                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


AUBREY E. HENRY,                        
               Plaintiff-Appellant,
                 v.
THE JEFFERSON COUNTY PLANNING
COMMISSION; SCOTT COYLE,
Commission Member, in his
individual capacity; H. RICHARD
FLAHERTY, Commission Member, in
his individual capacity; PAUL
GRIGER, Commission Member, in
his individual capacity; SAM
DONLEY, Commission Member, in
his individual capacity; JIM KNODE,
Commission Member, in his
individual capacity; ERNIE BENNER,
                                           No. 01-1948
Commission Member, in his
individual capacity; GILBERT PAGE
WRIGHT, Commission Member, in
his individual capacity; LYLE
CAMPBELL TABB, Commission
Member, in his individual capacity;
PAUL J. RACO, Director of Planning
and Zoning, in his individual and
official capacity; JEFFERSON COUNTY;
JEFFERSON COUNTY BOARD OF ZONING
APPEALS,
                Defendants-Appellees,
                and
                                        
2              HENRY v. JEFFERSON COUNTY PLANNING COMM’N


STATE   OF   WEST VIRGINIA,                
                                           
                              Defendant.
PACIFIC LEGAL FOUNDATION,
                   Amicus Curiae.
                                           
           Appeal from the United States District Court
    for the Northern District of West Virginia, at Martinsburg.
              W. Craig Broadwater, District Judge.
                    (CA-96-40-3, CA-99-25-3)

                       Argued: February 28, 2002

                         Decided: May 7, 2002

     Before WILKINSON, Chief Judge, and NIEMEYER and
                 MICHAEL, Circuit Judges.



Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


                                COUNSEL

ARGUED: James Sherman Burling, PACIFIC LEGAL FOUNDA-
TION, Sacramento, California, for Amicus Curiae. Michael Douglas
Lorensen, BOWLES, RICE, MCDAVID, GRAFF & LOVE,
P.L.L.C., Martinsburg, West Virginia, for Appellees. John Christian
Yoder, Harpers Ferry, West Virginia, for Appellant.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
            HENRY v. JEFFERSON COUNTY PLANNING COMM’N                3
                             OPINION

PER CURIAM:

   The Jefferson County Planning and Zoning Commission denied, by
unanimous vote, Aubrey Henry’s application for a conditional use
permit to build a 76-unit townhouse development on 9.8 acres of land
in Jefferson County, West Virginia. Henry sued the Commission and
others, asserting that the local zoning ordinance was unconstitution-
ally vague on its face and that the denial of the permit to build the
townhouse project amounted to an unconstitutional taking of his prop-
erty without just compensation and violated his due process and equal
protection rights. The district court granted summary judgment to the
defendants on the vagueness challenge to the zoning ordinance and
dismissed Henry’s other claims on the grounds of Burford abstention.
In reviewing that decision in an earlier appeal, we affirmed the ruling
that the ordinance was not unconstitutionally vague, vacated the dis-
missal of the remaining claims, and remanded for further proceedings.
The district court then granted summary judgment to the defendants
on these remaining claims, and Henry appeals for a second time. He
is joined by the Pacific Legal Foundation as amicus curiae. We now
affirm the district court’s grant of judgment to the defendants on the
substantive due process claim and vacate the judgment on the takings
claim because the latter claim is not ripe for review.

                                  I.

   Aubrey Henry is part owner of a 13.69-acre tract of land located
in Jefferson County, West Virginia. Henry owned and operated a res-
taurant on this property beginning in 1979, when he took over the res-
taurant from his parents. In 1988 Jefferson County enacted a new
Zoning Development and Review Ordinance which zoned the prop-
erty as a Rural-Agricultural District. Henry’s restaurant was a non-
conforming use under the new ordinance, but he was permitted to
continue operating the restaurant under a grandfather clause. In 1993
the restaurant burned to the ground. Henry discussed rebuilding the
restaurant with Paul Raco, the Director of the Jefferson County Plan-
ning and Zoning Commission. According to Henry, Raco told him
that he should not bother applying for a permit to rebuild the restau-
rant because he would not be able to satisfy a number of necessary
4           HENRY v. JEFFERSON COUNTY PLANNING COMM’N
conditions. Instead, Raco allegedly told Henry to submit an alterna-
tive plan to build townhouses. If this was approved, then supposedly
it would be easier for Henry to get approval at a later time to rebuild
his restaurant.

