellate jurisdiction to consider

whether the present and former members of the County Council are

entitled to absolute legislative and qualified immunity from

suit.     We also have appellate jurisdiction to consider whether

the district court erred in denying First Assistant County

Attorney Mitchell's motion to dismiss on qualified immunity
grounds.9   In our consideration of the qualified immunity issue

as it relates to the substantive due process claim, we will first

determine whether plaintiff Acierno has asserted a violation of a

clearly established constitutional right at all.



                                 III.

            In this case we must decide whether the district court

correctly denied the members of the County Council's motion for

summary judgment on legislative and qualified immunity grounds,

and First Assistant County Attorney Mitchell's motion to dismiss

on qualified immunity grounds.    Because "[t]his appeal presents a

purely legal question concerning the scope of the immunity

doctrine," we exercise plenary review over the district court's

denial of the summary judgment motion on legislative immunity

grounds.    Donivan v. Dallastown Borough, 835 F.2d 486, 487 (3d

Cir. 1987), cert. denied, 485 U.S. 1035, 108 S. Ct. 1596 (1988).



9
 . With these appeals, the defendants argue that the district
court erred as a matter of law in failing to grant their motion
for summary judgment as to Acierno's claim alleging a violation
of the Equal Protection Clause of the Fourteenth Amendment. It
is not clear from the district court's opinion that the
defendants argued that they are entitled to absolute legislative
immunity or qualified immunity with respect to this allegation.
Furthermore, in their brief submitted to this court the
defendants did not argue that their immunity defenses also
relieve them of liability on the equal protection claim.
Accordingly, because our jurisdiction is limited to addressing
the defenses of legislative and qualified immunity for the
members of the County Council and Mitchell, we do not express any
opinion concerning whether Acierno possesses a viable claim for a
violation of the Equal Protection Clause or whether there are
immunity defenses for any of the defendants to such a claim.
            We also exercise plenary review over the denial of the

summary judgment motion and motion to dismiss on qualified

immunity grounds because this issue presents a "purely legal"

question.   Burns, 971 F.2d at 1020; Lee v. Mihalich, 847 F.2d 66,

67 (3d Cir. 1988).    To the extent that the district court

interpreted state and county law in determining whether Acierno

had a vested right to develop the property, the district court is

not entitled to any deference.   Salve Regina College v. Russell,

499 U.S. 225, 231, 111 S. Ct. 1217, 1221 (1991); cf. Grimes v.

Vitalink Communications Corp., 17 F.3d 1553, 1557 (3d Cir. 1994).

Thus, the determinations regarding state and county law necessary

to decide whether the defendants are entitled to qualified

immunity will be reviewed de novo.     Salve Regina College, 499

U.S. at 231, 111 S. Ct. at 1221.



                                 IV.

                                 A.

            We first address the issue of whether the members of

the County Council are entitled to absolute legislative immunity

for their actions because in the event we agree with their

position, such a ruling would obviate the need for evaluating

their claim to entitlement to qualified immunity.     The Supreme

Court has held that individual members of state legislatures are

absolutely immune from suit for damages under 42 U.S.C. § 1983

when conducting legitimate legislative activity.     Tenney v.
Brandhove, 341 U.S. 367, 376-79, 71 S. Ct. 783, 788-89 (1951).

After the Supreme Court extended this protection of absolute
immunity to regional legislators functioning in a capacity

comparable to that of members of a state legislature, Lake

Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S.

391, 402-06, 99 S. Ct. 1171, 1178-79 (1979), we further extended

it to protect members of local legislative bodies for actions

taken in a purely legislative capacity.   Aitchison v. Raffiani,

708 F.2d 96, 98-99 (3d Cir. 1983); see also Ryan v. Burlington

County, N.J., 889 F.2d 1286, 1290 (3d Cir. 1989).10

          The County Council, whose members are elected, is a

local governmental body that has been given a combination of

legislative and administrative powers.    See Del. Code Ann. tit.

9, §§ 1146, 4901 (1989).   "It is only with respect to the

legislative powers delegated to them by the state legislatures

that the members of local governing boards are entitled to

absolute immunity."   Ryan, 889 F.2d at 1290.    Thus, our task in

making this immunity determination requires us to examine whether

the members of the County Council were acting in an

administrative or legislative capacity when they enacted the

ordinances down-zoning Acierno's property.      Abraham v. Pekarski,
10
 . In Bass v. Attardi, 868 F.2d 45, 49-50 (3d Cir. 1989), we
held that members of a municipal planning board, acting pursuant
to their governmental function as defined by state statute when
making land use decisions, were absolutely immune in their
individual capacities from a damage suit brought under 42 U.S.C.
§ 1983. Acierno does not allege that the members of the County
Council were acting in a non-governmental function, e.g., outside
of powers delegated to them by state law, when they enacted the
two ordinances which down-zoned his property. Therefore, for
purposes of deciding this case, we will assume without deciding
that the members of the County Council were acting within their
statutorily defined governmental function when the two ordinances
were enacted.
728 F.2d 167, 174 (3d Cir.), cert. denied, 467 U.S. 1242, 104 S.

Ct. 3513 (1984).

          We have established a two-part test to determine

whether actions are to be regarded as legislative for immunity

purposes: (1) the action must be "substantively" legislative,

which requires that it involve a policy-making or line-drawing

decision; and (2) the action must be "procedurally" legislative,

which requires that it be undertaken through established

legislative procedures.   Ryan, 889 F.2d at 1290-91.    In order to

provide a further inquiry to help define the first part of the

Ryan test, we stated that decisions affecting a single individual

or a small number of people do not implicate legislative power

and, thus, such actions are administrative in nature.    Id. at

1291.   Furthermore, in prior cases we have indicated that such an

inquiry is an appropriate factor to consider when determining

whether an action is legislative or administrative, see Donivan,

835 F.2d at 488; Rogin v. Bensalem Township, 616 F.2d 680, 693-94

(3d Cir. 1980), cert. denied, 450 U.S. 1029, 101 S. Ct. 1737

(1981), but we have not held this inquiry to be conclusive.

