REVISED, JANUARY 24, 2001
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-51013
VULCAN MATERIALS COMPANY,
Plaintiff-Appellant,
versus
THE CITY OF TEHUACANA,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Texas
January 23, 2001
Before GARWOOD, HIGGINBOTHAM and STEWART, Circuit Judges.
GARWOOD, Circuit Judge:
Plaintiff-Appellant Vulcan Materials Company (“Vulcan”), a
New Jersey corporation with its principal place of business in
Birmingham, Alabama, brought this action against Defendant-
Appellee the City of Tehuacana (“the City”), a municipality in
Limestone County, Texas, alleging that a 1998 ordinance passed by
the City Council forbidding certain quarrying or mining
activities violates Vulcan’s rights under both the United States
and Texas Constitutions. Vulcan appeals the district court’s
refusal to exercise jurisdiction over its state constitutional
and federal declaratory judgment claims as well as the dismissal
of its federal substantive due process and equal protection
claims. We affirm in part and reverse and remand in part.
Facts and Proceedings Below
In October 1997, Vulcan leased the single limestone quarry
that is the subject of this action. The quarry consists of
mining areas, reserves, and processing facilities. Part of the
quarry lies within the Tehuacana city limits. Vulcan claims it
made a substantial investment in acquiring the right to operate
the quarry, reasonably expecting to mine the entire quarry,
including that part within the City limits. On December 8, 1998,
the City adopted an ordinance1 that prohibits Vulcan from
conducting certain mining or quarrying operations within the City
1
Ordinance No. 12898 states, in relevant part:
Section I. It shall be unlawful for any person, company,
entity, or corporation to engage in the following activities
within the city limits of the City of Tehuacana, Limestone
County, Texas:
A. the quarrying or mining of rock utilizing blasting
operations or use of explosives, or surface mining;
B. the use of explosives for the purpose of blasting rock,
or in connection with mining or quarrying operations;
C. the use of heavy equipment in connection with quarrying
or mining operations within the city limits of
Tehuacana, Limestone County, Texas;
D. the use of explosives for any commercial or industrial
activity or for any other reason except the use of
fireworks in connection with celebrations as may be
allowed by law from time to time.
2
limits.
On December 15, 1998, Vulcan brought this action against the
City, seeking a declaratory judgment pursuant to 28 U.S.C. §
2201, injunctive relief pursuant to 28 U.S.C. § 2202 and 42
U.S.C. § 1983, and damages pursuant to 42 U.S.C. § 1983.
Specifically, Vulcan asserted a federal takings claim, a state
inverse-condemnation (takings) claim, and state and federal
substantive due process, procedural due process, and equal
protection claims. Vulcan also sought a declaratory judgment
that a 1981 ordinance of the City forbidding the mining of
minerals does not apply to its activities. Jurisdiction over the
federal claims was predicated upon 28 U.S.C. § 1331, while
jurisdiction over the state claims was based upon 28 U.S.C. §
1367 and, alternatively, 28 U.S.C. § 1332.
The City filed a motion to dismiss Vulcan’s complaint for
want of subject matter jurisdiction and for failure to state a
claim upon which relief can be granted under Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6). On August 20, 1999, the
district court dismissed Vulcan’s federal takings claim as not
ripe for adjudication under Rule 12(b)(1) and Vulcan’s remaining
federal constitutional claims under Rule 12(b)(6). The district
court also declined to exercise jurisdiction over Vulcan’s state
constitutional claims and its federal declaratory judgment claim
regarding the 1981 ordinance.
3
Vulcan now appeals the district court’s refusal to exercise
jurisdiction over its state constitutional and federal
declaratory judgment claims as well as the dismissal of its
federal substantive due process and equal protection claims.
Vulcan does not appeal the dismissal of its federal takings claim
or its federal procedural due process claim.
Discussion
I. Inverse-Condemnation
The district court refused to exercise diversity
jurisdiction over Vulcan’s Texas law inverse-condemnation claim,
reasoning that our decision in Samaad v. City of Dallas, 940 F.2d
925 (5th Cir. 1991) prevents the exercise of diversity
jurisdiction over state takings claims. In Samaad jurisdiction
was based entirely on sections 1331 and 1367; no diversity
jurisdiction was present or asserted.