   Allegedly in reliance on this advice, Henry in early 1994 sought a
conditional use permit for a 76-unit townhouse project on 9.8 acres
of the property. Because the land had reverted to agricultural use after
the restaurant burned down, Henry’s proposed use was not allowed
as of right. Henry properly sought a conditional use permit under Jef-
ferson County’s Development Review System. After processing
Henry’s proposal according to this system, the Commission unani-
mously voted to deny the permit. The Commission denied the permit
based on the project’s high housing unit density (which was much
greater than the density in the surrounding area), its effect on the adja-
cent park, and its general incompatibility with the neighborhood.

   Pursuant to state law procedure, Henry appealed this decision to
the Jefferson County Board of Zoning Appeals. The Board affirmed
the Commission’s findings and decision. Henry then challenged the
Board’s decision through the West Virginia state court system. He
sought certiorari in state circuit court, which affirmed the Commis-
sion’s decision. Henry then sought review in the Supreme Court of
Appeals of West Virginia, which remanded the case to the Board with
instructions that the Board support its decision with more thorough
fact-finding. The Board gave Henry the opportunity to present more
evidence, but Henry requested instead that the Board expedite the
decision without another hearing. The Board then issued a six-page
decision affirming the denial. The Board concluded that the Zoning
Commission had properly followed the public hearing procedures set
out in the ordinance. It also concluded that the proposed development,
with a density of 7.75 housing units per acre, was incompatible with
the relative density of the surrounding area, which consisted mainly
of one single family home per two acres or more of land. The Board
found the proposed development incompatible with the purpose of the
Rural-Agricultural District, which was intended "to provide a location
for low density single family residential development in conjunction
with providing continued farming activities" and "to preserve the rural
character of the County and the agricultural community." Jefferson
County, W.Va., Zoning and Development Review Ordinance § 5.7
            HENRY v. JEFFERSON COUNTY PLANNING COMM’N                   5
(1988). Henry again sought certiorari in the circuit court, which
affirmed the Board’s decision. The Supreme Court of Appeals of
West Virginia denied review. Throughout this state review process,
Henry challenged the legal and factual sufficiency of the Commis-
sion’s decision. At no time during this process did Henry seek com-
pensation for the denial of his permit. See, e.g., Henry v. Jefferson
County Planning Comm’n, 496 S.E.2d 239 (W.Va. 1997).

   Henry also brought suit in federal district court, challenging the
constitutionality of the ordinance, alleging an unconstitutional taking
of his property, and claiming due process and equal protection viola-
tions. As noted above, we affirmed the district court’s ruling that the
ordinance was not unconstitutionally vague in a prior appeal, but we
remanded Henry’s remaining claims for further proceedings. On
remand, the district court granted summary judgment to the defen-
dants on these claims. Henry now appeals the district court’s ruling
on his takings and substantive due process claims, but he does not
appeal the court’s ruling on the equal protection claim.

                                   II.

   We first address Henry’s takings claim. The Takings Clause of the
Fifth Amendment to the Constitution, applicable to the states through
the Fourteenth Amendment, provides that "private property [shall not]
be taken for public use, without just compensation." U.S. Const.
amend. V. As the Supreme Court has explained, "[t]he Fifth Amend-
ment does not proscribe the taking of property; it proscribes taking
without just compensation." Williamson County Regional Planning
Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 194
(1985). Thus, the mere taking of a landowner’s property does not vio-
late the Fifth Amendment; the violation occurs only when the prop-
erty is taken and the landowner has been denied just compensation.
That is to say, "the property owner cannot claim a violation of the Just
Compensation Clause until [he] has used [State compensation] proce-
dure[s] and been denied just compensation." Id. at 195. So long as the
state provides a "reasonable, certain and adequate provision for
obtaining compensation," a landowner’s takings claim is not ripe until
he has exhausted state compensation procedures.1 Id. (quotations
omitted).
  1
   With regard to exhaustion in takings claims, it is important to distin-
guish between Williamson’s "final decision" requirement and its "just
6           HENRY v. JEFFERSON COUNTY PLANNING COMM’N
   Here, Henry has not pursued state compensation procedures, nor
does he present evidence that there is no such procedure available. If
the West Virginia courts had made clear that no state process exists
for seeking compensation in these circumstances, then Henry could
plausibly claim that he had been denied just compensation. Likewise,
if a state compensation process existed but the West Virginia courts
had made clear that, for example, a landowner is never entitled to
compensation for zoning restrictions on property, then Henry could
claim that he had been denied just compensation without having to
pursue a clearly meritless claim. See Naegele Outdoor Advertising,
Inc. v. City of Durham, 803 F.Supp. 1068, 1072-73 (M.D.N.C. 1992)
(takings claim ripe because prior North Carolina court decisions made
clear that no compensation was due when a challenged ordinance con-
tained an amortization period), aff’d, 19 F.3d 11 (4th Cir. 1994) (per
curiam), cert. denied, 513 U.S. 928. While it appears that West Vir-