          When the district court conducted its analysis under

the first part of the Ryan test, it focused only on the factor of
whether the action was directed toward a single individual or the

community at large.   The district court stated, "legislative acts

are those which apply generally to the entire community, whereas

acts specifically directed at one or a few individuals are

executive or administrative acts."   Acierno v. Cloutier, No. 92-
385, 1993 WL 215133, at *27 (D. Del. June 9, 1993).11    Based on

the fact that passage of the two ordinances did not rezone any

other landowner's property, the district court held that the

County Council's actions with respect to Acierno's property were

administrative in nature.   Id.

          We believe the district court erred in its application

of the "substantive prong" of the Ryan test by placing too much

emphasis on the factor of whether the action was directed at a

single individual or the community at large.   It is difficult to

find fault with the district court, however, because we concede

that the prior decisions of this court are somewhat unclear as to

what are the relevant factors, and how much weight each should be

given, in deciding whether zoning and other land use actions are

substantively legislative or administrative in nature.

Furthermore, there is a consistent thread running through the

case law which indicates that courts often point to the narrow

target of an action as indicative of an administrative, rather

than legislative, act.   See, e.g., Cutting v. Muzzey, 724 F.2d

259, 261 (1st Cir. 1984)(planning board's decision "to insist on

completion of a particular road before granting approval of a

specific proposed subdivision" was an action based on specific


11
 . The district court cited the following cases for this
proposition: Donivan, 835 F.2d at 488; Rogin, 616 F.2d at 693;
Ryan v. Burlington County, N.J., 708 F. Supp. 623, 640 (D.N.J.),
aff'd, 889 F.2d 1286 (3d Cir. 1989); and de Botton v. Marple
Township, 689 F. Supp. 477, 482-83 (E.D. Pa. 1988). As we
already stated, in Donivan and Rogin we did rely in part on this
factor, but we did not hold that this inquiry is dispositive of
the administrative/legislative determination.
rather than legislative facts tending to single out specific

individuals and affect them differently than others; thus, the

action was administrative rather than legislative in nature);

Scott v. Greenville County, 716 F.2d 1409, 1422-23 (4th Cir.

1983)(county council members who reviewed a specific building

permit application assumed a non-legislative role); Jodeco, Inc.

v. Hann, 674 F. Supp. 488, 495 (D.N.J. 1987)("Official acts

affecting the community at-large might tip the balance in favor

of a finding of legislative conduct, while acts directed at one

or a few individuals might be dispositive of executive or

administrative conduct.").

          In Jodeco, the district court commented that there was

no definitive standard in this circuit for distinguishing between

legislative and non-legislative actions.   674 F. Supp. at 494-95.

Although in Ryan we clarified the test somewhat by indicating

that actions must be both substantively and procedurally

legislative in nature in order to be entitled to absolute

immunity, we believe that the "substantive prong" of the standard

requires further elaboration.   To fill the gap which has been

left open in our prior cases dealing with legislative immunity,

we repeat the standard employed by the district court in Jodeco:
          [In order to distinguish] legislative from non-
          legislative functions, . . . the appropriate inquiry
          [is] whether the conduct of the defendant zoning
          officials involved either the enactment or amendment of
          zoning legislation or simply the enforcement of already
          existing zoning laws. Acts performed pursuant to the
          former are legislative in character and the officials
          performing them are entitled to absolute immunity,
          while acts performed pursuant to the latter are
          administrative, executive, or ministerial and the
          officials performing them may only receive the
          protection of qualified immunity. Factored into this
          equation should be the impact that such official
          conduct has on the citizens of the municipality.
          Official acts affecting the community at-large might
          tip the balance in favor of a finding of legislative
          conduct, while acts directed at one or a few
          individuals might be dispositive of executive or
          administrative conduct.


674 F. Supp. at 494-95.     We have previously cited with approval

the court's analysis in Jodeco concluding that members of
planning boards in New Jersey are entitled to absolute immunity

because their responsibilities "are so integrally related to the

judicial process . . . ." Id. at 496.     See Bass v. Attardi, 868

F.2d 45, 50 (3d Cir. 1989).    Likewise, we now adopt the court's

analysis of the legislative/administrative determination as our

own.

          In the present case, the members of the County Council

acted to down-zone Acierno's property through two separate,

albeit related, actions.    The first action was the enactment of

an ordinance on April 14, 1992 voiding the approved record

development plan and related subdivision plans for the property.

The second action was the enactment of an ordinance on September

9, 1992 rezoning the property from DPUD to an R-1-B zoning

classification.    Accordingly, we must consider each of these

actions under the standard articulated above.

                  The enactment of the ordinance voiding the

approved record development plan was undertaken by the County

Council pursuant to the authority of the sunsetting provision of

the County Code, § 23-81(18), which allows the Council to revoke

development rights after the passage of ten years to ensure that
facilities and infrastructure are sufficient.     This ordinance was

passed in an effort to facilitate enforcement of existing zoning

laws, not to facilitate enactment or amendment of new zoning laws

involving broad-based policy or line-drawing determinations.

Furthermore, the ordinance affected only one piece of property,

and thus was aimed at only one landowner, Frank Acierno.     We thus

conclude that the County Council's enactment of Ordinance 91-190

on April 14, 1992, which voided the approved record development

plan and related subdivision plans for the property, was an

administrative, not legislative, action.    The members of the

County Council are not entitled to legislative immunity with

respect to this action.12

             We now turn to the County Council's second action, the

enactment of Substitute 1 to Ordinance 92-119 which rezoned the

property from DPUD to an R-1-B zoning classification.     This

action of rezoning the property was undertaken pursuant to the

legislative powers delegated to the County Council under Delaware

state law.    See Del. Code Ann. tit. 9, §§ 2601-2614 (1989 & Supp.