The Samaad plaintiffs claimed that grand prix automobile
racing in a public park owned by the City of Dallas was so
disruptive that it effected a taking of their property without
just compensation. Id. at 928. The Samaad district court
granted defendants’ motion for summary judgment as to the federal
takings claim and dismissed the state law inverse-condemnation
claim, asserted under section 1367, without prejudice. Id. The
Samaad plaintiffs appealed the summary judgment order but
apparently did not appeal the dismissal of the state takings
4
claim. Id. We held that the district court lacked jurisdiction
to hear the federal takings claim because that claim was not ripe
for adjudication. Id. at 934-35.
The Supreme Court established in Williamson County Reg’l
Planning Comm’n v. Hamilton Bank of Johnson City, 105 S.Ct. 3108,
3119 (1985), that a federal takings claim does not ripen until
just compensation is denied. Therefore, for a federal takings
claim to become ripe, the plaintiff is required to seek
compensation through the procedures the state has provided unless
those procedures are unavailable or inadequate. Id. at 3120-22.
The Samaad plaintiffs argued that this requirement could be
satisfied by simultaneously bringing federal and state law
takings claims, with the district court resolving the state claim
first. Samaad, 940 F.2d at 934. We held that: 1) Williamson
County could not be satisfied by simultaneously bringing federal
and state takings claims; and 2) there could be no section 1367
supplemental jurisdiction over the state law claim since the
federal claim that provided the sole basis of supplemental
jurisdiction was not ripe. Id.
We do not think Samaad prevents district courts from
exercising diversity jurisdiction over state takings claims.
Samaad was not a diversity case. Samaad apparently involved an
appeal only of the district court’s disposition of the federal
takings claim. In contrast, Vulcan appeals only the dismissal of
5
its state law inverse-condemnation claim. Samaad only stands for
the proposition that the Williamson County ripeness requirement
for a federal takings claim is not satisfied by simultaneously
bringing a state law takings claim. Vulcan’s position on appeal
is not that it is entitled to ripen a federal takings claim by
simultaneously bringing a state law takings claim. It does not
appeal the dismissal of the federal takings claim. Vulcan only
asks that the same rules of diversity jurisdiction apply to its
state law inverse-condemnation claim as apply to any other state
law claim a plaintiff might bring in diversity.2 If diversity is
lacking, the second Samaad reason precludes the district court
2
In Ankenbrandt v. Richards, 112 S.Ct. 2206 (1992), the
Supreme Court expounded upon the domestic relations exception to
diversity jurisdiction. The exception is a narrow one, generally
only prohibiting federal courts from issuing divorce, alimony, or
child custody decrees. Id. at 2215. The bases for the
continuing endurance of the domestic relations exception are: 1)
Congress’s apparent acceptance of it for over 100 years following
the exception’s original pronouncement in Barber v. Barber, 62
U.S. 582 (1859); coupled with 2) Congress’s failure to mention
the exception in 28 U.S.C. § 1332. Ankenbrandt, 112 S.Ct. at
2213. The Court reasoned that § 1332's “all civil actions”
language was not intended to embrace cases wherein a federal
court would have to issue a divorce, alimony, or child custody
decree. Id.
In contrast, there is no long tradition of excepting state
takings claims from diversity jurisdiction. Thus, no similar
argument can be made that Congress intended to exclude such
causes of action when it enacted § 1332. Ankenbrandt makes clear
that exceptions to § 1332 are not to be carelessly implied.
Surely it is most likely that if there were any other exceptions
to section 1332, Ankenbrandt would have discussed them. Recall
that Williamson County was decided seven years prior to
Ankenbrandt. There is simply no authority for the novel
proposition that “all civil actions” does not include state law
takings claims.
6
from hearing the state takings claim–but that is not the case
here for diversity is present. We hold that a plaintiff may
bring a state law takings claim in federal district court if the
traditional requirements for diversity jurisdiction are
fulfilled.
This holding is consistent with Searl v. School-Dist. No. 2,
in Lake Co., Colorado, 8 S.Ct. 460 (1888), in which the defendant
property owner was allowed to remove after a school district sued
under Colorado law to condemn his property for public use. We
also recognize our agreement with the Tenth Circuit, which has
held that a plaintiff may bring a state law takings claim in
diversity, though apparently may not use that claim to ripen a
federal takings claim brought in the same proceeding. SK Finance
SA v. La Plata County, Board of County Commissioners, 126 F.3d
1272, 1276 (10th Cir. 1997). In reaching this conclusion, the
Tenth Circuit misconstrued our decision in Samaad as requiring
that state law takings claims be brought only in state court. As
we have explained, the first reason in Samaad only forbids a
plaintiff from ripening a federal takings claim by simultaneously
bringing a state takings claim. We so note only because the
Tenth Circuit’s misconstruction was relied upon by the district
court in refusing to exercise jurisdiction over Vulcan’s Texas
law inverse-condemnation claim.