compensation" requirement. A takings claim is "not ripe until the govern-
ment entity charged with implementing the [challenged] regulations has
reached a final decision regarding the application of the regulations to
the property at issue." Williamson, 473 U.S. at 186. However, once a
final decision has been reached by the initial decisionmaker, a landowner
need not exhaust state procedures for review of that final decision in
order to ripen a takings claim. Id. at 192-94. Here, Henry has in fact
exhausted state procedures for reviewing the Commission’s denial of his
conditional use permit. While he did not need to pursue such review in
order to satisfy Williamson’s "final decision" requirement, we do not
suggest that pursuing state review is a pointless or unadvisable course of
action. Indeed, in this case the Supreme Court of Appeals of West Vir-
ginia required the Board of Zoning Appeals to justify its conclusions
with more extensive fact-finding, even though the permit denial was ulti-
mately upheld. State review provides a valuable check on potentially
arbitrary local decisionmaking and is often a better course of action than
immediately seeking federal review. We simply note that exhausting
state procedures to review a "final decision" is not required to ripen a
federal takings claim. In contrast, a landowner must exhaust state com-
pensation requirements in order to demonstrate that a Fifth Amendment
violation has occurred. As stated above, while Henry did exhaust state
procedures to review the Commission’s decision, he did not seek com-
pensation during that process. Cf. McFillan v. Berkeley County Planning
Comm’n, 438 S.E.2d 801 (W.Va. 1993) (considering takings claim raised
during the course of review of Commission’s decision).
             HENRY v. JEFFERSON COUNTY PLANNING COMM’N                     7
ginia does not have a statutory inverse condemnation procedure, a
West Virginia landowner, at least in some circumstances, may seek
compensation for damage to property by bringing a mandamus action
against a state official to compel that official to institute statutory
eminent domain proceedings. See Shaffer v. West Virginia Dep’t of
Transp., 542 S.E.2d 836 (W.Va. 2000); Carter v. City of Bluefield, 54
S.E.2d 747 (W.Va. 1949). We do not speculate as to whether manda-
mus would be available in this particular case; it is enough to observe
that the West Virginia courts have generally recognized this compen-
sation procedure in the past and that Henry has not demonstrated that
the procedure is unavailable in this case. Accordingly, Henry has not
established that his property has been taken without just compensa-
tion. Because the Fifth Amendment only prohibits the taking of prop-
erty without just compensation, Henry’s takings claim is not ripe and
must be dismissed without prejudice.2
  2
    Commentators have criticized the use of the term "ripeness" to
describe the "just compensation" requirement, stating that "the ripeness
label gives the erroneous impression that litigation in state court will
ripen a federal takings claim. In reality . . . preclusion and the Rooker-
Feldman doctrine often will bar federal court relitigation." Douglas T.
Kendall et al., Choice of Forum and Finality Ripeness: The Unappre-
ciated Hot Topics in Regulatory Takings Cases, 33 Urb. Law. 405, 409
(2001). See also Julian C. Juergensmeyer & Thomas E. Roberts, Land
Use Planning and Control Law 450-51 (1998). The point is well taken.
A determination that a claim is unripe often suggests that a litigant will
eventually be able to return to federal court for a decision on the merits.
Litigants should be aware that in the context of takings jurisprudence, a
dismissal for ripeness does not imply that the litigant will eventually
have the opportunity to litigate the merits of their takings claim in federal
court. Often, by the time a federal takings claim is ripe, it is also pre-
cluded from being litigated. See Dodd v. Hood River County, 136 F.3d
1219 (9th Cir. 1998); Thomas E. Roberts, Ripeness and Forum Selection
in Fifth Amendment Takings Litigation, 11 J. Land Use & Envtl. L. 37,
72 (1995) ("Ironically, an unripe suit is barred at the moment it comes
into existence. Like a tomato that suffers vine rot, it goes from being
green to mushy red overnight."). Nevertheless, the Supreme Court has
referred to the "just compensation" predicate as a ripeness requirement,
see Williamson, 473 U.S. at 194, and we think the term, despite its poten-
tially misleading connotations, most accurately explains why Henry’s
claim cannot be considered on the merits at this stage. State court litiga-
tion does ripen the federal claim; any subsequent bar to federal court liti-
gation would not be a ripeness bar, but a claim or issue preclusion bar.
8           HENRY v. JEFFERSON COUNTY PLANNING COMM’N
                                   III.

