                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 07-1878



GREENGAEL, LC; VERNELL MONIQUE SMITH; TAMMY DE’VOUE SMITH;
VERNIE M. OVERBEY,

                Plaintiffs - Appellants,

          v.


THE BOARD OF SUPERVISORS OF CULPEPER COUNTY, VIRGINIA,

                Defendant - Appellee.



Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon, District
Judge. (3:07-cv-00005-nkm)


Submitted:   May 8, 2008                Decided:   September 5, 2008


Before NIEMEYER, TRAXLER, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mark A. Moorstein, Kelly C. Zook, REES BROOME, PC, Gainesville,
Virginia, for Appellants. Robert T. Mitchell, Jr., James A.
Klenkar, HALL, MONAHAN, ENGLE, MAHAN & MITCHELL, Winchester,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           This land use case involves the claims of developer,

Greengael, LC, against the Board of Supervisors of Culpeper County,

Virginia (“the County”), for denying approval of a subdivision plat

and later rezoning its property from residential to industrial use.

It also involves claims against the County by the Smith family

(“the Smith Plaintiffs”), owners of a single-family residence in

Culpeper County, challenging the County’s actions with respect to

Greengael’s property as well as a zoning amendment affecting their

own property. In two separate orders, the district court dismissed

the   plaintiffs’    claims.     Greengael     and   the   Smith    Plaintiffs

(collectively, “Greengael”) appeal.          Finding no error, we affirm.

           After     the   County   denied     approval    for     Greengael’s

subdivision plat proposing a mixed-use development, including low

and moderate income housing, retail, and single-family homes, and

then changed the zoning of Greengael’s property from residential to

industrial    use,   Greengael   filed   two    lawsuits    in   state   court

challenging the County’s decisions.          The lawsuits raised various

state law claims, as well as federal constitutional claims and

allegations of violations of the Fair Housing Act (“FHA”), 42

U.S.C.A. §§ 3601-3619 (West 2003 & Supp. 2008), and 42 U.S.C.

§ 1983 (2000).

           The trial court consolidated the suits and then dismissed

the federal claims as not ripe because Greengael failed to exhaust


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administrative remedies.   After Greengael’s claims were presented

and denied administratively, it sought to raise its federal claims

again, but the trial court dismissed them on demurrer as barred by

res judicata.   Following a bench trial on the state law claims, the

trial court ruled in Greengael’s favor, concluding that the County

acted arbitrarily and capriciously in violation of state law in

denying approval of the subdivision plat and changing the zoning

classification.

          Both Greengael and the County appealed to the Supreme

Court of Virginia.    Greengael assigned error to the dismissal of

its federal claims, arguing that the trial court erred in giving

preclusive effect to the initial decision dismissing the federal

claims on jurisdictional grounds.    The court reversed the portion

of the trial court’s decision favorable to Greengael.    See Bd. of

Supervisors of Culpeper County v. Greengael, 626 S.E.2d 357 (Va.

2006).   In light of its conclusion that the County’s actions did

not violate state law, the court found it unnecessary to resolve

Greengael’s challenge to the dismissal of its federal claims,

explaining that Greengael’s federal claims were “moot.” Greengael,

626 S.E.2d at 369.1

          In 2007, Greengael, joined by the Smith Plaintiffs,

filed the underlying complaint in federal court raising the same



     1
      Greengael did not file a petition for writ of certiorari in
the United States Supreme Court.

                               - 3 -
federal claims alleged in its state court complaint.   The district

court granted the County’s motion to dismiss, concluding that

Greengael’s claims were barred by res judicata and the Smith

Plaintiffs lacked standing to challenge the County’s conduct with

respect to Greengael’s property.   In a later, separate order, the

district court granted summary judgment to the County with respect

to the Smith Plaintiffs’ challenge to the 2006 zoning amendment.

           We review de novo a district court’s dismissal under

Federal Rule of Civil Procedure 12(b)(6).    See Sec’y of State for

Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir.

2007).   “[W]hen ruling on a defendant’s motion to dismiss, a judge

must accept as true all of the factual allegations contained in the

complaint.”    Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007)

(citations omitted). To survive a Rule 12(b)(6) motion, “[f]actual

allegations must be enough to raise a right to relief above the

speculative level” and have “enough facts to state a claim to

relief that is plausible on its face.”   Bell Atl. Corp. v. Twombly,

127 S. Ct. 1955, 1965, 1974 (2007).

           We also review de novo a district court’s order granting

summary judgment and view the facts in the light most favorable to

the nonmoving party.    Seabulk Offshore, Ltd. v. Am. Home Assur.

Co., 377 F.3d 408, 418 (4th Cir. 2004).        Summary judgment is

appropriate when no genuine issue of material fact exists and “the




                               - 4 -
movant is entitled to judgment as a matter of law.”             Fed. R. Civ.

P. 56(c)).



I.   Res Judicata

            The Full Faith and Credit Act, 28 U.S.C. § 1738 (2000),

requires    federal   courts    to   apply   state    res   judicata   law     to

determine the preclusive effects of a state court judgment.                 Exxon

Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 293 (2005);

In re Genesys Data Technologies, Inc., 204 F.3d 124, 129 (4th Cir.

2000).     Under Virginia law, the doctrine of res judicata bars a

party from asserting claims that were raised, or that could have

been raised, in previous litigation between the parties.                   Lofton

Ridge, LLC v. Norfolk Southern Ry. Co., 601 S.E.2d 648, 650 (Va.