The City argues that to allow a district court to hear a
7
state takings claim in diversity is to risk the danger of a
district court reviewing its own decision regarding the state
claim to determine if that decision denied the plaintiff just
compensation. We think that this would almost never be a
problem. Assume that, to prevent res judicata from impairing its
rights, a plaintiff in diversity pleads both state and federal
law takings claims. The district court, properly following
Samaad, dismisses the federal takings claim. Then, following our
holding today, proceeds to try the state law takings claim. If
the plaintiff wins, no difficulty is presented because, under the
doctrine of collateral estoppel, the issue of damages may not be
relitigated. If the state remedy is inadequate, Williamson
County and Samaad allow the plaintiff to bring the federal law
takings claim without first bringing the state claim. If the
plaintiff loses, the doctrine of collateral estoppel prevents
relitigation of any issues determined in the first proceeding.
It would only be in the rarest of cases wherein the denial of
compensation was due to some issue peculiar to state law that
there could ever be a second trial.3 This faint possibility is
3
We are not unmindful of our dictum in Samaad that “[t]he
local entity from which a plaintiff seeks recovery should be the
one to deny just compensation.” Samaad, 940 F.2d at 934. We
think the Samaad panel’s first reason for finding the Williamson
County ripeness requirement unmet rested wholly on the fact that,
at the time the federal claim was pleaded, compensation under the
relevant state law scheme had not been denied. Nor are we
disturbed by similar dictum in John Corp. v. City of Houston, 214
F.3d 573, 581 & n.15 (5th Cir. 2000), which involved the exact
8
not enough to justify departure from the normal rules governing
federal diversity jurisdiction over state law claims. See supra
note 2.
Finally, it appears that under Texas law Vulcan’s inverse-
condemnation claim is ripe for adjudication. Trail Enterprises,
Inc. v. City of Houston, 957 S.W.2d 625, 631-32 (1997).4
Accordingly, we find that the district court erred when it
dismissed Vulcan’s state law inverse-condemnation claim.
II. Federal Substantive Due Process
Vulcan’s complaint alleges the City violated its rights
ripeness question presented in Samaad. Nothing in Williamson
County requires that just compensation from the state be sought
in state court for the federal claim to ripen upon resolution of
the state claim. Thus, leaving open the possibility of a second
trial in an extremely rare case does not run afoul of any holding
in Samaad.
4
We do not deny the theoretical abstract possibility that a
state law takings claim, though “ripe” for state law purposes,
might conceivably nevertheless actually be so unripe, speculative
and contingent as not to present an Article III case or
controversy. Such a case would presumably not be within the
district court’s jurisdiction, under either § 1332 or § 1367.
All we are holding is that the mere fact that a state law takings
claim has not been pursued to final judgment in state court does
not, of itself, necessarily always render it “unripe” for
purposes of federal court jurisdiction under § 1332. Here there
is nothing to suggest a lack of actual ripeness in the state law
takings claim other than the fact that it has not been pursued in
state court. It is not claimed, nor does the record suggest,
that the 1998 ordinance was not final and effective or that there
is any provision for suspending or delaying it or for any
variance from or exception to it (or that there is any special or
particular or administrative provision for compensation for harm
caused by the ordinance; or that there is any provision at all
for such compensation other than any generally available pursuant
to any inverse condemnation suit under the Texas constitution).
9
under the Due Process Clause of the Fourteenth Amendment in that
the 1998 ordinance is arbitrary and unreasonable and that the
means employed by the ordinance lack a real and substantial
relation to the goal the City seeks to achieve. The district
court dismissed this claim pursuant to Federal Rule of Civil
Procedure 12(b)(6). This court reviews such dismissals de novo.
