                         United States Court of Appeals
                               FOR THE EIGHTH CIRCUIT

                                    ___________

                                    No. 96-4202
                                    ___________

Bituminous Materials, Inc.,              *
                                         *
      Plaintiff - Appellant,             *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Minnesota.
Rice County, Minnesota,                  *
                                         *
      Defendant - Appellee.              *
                                    ___________

                                  Submitted: June 9, 1997
                                      Filed: October 2, 1997
                                    ___________

Before LOKEN and ROSS, Circuit Judges, and FENNER,* District Judge.
                              ___________

LOKEN, Circuit Judge.

      Bituminous Materials, Incorporated (“BMI”), is a road paving contractor serving
Rice County, Minnesota, and surrounding areas. BMI must obtain a temporary
equipment placement and operation use permit (“TEPOP”) from the Rice County Board
of Commissioners before locating a temporary asphalt plant at a gravel pit in Rice
County. In September 1994 and March 1995, the Rice County Board placed



      *
      The HONORABLE GARY A. FENNER, United States District Judge for the
      Western District of Missouri, sitting by designation.
 restrictions on a TEPOP issued to BMI to operate a temporary asphalt plant at Camp’s
Pit near Northfield, Minnesota. BMI responded by filing this lawsuit, claiming that
Rice County’s irrational and discriminatory permitting actions violated BMI’s rights
to substantive due process and equal protection and unduly interfered with interstate
commerce. BMI appeals the district court’s1 grant of summary judgment in favor of
Rice County. Having reviewed the grant of summary judgment de novo, see Bannum,
Inc. v. City of St. Charles, 2 F.3d 267, 270 (8th Cir. 1993), we affirm.

       The Substantive Due Process Claim. To prevail on a substantive due process
claim, plaintiff must first establish “a protected property interest to which the
Fourteenth Amendment’s due process protection applies.” Ellis v. City of Yankton,
69 F.3d 915,917 (8th Cir. 1995). A protected property interest, which is a question of
state law, is “‘a legitimate claim to entitlement’ . . . as opposed to a mere subjective
expectancy.” Batra v. Board of Regents, 79 F.3d 717, 720 (8th Cir. 1996), quoting
Board of Regents v. Roth, 408 U.S. 564, 577 (1972). A claim to entitlement arises, for
these purposes, when a statute or regulation places substantial limits on the
government’s exercise of its licensing discretion. Thus, the holder of a land use permit
has a property interest if a state law or regulation limits the issuing authority’s
discretion to restrict or revoke the permit by requiring that the permit issue upon
compliance with terms and conditions prescribed by statute or ordinance. See
Littlefield v. City of Afton, 785 F.2d 596, 602 (8th Cir. 1986), which has been
overruled on other grounds, see Chesterfield Dev. Corp. v. City of Chesterfield, 963
F.2d 1102, 1104 n.2 (8th Cir. 1992). “[P]rocedures alone [do not] create a substantive
property right.” Stow v. Cochran, 819 F.2d 864, 866 (8th Cir. 1987).
       In this case, § 517.002 of the Rice County ordinances provides that a TEPOP
“may be granted for the placement and operation of equipment which is incidental to



      1
        The HONORABLE ANN D. MONTGOMERY, United States District Judge
for the District of Minnesota.

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the construction of public . . . roads where found to be essential to the function
intended,” (emphasis added). This ordinance does not limit the County Board’s
discretion to deny or restrict a TEPOP sufficiently to grant BMI a property interest in
the Camp’s Pit or any other TEPOP. BMI’s interest in the permitting process therefore
“amounts to nothing more than ‘an abstract need or desire,’ which is not sufficient to
establish a protected property interest,” North Mem’l Med. Ctr. v. Gomez, 59 F.3d
735, 740 (8th Cir. 1995). BMI relies upon Northpointe Plaza v. City of Rochester, 465
N.W.2d 686, 689 (Minn. 1991), but that case is inapposite because it involved a
conditional use permit. When an applicant for a conditional use permit complies with
specified permit requirements, “approval of a permitted use follows as a matter of
right.” Chanhassen Estates Residents Ass’n v. City of Chanhassen, 342 N.W. 2d 335,
340 (Minn. 1984).
       Moreover, even if BMI could prove a constitutionally protected property interest,
we agree with the district court that BMI has failed to prove the second element of a
substantive due process claim, that the Board’s actions were “truly irrational.” In
Chesterfield, we took a restrictive view of when land use planning decisions by local
government agencies violate an aggrieved party’s substantive due process rights.
Drawing on earlier opinions in Lemke v. Cass County, 846 F.2d 469, 471-73 (8th Cir.
1987) (en banc) (Arnold, J., concurring), and Creative Environments, Inc. v. Estabrook,
680 F.2d 822, 833 (1st Cir.), cert. denied, 459 U.S. 989 (1982), we held that to sustain
such a claim, plaintiff must prove that the government action in question is “something
more than . . . arbitrary, capricious, or in violation of state law.” 963 F.2d at 1104.
       There is good reason for this judicial reluctance to intervene in such disputes.
“To allow the loser of each zoning decision, both those who seek a change and those
who seek to block changes, to sue in federal court on bald allegations of arbitrariness
would significantly burden both federal courts and local zoning decisionmakers.”
Queen Anne Courts v. City of Lakeville, 726 F. Supp. 733, 738 (D. Minn. 1989),
quoting Hope Baptist Church v. City of Bellafonte Neighbors, 655 F. Supp. 1216,
1219


                                          -3-
(E.D. Mo. 1987). Thus, even allegations of bad faith enforcement of an invalid zoning
ordinance do not, without more, state a substantive due process claim.