1992).   Furthermore, the rezoning of the property was

accomplished through the ordinance procedure, which we have found

necessary in order for the action to be substantively legislative

in character.    Donivan, 835 F.2d at 488-89.   If not for the fact

12
 . The parties disagree as to whether the entire rezoning
process, which involved the enactment of the two ordinances, was
accomplished consistently with all the procedures required by
state law. In light of our conclusion that the enactment of
Ordinance 91-190 was not substantively legislative in character,
we need not address whether this action also violated the
"procedural prong" of the Ryan test.
that the ordinance was aimed at one parcel of property and one

landowner, the action would appear to be substantively

legislative, not administrative, in nature.

          Nevertheless, this case requires us to address the

difficult question of whether a rezoning action that is otherwise

substantively legislative in character is removed from the scope

of actions protected by the absolute immunity doctrine merely

because it was directed at one parcel of property.    In Ryan, we

did state that "[w]here the decision affects a small number or a

single individual, the legislative power is not implicated, and

the act takes on the nature of administration."    889 F.2d at

1291.   However, we did not intend this consideration as a bright-

line rule which automatically overrides other important

indications that an action is substantively legislative in

character.   Rather, we intended this consideration as a factor

that is usually important but may not be dispositive of the

administrative/legislative outcome.    This reading of Ryan is

confirmed by the manner in which the Ryan court applied its test.

While noting that the decision at issue "did not affect the

community as a whole," the court went on to state that "[t]his is

a strong indication that legislative line-drawing was not

implicated."   Id.   Therefore, the Ryan court itself did not apply

the factor that the decision was directed at a single individual

or a small group as a dispositive consideration which trumps

other relevant factors.

          Although we have indicated that the factor of an action

being directed at one property or one landowner is an important
consideration, other courts have concluded that the rezoning of a

single parcel of land to a less intensive use through the

enactment of an ordinance is legislative activity.   See Fralin &

Waldron, Inc. v. County of Henrico, Va., 474 F. Supp. 1315, 1320-

21 (E.D. Va. 1979)(members of planning board were engaged in

legislation when acting to rezone a single parcel of property);

Shellburne, Inc. v. New Castle County, 293 F. Supp. 237, 244 (D.

Del. 1968)("the members of the County Council were acting within

the scope of legitimate legislative activity when they voted to

rezone plaintiff's property").    Delaware state law is to the same

effect.    See Shellburne, Inc. v. Buck, 240 A.2d 757, 758 (Del.

1968).    Furthermore, the cases in which the factor of the zoning

ordinance being directed at only a single or few property owners

has been dispositive of the administrative/legislative

determination generally have been variance or special exception

decisions, not rezoning decisions.   See, e.g., Rogin, 616 F.2d at

693 n.60 (denial of use variance); Cutting, 724 F.2d at 261

(subdivision approval); Scott, 716 F.2d at 1422-23 (denial of

building permit); Jodeco, 674 F. Supp. at 496 (denial of variance

applications).

           Finally, we also believe that the members of a county

legislature who enact a rezoning ordinance affecting only one

property or landowner may still be acting in a policy-making or

line-drawing manner.    In the present case, the subject property

consisted of thirty-eight acres of unimproved land with an

approved development plan calling for 322 apartment units and

some commercial use.   Through the normal review process, specific
concerns arose such as whether the development plan complied with

wetlands regulations, the fire prevention code, and public works

regulations, and that the project as planned may pose serious

traffic and road access problems.     In response to these concerns

and, ultimately, Acierno's failure to address all of them

adequately in a timely fashion, the County Council acted to

regulate the intensity of development on this fairly large parcel

of land by passing the rezoning ordinance.

          Under these circumstances, a blind adherence to the

principle that legislation affecting a single property or owner

is administrative rather than legislative would eviscerate the

overarching aim of protecting local legislators from suit under

the absolute immunity doctrine when they make broad policy

decisions to further the communities in which they serve.

Therefore, we hold that the members of the County Council in

enacting Substitute 1 to Ordinance 92-119, which rezoned the

property from DPUD to an R-1-B zoning classification, were acting

in a substantively legislative manner.     Nevertheless, as we made

clear in Ryan, the members of the County Council are not entitled

to absolute legislative immunity for this action unless it was

also procedurally legislative.     889 F.2d at 1290-91.

          The enactment of Substitute 1 to Ordinance 92-119 was

procedurally legislative if it was undertaken through established

legislative procedures.     Id.   That is, the members of the County

Council are entitled to absolute immunity for this action if they

followed "the statutory procedures specified for such action."

Abraham, 728 F.2d at 174.    Addressing the "procedural prong" of
the Ryan test, the district court held that the members of the

County Council failed to comply with specified statutory

procedures in rezoning the property from DPUD to an R-1-B zoning

classification.   Acierno v. Cloutier, No. 92-385, 1993 WL 215133,

at *27 (D. Del. June 9, 1993).   Specifically, the district court

found that the County Council violated title 9, section 1152(b)

of the Delaware Code by enacting an ordinance which had been

"amended as to [a] matter of substance which [was] not embraced

within the title of the ordinance" without subjecting the

ordinance "to all of the procedures . . . required in the case of

a newly introduced ordinance."   Id. at *28 (quoting Del. Code

Ann. tit. 9, § 1152(b)).

          Acierno took issue with the procedure employed to

rezone his property because the County Council ultimately adopted

an ordinance rezoning the property to an R-1-B classification,

while bracketed language below the title of the originally

proposed ordinance, for which the County Council had complied

with all requisite procedures, stated that the ordinance would

rezone the property to an R-2 classification.   In the district

court, the members of the County Council argued that this change

did not affect the title of the ordinance and, in any event, was

not a material amendment because the R-1-B zoning classification

is less restrictive than the R-2 zoning classification.    The

district court rejected these arguments because the very purpose

of the ordinance was to change the zoning classification, and

because the actual language which was changed was part of the
title of the ordinance and was not for informational purposes

only.