Fernandez-Montes v. Allied Pilots Association, 987 F2d. 278, 284
(5th Cir. 1993). When deciding a motion to dismiss under Rule
12(b)(6), the district court must accept the plaintiff’s factual
allegations as true and resolve doubts as to the sufficiency of
the claim in the plaintiff’s favor. Id. The complaint should
not be dismissed unless it appears “beyond a doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.” Id. at 284-85 (quoting Conley v.
Gibson, 78 S.Ct 99 (1957)) (emphasis in original).
Vulcan argues that its pleadings properly allege a due
process violation under Shelton v. City of College Station, 780
F.2d 475 (5th Cir. 1986). While it is true that Vulcan’s
complaint faithfully recites the Shelton standard, it is equally
true that it does no more than that. When a plaintiff claims
that a city ordinance banning the use of explosives inside the
city limits is arbitrary and unreasonable, having no substantial
relation to the city’s legitimate objectives, more is required
from the complaint than “legal conclusions masquerading as
10
factual conclusions.” Fernandez-Montes, 987 F.2d at 284. Here,
the complaint did not contain a short and plain statement of the
claim, only legal conclusions of such generality as to fail to
give fair notice. Vulcan could have sought leave to amend its
complaint, but chose not to.
Vulcan maintains that Russell v. Harrison, 736 F.2d 283 (5th
Cir. 1984), supports the viability of its substantive due process
claim. Russell involved a different type of pleading problem
than exists here. The Russell plaintiffs failed to include the
magic words “arbitrary and capricious” in their complaint. Id.
at 288. Nevertheless, we held the complaint sufficient because
the underlying facts5 pleaded in the complaint were adequate to
provide the defendants “fair notice of what the plaintiff’s claim
is and the grounds upon which it rests.” Russell, 736 F.2d at
288 (quoting Conley, 78 S.Ct. at 103). Vulcan has not given the
City proper notice of its claim as required by Rule 8(a)(2) Fed.
R. Civ. Proc. For example, Vulcan advances that the ordinance
bears no real and substantial relation to its objectives, yet the
complaint does not suggest how this is so or allege any facts
that tend to support this gratuitous conclusion of law. See,
5
The plaintiffs alleged that, after declaring a financial
emergency, the defendant Board of Trustees “terminated the
contracts of eighty-eight employees without regard to any uniform
policy.” Russell, 736 F.2d at 288.
11
e.g., Wright & Miller, Federal Practice and Procedure: Civil 2d
§ 1357 at 319-20 (“. . . the court will not accept conclusory
allegations concerning the legal effect of the events plaintiff
has set out if these allegations do not reasonably follow from
his description of what happened . . .”). Thus, Vulcan asks for
much more than Russell pleading leniency.
Finally, Vulcan contends that it is entitled to discovery to
uncover evidence revealing the City’s motivation for enacting the
ordinance. Essential to this position is that the enactment of
the ordinance be reviewed as an adjudicative, rather than a
legislative, decision. See Shelton v. City of College Station,
780 F.2d 475, 479-84 (5th Cir. 1986). Shelton involved the
denial of a variance from a zoning ordinance by a board appointed
by the city’s elected lawmakers. Id. We reviewed this decision
under the legislative model. Id. Clearly, then, an ordinance
approved by the Tehuacana City Council that applies to all
entities acting within the city limits must also be reviewed as a
legislative act. This means that courts are free to hypothesize
a rational basis for the action.6 That the ordinance states as a
6
Vulcan does not allege, or allege any facts tending to
suggest, any particular motive on the part of the City Council.
There is no allegation of any facially unconstitutional motive.
We also note the cases Vulcan cites for the proposition that
a motive inquiry should be part of rational basis review do not
concern legislative decisions, but rather administrative actions
enforcing existing laws against a specific landowner. See
Acierno v. New Castle County, 2000 WL 718346, *4 (D.Del.)
(discussing the inapplicability of Sameric Corporation of
12
reason for its enactment the intention of a rock quarry
(undoubtedly Vulcan) to begin blasting operations does not call
into question its legislative character. The ordinance applies
to any party who would employ the prohibited means to quarry
within the city limits, and that Vulcan’s impending quarrying may
have provided the entire impetus behind the ordinance does not
transform it into an adjudicative decision. Thus, Vulcan’s
federal substantive due process claim was properly dismissed.
III. Federal Equal Protection
Vulcan’s complaint also alleges that, in enacting the
ordinance, the City arbitrarily singled out its activities in
violation of the Equal Protection Clause of the Fourteenth
Amendment. The district court dismissed this claim pursuant to
Federal Rule of Civil Procedure 12(b)(6).