2004).    This doctrine applies whenever a claim “has been resolved

adversely to the plaintiff, whether on the merits or because of

another bar to recovery such as sovereign immunity or the statute

of limitations.” Lambert v. Javed, 641 S.E.2d 109, 111 (Va. 2007).

            We reject Greengael’s contention that the Virginia court

did not render a final decision on the merits of its federal claims

because the court did not engage in a substantive analysis of those

claims.    The Supreme Court of Virginia sustained the trial court’s

demurrers    to   Greengael’s   federal      claims   and   entered    a    final

judgment. This disposition is a final decision on the merits under




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Virginia law.2      See Reed v. Liverman, 458 S.E.2d 446, 447 (Va.

1995) (dismissal with prejudice after sustaining a demurrer is a

final judgment on the merits); Gimbert v. Norfolk S. R.R. Co., 148

S.E. 680, 690 (Va. 1929) (“A general demurrer which denies the

right of the plaintiff to recover on the cause of action alleged,

which is sustained, is a decision on the merits.”).           Additionally,

Greengael’s argument based on Williamson County Reg’l Planning

Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), has

been rejected by the Supreme Court as well as by this court.                See

San Remo Hotel, L.P. v. City and County of San Francisco, 545 U.S.

323, 347 (2005) (expressly declining to create an exception to the

full faith and credit statute “solely to preserve the availability

of a federal forum” for litigants’ federal takings claims); Holiday

Amusement Co. of Charleston, Inc. v. South Carolina, 493 F.3d 404,

409   (4th   Cir.   2007)   (noting    that   no   constitutional   issue    is

presented by the fact that claims for just compensation will

generally be resolved in state court).3


      2
      Trafalgar Corp. v. Miami County Bd. of Commr’s, 519 F.3d 285
(6th Cir. 2008), cited by the County as supplemental authority, is
analogous.   In Trafalgar, the Sixth Circuit affirmed a federal
district court’s grant of summary judgment based on 28 U.S.C.
§ 1783 where a plaintiff previously filed suit in state court
asserting state and federal takings and equal protection claims.
The court rejected the argument that because the federal takings
issue was not actually litigated in state court, res judicata
should not apply to bar the federal action. 519 F.3d at 287.
      3
      We  also   reject   Greengael’s    argument   regarding   the
availability of an England reservation to preserve its issues to be
heard in federal court as irrelevant. England v. Louisiana State

                                      - 6 -
              In   sum,   Greengael’s   federal     claims   were     raised    and

resolved in a final decision issued by the Virginia state court,

and    Greengael’s    claims   are   now   barred    by   res   judicata   under

Virginia law.        Therefore, as the district court held, it was

required to accord full faith and credit to the Virginia court’s

decision and dismiss the federal claims.4



II.    Standing

              In order to assert a claim based on the County’s actions

with respect to Greengael’s property, the Smith Plaintiffs needed

to show that they: (1) suffered an injury in fact, (2) that was

causally connected to the County’s conduct, and (3) that was likely

to be redressed by a favorable ruling. Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560-61 (1992) (holding that these three

elements constitute the constitutional minimum for standing). To

meet the first requirement, the party must demonstrate an “injury

in    fact”   that   is   concrete   and   particularized,      and    actual   or



Bd. of Medical Examiners, 375 U.S. 411, 417-19 (1964).       It is
undisputed that Greengael did not make, or attempt to make, such a
reservation.
       4
      We note that the Virginia Supreme Court’s recent decision in
Kitchen v. Newport News, 657 S.E.2d 132 (Va. 2008), does not alter
the district court’s lack of authority to render a decision
contrary to that of the Virginia court.       Likewise, the South
Carolina district court’s denial of summary judgment in Connelly
Development, LLC v. City of West Columbia, No. 3:05-00460-MSB
(D.S.C. 2007), is also irrelevant to the dispositive issue of res
judicata in this case.

                                     - 7 -
imminent, as opposed to conjectural or hypothetical.       Id. at 560.

We agree with the district court’s conclusion that the injury

alleged by the Smith Plaintiffs, the denial of the opportunity to

purchase affordable housing, was too remote and speculative to

constitute an injury in fact.



III. Zoning Amendment

           The Smith Plaintiffs alleged an FHA violation based on a

2006 zoning amendment under which they lost the ability to convert

their existing single-family home into a multi-family dwelling. To

prove a prima facie case of discrimination under the FHA, the Smith

Plaintiffs had to demonstrate that the housing action or practice

being challenged was either motivated by a discriminatory purpose

or had a discriminatory impact.      Betsey v. Turtle Creek Assocs.,

736 F.2d 983, 986 (4th Cir. 1984).       We conclude the district court

properly rejected this claim because of the absence of any evidence

of discriminatory intent or effect.5

           Accordingly, we affirm the district court’s orders.      We

also grant the County’s motion to strike matters outside the record

on   appeal.   We   dispense with oral argument because the facts and




      5
      Cases cited by Greengael involving state law challenges to
exclusionary zoning ordinances are inapplicable.       See, e.g.,
Southern Burlington County NAACP v. Mt. Laurel, 336 A.2d 713 (N.J.
1975)    (developing   municipalities    required   under    state
constitutional mandate to meet reasonable housing needs of low and
moderate income people in their region).

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legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.



                                                         AFFIRMED




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