   Henry also claims that the Commission’s denial of his conditional
use permit constituted a violation of his substantive due process
rights. To establish this, Henry must demonstrate: (1) that he had a
property interest in his proposed project; (2) that the state deprived
him of this interest; and (3) "that the state’s action falls so far beyond
the outer limits of legitimate governmental action that no process
could cure the deficiency." Sylvia Development Corp. v. Calvert
County, 48 F.3d 810, 827 (4th Cir. 1995).

   In this case, Henry has failed to establish that he possesses a prop-
erty interest in the conditional use permit to build the townhouses. We
have made clear that when a "land-use regulation[ ] grant[s] discretion
to [government] officials with regard to approval of the proposed
development, [a landowner] possess[es] no property interest protected
by the Fourteenth Amendment." Gardner v. City of Baltimore, 969
F.2d 63, 64 (4th Cir. 1992). If local regulations make it clear that a
landowner is entitled to a permit upon application or upon the meet-
ing of certain conditions, then the landowner has a property interest
in that permit. See Scott v. Greenville County, 716 F.2d 1409, 1418
(4th Cir. 1983) ("Under South Carolina law settled well before he
applied for the building permit, Scott enjoyed an entitlement to the
issuance of a permit upon presentation of an application and plans
showing a use expressly permitted under the then-current zoning ordi-
nance."). On the other hand, "[a]ny significant discretion conferred
upon the local agency [to issue or deny the permit] defeats the claim
of a property interest." Gardner, 969 F.2d at 68. See also Sylvia, 48
F.3d at 826-27.

   Here, it is clear that Henry is not entitled as a matter of right to a
permit for his high-density townhouse project. Rather, the issuance of
this permit is within the discretion of the Commission, guided by the
process and factors enumerated in the zoning ordinance. Accordingly,
Henry has no protected property interest in this permit, and his sub-
stantive due process claim has no merit. Henry also presses a substan-
tive due process claim with regard to his restaurant. However, Henry
has yet to apply for or be denied a permit to rebuild his restaurant.
Even if, as Henry alleges, Raco told him that he would not be able
to obtain the restaurant permit, Henry must at least present the plan
            HENRY v. JEFFERSON COUNTY PLANNING COMM’N                  9
to the Commission and be turned down before he can claim that he
was deprived of the opportunity to rebuild. Thus, aside from whether
Henry even possesses a protected property interest in rebuilding the
restaurant, he has not yet been deprived of any such interest because
Jefferson County has not prohibited him from rebuilding. As noted
above, Henry’s substantive due process rights have not been violated
until, at the very least, he has been deprived of his property. Sylvia,
48 F.3d at 827.

   Henry also challenges the district court’s grant of qualified immu-
nity to the individual defendants. Normally, the question of qualified
immunity arises only when some constitutional violation has
occurred. Here, the court reached the question of qualified immunity
because it disposed of the claims against the individual defendants
two months before it determined on the merits that Henry’s substan-
tive due process right had not been violated. At this stage of the pro-
ceedings, because we agree that no due process violation has
occurred, there is no liability either individually or officially and the
question of immunity does not arise.

                                  IV.

    In sum, Henry’s takings claim is not ripe because he has not sought
just compensation from the State of West Virginia and been denied
it. Thus, we vacate the district court’s grant of summary judgment to
the defendants on Henry’s takings claim and remand with instructions
to dismiss the claim without prejudice. We affirm the district court’s
grant of summary judgment to the defendants on Henry’s substantive
due process claim.

                                    AFFIRMED IN PART, VACATED
                                       IN PART, AND REMANDED