It is well-established that, as a general matter, the Equal
Protection Clause of the Fourteenth Amendment requires that all
similarly situated persons be treated substantially alike. Rolf
v. City of San Antonio, 77 F.3d 823, 828 (5th Cir. 1996). Unless
the alleged classification is inherently suspect or affects
fundamental rights, rational basis review is appropriate.
Jackson Court Condominiums v. City of New Orleans, 874 F.2d 1070,
Delaware, Inc. v. City of Philadelphia, 142 F.3d 582 (3rd Cir.
1998), DeBlasio v. Zoning Bd of Adjustment for the Township of
West Amwell, 53 F.3d 592 (3rd Cir. 1995), and Midnight Sessions,
Ltd. v. City of Philadelphia, 945 F.2d 667 (3rd Cir. 1991), to
legislative decisions).
13
1079 (5th Cir. 1989). Vulcan argues that the ordinance does
classify between similarly situated parties–those who utilize
heavy equipment for quarrying operations (covered by the
ordinance) and those who employ heavy equipment for other
purposes (not covered by the ordinance). Vulcan analogizes to
Qutb v. Strauss, 11 F.3d 488, 492 (5th Cir. 1993), wherein a
curfew ordinance was found to distinguish between two relevant
groups–those age seventeen or older and those under age
seventeen.
Vulcan is correct that the ordinance only prohibits the
utilization of heavy equipment in connection with quarrying or
mining. However, we believe a more reasonable characterization
of the ordinance is that it bans only that quarrying involving
the use of blasting, explosives, surface mining, or heavy
equipment. The focus of the ordinance is to proscribe only those
aspects of quarrying that are likely to implicate the public’s
health, safety, morals, or general welfare. The ordinance
applies to all actors within the city limits, not just Vulcan.
That everyone is forbidden to engage in certain activities is not
the same as treating similarly situated actors differently. Even
if the ordinance could be construed as classifying between those
who use heavy equipment for quarrying and those who use heavy
equipment for other purposes, Vulcan’s complaint still would not
have stated an equal protection claim. It is well-settled that
14
“as long as a classification is rationally related to a
legitimate state objective, a legislature is allowed to attack a
perceived problem piecemeal.” Jackson Court Condominiums, 874
F.2d at 1079. As discussed in Part II, supra, Vulcan has failed
to properly plead any facts tending to suggest that the ordinance
is not rationally related to a legitimate state interest.7 Thus,
Vulcan’s federal equal protection claim was properly dismissed.
IV. Remaining Claims
After dismissing most of Vulcan’s federal claims and its
state law inverse-condemnation claim, the district court
summarily dismissed Vulcan’s 1981 ordinance declaratory judgment
claim as well as all of Vulcan’s remaining state law claims. The
only stated reason for these dismissals was that the claims
involved “a determination of state law and/or causes of action
which the Court declines to review as there are no remaining
7
We also note that Vulcan appears to (properly) concede that
the purposes listed in the preamble of the ordinance (avoiding a
detrimental impact on the lives of citizens from the vibration &
noise of blasting, noise from heavy equipment, injury or death
from overfly of rock, etc.) are legitimate and consistent with
the public’s health, safety, morals, or general welfare. But
Vulcan asserts that, after recognizing the legitimacy of the
City’s goals, the district court failed to consider the extent to
which the 1998 ordinance advances them. Notwithstanding the
district court’s silence on this issue, we think it is
sufficiently obvious that the ordinance’s prohibition of mining
or quarrying activities involving blasting, explosives, surface
mining, or the use of heavy equipment within the City limits is
rationally related to the City’s stated objectives. As discussed
in Part II, supra, Vulcan failed to plead any facts that tend to
diminish the obviousness of this rational relationship.
15
federal claims.” It is not clear if the district court was
overlooking the section 1332 allegations and the obvious
diversity of the parties or if it believed that its refusal to
hear Vulcan’s claims was somehow justified by reasons not
appearing in the opinion.