             On appeal, the members of the County Council argue that

the district court's "technical objection" to the allegedly

deficient notice does not prevent members of municipal

legislative bodies from establishing legislative immunity.       We

reject the notion that our decision in Abraham stands for the

broad proposition that a mere technical violation of the

statutory procedures specified for legislative action, by itself,

converts an otherwise legislative action into an administrative

action.     Rather, in Abraham, we looked to the failure to follow

procedures established by state law, which were required to be

followed in order to legislate, as indicative that a township

board had invoked its managerial powers in dismissing an

employee.     728 F.2d at 174-75.   Thus, we viewed the compliance

with statutory procedures as a prerequisite for finding an action

legislative in character, but we did not hold that a mere

technical violation of a statutory procedure would have the

effect of converting an otherwise legislative action into an

administrative action to which absolute immunity does not apply.

             Addressing the "procedural prong" of the immunity

determination, in Ryan we stated that "[t]his principle requires
that constitutionally accepted procedures of enacting the

legislation must be followed in order to assure that the act is a

legitimate, reasoned decision representing the will of the people

which the governing body has been chosen to serve."      889 F.2d at

1291.   In the present case, it is undisputed that the members of
the County Council followed all the statutory procedures required

in order to enact an ordinance: (1) a legal notice of the

proposed zoning ordinance was published; (2) a public hearing was

held before the Department of Planning and Planning Board; and

(3) the adopted ordinance, though amended during the Planning

Board hearing, was enacted by vote at a public meeting of the

County Council.   Even though the version of the ordinance

ultimately enacted, Substitute 1 to Ordinance 92-119, was not

formally put through all the statutory procedures after the

amendment was agreed upon at the public hearing held before the

Department of Planning and Planning Board, we believe that the

members of the County Council engaged in legislative activity and

took the steps necessary to rezone the property in compliance

with Delaware law.

          We also believe there to be an important distinction

between general adherence to legislative procedure for the

purposes of taking legislative action as a matter of federal law,

as opposed to full compliance with all technical requirements for

such legislative action to be valid under state or county law.

It may well be that if in fact state law required the substitute

to the originally proposed ordinance to also go through all the

statutorily required notice procedures and hearings, then Acierno

would be able to successfully attack the validity of Substitute 1

to Ordinance 92-119 in an administrative or state court

proceeding.   But the fact that Acierno may have an alternative

remedy based on an alleged failure of the legislative body to

follow state-mandated procedures does not mean that, as a matter
of federal law, the resulting action is transformed from one that

is procedurally legislative into one that is not.

          Therefore, we hold that in making the determination of

whether a particular action was procedurally legislative or not,

the court need only be satisfied that the municipal body is

acting pursuant to the basic legislative procedure.   In the

present case, we find no indication in the record that the

members of the County Council bypassed state-mandated procedures

in bad faith when enacting Substitute 1 to Ordinance 92-119.

Rather, the record reflects that the County Council followed the

ordinance procedure, published notice of its intended action, and

held the appropriate public hearings before enacting the rezoning

ordinance.   Consequently, we hold that the district court erred

in holding that a possible violation of the publication notice

requirement destroyed the legislative character of the County

Council's act of enacting Substitute 1 to Ordinance 92-119.13


13
 . The members of the County Council also argue that their
action of rezoning the property did not violate the "procedural
prong" of the Ryan test (1) because that portion of the ordinance
which indicated the precise zone the property would be changed to
was not part of the title of the ordinance, and thus was not a
material alteration; (2) because Acierno does not have standing
to complain since he attended and participated in the public
hearings; (3) because he was not prejudiced since the R-1-B
zoning classification allows for more intensive development than
the R-2 zoning classification; and (4) because the remedy that
the district court's ruling would require -- a return to the
Planning Board for review and subsequent republication -- would
be unnecessarily duplicative since it made the recommendation
that the proposed ordinance be amended in the first place. In
light of our conclusion that the enactment of Substitute 1 to
Ordinance 92-119 was procedurally legislative, we need not
address these contentions.
          In sum, we conclude that the members of the County

Council are entitled to absolute legislative immunity for

rezoning Acierno's property through the enactment of Substitute 1

to Ordinance 92-119 because that action was substantively and

procedurally legislative in character.   Nevertheless, the members

of the County Council are not entitled to legislative immunity

for the enactment of Ordinance 91-190, which voided the approved

record development plan and related subdivision plans for the

property, because that action was administrative in nature, not

legislative.   We will reverse in part, and affirm in part, that

part of the district court's order denying the defendants' motion

for summary judgment on legislative immunity grounds.   Therefore,

we must address whether the members of the County Council are

entitled to protection under the more limited doctrine of

qualified immunity for their action voiding the approved record

development plan for the property.



                                B.

          Addressing the defendants' claim of entitlement to

qualified immunity from suit requires us to determine whether

Acierno possessed a "clearly established" constitutional right to

develop his property which was abrogated by the County Council

through the action of voiding his record development plan and

subdivision plan.   Harlow v. Fitzgerald, 457 U.S. 800, 818, 102

S. Ct. 2727, 2738 (1982).   In his amended complaint, Acierno

alleges that he had a vested right to develop the property

pursuant to the DPUD zoning classification and the approved
record development plan.   The district court agreed with Acierno

and found that his vested right to develop the property arose

from independent Delaware state and County law sources.    However,

our review of County law and Delaware state law reveals that if

Acierno did possess a vested right to develop his property as

zoned, that right was not so "clearly established" as to strip

the members of the County Council and First Assistant County

Attorney Mitchell from an entitlement to qualified immunity.

Thus, we will reverse the district court's denial of the

defendants' motion for summary judgment on qualified immunity

grounds for the members of the County Council, and its denial of

Mitchell's motion to dismiss on qualified immunity grounds.