       In this case, the Board had rational bases upon which to restrict BMI’s permit.
The TEPOP ordinance mandates that the County Board “attach conditions to assure
that the establishment, maintenance, or conducting of the use for which the permit is
sought will not . . . be unreasonably detrimental to the persons residing or working in
the area . . . or to the public welfare.” At a Rice County Board meeting, numerous
residents of the growing community around Camp’s Pit expressed concerns about road
damage, environmental damage, traffic, safety, and noise. The Board then extended
the Camp’s Pit TEPOP but limited the gravel BMI could use and the paving projects
it could serve from that asphalt plant. These conditions were rationally related to the
concerns raised by local residents.

       BMI argues that the Board’s decisions were motivated by the personal animus
of three Commissioners toward BMI’s officer in charge of land use permit acquisition,
Leland Tollefson. BMI contends that personal animus is a truly irrational basis for
decisionmaking that will sustain a substantive due process claim. Relying on a passage
in Chesterfield stating that planning disputes do not implicate substantive due process
unless “tainted with fundamental procedural irregularity, racial animus, or the like,” 963
F.2d at 1104, quoting Creative Environments, 680 F.2d at 833, BMI argues that
decisions based on personal animus fall within the phrase “or the like” and therefore
violate substantive due process.

       In support of its allegations, BMI submitted an affidavit by Tollefson, alleging
in relevant part:

             22. I believe that many of the Rice County’s restrictive permitting
      decisions relating to BMI have to do with Rice County Commissioners’
      personal dislike of myself as opposed to legitimate reasons relating to

                                           -4-
      BMI’s operation. . . . [For example, on one occasion] I expressed to [Rice
      County Attorney Meredith] Erickson that if blacktopping haul roads is the
      rule in Rice County, everybody should be required to abide by it. Her
      response was, “We are the county, we make the rules and we can change
      them as we choose.”

             23. Rice County officials have admitted they treated BMI
      differently. Shortly after . . . a competitor of BMI received its TEPOP in
      connection with the Interstate 35 project, Rice County Board
      Chairperson, Stan Pacolt, phoned me and stated, “We have been screwing
      you over.” In addition, at different times over the last two years, Rice
      County Commissioner, Dan Minnick, has reiterated Mr. Pacolt’s
      comment and he also told me that the County has been treating BMI
      unfairly.

              24. Rice County Commissioner Dan Minnick has informed me that
      he heard Commissioners Robins and Robert Tuma make comments to the
      effect that they do not care if BMI ever does business in the county again.
      Mr. Minnick also informed me that Commissioners Robins, Tuma and
      Pacolt have a strong dislike of me and that in a meeting, Mr. Tuma
      referred to me as a SOB.

       We conclude that these allegations are far too insubstantial to support a
substantive due process claim. We acknowledge that there may be cases where land
use decisions are so corrupted by the personal motives of local government officials
that due process rights are implicated. Cf. Brady v. Town of Colchester, 863 F.2d 205,
216 (2d Cir. 1988) (punishing a political opponent); Wilkerson v. Johnson, 699 F.2d
325, 328-29 (6th Cir. 1983) (denying barber shop license to protect decisionmaker’s
competing shop). But it would be inconsistent with the high threshold we established
in Chesterfield to hold that a substantive due process claimant will survive summary
judgment by alleging that a land use planning decisionmaker does not like the plaintiff.




                                          -5-
That sort of inquiry would indeed turn the federal courts into zoning boards of appeal.
Therefore, the district court properly dismissed BMI’s substantive due process claim.2

       The Equal Protection Claim. BMI next asserts that it has been denied equal
protection of the laws because a competitor was contemporaneously issued TEPOPs
with fewer restrictions and less rigorous enforcement. An equal protection claim of this
type requires proof that the two competitors were similarly situated. See Anderson v.
Douglas County, 4 F.3d 574, 577 (8th Cir. 1993), cert. denied, 510 U.S. 1113 (1994).
TEPOPs are necessarily site specific, with different asphalt plants and gravel pits
potentially raising different public health, welfare, and safety concerns. BMI has
produced no evidence that the asphalt plants and gravel pits in question were similarly
situated in these respects. Thus, its equal protection claim is without merit.
       The Commerce Clause Claim. Finally, BMI claims that Rice County
impermissibly interfered with interstate commerce by prohibiting use of asphalt from
the Camp’s Pit plant outside Rice County. Leaving aside BMI’s very questionable
proof that such an absolute prohibition was imposed, its Commerce Clause theory is
without merit. BMI presented no proof that the County’s intrastate restriction
discriminated against out-of-state businesses or unduly burdened interstate commerce.
BMI’s contention that it need not prove an actual impact on interstate commerce is
preposterously overbroad -- for it suggests that no product or commodity, no matter
how dangerous or burdensome to transport, could ever be limited to local distribution --
and totally at odds with our analysis in Ben Oehrleins & Sons & Daughter v. Hennepin



      2
        BMI argues that it was an abuse of discretion to bar deposition discovery
regarding the Rice County Commissioners’ motives for the actions in question. We
disagree for the reasons stated by the district court: the County provided transcripts
of the relevant Board meetings, and BMI’s unsupported allegations of personal animus
did not warrant burdensome depositions of these government officials. See Stone’s
Auto Mart, Inc. v. City of Saint Paul, 721 F. Supp. 206, 211 (D. Minn. 1989); cf.
D.C.A. Dev. Corp. v. Ogden City Munic. Corp., 965 F.2d 827, 829 (10th Cir. 1992).

                                          -6-
County, 115 F.3d 1372, 1385-87 (8th Cir. 1997). The district court correctly dismissed
this Commerce Clause claim.

      The judgment of the district court is affirmed.

      A true copy.


             Attest:


                     CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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