A. State Law Claims
The district court abused its discretion when it dismissed
Vulcan’s state law substantive due process, procedural due
process, and equal protection claims merely because they involved
state law causes of action. The purpose of 28 U.S.C. § 1332 is
to allow federal courts to resolve such state law claims when, as
here, the requirements of 28 U.S.C. § 1332 are met. Unless there
is a legitimate reason to abstain, federal courts “cannot
abdicate their authority or duty in any case in favor of another
jurisdiction.” New Orleans Public Service, Inc. v. Council of
the City of New Orleans, 109 S.Ct. 2506, 2513 (1989) (quoting
Chicot County v. Sherwood, 13 S.Ct. 695 (1893)); see also Charles
Quackenbush, California Insurance Comm’r. v. Allstate Ins. Co.,
116 S.Ct. 1712, 1720-21, 1727 (1996). There are four general
categories of abstention:
“(1) Pullman-type abstention, to avoid decision of a
federal constitutional question where the case may be
disposed of on questions of state law; (2) Burford-type
abstention, to avoid needless conflict with the
administration by a state of its own affairs; (3)
abstention to leave to the states the resolution of
unsettled questions of state law; and (4) abstention to
avoid duplicative litigation, now frequently referred to
16
as Colorado River-type abstention.”
Wright, Miller & Cooper, Federal Practice and Procedure:
Jurisdiction 2d § 4241. We elaborated on the Burford and
Colorado River abstention doctrines in St. Paul Ins. Co. v.
Trejo, 39 F.3d 585 (5th Cir. 1994). As in Trejo, the court below
erred by refusing to hear Vulcan’s claims without explaining why
abstention was required.
B. 1981 Ordinance Declaratory Judgment Claim
28 U.S.C. § 2201 provides, in relevant part: “In a case of
actual controversy within its jurisdiction . . . any court of the
United States . . . may declare the rights and other legal
relations of any interested party seeking such declaration . . .
.” The word “may” gives the district court more discretion to
refuse to hear a claim for declaratory judgment than the claims
addressed in Part IV.A, supra. Trejo, 39 F.3d at 590 & n.6, 7.
However, Trejo clearly established that “the district court
should not dismiss . . . [a] declaratory judgment suit simply
because it does not involve a question of federal law.” Id. at
591 n.10. This appears to be exactly what the court below did.
Trejo confirmed and restated the test for the discretionary
dismissal of declaratory judgment actions set forth in Travelers
Ins. Co. v. Louisiana Farm Bureau Fed’n, 996 F.2d 774 (5th Cir.
1993). The seven Trejo factors that must be considered on the
record before a discretionary, nonmerits dismissal of a
17
declaratory judgment action occurs are:
“[1)] whether there is a pending state action in which
all of the matters in controversy may be fully litigated,
2) whether the plaintiff filed suit in anticipation of a
lawsuit filed by the defendant, 3) whether the plaintiff
engaged in forum shopping in bringing the suit, 4)
whether possible inequities in allowing the declaratory
plaintiff to gain precedence in time or to change forums
exist, 5) whether the federal court is a convenient forum
for the parties and witnesses, . . . 6) whether retaining
the lawsuit in federal court would serve the purposes of
judicial economy, . . . [and 7)] whether the federal
court is being called on to construe a state judicial
decree involving the same parties and entered by the
court before whom the parallel state suit between the
same parties is pending.”
Trejo, 39 F.3d at 590-91. Trejo and Travelers held that “unless
the district court addresses and balances the purposes of the
Declaratory Judgment Act and the factors relevant to the
abstention doctrine on the record, it abuses its discretion.”
Trejo, 39 F.3d at 590 (quoting Travelers, 996 F.2d at 778).
Here, as in Travelers and Trejo, the district court did not
attempt to provide “even a cursory analysis of the pertinent
facts and law.” Travelers, 996 F.2d at 778. Thus, as in those
cases, the dismissal of Vulcan’s declaratory judgment action was
improper.
Conclusion
We AFFIRM the district court’s dismissal of Vulcan’s federal
substantive due process and federal equal protection claims for
failure to state a claim upon which relief can be granted under
18
Federal Rule of Procedure 12(b)(6).8 We VACATE the district
court’s dismissal of Vulcan’s state constitutional claims and its
federal declaratory judgment claim regarding the 1981 ordinance.
We REMAND for proceedings consistent with this opinion.
AFFIRMED in part; REVERSED and REMANDED in part.
8
We likewise affirm the dismissal of Vulcan’s federal
takings claim and its federal procedural due process claim,
without reaching the merits of the dismissal of those claims,
because Vulcan has not on this appeal challenged the dismissal of
either of those claims.
19