           When considering whether members of local legislative

bodies are entitled to immunity from suit, we have recognized

that there is a compelling need for such a protective doctrine

because of the severe chilling effect numerous suits for damages

would have on prospective officials.   See Jodeco, Inc. v. Hann,

674 F. Supp. 488, 493 (D.N.J. 1987)(cited with approval in Bass

v. Attardi, 868 F.2d 45, 49-50 (3d Cir. 1989)).   We also believe

that adherence to the immunity doctrine is necessary in order to

allow elected and appointed officials to make intelligent land

use decisions without the constant fear of litigation infecting

the decision-making process.   Bass, 868 F.2d at 50 n.11 (quoting
Anastasio v. Planning Bd., 209 N.J. Super. 499, 526, 507 A.2d

1194, 1208, certification denied, 107 N.J. 46, 526 A.2d 136

(1986)).   Recognizing similar concerns, the Supreme Court has

indicated that the qualified immunity defense has evolved to
provide "ample protection to all but the plainly incompetent or

those who knowingly violate the law."   Malley v. Briggs, 475 U.S.

335, 341, 106 S. Ct. 1092, 1096 (1986); see also Schrob I, 948

F.2d 1402, 1421 (3d Cir. 1991).

          In Harlow v. Fitzgerald, the Supreme Court announced

that the test for determining whether government officials are

entitled to qualified immunity for their actions involves an

objective, rather than subjective, inquiry.   457 U.S. at 815-18,

102 S. Ct. at 2736-38.   The Supreme Court stated, "government

officials performing discretionary functions generally are

shielded from liability for civil damages insofar as their

conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known."   Id. at 818, 102 S. Ct. at 2738; see also Burns v. County

of Cambria, Pa., 971 F.2d 1015, 1021 (3d Cir. 1992), cert.

denied, __ U.S. __, 113 S. Ct. 1049 (1993).

          Subsequently, the Supreme Court has clarified that the

first inquiry in considering a claim to entitlement to qualified

immunity is to examine whether the plaintiff has "allege[d] the

violation of a clearly established constitutional right."

Siegert v. Gilley, 500 U.S. 226, 231, 111 S. Ct. 1789, 1793
(1991); see supra note 7.   In a recent discussion of the "clearly

established" right aspect of the qualified immunity

determination, we stated:
          The right an official is alleged to have violated must
          have been "clearly established" in a "particularized"
          sense. Anderson v. Creighton, 483 U.S. [635,] 640, 107
          S. Ct. [3034,] 3039 [(1987)]. That is, "[t]he contours
          of the right must be sufficiently clear that a
          reasonable official would understand that what he is
          doing violates that right." Id. Thus, qualified
          immunity does not apply if "reasonable officials in the
          defendants' position at the relevant time could have
          believed, in light of what was in the decided case law,
          that their conduct would be unlawful." Good v. Dauphin
          County Social Servs. for Children and Youth, 891 F.2d
          1087, 1092 (3d Cir. 1989).


Abdul-Akbar v. Watson, 4 F.3d 195, 202 (3d Cir. 1993).
          When complaining of a violation of substantive due

process rights, a plaintiff must prove that the governmental

authority acted to "infringe[] a property interest encompassed by

the Fourteenth Amendment."   Midnight Sessions, Ltd. v. City of

Philadelphia, 945 F.2d 667, 679 (3d Cir. 1991), cert. denied, __

U.S. __, 112 S. Ct. 1668 (1992).   As the Supreme Court has

previously stated:
          Property interests, of course, are not created by the
          Constitution. Rather they are created and their
          dimensions are defined by existing rules or
          understandings that stem from an independent source
          such as state law--rules or understandings that secure
          certain benefits and that support claims of entitlement
          to those benefits.


Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709

(1972).

          Thus, as the district court did in this case, when

analyzing substantive due process claims courts are required to

turn to state and local law to determine whether the plaintiff

possessed a property interest which was abrogated by the

governmental action.   The question of whether the property

interest requirement has been met is generally a matter of law

for the court to decide.   RRI Realty Corp. v. Incorporated
Village of Southampton, 870 F.2d 911, 918 (2d Cir.), cert.

denied, 493 U.S. 893, 110 S. Ct. 240 (1989).

          In denying the defendants their claim to entitlement to

qualified immunity, the district court first found that Acierno

had a protected property interest.   The court concluded that

Acierno had a protected property interest in both the approved

record development plan and the DPUD zoning classification, and

that this property interest was independently derived from both

New Castle County and Delaware state law sources.   Since the

district court addressed Acierno's property interest as arising

from these independent sources, we will follow suit in our

discussion.

          The district court first determined that Acierno had a

vested right pursuant to County law.   For purposes of this

analysis, the court assumed that the County Council had relied

upon the repealed "five-year sunset provision" of the County

Code, § 23-81(21)(repealed 1987), as the authority for its power

to void the record development plan.   Assuming that provision was

properly applied, the district court concluded that it gave

Acierno "a legitimate claim of entitlement to the continuing

validity of the record plan and the zoning classification to

which it related, and to develop the [p]roperty consistent

therewith."   Acierno v. Cloutier, No. 92-385, 1993 WL 215133, at

*10 (D. Del. June 9, 1993).   The district court reached this

conclusion on the grounds that as a factual matter the record

plan which was voided in April, 1992 was the subdivision plan

approved and recorded in December, 1988, and that the County
Council had no discretion whatsoever to act until, at the

earliest, the expiration of the five-year sunset period.

          First, the district court indicated that by reason of a

legal memorandum issued in 1986, the County Council knew that its

discretion to void a record plan did not even come into existence

until the Planning Department made such a recommendation.    The

district court concluded that Acierno had a property interest

arising from a legitimate claim of absolute entitlement to

develop the property consistent with the approved record plan and

DPUD zoning classification during the five-year sunset period

beginning from the date the plan was approved in December, 1988.

In addition, the court concluded that he had a property interest

arising from a legitimate claim of entitlement to develop the

property without interference from the County after the

expiration of the five-year sunset period but before the Planning

Department made a formal recommendation to void the record plan.

Finally, the court determined that if the repealed five-year

sunset provision did not apply, but rather the ten-year sunset

provision contained in current County Code § 23-81(18) was

applicable, Acierno had a property interest arising from a

legitimate claim of entitlement to develop the property without

interference from the County because the current ten-year sunset

provision contains no language providing the County with

authority to void record development plans.

          The defendants argue that the district court's analysis

is flawed because a landowner does not obtain a vested right to

develop property before acquiring a building permit and
commencing construction through some ground-breaking activity.

Furthermore, they contend that the district court failed to

appreciate the important distinction between Acierno's record

development plan, originally recorded in 1974, and the

subsequently filed subdivision plans which were submitted and

recorded in 1986 and 1988.   The defendants argue that the five-

year sunset provision governs, and that if the five-year sunset

provision had been applied from the date the PUD record

development plan was approved in 1974, the district court would

have concluded that Acierno had no vested right to develop his

property based on County law because the County properly

exercised its discretion to void the record development plan well

after the five-year sunset period expired in 1979.

          The district court also found that Acierno had acquired

a property interest under the applicable Delaware state law

doctrines of vested rights and equitable estoppel.   The

defendants argued in the district court that Delaware follows the

majority rule of state courts and requires a developer to obtain

a building permit and to commence some ground breaking activity

before a vested right to develop attaches.   This rule of vested

rights, which is known as the "permit plus rule," was recognized

by the Delaware Supreme Court:
               It is generally recognized that the issuance of a
          building permit does not, alone, confer any right
          against a later zoning change. Otherwise stated, a
          permit is not per se protected against a zoning change
          subsequently adopted. The acquisition of vested rights
          requires more. As of the time of the zoning change,
          there must have been a substantial change of position,
          expenditures, or incurrence of obligations, made
          lawfully and in good faith under the permit, before the
           land owner becomes entitled to complete the
           construction and to use the premises for a purpose
           prohibited by a subsequent zoning change. This is the
           rule supported by a great majority of the cases.


Shellburne, Inc. v. Roberts, 224 A.2d 250, 254 (Del. 1966).
           Apparently seizing on the Delaware Supreme Court's

inclusion of the word "alone," the district court read this

passage as indicating that the vested rights rule in Delaware

does not preclude property owners from acquiring a vested right

to develop as long as there has been a substantial change of

position or expenditure, even though they have not obtained a

building permit.    In support of this interpretation of the

Delaware rule, the district court turned to several cases in

which the Delaware courts had subsequently applied the vested

rights and equitable estoppel doctrines "to a broad range of

circumstances."    Acierno v. Cloutier, No. 92-385, 1993 WL 215133,

at *12 (D. Del. June 9, 1993).

           In particular, the district court focused on two

unreported cases from the lower state courts which it read as

refuting the defendants' contention that under Delaware law a

landowner has no vested right to continue development after an

adverse zoning change unless prior to the change he had obtained

a building permit and materially changed his position in reliance

thereon.   See Wilmington Materials, Inc. v. Town of Middleton,

Civ. A. No. 10392, 1988 WL 135507, at *6-9 (Del. Ch. Dec. 16,

1988)(relying on the equitable estoppel and vested rights

doctrines, the court enjoined town from enforcing a zoning

amendment to prevent the development of a property even though no
permit had been issued); New Castle County v. Mitchell, Civ. A.

No. 6231, 1981 WL 15144, at *3-7 (Del. Ch. Nov. 25, 1981)(because

property owner had begun renovations to make his property

suitable for an adult entertainment center and had applied for a

building permit before the planned location was rezoned to a

classification in which such uses were not allowed, the court

determined that the property owner had acquired a vested right

and that the principle of equitable estoppel entitled the

plaintiff to continue his business at that location).

          The district court then discussed an unpublished

criminal decision in order to refute the defendants' claim that

the above unpublished cases are inconsistent with Shellburne and

other relevant Delaware Supreme Court precedent.   See State v.

Raley, Cr. A. No. S90-07-0002, 1991 WL 18114 (Del. Super. Ct.

Feb. 8, 1991), aff'd without opinion, 604 A.2d 418 (Del. 1991).14

          The defendants argue on appeal that the common law rule

of vested rights set forth in Shellburne, the "permit plus" rule,

is the law of Delaware and a majority of other states.   While a

minority of jurisdictions confer a vested right at the time

application for a building permit is made, a majority of states

have adopted the view that a developer must possess a building

permit and make a substantial change in position or expenditures,

14
 . In Raley, the state charged the defendant with violating
certain Delaware Marina Facility Regulations enacted after he
received an administrative permit. Citing Wilmington Materials
and Mitchell, the court concluded that the vested rights doctrine
in Delaware did not give the defendant a constitutional right to
develop the marine facility as planned under the prior
regulations.
or incur substantial obligations in reliance thereon, in order

for rights to vest.   4 Arden H. Rathkopf et al., Rathkopf's The

Law of Zoning and Planning § 50.03, at 50-12, 50-25 (4th ed.

1975).   Moreover, in some states specific statutes, regulations,

or zoning ordinances themselves confer rights upon developers

already engaged in developing their property to remain exempt

from zoning code or regulations changes for a period of time and

to acquire vested rights by subsequent action.   Id. § 50.02, at

50-5 to -9.

          The defendants further contend that the "permit plus"

rule adopted by the Delaware Supreme Court in Shellburne has been

reaffirmed by that court and several lower state courts.   See

Mayor of New Castle v. Rollins Outdoor Advertising, Inc., 475

A.2d 355, 360 (Del. 1984)(in banc)(In Shellburne "we held that a

property owner has no vested right in a zoning classification,

and that a building permit does not, per se, confer any right

against a later zoning change.   But we ruled that under certain

circumstances, such as where an owner had made a substantial

change of position or a substantial expenditure, a vested right

arises from good faith reliance upon a building permit."); Miller
v. Board of Adjustment, 521 A.2d 642, 647 (Del. Super. Ct. 1986)

(vested right requires a permit plus a change of position);

Willdel Realty, Inc. v. New Castle County, 270 A.2d 174, 178

(Del. Ch. 1970), aff'd, 281 A.2d 612 (Del. 1971); Barrows v. City

of Lewes, Civ. A. No. 83C-MR 32, slip op. at 3 (Del. Super. Ct.

Mar. 27, 1985)("The issuance of a building permit is the first

prerequisite of such a [vested rights] claim based on financial
detriment.   A fortiori, when a building permit is not issued,

indeed, when an application for such a permit is not made,

plaintiff has no right, vested or otherwise, to construct

anything on his property.").    The defendants argue that the

district court was obliged to follow the majority vested rights

rule of "permit plus" as articulated by the highest court in

Delaware and not as stated in unreported lower court decisions

which are to the contrary.     See Colantuno v. Aetna Ins. Co., 980

F.2d 908, 909 (3d Cir. 1992)("[W]hen federal courts are required

to interpret or apply state law, we consider and accept the

decisions of the state's highest court as the ultimate authority

of state law.").

          The defendants characterize the district court's

holding as improperly recognizing that once a property owner has

record development and subdivision plans approved, the

municipality is estopped from enacting any zoning changes which

would abrogate the developer's vested rights even in the absence

of any construction activity or other detrimental reliance.

According to the defendants, recognition of such a vested rights

doctrine is contrary to Delaware law and other reported land use

decisions.   See L.M. Everhart Constr., Inc. v. Jefferson County

Planning Comm'n, 2 F.3d 48, 52 (4th Cir. 1993).    In L.M. Everhart

Construction, the plaintiff argued that Planning Commission

approval of a subdivision plat created an absolute vested right

to develop the parcel as approved.    Rejecting this argument, the

court stated that it was "tantamount to an assertion that, once

approved, a subdivision plat is exempt from all future zoning and
subdivision regulations.    We can find no court that has adopted

such a broad conception of vested rights."    Id.15

            Finally, the defendants also attack the district

court's reliance on the doctrine of equitable estoppel for its

finding that Acierno had a vested right to develop his property

as zoned.    They contend that an equitable estoppel claim cannot

form the basis for a legitimate claim of entitlement so as to

support the existence of a property right as required in a § 1983

substantive due process action.    In Biser v. Town of Bel Air, 991

F.2d 100 (4th Cir.), cert. denied, __ U.S. __, 114 S. Ct. 182

(1993), the Court of Appeals for the Fourth Circuit addressed

whether a state court order of equity estopping a municipality

from denying a special exception from a zoning ordinance

represented a legal claim of entitlement.    The Biser court

rejected the plaintiff's argument that a state court order based

on equitable estoppel could create a state-law property interest:
          In order to justify substantive due process protection,
          the legal right to a permit must exist before the local
          agency denies the permit application -- the claim of
          entitlement must come from "an existing legislative or
          administrative standard." Dean Tarry Corp. v.
          Friedlander, 826 F.2d 210, 213 (2d Cir. 1987)(emphasis
          added). Equitable estoppel does not recognize a pre-

15
 . The defendants also argue that the district court's
interpretation of the doctrine of vested rights would obviate the
need for a statutory provision enacted by New Castle County which
addresses the rights of developers at the subdivision approval
stage. Under County Code § 23-6, the approval of a subdivision
plan protects the planned development against subsequent zoning
changes for a period of three years. New Castle County, Del.,
Code § 23-6. The ordinance voiding Acierno's record development
plan was enacted in April, 1992, more than three years after the
most recent subdivision plan for the property was approved and
filed in December, 1988.
          existing legal right; rather, estoppel bars a defendant
          from asserting a legal right that it would otherwise be
          entitled to enforce, based on that party's conduct.


991 F.2d at 104.

          What the above discussion concerning the district

court's decision and the defendants' arguments on appeal

demonstrates to us is that the vested rights law of both New

Castle County and the State of Delaware at the time the County

Council enacted Ordinance 91-190 was subject to considerable

uncertainty and differing interpretations.   While we decline to

take a position as to whether the district court's prediction of

what the Delaware Supreme Court would hold concerning vested

rights, the "permit plus" rule, and equitable estoppel is correct

as a matter of law, we do not believe that Acierno's property

interest was "clearly established" under New Castle County and

Delaware law at the time Ordinance 91-190 was enacted in 1992.

Therefore, even if we were to conclude that the Delaware courts

would agree substantially with the district court's analysis of

vested rights, Acierno's property interest, if any existed, was

not so "clearly established" as to strip the members of the

County Council and Mitchell of their qualified immunity defenses.

          In Anderson v. Creighton, the Supreme Court articulated
the "clearly established" standard:
          The contours of the [constitutional] right must be
          sufficiently clear that a reasonable official would
          understand that what he is doing violates that right.
          This is not to say that an official action is protected
          by qualified immunity unless the very action in
          question has previously been held unlawful, but it is
          to say that in the light of pre-existing law the
          unlawfulness must be apparent.
483 U.S. 635, 640, 107 S. Ct. 3034, 3039 (1987)(citations

omitted).    We further clarified that this qualified immunity

question involves two governing inquiries:
          First, in order for the governing law to be
          sufficiently well established for immunity to be
          denied, it is not necessary that there have been a
          previous precedent directly in point . . . . The
          ultimate issue is whether, despite the absence of a
          case applying established principles to the same facts,
          reasonable officials in the defendants' position at the
          relevant time could have believed, in light of what was
          in the decided case law, that their conduct would be
          lawful. Second, even where the officials clearly
          should have been aware of the governing legal
          principles, they are nevertheless entitled to immunity
          if based on the information available to them they
          could have believed their conduct would be consistent
          with those principles.


Good v. Dauphin County Social Servs. for Children and Youth, 891

F.2d 1087, 1092 (3d Cir. 1989).16

            Applying this test in the present case, we need go no

further than the first inquiry because we believe that reasonable

county officials in Delaware charged with legislating and

enforcing the New Castle County zoning scheme in 1992 could have
believed that their action of voiding Acierno's record

development plan was lawful.    We come to this conclusion for

several reasons.

            First, we agree with the defendants that the highest

court in Delaware has provided no clearer discussion of the

16
 . Thus, the doctrine of qualified immunity protects the
actions of municipal officials except when they act in a "plainly
incompetent" manner or when they "knowingly violate the law."
Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 1096
(1986); see also Abdul-Akbar v. Watson, 4 F.3d 195, 205 (3d Cir.
1993); Schrob v. Catterson, 948 F.2d 1402, 1421 (3d Cir. 1991).
vested rights doctrine since Shellburne, Inc. v. Roberts, and

that case adopts the restrictive, majority rule that vested

rights do not attach without a "permit plus."17   The Delaware

Supreme Court has subsequently reaffirmed the "permit plus" rule.

See Rollins Outdoor Advertising, 475 A.2d at 360.   Furthermore,

published decisions of lower state courts in Delaware are to the

same effect.   E.g., Miller, 521 A.2d at 647; Shellburne, Inc. v.

Conner, 315 A.2d 620, 622 (Del. Ch. 1974), aff'd, 336 A.2d 568

(Del. 1975).   Thus, Mitchell and the members of the County

Council could have reasonably believed that they were lawfully

acting to void Acierno's record development plan because he did

not have a vested right to develop without first obtaining a

building permit.

          Second, the district court's analysis ultimately rests

on a belief that the law of vested rights in Delaware has evolved

beyond the "permit plus" rule and now involves a focus on whether

the property owner suffered sufficient substantial reliance to

have development rights vest.   Even though the district court's

conclusion was wholly derived from unpublished decisions, we

believe that if the Delaware law has truly developed in this

manner, the discretionary aspect of the determination of whether

rights have vested supports our conclusion that reasonable zoning


17
 . Moreover, the case apparently downplays the possibility that
vested rights can attach solely through detrimental reliance,
absent obtaining a building permit: "The plaintiff concedes that
a property owner has no vested right in a zoning classification.
This rule is not changed by financial detriment." Shellburne,
Inc., 224 A.2d at 254 (emphasis added).
officials could have believed that enactment of the voiding

ordinance was a lawful action.    We also note that in the very

case the district court relied upon to conclude the Delaware law

had developed in this manner, State v. Raley, Cr. A. No. S90-07-

0002, 1991 WL 18114 (Del. Super. Ct. Feb. 8, 1991), the property

owner had already obtained a permit, which significantly

undermines the court's reliance on this case as a source of

authority for its reading of the law.

            Third, the complex nature of the body of law which

underlies the vested rights doctrine leads us to conclude that,

in certain circumstances, even municipal officials who act in an

unlawful manner may have reasonably believed they were acting

lawfully.    Commentators have recognized that the subject of

vested rights
          is one of the most troublesome areas of land use
          regulation . . . . Its solution has required the
          reconciliation of the doctrine of separation of powers
          with the constitutional requirements of substantive due
          process, a balancing of interests of the public as a
          whole and those of the individual property owners, and,
          in many cases, the element of good faith and bad faith
          and the resort to equity and equitable principles.


4 Rathkopf, supra, § 50.01, at 50-2.    When making land use

decisions which involve the rezoning of a developer's property,

local officials must analyze this complex body of law in order to

ascertain whether a particular action will clearly abrogate a

vested right the developer has acquired.    The doctrine of

qualified immunity is designed to protect reasonable officials in

the exercise of their duties, which in the case of local

legislators and administrators charged with making land use and
zoning decisions often involves interpreting complicated issues

of state and county law.

          Therefore, we hold that under the vested rights

doctrine as recognized in Delaware, Acierno's property interest,

if any in fact existed, was not so clearly established as to

defeat the members of the County Council and Mitchell of their

claims to qualified immunity for their actions leading to the

enactment of Ordinance 91-190.   In addition, we also conclude

that the law of equitable estoppel cannot provide the basis for a

property interest which supports a substantive due process claim

under § 1983 in federal court.   Any claim of entitlement must

derive from an existing legislative or administrative standard.

Biser, 991 F.2d at 104.    Although Acierno might be able to

proceed directly against the County under a theory of equitable

estoppel in order to attack the validity of the rezoning process,

it does not support his damage claim brought pursuant to § 1983

in federal court.   Finally, without undertaking a complete

analysis of whether Acierno might prevail in attacking the

validity of Ordinance 91-190 because the County Council may have

relied on an unadopted ordinance as the source for its authority,

County law cannot provide the basis for vitiating the defendants'

entitlement to qualified immunity because the issue was not

settled under County law at the time they acted.18

18
 . With respect to this issue we note that we have found no
reported state or federal cases which construe the DPUD ordinance
provisions at issue in this case. We also note that the district
court did not conclude that the five-year sunset provision was
not applicable; it merely concluded that the County Council
relied on an unadopted ordinance in voiding Acierno's record
                                V.

           In sum, with respect to the members of the County

Council, the order of the district court denying their motion for

summary judgment on legislative immunity and qualified immunity

grounds will be reversed.   The members of the County Council are

entitled to legislative immunity for their action rezoning

Acierno's property by enacting Substitute No. 1 to Ordinance 92-

119.   They are entitled to qualified immunity for voiding

Acierno's record development and subdivision plans by enacting

Ordinance 91-190.   Finally, the order of the district court

denying First Assistant County Attorney Mitchell's motion to

dismiss on qualified immunity grounds also will be reversed.




(..continued)
development plan. Our review of this issue leads us to conclude
that even if the County Council did rely on an unadopted
ordinance, reliance on the appropriate ordinance would have
resulted in the same result--application of the five-year sunset
provision which allows a record plan to be voided upon the
recommendation of the Department of Planning. We reject any
indication in the district court's opinion supporting the
principle that the unknowing reliance on unadopted legislation as
authority for an action should result in a per se denial of the
qualified immunity defense.
